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Two days before execution, another appeal filed on new use of lethal injection drug

A new appeal was filed Monday with the Florida Supreme Court objecting to the new use of a drug, pentobarbital, in the state's lethal injections. The last-ditch appeal is intended to delay the execution of Manuel Valle, who is scheduled to die by lethal injection at 4 p.m. Wednesday.

The appeal contends that the state should be prohibited from using pentobarbital, a sedative, because the drug would not be used for medical purposes by a physician. The appeal also notes that Lundbeck, the Danish drug manufacturer, has not not tested the use of pentobarbital as an anesthetic. Neither has the Federal Drug Administration Food and Drug Administration.

The appeal was filed by a Daytona Beach lawyer on behalf of Dr. David Nicholl, a British neurologist who has opposed the use of Lundbeck drugs in executions.

This is not the first legal challenge to the use of pentobarbital.

Valle's execution has already been stayed twice. The first time it was so his lawyers could argue that using pentobarbital in lethal injections could be unconstitutional because the inmate could suffer significant harm. The state's high court ultimately ruled against Valle and allowed the use of the drug, which is already used by several other states.

A second stay was issued after Valle's lawyers contended that he was not appropriately given a clemency hearing. A federal appellate court ruled against Valle and the stay was lifted. Valle still has a couple of claims pending, including a petition before the U.S. Supreme Court.