An Orrick pro bono team has successfully litigated under the Freedom of Information Act (FOIA) to obtain critical information from the FDA relating to U.S. importation of sodium thiopental for use in lethal injections.
Sodium thiopental is part of a three-drug protocol used by 30 states, including California, to execute condemned prisoners. Sodium thiopental is the only painkiller in the three-drug cocktail; the other drugs induce complete paralysis and cardiac arrest, which is extremely painful. Prevention of excruciating death thus depends on the proper administration of sodium thiopental of sufficient quality and dosage.
During a nationwide shortage of sodium thiopental, prisons in California and other states resorted to extraordinary measures to find the drug and began importing it from unlicensed, non-FDA-approved sources in the United Kingdom, Pakistan and India. After the ACLU of Northern California and the San Francisco Bay Guardian filed a FOIA request with the FDA, the FDA withheld basic information about the source, cost and quality of the imported drug, as well as the FDA's oversight (or lack thereof) of the importation. After Orrick filed a complaint and began preparing for summary judgment, the FDA produced the withheld information. The parties are now discussing an appropriate reimbursement for attorney's fees and costs.
San Francisco litigation of counsel Howard Ullman, San Francisco litigation associate Shannon Leong and Silicon Valley intellectual property associate Andrew Ong represented the ACLU of Northern California and the San Francisco Bay Guardian.