Company sues Arkansas, charging fraud over lethal injection drugs

By Jon Herskovitz and Steve Barnes
FILE PHOTO - Inmates Bruce Ward(top row L to R), Don Davis, Ledell Lee, Stacy Johnson, Jack Jones (bottom row L to R), Marcel Williams, Kenneth Williams and Jason Mcgehee are shown in these booking photo provided March 21, 2017. Courtesy Arkansas Department of Corrections/Handout via REUTERS

By Jon Herskovitz and Steve Barnes

(Reuters) - U.S. drug wholesaler McKesson Medical-Surgical Inc sued Arkansas a second time on Tuesday, saying the state acted fraudulently in obtaining a drug it intends to administer in a record number of executions this month and demanding it not use the batch to kill people.

Arkansas, which last put someone to death 12 years ago, is seeking to resume capital punishment, with a plan that originally called for the executions of eight inmates in 11 days. That would be the most in the United States in as short a period since the death penalty's reinstatement in 1976.

Arkansas has faced a barrage of legal challenges, which have so far resulted in three of the executions being halted and criticism that it was acting recklessly.

In a separate action on Tuesday, lawyers for all eight inmates filed a petition with the U.S. Supreme Court to halt all the executions on issues including drug protocols and access to counsel.

Arkansas' capital punishment push came as the number of U.S. executions fell to a quarter-century low in 2016. (For a graphic on the number and method of U.S. executions, see: http://tmsnrt.rs/26wAN2v)

Capital punishment in several states has been stymied by problems with procuring lethal-injection drugs due to sales bans by global drug firms and legal questions over death chamber protocols.

Arkansas contends it must act quickly because one of the drugs in its lethal injection mix, the valium-like sedative midazolam, expires at the end of April.

In its lawsuit, McKesson Medical-Surgical, a unit of McKesson Corp , said the Arkansas Department of Correction (ADC) acted deceitfully when it purchased another drug, vecuronium bromide, a commonly used muscle relaxant given in extreme doses in executions to paralyze the body and halt breathing.

"ADC intended to use this product in connection with executions, a fact that was never disclosed to McKesson," the company said in the filing at a state court in Little Rock, the state capital.

In addition to the Department of Correction, the lawsuit named the department's head, Wendy Kelly, and Arkansas Governor Asa Hutchinson as defendants.

McKesson had originally sued Arkansas last week in state court, but withdrew that action when a federal court on Saturday issued stays that temporarily halted the executions of the eight inmates. The stays were overturned by a federal appeals court on Monday.

The company wants the drugs impounded. Arkansas contends it has acted legally.

Arkansas next plans to execute convicted murderers Stacey Johnson and Ledell Lee on Thursday in a dual execution, something that has not occurred in the United States in 17 years.

Lawyers for the two men have asked Arkansas courts to halt the executions for DNA testing they say could prove their clients' innocence and to consider judicial shortcomings, including a previous trial lawyer for Lee who came to court drunk, was removed from the hearing and ordered to undergo a drug test. On Tuesday, a state judge denied the DNA test for Lee.

(Reporting by Jon Herskovitz in Austin, Texas and Steve Barnes in Little Rock; Editing by Jonathan Oatis)