A drug company’s lawsuit halted the Wednesday night execution of condemned killer Scott Dozier about nine hours before he was set to die.
District Judge Elizabeth Gonzalez heard arguments in the civil case for about two hours before barring the Nevada Department of Corrections from using one of the three drugs it had planned to include in Dozier’s lethal injection.
The Department of Corrections later announced that it had postponed the execution.
“The execution, which was ordered by the court, will not take place until further notice,” according to the announcement.
Dozier, 47, was to be executed at 8 p.m. at Ely State Prison with a drug combination never before used in capital punishment. It would have been the first execution in Nevada since 2006.
District Judge Jennifer Togliatti signed Dozier’s execution warrant last month.
‘Irreparable harm’
Alvogen Inc., which started distributing the sedative midazolam in August, filed a lawsuit Tuesday that accused the Department of Corrections of surreptitiously obtaining the drug for use in the execution.
In an April 20 letter distributed to governors, attorneys general and prison directors in each of the 31 states that carry the death penalty, the multibillion-dollar drug company “wrote in the clearest possible terms that Alvogen strongly objects to use of its products in capital punishment,” according to the lawsuit.
Within days of learning that their product was obtained by Nevada prison authorities, the company moved to stop the execution, arguing that Alvogen would suffer “immediate and irreparable harm” should it proceed.
Last week, the Department of Corrections disclosed its lethal injection procedures, revealing for the first time the planned use of the drug that had been banned in Arizona executions and decried by civil rights groups across the country.
Gonzalez said the case centers on Alvogen’s right to decide not to do business with someone, including the government.
“The plaintiff has a reasonable probability that it will suffer damages to its business reputation which will impact investor relations and customer relations,” the judge said in her ruling.
Assistant Solicitor General Jordan Smith, representing the prison system, said he planned to file an emergency appeal with the Nevada Supreme Court.
Gonzalez scheduled a status hearing for Sept. 10. Togliatti later issued a stay of execution.
‘Business Dispute’
In court Wednesday morning, Alvogen attorney Todd Bice said the company is in the business of making “life-preserving medication and drugs.”
“This motion is not about the merits of the death penalty and when it is appropriate,” Bice told Gonzalez. “This is a business dispute.”
Smith, who participated in the hearing from Ely via video conference, said the state made no misrepresentation.
“This whole action is just PR damage control,” he argued.
Smith told Gonzalez that she should consider the victim’s family, which has “waited a long time” for the state to carry out Dozier’s death sentence.
The lawyer said Gonzalez also should consider Dozier’s wish to die.
“He has said goodbye to his family,” Smith told the judge.
Officials planned to use a three-drug cocktail of midazolam, the painkiller fentanyl and the paralytic cisatracurium for Dozier’s execution.
In its complaint, the drug company demanded the immediate return of the state’s supply of midazolam, arguing that the sedative was purchased “by subterfuge with the undisclosed and improper intent to use it for the upcoming execution in complete disregard of plaintiff’s rights.”
Lauren Kaufman, staff attorney with the American Civil Liberties Union of Nevada, which filed a separate lawsuit last week seeking public records related to the state’s lethal injection procedures, said the group was still reviewing records Wednesday to determine further legal action.
“We’re absolutely pleased that the court has recognized through their ruling that there’s a very real possibility that NDOC received these drugs through subterfuge,” she said. “It just goes to show that without forcing transparency on this issue, the state was not going to do it on their own.”
Two Murder Convictions
Dozier was sentenced to die in 2007 after first-degree murder and robbery convictions in the slaying of Jeremiah Miller.
The victim’s torso was found on April 25, 2002, in a suitcase that had been dumped in a trash bin at the Copper Sands apartment complex in the 8100 block of West Flamingo Road.
Miller’s family had not planned to watch Dozier’s execution, but his father, David, reached out to Chief Deputy District Attorney Giancarlo Pesci, who prosecuted the killer, Wednesday afternoon.
“They were obviously interested and concerned about what was happening,” Pesci said. “They seemed disappointed and confused as to how something in business court could stop this.”
The family has declined, through the prosecutor, to speak with the Las Vegas Review-Journal.
Dozier also had a prior murder conviction.
He was convicted of second-degree murder in the Arizona slaying of Jasen “Griffin” Greene and was sentenced to 22 years in prison in 2005, before he was brought to Nevada to face charges in Miller’s death.
LAS VEGAS — A Nevada judge is halting the use of a drug in the execution of twice-convicted killer Scott Raymond Dozier hours before he was scheduled to die by a first-of-its-kind lethal injection mixture. Clark County District Court Judge Elizabeth Gonzalez ordered the delay Wednesday morning in response to a challenge by New Jersey-based drugmaker Alvogen, which says it doesn’t want its product, midazolam, used in “botched” executions.
Alvogen’s objections were aired at a hearing that unfolded less than 11 hours before Dozier was to be put to death with a three-drug injection never before tried in the U.S.
The pharmaceutical company urged a judge to block the use of midazolam, saying the state of Nevada obtained the product through “subterfuge” for unapproved purposes. Dozier has insisted he wants to be executed and doesn’t care if it’s painful. The ruling effectively put the execution on hold.
Todd Bice, an attorney with Alvogen, accused the state of deceptively obtaining the company’s drug by having it shipped to a pharmacy in Las Vegas rather than the state prison in Ely. Alvogen sent a letter to state officials in April telling them it opposes the use of its products in executions, particularly the sedative midazolam, Bice said.
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The U.S. Postal Service (USPS) was ordered to pay a Las Vegas sculptor more than $3.5 million last week, after it inadvertently used an image of his Statue of Liberty replica on stamps.
Artist Robert Davidson sued the USPS for copyright infringement five years ago, arguing that “Forever” stamps issued in 2011 bore the likeness not of the original Lady Liberty, but of the recreation Davidson produced for the New York-New York Hotel & Casino on the Las Vegas Strip.
Court documents show that that the USPS did accidentally base the stamp design — which featured a close-up image of the statue’s face — off a photograph of Davidson’s statue. The USPS did not realize its mistake until informed by a stock photography company employee more than three months after the stamps were issued.
When Davidson eventually filed his lawsuit, the agency’s attorneys argued that the two statues were too similar for the sculptor to claim copyright.
Davidson, however, claimed that his statue’s face is “more modern, a little more contemporary face, definitely more feminine” than the original, according to the court documents. Davidson also said he specifically wanted to distinguish his work from the original in New York, to create something “more appropriate for Las Vegas.”
In the end, Federal Judge Eric Bruggink sided with Davidson, writing in his decision that, “A comparison of the two faces unmistakably shows that they are different.” Bruggink ordered the USPS to pay Davidson $3,554,946.95, plus interest.
“Robert Davidson is pleased that after a full trial, the Federal Court of Claims recognized the significance of his artistic work in creating the Las Vegas Lady Liberty statue and enforcing his copyright,” Davidson’s lawyer, Todd Bice, told MONEY in a statement. “As the court noted, Mr. Davidson’s artistic creation of the Las Vegas Lady Liberty is highly unique and attractive, which is what prompted the US Postal Service to select a photo of his work for the second ever Forever Stamp, over hundreds of other images.”
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When the US Postal Service rolled out its Forever stamps in 2010 featuring a close-up of the Statue of Liberty, it wasn’t actually of the iconic symbol of freedom.
Instead, it was the face of the more diminutive replica that stands on the Las Vegas Strip and occasionally gets dolled up in sports jerseys to celebrate events in Sin City. As if the mix-up wasn’t embarrassing enough, it’s also going to cost the Postal Service.
On Friday, a federal judge ruled that the Postal Service should pay $3.5 million to Robert Davidson, the sculptor of the Las Vegas replica.
Davidson filed suit in 2013, saying that the Postal Service had infringed on his work, which was original and therefore protected. In his lawsuit, Davidson said his replica “brought a new face to the iconic statue – a face which audiences found appeared more ‘fresh-faced,’ ‘sultry’ and even ‘sexier’ than the original located in New York.”
The government argued that it owed Davidson nothing because the statue is a replica and doesn’t contain original work, which would make his copyright invalid. But the court disagreed, ruling that Davidson’s work is original in “making the statue his own creation, particularly the face.”
“A comparison of the two faces unmistakably shows that they are different,” Judge Eric Bruggink wrote.
In 2008, the Postal Service began the process of looking for new images for the Forever stamp. Its then-manager of stamp development had been looking for something “different and unique” in the Statue of Liberty image because it had already been used in at least 20 different stamps, according to his court testimony that’s summarized in the court’s opinion.
The decision came down to an image of the Las Vegas statue that had appeared on a photo service. The Postal Service purchased a license of that photograph. Several Postal Service officials testified that they wouldn’t have selected that image had they known that it wasn’t the real Statue of Liberty.
Then, the stamp bearing the face of the Las Vegas statue went on sale in December 2010, paired with a US flag Forever stamp.
Three months later, USPS learned about the mix-up. But by then, the face of the Las Vegas replica was on nearly 3 billion stamps that had already been printed. The Postal Service attempted to make the best of it in its public statements.
“We really like the image and are thrilled that people have noticed in a sense,” a USPS spokesman told CNN in 2011. “It’s something that people really like. If you ask people in Vegas, they’re saying, ‘Hey, That’s great. That’s wonderful.’ It’s certainly injected some excitement into our stamp program.”
Eventually, the Lady Liberty stamp was retired in 2014 after about 4.9 billion had been sold, which amounts to about $2.1 billion in sales.
The lawsuit hinged on whether Davidson’s statue, which stands in front of the New York-New York Hotel and Casino, could be considered an original work.
The sculptor said that his Lady Liberty was not a direct duplicate and that her face was “more modern” and “definitely more feminine.” Davidson also drew attention to differences in the eyes, eyelids and upper lip. He said he was influenced by a picture of his mother-in-law, which he used to form his final version of the statue, which was completed in 1996.
The question facing the the US Court of Federal Claims was whether the replica was “sufficiently original to be afforded copyright protection, whether the government’s use was infringing.”
Ultimately, the court sided with Davidson.
“The portion used was entirely of what we consider to have been the original work contributed by Mr. Davidson,” Bruggink wrote. “The government’s only real defense is that its use did not particularly harm plaintiff’s business as an industrial sculptor. That may be true, but we also note that it certainly did not benefit him. The Postal Service offered neither public attribution nor apology.”
Todd Bice, Davidson’s attorney, said in response to the ruling: “As the court noted, Mr. Davidson’s artistic creation of the Las Vegas Lady Liberty is highly unique and attractive which is what prompted the US Postal Service to select a photo of his work for the second ever Forever Stamp, over hundreds of other images.”
“For too long, the Postal Service has endeavored to ignore the rights of artists like Mr. Davidson, simply taking intellectual property with after-the-fact offers of nominal compensation,” he said in an email statement to CNN.
The Postal Service told CNN by email that it is “reviewing the decision and will comment if and when appropriate.”
The Las Vegas artist behind the Statue of Liberty replica outside New York-New York will have several million reasons to celebrate this Independence Day.
Robert Davidson was awarded nearly $3.6 million last week by a federal court that ruled the U.S. Postal Service infringed his copyright when it mistakenly used an image of his statue on a stamp.
The government agency began issuing the stamp that depicted a close-up of the Las Vegas-based Lady Liberty in December 2010. The Postal Service believed it was the face of the Lady Liberty that has stood in the New York Harbor since 1886.
“Originally, they didn’t know it wasn’t the real Liberty, but it is a great picture, so I’m not at all surprised that they would use it,” said Randy Shepard, owner of Vegas Stamps and Hobbies on West Washington Avenue and North Rainbow Boulevard. “And I think it’s pretty cool that it ended being a Vegas statue.”
Davidson did not return a request for comment, but his lawyer Todd Bice released a statement to the Review-Journal Tuesday.
“Robert Davidson is pleased that after a full trial, the Federal Court of Claims recognized the significance of his artistic work in creating the Las Vegas Lady Liberty statue and enforcing his copyright,” said Bice, of the Las Vegas law firm Pisanelli Bice.
Bice said he expects the Postal Service to appeal the decision.
More Feminine
Davidson, born and raised in Las Vegas, completed the Statue of Liberty replica in 1996 for MGM Resorts International when the casino operator opened its latest theme casino New York-New York.
Davidson said in court documents that he wanted to give his replica a face that was “a little more modern, a little more feminine” and looked for inspiration from a photograph of his mother-in-law, Lucille Schwartz.
The Las Vegas replica stands 150 feet tall from base to torch and weighs 150 tons compared with 305 feet, pedastal foundation to tip of torch, and 225 tons for the original statue. The replica took 11 months to complete.
Davidson spent $152,000 on material and labor to complete his part of the statue, including the face. He was paid a total of $385,000 for his work, according to court documents.
The artist placed a small plaque in memory of his mother-in-law on the crown of the statue.
Patriotic Stamp
The U.S. Postal Service began a search in the late 2000s for a new “patriotic” stamp to replace the image of the Liberty Bell that had been in circulation for years.
A postal committee decided to issue two separate stamps, one of the Statue of Liberty and one of the U.S. flag.
Terry McCaffrey, a Postal Service manager in charge of choosing the image for the new stamps, searched a stock photo database provided to him by contractor PhotoAssist for images of the flag and Lady Liberty.
The U.S. Postal Service had used an image of the Statue of Liberty on a stamp 23 times in the past. Thus, McCaffrey wanted to find an image that “was very different from anything we’ve done before,” according to the court documents.
The manager initially selected 24 photos before picking the two winners, which included the photo of Davidson’s replica. McCaffrey paid $1,200 to Getty Images for the license to use the photo.
The Postal Service manager thought he had chosen a photo depicting the actual statue in New York, according to court documents.
The U.S. Postal Service began issuing the stamps in December 2010. In March 2011, an employee at Sunipix, a stock photography company, notified the Postal Service that the Lady Liberty on the stamp was the Las Vegas replica, according to court documents. The documents do not say how the employee spotted the difference. By then, the Postal Service had produced billions of stamps with Davidson’s Lady Liberty.
Upon hearing what happened, Davidson copyrighted his creation and filed suit in November 2013 in the U.S. Court of Federal Claims for infringement.
“If my name was on the stamp, then everybody would immediately recognize it was me,’’ Davidson said when asked why he sought compensation, according to court records.
4.9 Billion Stamps
About 4.9 billion stamps with Davidson’s Lady Liberty were sold, generating $2.1 billion in sales for the Postal Service, according to court filings. The Postal Service estimates it made a $71 million profit on the sale of the stamps.
“It’s a fairly common stamp,” Shepard said, adding that the stamp is popular as well.
“Ironically, the more popular the stamp, the less collector’s value it has,” he said.
The Postal Service argued in court that Davidson’s replica contains “no truly original work” and thus it need not compensate him.
The court said a replica can be copyrighted if it is a new and original expression of a previous work.
Davidson’s Lady Liberty face is “unmistakably different” from the original statue and that is what drove McCaffrey to choose it, the court ruled. The Postal Service could not immediately be reached for comment.
“Davidson hopes that the Postal Service will at long last own up to what it did and recognizing his rights,” Bice said in the statement.
