Rejecting Drug Company Meddling

A drug manufacturer, Fresenius Kabi, tried to stop today's Nebraska execution by filing suit in federal court.  The District Judge Richard Kopf rejected the attempt Friday, and a panel of the Eighth Circuit, Judges Wollman, Gruender, and Stras, affirmed yesterday.  The unpublished

opinion

is "

per curiam

," meaning none of the panel judges is designated as the author.

The key portion is after the break.

Bold face added:

To determine whether to issue a preliminary injunction, the district court considers "(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest." Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113-14 (8th Cir. 1981) (en banc). Here, the district court considered each of these factors. Finding that they all cut against Fresenius Kabi, it denied the motion for a temporary restraining order.

Fresenius Kabi nevertheless argues that the district court gave significant weight to improper and irrelevant factors, failed to consider its likelihood of success on the merits, and improperly pitted its private interests against the democratic process. It claims that the district court misconstrued its concern for its business interests as "a calculated, abolitionist ploy to challenge the democratic will of Nebraskans." While we recognize that Fresenius Kabi takes no stand on capital punishment, we find nothing inappropriate in the district court's recognition that a preliminary injunction would frustrate Nebraska's plans to execute Mr. Moore. Indeed, Dataphase specifically requires the district court to consider the public interest. Nor does the district court's analysis of Fresenius Kabi's likelihood of success warrant reversal. As Fresenius Kabi rightly notes, the short timetable required the district court to issue an opinion under considerable time pressure, and both parties agreed that live witness testimony was not necessary. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (noting that the limited purpose of and haste surrounding a preliminary injunction allow "evidence that is less complete than in a trial on the merits"). In light of the nature of this action, it was not an abuse of discretion for the district court to treat the likelihood-of-success factor less exhaustively than Fresenius Kabi would have preferred, especially when the three other Dataphase factors clearly weighed in favor of the state. Indeed, the district court reasonably concluded that Fresenius Kabi was not likely to suffer irreparable injury because the injury it alleged was too speculative to support a preliminary injunction. This alone is sufficient to support its denial of the preliminary injunction. Chlorine Inst., Inc. v. Soo Line R.R., 792 F.3d 903, 915 (8th Cir. 2015) ("[T]he absence of irreparable injury is by itself sufficient to defeat a motion for a preliminary injunction.").

I have not yet found the district court opinion.  From the brief quote above, though, it is probably worth reading.

The notion that the drug manufacturers suffer any harm from the use of their drugs in executions is just preposterous, as I noted in the

post

on the Nevada case.  The expedited briefing in the emergency appeal in that case --

State v. District Court (Alvogen)

, Nev. Sup. Ct. No. 76485 -- was completed yesterday, and hopefully a decision will be made soon.

Rejecting Drug Company Meddling curated from Crime and Consequences Blog