5:35 P.M. UPDATE:
A medical supply company's challenge to Arkansas' three-drug execution protocol remains alive, though the state doesn't have enough drugs to put any inmate to death.
The state's lawyers went to court Wednesday to argue that Arkansas was immune to a lawsuit by McKesson Medical-Surgical Inc. They said lawsuits against the state aren't valid unless Arkansas is committing egregious acts.
McKesson doesn't want Arkansas to use its vecuronium bromide in the execution chamber. The company won a preliminary injunction in April, but the Arkansas Supreme Court set the order aside and let the drug be used in four executions that month. Circuit Judge Alice Gray on Wednesday rejected the state's attempt to dismiss the lawsuit.
Arkansas also wants Gray to transfer the case to a court outside of Little Rock. Gray said she will decide that request later. The judge also turned down McKesson's attempt to delay work on the case until the state Supreme Court settles the sovereign immunity question.
Arkansas currently has only two of the three drugs it needs to put inmates to death.
Read Thursday's Arkansas Democrat-Gazette for full details.
EXECUTIONS: In-depth look at 4 men put to death in April + 3 others whose executions were stayed
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EARLIER:
LITTLE ROCK — A judge was hearing arguments Wednesday on whether a drug distributor can prevent Arkansas from using one of its products for executions.
McKesson Medical-Surgical Inc. says Arkansas failed to say it wanted to use its vecuronium bromide in executions. Pulaski County Circuit Judge Alice Gray temporarily halted its use, but the state Supreme Court set aside the ruling. Arkansas subsequently executed four inmates in April, using McKesson's paralytic lethal-injection drug as the second step of a three-drug process.
The issue went before Gray again Wednesday. In papers filed ahead of the hearing, the state said McKesson has "seller's remorse" and cannot reverse the 2016 sale.
The state also wants to move the case to a different county. McKesson's lawyers say Arkansas is just seeking a more favorable venue.
Arkansas' April executions were its first since 2005. Republican Gov. Asa Hutchinson had set a particularly aggressive plan — setting eight executions in an 11-day period — because another of the state's execution drugs was expiring April 30. Stays and clemency rulings spared four of the men's lives, at least temporarily.
The day before Arkansas' executions resumed, Gray effectively stopped the executions with a temporary order she entered amid the court fight over who was the rightful owner of the vecuronium bromide. McKesson said Arkansas had not disclosed its plans to use the drug for executions. It also said that if Arkansas used the product to kill inmates, the company's reputation and bottom line would be hurt.
The state immediately appealed, and the Arkansas Supreme Court set aside Gray's order, clearing the way for Ledell Lee's execution April 20. Three other executions followed over the next week.
In the April hearing, a state prison official, Deputy Director Rory Griffin, testified that he deliberately ordered the vecuronium bromide from McKesson in a way that there wouldn't be a paper trail, relying on phone calls and text messages.
Griffin said he did not keep records of his texts, but McKesson salesman Tim Jenkins said he did — and the messages from his phone included no mention that the drug would be used to put inmates to death.