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American healthcare giant sues to stop mass execution in US legal first

Arkansas' death chamber
Arkansas' death chamber
America’s largest drug wholesaler is suing the state of Arkansas to stop the use of dishonestly-obtained medicines in eight lethal injection executions between April 17th and 27th. 

It is the first time in US legal history that a private company has brought direct legal action to prevent the misuse of medicines in executions.

Lawyers for the healthcare giant McKesson, which Fortune ranks as America’s 5th most successful company, allege that Arkansas deliberately misled the firm to obtain its products for use in executions and reneged on an agreement to return them after being provided with a full refund.

McKesson tonight filed a motion seeking an emergency injunction and the immediate return of its medicine, and suing the Arkansas Department of Correction for rescission based on misrepresentation of a medical license, rescission based on unilateral mistake, replevin, unjust enrichment, and unjust taking.

An emergency hearing is scheduled for 9 am on April 18th in Pulaski County Circuit Court.

McKesson’s complaint to the court requests “that its property, the 10 vials of 20mg/25ml Vecuronium, be impounded pending a hearing on its status”. Should this request be granted, the planned executions could be halted indefinitely, as a key drug in Arkansas’s lethal injection cocktail expires at the end of April. Any delay beyond April 31st would leave the state without the full complement of drugs needed to carry out lethal injections.

McKesson’s suit against Arkansas alleges that the company was repeatedly “misled” by the state as it sought to obtain drugs from the company, stating that the Arkansas Department of Corrections (ADC): 
  • purchased the products under the medical license of an Arkansas physician, “represented that the order was placed at the request of a physician and with the intent to use the products for a legitimate medical purpose.”;
  • had the products shipped to a healthcare facility “to mask things further”;
  • assured McKesson it would return the products, accepted a full refund, then reneged on its pledge and “kept both the illegally obtained Vecuronium and the returned funds.”

McKesson’s unprecedented intervention represents only the latest and largest escalation in the healthcare industry’s efforts to prevent what would be America’s largest mass execution since the civil rights era. It comes after the drug manufacturer Pfizer disclosed last night that McKesson was the source of Pfizer medicines purchased by the ADC.

Last night two global drug makers, Fresenius Kabi and Hikma, filed “friend of the court” briefs in a suit challenging the state’s lethal injection protocol. The companies wrote in their brief that “The use of their medicines for lethal injections violates contractual supply-chain controls that the Manufacturers have implemented.”

Maya Foa, Director at the international human rights group Reprieve said:

“McKesson is acting to prevent a grave misuse of life saving medical products, and to protect the systems and contracts the company established to stop the sale of drugs to death rows. 

"Pharmaceutical manufacturers and wholesalers make medicines to save and improve the lives of patients, and the use of these drugs in executions goes against everything these firms stand for. 

“Arkansas has made concerted efforts to undermine the wishes and interests of responsible healthcare companies, violating the law and putting public health at risk. McKesson is right to fight back against these duplicitous and dangerous practices.”

McKesson's statement can be read here and their court briefs are on the Reprieve US website.

The other two companies' court briefs are available here or on the Reprieve US website.

Source: Reprieve, April 15, 2017

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