Execution drug challenge survives, but Arkansas lacks doses

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 after four men died by lethal injection in April.

State lawyers argued unsuccessfully in the Pulaski County Courthouse on Wednesday that Arkansas was immune from a lawsuit brought by McKesson Medical-Surgical Inc., which doesn't want Arkansas to use its vecuronium bromide in executions and believes state officials purchased it last year under false pretenses. The company fears damage to its reputation and its bottom line if people believe its life-saving drugs are being used to kill.

"McKesson made a mistake but cannot unwind the transaction," senior assistant attorney general Jennifer L. Merritt argued. Suing the state was not a solution, she said.

"McKesson never asked what Arkansas would do with it," she said.

The supply company initially raised its arguments in April, saying it learned too late that the Arkansas Department of Correction intended to use its product during an aggressive series of executions that month. Pulaski County Circuit Judge Alice Gray granted a preliminary injunction halting its use, but the state Supreme Court dissolved the ruling. Arkansas subsequently executed four men, using McKesson's paralytic lethal-injection drug as the second step of a three-drug process.

The case went before Gray again Wednesday so Gray could take up issues not yet pending before the state Supreme Court, including a request that the case be moved to a more rural county. Two judges seated at Little Rock had issued rulings favoring McKesson in April.

"Defendants simply like their chances elsewhere," McKesson lawyer Michael B. Heister said in court documents filed ahead of Wednesday's court session.

Gray didn't rule on that request, but she did reject McKesson's request to put the case on hold while the state Supreme Court considers Arkansas' appeal of Gray's initial injunction.

The office of Attorney General Leslie Rutledge disagreed with Gray's ruling on the dismissal request.

"The Attorney General respectfully thinks the circuit court should have dismissed these meritless claims and plans to appeal the decision," spokesman Judd Deere said in a statement.

Arkansas in April conducted its first executions since 2005. Republican Gov. Asa Hutchinson had set a particularly aggressive plan — scheduling 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.

Arkansas prison officials say they have not yet replaced its supply of the sedative midazolam, leaving the state unable to execute any of the more than two dozen inmates on death row. Its vecuronium bromide expires March 1 and its potassium chloride, which stops the heart, expires Aug. 31, 2018.

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.