Arkansas justices clear stops on lethal drug

They reverse halt order, reject two drugmakers’ petition

Posted: April 21, 2017 at 4:30 a.m.

Abe Bonowitz comforts Lynn Scott (second from left) outside the Cummins Unit during a vigil with Judy Johnson, Randy Gardner and other protesters shortly after all of the stays for Ledell Lee’s execution were exhausted late Thursday.

Three hours before Thursday's executions were scheduled to begin, the Arkansas Supreme Court vacated a lower-court ruling that had prevented the state from using its supply of vecuronium bromide to stop the condemned inmates' breathing.

The state Department of Correction, which carries out the state's death penalty, had been barred from using the drug by order of Pulaski County Circuit Judge Alice Gray.

In vacating Gray's order, the high court did not reveal its reasoning. State lawyers had argued that Gray had exceeded her authority.

The justices' ruling also rejected two pharmaceutical manufacturers' petition related to the case. The companies say Arkansas is likely planning to use their products in the executions. They cited the Department of Correction's limited disclosures last year regarding the drugs.

Fresenius Kabi USA LLC of Illinois and West-Ward Pharmaceuticals Corp. of New Jersey stated in their petition that they have gone to great effort to keep their products from being used in lethal injections because they want their medications to be used to save lives and treat injuries and illnesses.

In their pleading, the companies warned that by buying up supplies of the drugs and hoarding them to be used only in executions, states like Arkansas are keeping those medications away from people who need them.

"The use of the medicines for lethal injections creates a public-health risk by undermining the safety and supply of lifesaving medicines," Searcy attorney Brett Watson wrote on behalf of the companies.

"Diverting the medicines to executions and away from health care creates unnecessary shortages for patients who need them most. Medicines that could be used to protect life are instead being used to end it. The unintended consequence could be to undermine the supply and to place patients in Arkansas and across the country at risk," Watson wrote.

Fresenius, a U.S. subsidiary of German drug manufacturer Fresenius Kabi, makes the heart-stopping potassium chloride. West-Ward, a subsidiary of British-based Hikma Pharmaceuticals PLC, manufactures midazolam, the tranquilizer used to sedate inmates before the two killing drugs are administered.

Both companies also filed "friend of the court" briefs last week in a federal court case in which death-row inmates sought to delay their executions. U.S. District Judge Kristine Baker did not rule on the pharmaceutical manufacturers' arguments when she ruled on the inmates' plea.

Gray's order on the vecuronium bromide was in response to a lawsuit by Virginia-based McKesson Medical-Surgical Inc., a longtime vendor of the state prisons department.

McKesson sold the paralytic to the Correction Department in a transaction that the company says was a mistake. McKesson's contract with the manufacturer barred sales when the drugs were going to be used in executions, the company stated. The manufacturer has since been revealed to be Illinois-based Hospira, a subsidiary of pharmaceutical giant Pfizer of New York.

McKesson sued to get the drugs back, claiming that prison officials had acted underhandedly to obtain them, then had reneged on a promise to return the drugs even after McKesson refunded the state's money.

According to the latest figures available on the Arkansas Transparency website, McKesson's parent company earns about $7.8 million annually from the state, almost all of that through its medical-surgical distribution branch, which sold the vecuronium bromide to the state.

With Arkansas' executions looming, McKesson petitioned Gray for a temporary restraining order to bar the state from using the vecuronium bromide until the ownership of the drugs could be decided in court.

After a five-hour hearing Wednesday, Gray granted the drug supplier's petition and barred the state from using the medication.

In her ruling, Gray said McKesson had presented sufficient proof to call the ownership of the drugs into question and had shown evidence that state prison officials had exceeded their authority in obtaining the drugs.

Attorney General Leslie Rutledge, whose lawyers are representing the Correction Department, appealed immediately to the state Supreme Court, asking that Gray's order be canceled.

In their arguments to the high court Thursday, state lawyers contended that Gray had exceeded her authority because her prohibition on the drugs acted as a stay of execution and that circuit judges do not have the authority to block executions.

They also claimed that Gray had wrongly declined to recognize the state's sovereign immunity from such lawsuits and that she also should have determined that McKesson has no legal grounds to sue.

State lawyers also objected to Wednesday's hearing after filing a change-of-venue motion, saying that they were entitled to move the litigation from Pulaski County to Faulkner County. No one from the state would say why they wanted the lawsuit removed from Pulaski County or why they preferred to have the case heard in Faulkner County Circuit Court.

Gray's ruling was the second time in six days that a Pulaski County circuit judge had barred the state from using the vecuronium bromide. Judge Wendell Griffen imposed a ban last week, also in response to a McKesson lawsuit.

The company moved over the weekend to withdraw its lawsuit after a federal judge stayed all of the state's executions. But when a federal appeals court dissolved that stay, McKesson reinstated its lawsuit.

By that time, Griffen had been barred by the state Supreme Court from hearing any death-penalty-related litigation, so McKesson's second lawsuit was assigned to Gray.

A Section on 04/21/2017

Attorney General Leslie Rutledge is shown in this file photo.