State fails to stop ex­e­cu­tion-drug suit

Judge stud­ies ju­ris­dic­tion ques­tion

Northwest Arkansas Democrat-Gazette - - FRONT PAGE - JOHN LYNCH

A law­suit claim­ing that Arkansas prison of­fi­cials duped a med­i­cal sup­plier into sell­ing them med­i­ca­tion used to ex­e­cute four con­victed killers sur­vived an­other court chal­lenge on Wed­nes­day.

Af­ter a two-hour hear­ing Wed­nes­day, Pu­laski County Cir­cuit Judge Alice Gray re­jected a mo­tion from the at­tor­ney gen­eral’s of­fice to dis­miss the suit filed by McKes­son Med­i­cal-Sur­gi­cal Inc.

But the judge said she needs more time to con­sider whether she has any fur­ther ju­ris­dic­tion over the pro­ceed­ings. At is­sue is whether state at­tor­neys can move the pro­ceed­ings to an­other judge in an­other county un­der a new statute that has never been court-tested.

Gray promised a de­ci­sion on the ju­ris­dic­tion is­sue as soon as pos­si­ble.

McKes­son wants the judge to make Arkansas re­turn the sup­ply of ve­curo­nium bro­mide the com­pany

sold to the prison depart­ment last year. The com­pany is ac­cus­ing Depart­ment of Cor­rec­tion of­fi­cials of trick­ing its sales­man into sell­ing them the par­a­lytic, then reneg­ing on a prom­ise to re­turn the drugs when McKes­son re­funded the state’s pay­ment.

The bro­mide is one-third of the drug com­bi­na­tion Arkansas uses for lethal in­jec­tions. The state car­ried out four of eight planned ex­e­cu­tions

in April be­fore the sup­ply of an­other drug it uses passed its use-by date.

Arkansas does not have enough of the nec­es­sary drugs to con­duct fur­ther ex­e­cu­tions, and none have been sched­uled.

State at­tor­neys deny that Arkansas of­fi­cials did any­thing wrong, call­ing the lit­i­ga­tion a case of “seller’s re­morse” brought on by the pub­lic dis­clo­sure of McKes­son’s role in pro­vid­ing the par­a­lytic, a dis­clo­sure that could open McKes­son to gov­ern­ment sanc­tions in Europe

and from the bro­mide’s man­u­fac­turer.

State At­tor­ney Gen­eral Les­lie Rut­ledge has been press­ing for the law­suit by McKes­son Med­i­cal- Sur­gi­cal Inc. to be trans­ferred to Faulkner County Cir­cuit Court since the lit­i­ga­tion be­gan in April. But Rut­ledge will not say why she prefers that court.

Wed­nes­day marked three months since the law­suit was filed, and Rut­ledge’s spokesman con­tin­ued to de­cline to an­swer ques­tions about the at­tor­ney gen­eral’s in­sis­tence

on mov­ing the law­suit out of Lit­tle Rock, the usual venue for civil ac­tions against the state.

Se­nior As­sis­tant At­tor­ney Gen­eral Jen­nifer Mer­ritt told the judge the state has an “ab­so­lute right” to change courts un­der the new law, Act 967 of 2017, ar­gu­ing that the statute re­quires Gray give up ju­ris­dic­tion to Rut­ledge’s choice of Faulkner County.

The law, which was passed and went into ef­fect about a week and a half be­fore the law­suit was filed, al­lows the gov­ern­ment to have any suit brought against it moved to any cir­cuit court of its choos­ing if the plain­tiff is not an Arkansas res­i­dent.

At­tor­ney Michael Heis­ter, rep­re­sent­ing McKes­son, told the judge that the com­pany is suf­fi­ciently es­tab­lished in Arkansas, through a dis­tri­bu­tion cen­ter in Lit­tle Rock, to meet the stan­dard for res­i­dence.

He said the state at­tor­neys are try­ing to get Gray to ap­ply a different stan­dard, state cit­i­zen­ship, as the test for

whether the lit­i­ga­tion re­mains in Lit­tle Rock.

“Our point is, the venue statute doesn’t talk about [cit­i­zen­ship]; it talks about res­i­dence,” Heis­ter told the judge. “We are a res­i­dent of the state un­der the statute. We pay taxes.”

The com­pany, an arm of the in­ter­na­tional health care gi­ant McKes­son Corp., sued to block the state from us­ing the ve­curo­nium bro­mide the com­pany had sold to the Depart­ment of Cor­rec­tion last year.

The drug is a gen­eral anes­the­sia rec­og­nized in­ter­na­tion­ally as an essen­tial med­i­ca­tion, but McKes­son and the drug’s man­u­fac­turer, Pfizer, don’t want it to be used for ex­e­cu­tions.

The com­pany has also asked for the drug to be re­turned.

Two Pu­laski County Cir­cuit judges, act­ing in sep­a­rate pro­ceed­ings, sided with the com­pany and or­dered the prison depart­ment not to use the par­a­lytic.

But the Arkansas Supreme Court over­turned those or­ders on emer­gency ap­peals by Rut­ledge, so the state was able to use the drug in the four ex­e­cu­tions that were con­ducted.

About 30 min­utes of Wed­nes­day’s pro­ceed­ing in­volved Mer­ritt try­ing to con­vince an ob­vi­ously skep­ti­cal Gray that the judge still had ju­ris­dic­tion over the case, even though the at­tor­ney gen­eral’s of­fice has ap­pealed the judge’s April rul­ing to the Arkansas Supreme Court.

Gray had or­dered the Depart­ment of Cor­rec­tion not to use McKes­son’s bro­mide, which would have halted the ex­e­cu­tions. But the high court sus­pended Gray’s or­der while the jus­tices con­sider whether Arkansas’ sov­er­eign im­mu­nity shields it from the McKes­son suit.

Gray ruled in April that the state isn’t im­mune from the McKes­son suit. The at­tor­ney gen­eral’s ap­peal has lodged the im­mu­nity ques­tion with the su­pe­rior court, Gray said. So how could she also take up the same ques­tion again un­til the Supreme Court makes its de­ci­sion? Gray asked.

“That con­cerns me,” the judge said. “I don’t want to run afoul of an ap­pel­late court’s right to de­cide an is­sue.”

Mer­ritt ar­gued that Gray still had the au­thor­ity to rule on the im­mu­nity ques­tion. The at­tor­ney said she ex­pected Gray to again re­ject the im­mu­nity ar­gu­ment.

But that sec­ond re­jec­tion, which Gray pre­sented on Wed­nes­day, would al­low the state to bring a fully de­cided ap­peal to the high court as op­posed to the par­tial ap­peal that got un­der­way in April, Mer­ritt said. One ap­peal in­stead of two will save both courts time and ef­fort, she said.

Other­wise, with the Supreme Court now on its sum­mer va­ca­tion, the state would have to go through two ap­peals be­fore the im­mu­nity is­sue was re­solved, a process that could take at least eight months, Mer­ritt told the judge.

Mer­ritt said the vi­tal­ity of the McKes­son med­i­ca­tions is also at stake. Arkansas has al­ready lost one of its three death-penalty drugs, the seda­tive mi­da­zo­lam, be­cause the med­i­ca­tion ex­pired in May.

“Mean­while, the clock is tick­ing on the ex­pi­ra­tion date of th­ese drugs,” she said.

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