Circuit Judge Wendell Griffen this afternoon issued a temporary restraining order against the state’s use of one of three execution drugs on a complaint by McKesson Medical-Surgical that the state had deceived the company to obtain a paralytic drug for execution, rather than health, uses. This decision calls the scheduled six executions into doubt, but the state plans an emergency appeal.
The order effectively halts executions if the state has no other version of this drug except that obtained from McKesson. The Department of Correction has refused to answer questions about that.
McKesson, a drug distributor of the Pfizer version of vecuronium bromide, had earlier said it would take legal action to stop use of the drug for other than its intended purpose. Griffen said the company had demonstrated a likelihood of success on the complaint because the state would use the drug and not return it as demanded, causing “irreparable harm” to the company from the loss of its property.
Executions are scheduled to begin Monday.
The attorney general blasted Griffen for hearing the case.
“As a public opponent of capital punishment, Judge Griffen should have recused himself from this case. Attorney General Rutledge intends to file an emergency request with the Arkansas Supreme Court to vacate the order as soon as possible.”
As we showed earlier, and again here, Griffen joined an anti-death penalty demonstration at the Governor’s Mansion this afternoon.
He set a hearing for 9 a.m. Tuesday if the state wished to contest the order. It will go to the Supreme Court first, the attorney general hopes. It has reversed Griffen before.
I’ve sent questions to Griffen about his response to the state’s criticism and his decision to participate in a death penalty protest the day he heard a case about use of an execution drug.
Lawyer John Tull of Little Rock filed the complaint for McKesson at 3:58 p.m.
The McKesson complaint details the subterfuge used by the state to obtain drug the manufacturer doesn’t want used in executions. It said the Correction Department, about July 11, “leveraged its medical director’s license to order 10 boxes containing 10 vials” of the drug. “In doing so, ADC led McKesson to believe that the order was placed at the request of or for the benefit of the physician and would be used for a legitimate medical purpose, consistent with Arkansas State Medical Board regulations” However, the suit said, the state intended to use the drug for executions, but didn’t disclose that.
The suit said the state circumvented McKesson controls by placing the order by phone through a familiar customer sales rep. The state wouldn’t send an e-mail to confirm the purchase, but “insisted the transaction be conducted via text.” The state also had the drug shipped to the prison administrative building, not the maximum security prison, to “further the implication that the vecuronium was for a legitimate medical purpose.”
The suit said questions were raised about the purchase by Pfizer and McKesson tried to get the drug back, but the state refused even when McKesson refunded the money. Director Wendy Kelley finally said she’d return the drug only if a substitute drug was supplied.
The complaint details the state’s knowledge, including in sworn court testimony by a department official, that McKesson did not want to sell the drug for executions. To buy it under false pretenses was unauthorized and in bad faith, the suit said. McKesson objects to being publicly identified as supplier of an execution drug.
Though McKesson may have been misled, that doesn’t necessarily establish a right to get back property sold in a transaction such as this, lawyers tell me.
The order was signed at 4:25 p.m. The order was signed in Griffen’s behalf by another circuit judge, Cathi Compton. The plaintiffs likely had a proposed order prepared in the event the judge decided to act based on facts presented.
The Correction Department is referring all questions about the impact of rulings today on the execution schedule to the attorney general’s office. That office has said only that it is heading to the Supreme Court and that the drug whose use was blocked by Griffen was necessary for the executions.
Bottom line: All hell has broken loose.