The drug distributor that won a temporary restraining order Friday in Arkansas' planned executions then voluntarily withdrew its lawsuit over the weekend has again urged a Pulaski County judge to stop the state from using its medicine to kill prisoners.
McKesson Corp. is trying to keep Arkansas from using its drug vecuronium bromide to execute five death-row inmates this month. The company is valued at $29 billion and is one of the nation's largest companies. It has conducted millions of dollars in state government business this year by selling products to the prison system and other state departments.
The company argued that the Arkansas Department of Correction used deceit to obtain 100 vials of vecuronium bromide -- the second of three drugs that the state uses in lethal injections -- and would violate state law by using it to put inmates to death.
Allegations in McKesson's court filings shine light on the secretive process the state used to obtain its three execution drugs -- a sedative, a paralytic and a heart-stopper. The Department of Correction, citing state protections, has refused requests from the Arkansas Democrat-Gazette filed under the state Freedom of Information Act to disclose the drugs' packing inserts, drug labels and invoices.
[đź“„ DOCUMENT: Click here to read the full complaint filed Tuesday by McKesson]
"The Department does not comment on matters related to pending litigation," Department of Correction spokesman Solomon Graves said in a text message Tuesday.
Gov. Asa Hutchinson originally scheduled eight convicted murderers to die this month by lethal injection.
Late Monday, in a last-minute ruling, the U.S. Supreme Court upheld a temporary stay of the executions of the first two inmates. A federal judge granted a third inmate a reprieve on the basis that Arkansas cannot kill him without violating a required review period because the state Board of Parole has recommended that Hutchinson offer the inmate clemency.
RELATED ARTICLES
http://www.arkansas…">Death 2 days away, inmates deny slayings http://www.arkansas…">In court bids for his life, killer strikes out 3 times
Opposing attorneys Tuesday continued a volley of individual and broad legal filings to prevent or carry out the executions before the state's supply of the sedative midazolam expires at the end of the month. The scope of McKesson's complaint is broad enough to block the scheduled lethal injections of the five men, if the company prevails. The next executions are scheduled for Thursday.
EXECUTIONS: In-depth look at 4 men put to death in April + 3 others whose executions were stayed
Click here for larger versions
Department of Correction staff members used a medical license to place a telephone order for vecuronium bromide and asked that it be shipped to a department address where medical supplies for nonexecution purposes had been previously delivered, the complaint says. The license is supposed to cover supplies for "legitimate medical uses," it says.
Under Arkansas Code Annotated 17-95-704(e)(3) and (4)(A), capital punishment is not a "legitimate medical purpose."
The Correction Department "misled a McKesson employee into processing the order over the phone," the company's complaint says. "This violates Arkansas law."
After learning that Arkansas planned to use the drug to execute inmates, McKesson sought to reclaim the vials from the state, it says. McKesson refunded the state's money and sent the department a return shipping label after the Department of Correction agreed to return the product, but the state ultimately declined to return it and never sent back the money, the claim says.
The pharmaceutical and medical supply giant's dealings with state prisons represent only a small portion of the company's business with the state of Arkansas. According to state transparency data, Arkansas has spent more than $7.8 million with McKesson in fiscal 2017, with less than $6,000 coming from the Department of Correction.
A McKesson spokesman said the company could not answer questions about how it views the company's broader relationship with Arkansas in light of its allegations against the Department of Correction.
"McKesson has filed a new action in Pulaski County Circuit Court for review by the new judge who has now been assigned to these matters, and again seeks a restraining order to prevent the use of our product for something other than a legitimate medical purpose," says a company statement. "McKesson is committed to ensuring that its property is only used in a manner consistent with our supplier agreement."
State Attorney General Leslie Rutledge's office in a filing Tuesday requested that the court transfer the case to Faulkner County, citing a new Arkansas law that allows defendants in civil lawsuits to request that the action be transferred to any county in the state if the plaintiff is not an Arkansas resident.
"When requested, transfer is mandatory," the brief says, referring to Act 967 of 2017.
Rutledge spokesman Judd Deere declined to say why state attorneys want the case in Faulkner County, which borders Pulaski County.
"I'm not in position to comment on that," Deere said. "That's just where we chose to ask."
On Friday, Pulaski County Circuit Judge Wendell Griffen granted McKesson's original request for a temporary restraining order. On the same day, Griffen participated in anti-death-penalty protests outside the Governor's Mansion.
The Arkansas Supreme Court on Monday vacated Griffen's order after McKesson moved to dismiss its own lawsuit.
Circuit Judge Alice Gray formally dismissed the suit Tuesday. McKesson filed a new complaint shortly afterward. That suit also was assigned to Gray, Deere said.
McKesson said in its dismissal motion over the weekend that U.S. District Judge Kristine Baker's injunction blocking all eight executions made its restraining order irrelevant. The 8th U.S. Circuit Court of Appeals on Monday revoked Baker's injunction. On Tuesday, the inmates petitioned the U.S. Supreme Court for stays of execution pending a rehearing of the appellate court decision.
Two other pharmaceutical companies -- makers of the first and third drugs in Arkansas' lethal injection "cocktail," midazolam and potassium chloride, respectively -- filed "friend of the court" briefs with Baker claiming that the state had improperly accessed their drugs to use in the executions.
A friend of the court brief does not require a judge to consider the argument or rule on its merits, and Baker did not rule on the issue.
Spokesmen for those companies, West-Ward Pharmaceuticals and Fresenius Kabi USA, have not said whether the companies will take stand-alone legal action.
A Section on 04/19/2017