Tuesday, April 2, 2019

Drug Company Sues Nebraska From Using Execution Drug (May 2018)

Drug Company Sues Nebraska From Using Execution Drug (May 2018)

Fresenius Kabi is a German global healthcare company that specializes in creating lifesaving medicine and technologies for infusion, transfusion, and clinical nutrition. They specifically create their products and services for critically and chronically ill patients. They also create medical supplies for hospitals around the world. With all of the good things their company does to save lives, they were appalled to discover that one of their drugs, potassium chloride, was going to be used for an execution in Nebraska. Upon hearing this information, Fresenius Kabi filed a lawsuit against the State of Nebraska to halt the execution. Without any type of settlement, Fresenius Kabi immediately went to court against the state.

Fresenius Kabi came after the State of Nebraska hard, claiming that the drug they were going to use came from their company because of how they store that specific drug. They store their potassium chloride in 30-milliliter vials, and no other drug company stores it at that measurement. Even though the potassium chloride that the state had in their possession was stored at that measurement, they denied all of the allegations and refused to confess the name of the company they did get the drug from. With these facts being the specifics of the case, the state still won the lawsuit and was able to carry out the execution.

A few of the stakeholders for Fresenius Kabi are hospitals, hospice care centers, donor programs, physicians, scientists, pharmaceutical companies, wholesalers, and even have a public partnership with the ASHP Foundation. Stakeholders that are not mentioned in this list are prisons who practice capital punishment. Fresenius Kabi has strict rules on who they sell their products to, and do not want them to end up in the hands of people who will use them for harm.

When comparing this situation to Individualism, Fresenius Kabi does not fit. Individualism is a theory based of economists Adam Smith and Milton Freidman. It is the theory that the goal of a business is to profit and only profit, so they will do whatever it takes to maximize profits for themselves and their stakeholders. If Fresenius Kabi were to fit the description of Individualism, they would encourage states with capital punishment to buy their drugs for executions because it would help to increase their profits. These states would also then be considered stakeholders. Fresenius Kabi would also not file a lawsuit against the state because it could potentially weaken their profits, and that is the opposite of Individualism.

For Utilitarianism, the theory is about maximizing happiness instead of profits. It is about creating happiness in yourself and in others, and happiness is the only thing of intrinsic value. Since happiness is a basic human need, it needs no further justification. Fresenius Kabi relates to Utilitarianism in the sense that their mission is to help and better the lives of people, and this in turn makes them happy. The way that Fresenius Kabi does not relate to Utilitarianism, is the fact that they do not sell to states for capital punishments. By doing this, the states that want to use their drugs are not happy. Since Utilitarianism is about making yourself and others happy, they would have to sell to states for capital punishment to fully relate to Utilitarianism. This is one of the many shortcomings in Utilitarianism, and why it is hard to apply to most businesses.

With Kantianism, this theory is mostly based off of acting rationally, and to not act inconsistently in one's own actions or consider oneself exempt from rules. It is to allow and help people to make rational decisions, and to respect people and their decisions. It also has a lot to do with being motivated by Good Will, and to seek what is right because it is right. Kantianism is a strong fit for Fresenius Kabi because they acted rationally by filing a lawsuit with the State of Nebraska. They recognized that what was happening was wrong, and if it went on without taking action they would be considering themselves as a company that is exempt from rules. Fresenius Kabi is also highly motivated by Good Will because they only use their drugs to help people, and they do it because it is the right thing to do. As for the State of Nebraska, they did not act rationally. They denied that the drugs came from Fresenis Kabi, and continued to refuse to admit where they got the potassium chloride from. This shows that they were treating Fresenius Kabi as an end and not as a means. The state also acted as if they were exempt from the rules, and did not use honesty or rationality to win.

The Virtue Theory is based off Aristotle's views. He believed that whether something is good partly depends on what that something is. Virtue is about rationality and that is the distinguishing characteristics of a person. So people must exercise rationality in order to function and live a good life. There are four main parts of the Virtue Theory. They are courage, honesty, temperance, and justice. Courage is risk-taking and willingness to take a stand for what is right. Honesty is in agreements, in hiring and treatment of employees, and in customers and other companies. Temperance is the reasonable expectations and desires of a person. Justice is hard work, quality products, good ideas, and fair practices. For Fresenius Kabi, this theory not only applies to the company itself, but it also applies to how they handled the lawsuit against the State of Nebraska. The company is good because of what they are and their beliefs in saving people and using their resources to find new ways to do that. This lets them lead good lives, which lets others live good lives, which creates happiness for everyone involved. Fresenius Kabi is also strongly rational and that is why they had enough courage to file a lawsuit against the State of Nebraska. They are honest about their rules on their drugs being used for capital punishment and continued to be honest about it throughout the lawsuit. They had reasonable expectations and desires for the State of Nebraska, by only asking that they would not use their drug for the execution. They strive for justice by doing what is right, having fair practices, and creating quality and meaningful products for the benefit of others.

My personal opinion on the case presented is that the State of Nebraska acted poorly in this situation. A point in the case that I felt was dismissed was where exactly the state did obtain the drugs from. There was not a lot of information on everything that was said in court, but it was made obvious that the state had nothing else to say except that they did not get the drug from Fresenius Kabi. They gave no evidence of where it came from, what other drug company was involved, and why the drug they had was packaged the same way Fresenius Kabi packages their potassium chloride. They gave no justifiable answer, and for that, Fresenius Kabi suffered. It seemed that the company never had a chance against the state, considering the reason there is still capital punishment in that state is because of the people who reside there. Nebraska acted poorly and unethically, not relating to any of the discussed ethical theories.

The main problem in this situation is that the State of Nebraska illegally obtained one of the drugs that was used for the execution of a prisoner on death row from Fresenius Kabi. Although the company claimed that the drug was theirs, the state continued to deny the allegations and said they obtained them from a wholesaler. While the state refused to confess who the wholesaler was, they still won the case. There are a few ways that both Fresenius Kabi and states who practice capital punishment can prevent these things from happening in the future.

Both sides could practice better communication by having stricter laws on where and how they are obtaining the drugs, and better security on the shipment and tracking of the drugs. Fresenius Kabi does not have a public opinion on capital punishment in general, but getting that opinion out there might help them more if there was ever another lawsuit. Since they believe that the drug was obtained through their company even though they have rules on who they sell to, it could have easily been a misunderstanding or miscommunication between them and the company that delivers their products. If they create a better system with more monitoring and more recording of where their drugs go, this could help them. For the State of Nebraska, this is not the first time they have had issues with drug companies over using their drugs for capital punishment. To prevent the state from getting lawsuits against them, they should be creating in-depth profiles of which drug companies allow their drugs to be used for capital punishment, and which ones do not. They should also be more honest about where they are obtaining the drugs from, and acting more ethical towards these companies' policies.
A few ways that Fresenius Kabi can re-market themselves as a company is by confirming their opinion on capital punishment and rewriting their rules and regulations.

K. McCullough


  • Berman, Mark. “Nebraska Cleared to Carry out Country's First Fentanyl Execution, Judge Says.” The Washington Post, WP Company, 10 Aug. 2018, www.washingtonpost.com/news/post-nation/wp/2018/08/10/nebraska-cleared-to-carry-out-countrys-first-fentanyl-execution-judge-says/?noredirect=on&utm_term=.8314e1ae7e3b
  • Berman, Mark. “Drug Companies Don't Want to Be Involved in Executions, so They're Suing to Keep Their Drugs Out.” The Washington Post, WP Company, 13 Aug. 2018, www.washingtonpost.com/news/post-nation/wp/2018/08/13/drug-companies-dont-want-to-be-involved-in-executions-so-theyre-suing-to-keep-their-drugs-out/?utm_term=.34ff5f24fab6 
  • Wheeler, Ted. “Drugmaker Sues to Block Nebraska From Using Execution Drug.” Homepage, 8 Aug. 2018, www.courthousenews.com/drugmaker-sues-to-block-nebraska-from-using-execution-drug/
  • France-Presse, Agence. “German Drug Maker Sues to Halt Planned Execution in Nebraska.” The Guardian, Guardian News and Media, 8 Aug. 2018, www.theguardian.com/us-news/2018/aug/08/german-drug-maker-sues-to-halt-planned-execution-in-nebraska
  • Smith, Mitch. “Fentanyl Used to Execute Nebraska Inmate, in a First for U.S.” The New York Times, The New York Times, 14 Aug. 2018, www.nytimes.com/2018/08/14/us/carey-dean-moore-nebraska-execution-fentanyl.html

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