This would be the first time that fentanyl, one of the central drugs in the United States opioid epidemic, has been used in an execution in the USA, and it likely would be a first for cisatracurium as well, said Robert Dunham, executive director of the Death Penalty Information Center.
Nevada death row inmate Scott Dozier, shown here during a 2017 court appearance, was scheduled to be executed on Wednesday night but the execution was postponed indefinitely.
Other drug companies like Pfizer have demanded the state of Nevada to return the company's diazepam (Valium) and fentanyl. Dozier has insisted he wants to be executed and doesn't care if it's painful.
The order by Clark County District Court Judge Elizabeth Gonzalez delaying the execution marks the first time a pharmaceutical company has succeeded in halting an execution over legal or ethical concerns.
A spokeswoman for Nevada Department of Corrections, Brooke Santina, told the Reno Gazette Journal the agency would not comment on the pending litigation.
If the judge allows the state to move forward with Dozier's execution, he would be the first inmate put to death in Nevada in more than a decade.
But the company did not immediately ask to formally join Alvogen's lawsuit.
Alvogen filed a lawsuit on Tuesday, accusing Nevada of acquiring the drug unlawfully and saying use of its product for an execution would cause "irreparable injury to Alvogen, its reputation, and its goodwill", according to a copy of the complaint posted by the Nevada Independent news organization.More news: Ex-Bengal Adam 'Pacman' Jones attacked by employee at Atlanta airport
"Alvogen has undertaken controls to avoid diversion of this product for use in execution protocols", the company states on its website concerning midazolam.
The document notes that midazolam (one of three drugs that were to be used in the lethal injection cocktail) "is not approved for use in such an application".
The state intends to use a synthetic opioid - involved in more than 20,000 overdose deaths in 2016 alone - to kill Scott Dozier, a double murderer, after finding it hard to obtain other drugs for Nevada's first execution in 12 years because of opposition from pharmaceutical manufacturers.
"While Alvogen takes no position on the death penalty itself, Alvogen's products were developed to save and improve patients' lives and their use in executions is fundamentally contrary to this goal", the company said in its complaint.
"And contrary to the state's belief, the state is just as much bound to the law as is a private citizen", Todd Bice, the Attorney for Alvogen said.
Fentanyl, which has been blamed for deadly overdoses across the country, has not been used before in an execution.
Jordan T. Smith, an assistant Nevada solicitor general, countered at Wednesday's hearing that Nevada didn't put up a "smokescreen" or do anything wrong in getting the drugs.
Even if, as has happened before with these experimental injections, the drug combination leaves him paralyzed yet still conscious, effectively suffocating him alive.More news: England manager Gareth Southgate sparks waistcoat craze
The twice-convicted killer in Nevada has said he prefers death to life behind bars.
Dozier was sentenced to die for robbing, killing and dismembering 22-year-old Jeremiah Miller at a Las Vegas motel in 2002.
In 2005, Dozier was sentenced to 22 years in prison for shooting 26-year-old Jasen Greene, whose body was found in 2002 in a shallow grave outside Phoenix.
In court papers, Alvogen also cited instances in Alabama, Arizona and Oklahoma in the past few years in which inmates given midazolam were left gasping or snorting, appeared to regain consciousness or took an unusually long time to die. A witness testified that Dozier used a sledgehammer to break Greene's limbs so the corpse would fit in a plastic tote that Dozier used to transport methamphetamine, equipment and chemicals. Miller's torso was later found in a suitcase in a trash bin, local media reported.
The Nevada authorities refused to make public how they obtained the fentanyl and other drugs, but last week the ACLU won a court ruling forcing the department of corrections to hand over invoices.
But they, the state, along with the director and attending physician at the execution, who has not been named, are all listed as defendants in this case.
They argued that the untried three-drug combination would be less humane than putting down a pet.More news: Incredible operation in pictures: All 12 boys, coach rescued from Thailand cave