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Pulaski County judge issues restraining order on state's use of lethal-injection drug, blocking all executions

By Arkansas Online staff

This article was originally published April 19, 2017 at 10:27 a.m. Updated April 19, 2017 at 7:31 p.m.

6:37 p.m. UPDATE:

A Pulaski County judge issued a verbal temporary restraining order Wednesday on Arkansas’ planned use of one of three drugs used for lethal injections, effectively blocking all executions.

Pulaski County Circuit Judge Alice Gray gave the ruling after testimony from top Arkansas Department of Correction officials, who defended their process for obtaining vecuronium bromide from supplier McKesson Medical-Surgical Inc.

Arkansas Attorney General Leslie Rutledge plans to appeal the decision to the Arkansas Supreme Court, said Judd Deere, a spokesman for the attorney general's office.

Rory Griffin, the department’s deputy director of health services and inmate programs, told the court Wednesday afternoon that he had advised Tim Jenkins, an account manager for McKesson, of the drug's specific use as part of the state’s lethal injection protocol.

That testimony did not match that of earlier statements from Jenkins, who told the court that he wouldn’t have completed the sale had he known its purpose.

Griffin testified that he had spoken with Jenkins over the phone and via text messages. He noted an initial conversation with the drug salesman expressing his intent and desire for further conversations about the transaction to be confidential and limited.

Director Wendy Kelley said that the practice of the Correction Department is to avoid as much of a paper trail as possible when it comes to execution drug transactions.

Griffin said he had phone conversations and exchanged text messages with Jenkins, but did not keep the messages recorded on his phone.

Text messages saved from Jenkins’ phone were presented in court, none of which mentioned the use of the drug.

in closing arguments, Assistant Attorney General Colin Jorgensen said that McKesson had "brought this problem on themselves."

One of McKesson's attorneys, meanwhile, contended that Jenkins had been “duped” into selling the drug, and noted that use of the vecuronium bromide would result in “irreparable harm.”

Gray agreed with the McKesson in her verbal ruling about 6:20 p.m., denying use of the drug and putting all executions at a halt.

Two executions were scheduled for Thursday and three others were set for next week.

Minutes before Gray's ruling, the Arkansas Supreme Court barred the execution of one of the inmates set to die Thursday: Stacey Johnson.

Read Thursday's Arkansas Democrat-Gazette for full details.

— Brandon Riddle

3:10 p.m. UPDATE:

The medical supplier employee who sold Arkansas its supply of vecuronium bromide said in court Wednesday he would not have made the sale if knew the state intended to use the drug in executions.

Tim Jenkins, an account manager for the drug distribution company McKesson Corp., testified in front of Pulaski County Circuit Judge Alice Gray as part of his employer’s suit against the state Department of Correction.

McKesson's lawyers argued that Gray should issue a temporary injunction blocking the five executions scheduled this week and next because the state used deceit to obtain the drug, the Arkansas Democrat-Gazette reported. Vecuronium bromide, a paralytic that relaxes the respiratory system, is one of the three drugs used in the state’s lethal-injection protocol.

Jenkins, who has worked in sales for McKesson for about 24 years, said in court he was driving sometime last summer when he got a call from Rory Griffin, the deputy director of health programs for the Department of Correction. Griffin told him he was interested in buying the drug, and Jenkins instructed him to email him the name of it so he could get the spelling right.

Griffin then told Jenkins he’d “prefer not to” and instead gave the name again over the phone while Jenkins wrote it down on paper, the employee told the courtroom. Griffin then texted Jenkins the next day with the corresponding company number for the drug, and Jenkins placed the order, he said.

At no time did they discuss that the drug was to be used for executions, Jenkins said, noting he would not have completed the sale if he knew.

"I wouldn’t have done it,” he said.

At one point, Griffin offered to pick up the ten boxes of the drug in person, Jenkins said. The vials had already been shipped via UPS to the prison, he said.

Later questioned by the defense, Jenkins told the courtroom Griffin never explicitly said the drugs were not going to be used for executions. In response to a different question, Jenkins said he has no authority to tell the organizations he works with what to do with the drugs they order.

In his opening statement, one of McKesson’s lawyers, Steven Quattlebaum, said there is a “relationship of trust” in commercial transactions, and the Arkansas Department of Correction breached that trust.

Griffin obtained the paralytic drug by using a medical license that was already on file that is supposed to cover supplies for a “legitimate medical use,” Quattlebaum said. Under Arkansas law, executions are not a legitimate medical purpose, he said.

When the Department of Correction “got caught” and McKesson learned of the drug’s intended use, the company asked for the vials back, but the request was ignored, Quattlebaum said.

McKesson expected “transparent, honest transactions” with the state of Arkansas, which they did not receive, Quattlebaum argued.

McKesson is not arguing to stay the executions, Quattlebaum said repeatedly. What they are seeking is a “maintenance of the status quo” until the issue can be fully litigated, he said.

Assistant Attorney General Colin Jorgensen disagreed and told Gray that McKesson’s argument is “cleverly characterized” as a temporary injunction, but is really an attempt to stay the scheduled executions of five condemned men.

If Gray were to side with McKesson, the state does not have another supply of the paralytic, and they likely won’t be able to get the drug any time soon, Jorgensen said. So “the effect, no matter how you word it, is to stay the executions,” and circuit courts in Arkansas have no authority to do so, he said.

Jorgensen said the state believes the case should be dismissed, the drug company has no legal authority and the state Department of Correction has “sovereign immunity” in the matter.

Jorgensen also said McKesson said being associated with the executions will cause the company “irreparable harm,” including financial damages. Yet the state took great pains to not identify any “manufacturer, supplier or distributor” involved in the executions, Jorgensen said.

The company sent out a press release, showed up in court and “announced to the world” that they were involved, Jorgensen said. If they had not done so, very few people would have known, he said.

Gray told the courtroom before witnesses began testifying that she had not made up her mind in the case. A few times during the attorneys’ opening statements, she encouraged them get to the point faster.

Check back with Arkansas Online for updates and read Thursday’s Arkansas Democrat-Gazette for full details.

— Emma Pettit

EARLIER:

A complaint brought by a medical supplier that seeks to prevent one of its drugs from being used in lethal injections in Arkansas should be thrown out, the state's attorney general said in a filing Wednesday.

McKesson Medical-Surgical Inc. on Tuesday filed a complaint in Pulaski County Circuit Court seeking a temporary restraining order or injunction "to prevent the use of our product for something other than a legitimate medical purpose," it said in a statement. 📄 Click here to read the full complaint filed Tuesday by McKesson.

Arkansas Attorney General Leslie Rutledge later Tuesday requested that the case be moved to Faulkner County Circuit Court and Wednesday filed a motion requesting it be dismissed entirely. 📄 Click here to read the Wednesday filing.

The filing from Rutledge contends McKesson's complaint fails to "state facts upon which relief can be granted" and notes that it "amounts to a stay of executions" because a court order barring the drug's use would prevent the lethal injections from proceeding.

"[T]his Court lacks jurisdiction to grant a stay of executions as a matter of settled Arkansas law," Rutledge wrote. "The complaint should be dismissed accordingly."

A hearing on the case before Circuit Judge Alice Gray is scheduled for 12:30 p.m.

The executions of Ledell Lee and Stacey Johnson are scheduled Thursday night.

Check back for updates and read Thursday's Arkansas Democrat-Gazette for full details.

— Gavin Lesnick

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Comments on: Pulaski County judge issues restraining order on state's use of lethal-injection drug, blocking all executions

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DontGoThere says... April 19, 2017 at 11:39 a.m.

So wonder if this medical supplier is offering a refund on these drugs that they sold us? You know they knew what the drugs were being used for! Make them refund our money!

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hah406 says... April 19, 2017 at 11:58 a.m.

They did not know at the time of purchase what they were to be used for. The state deliberately deceived McKesson. As well, McKesson has already issued a refund to the state, but the state has refused to return the drugs to McKesson. Read all the stories before commenting you idiot.

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DoubleBlind says... April 19, 2017 at 4:47 p.m.

The drug is only used in surgical situations. I may be wrong, but I don't think the DOC operates surgical facilities; I think they outsource. Seems the McKesson rep - as experienced as he supposedly is - should have reasonably suspected that DOC would be using the drug in executions and should therefore have asked the direct question: For what purpose are you purchasing the drug? Or, Are you intending to use the drug in executions? It seems wholly implausible he wouldn't have known or strongly suspected. I'm guessing he knew the answer would mean the end of his sales commission and chose not to ask so as not to hear.

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susanc52 says... April 19, 2017 at 5:17 p.m.

The bottom line is that regardless of who knew what, the drug was purchased legally. It might have be in gray area but still legal. I submit that lead poisoning via firing squad will end the need of lethal injection. Oh wait, that is also lethal injection...just not painless.

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RBBrittain says... April 19, 2017 at 5:32 p.m.

On the one hand, though I'm ambivalent on the death penalty itself, I don't see how McKesson can prevail -- especially since its claims of deception seem to be contradicted by today's testimony. First, I'm not sure a drug supplier has legal authority to override the state legislature in deciding what drugs can be used in executions. Second, even assuming McKesson had the right to decide whether or not to sell to ADC, the mere fact that ADC (a known executioner) was the buyer should have been enough to raise questions. Third, once the drugs were shipped to ADC, what authority did McKesson have to demand the drugs' return and/or force the state to accept a refund? Finally, if the core argument is ADC didn't pay for the drugs (because of the forced refund), the proper remedy for that is the state Claims Commission -- *not* the courts.
.
On the other hand, AG Rutledge's change of venue request is fishy. First of all, she relies on a 2017 statute (signed earlier this month with an emergency clause) that purports to allow a state defendant to demand change of venue to *any* of the 75 counties if the plaintiff is not an Arkansas resident; that on its face is constitutionally specious. Second, that clause should be read together with another clause of the statute that permits a change of venue to any county where the plaintiff resides, does business OR has its "principal place of business" (i.e., headquarters); McKesson has a warehouse in Little Rock (on Scott Hamilton) so it clearly does business in Arkansas *and* Pulaski County. Third, under general venue principles only THREE counties are relevant to this action: (1) Pulaski, as the seat of government *and* McKesson's Arkansas warehouse; (2) Jefferson, as ADC's headquarters *and* where the drugs were delivered; or (3) Lincoln, where ADC conducts executions *and* most likely where the drugs are now. Faulkner County has ZERO relevance to this case; to give AG Rutledge the power to pick ANY COUNTY to defend actions in is blatant forum-shopping and likely unconstitutional.

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nrb says... April 19, 2017 at 6:20 p.m.

Complete deception on the part of DOC. Now who is going take responsibility for this screw up that is now worldwide knowledge? I am embarrassed of the behavior of our state leaders. Pure deception...sad state of affairs.

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DUB28 says... April 19, 2017 at 6:52 p.m.

This is an interesting attempt at intervention because it implies that they perceive a measure of responsibility for the use of the drug in other than FDA approved uses after the sale and would appear to offer attorneys better grounds to sue them on behalf of a client in such situations.

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RBear says... April 19, 2017 at 7:15 p.m.

susanc, they can deny the use of the drugs if it is purposefully used for anything other than it's intended use. The state deceived the drug company and opens itself and the company to challenges. Oh, and your other method was deemed to be unacceptable by the 8th Circuit.

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HM2 says... April 19, 2017 at 8:04 p.m.

These thugs are laughing their a$$e$ off.

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DoubleBlind says... April 19, 2017 at 8:14 p.m.

O.M.G.! The latest update reveals the ADC Rep, Rory Griffin, claims he specifically told the McKesson drug sales rep the drug was for the sole purpose of executions, contradicting the rep's testimony. BUT, the paper trail doesn't support that. Further - and so, so rich - an ADC *DIRECTOR* - Wendy Kelley - said OUT LOUD that it's the dept's standard operating procedure to 'AVOID A PAPER TRAIL.' How much more evidence is needed. What a snake pit. You just can't make this stuff up!

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