ELECTRONICALLY FILED
Pulaski County Circuit Court
Larry Crane, Circuit/County Clerk

IN.THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS
TWELFTH DIVISION

MCKESSON MEDICAL.SURGICAL

INC.

2017-Apr-20 11:33:21
60CV-17-1960
C06D12 : 4 Pages

PLAINTIFF

NO.60CV-17-1960

VS.

STATE OF ARKANSAS;
ARKANSAS DEPARTMENT OF CORRECTION;
ASA HUTCHINSON, Governor of the State of
Arkansas, in his official capacity; and
WENDY KELLEY, Director of the Arkansas
Department of Correction, in her official capacity

DEFENDANTS

On the 19th day of April, 2017 , this cause came on for hearing before the Court

on plaintiffs Motion for Temporary Restraining Order or Preliminary lnjunction. Plaintiff
appeared through its counsel, Steven W. Quattlebaum and John E. Tull. Defendants
appeared by and through their counsel, Solicitor General Lee Rudofsky and Senior
Assistant Attorney General Colin Jorgensen.
Having reviewed Plaintiffs Complaint, Plaintiff's Motion for Temporary
Restraining Order or Preliminary lnjunction, and responsive pleadings of Defendants
and all briefs, and having fully considered the evidence presented at the hearing and
arguments of counsel, the Court hereby FINDS and ORDERS:

1.

This Court denied Plaintiffs request for a temporary restraining order

insofar as plaintiff requested ex-parte relief. This Court instead scheduled a hearing on

plaintiffs Motion for Temporary Restraining Order or Preliminary lnjunction as there was
sufficient time for Defendants to be heard on the Motion the following day'

 2.

Article 5, section 2O of the Arkansas Constitution provides that the State

of Arkansas shall never be made a defendant in any of her courts. Arkansas Dept.

of

Community Correction v. Ctty of Pine Bluff ,2013 Ark. 36, 425 S.W.3d731' The
doctrine of sovereign immunity has been extended to include state agencies.

/d'

ln

determining whether the doctrine of sovereign immunity applies, the court must decide

whether a judgment for a plaintiff will operate to control the action of the State or subject
it to liability

. ld. lf so, the suit is one against the State and is barred by the doctrine of

sovereign immunity. ld.

3.

However, there are several exceptions to the defense of sovereign

immunity. One exception to the sovereign immunity defense is that a state agency
acted outside of its authority, ultra vires, and in bad

faith.

See Fitzgiven v. Dorey,2013

Ark. 346, 42g S.W.3d234. A state agency may be enjoined if it can be shown that the
agency's action is ultra vires or outside the authority of the agency.

ld. A state agency

may also be enjoined from acting arbitrarily, capriciously, in bad faith, or in a wantonly
injurious manner. /d.

4.

The Court finds that the defense of sovereign immunity is inapplicable to

the facts of this case as plaintiff sufficiently pled and sufficiently proved at this hearing

that Defendants' conduct was outside of their authority, ultra vires, and made in bad

faith. This Court therefore has jurisdiction to hear and decide this matter'

S.

To justify a grant of preliminary injunctive relief, a plaintiff must establish

that irreparable harm will result in the absence of an injunction or restraining order and
that the plaintiff has a likelihood of success on the merits. Three Sr.sfers Petroleum, lnc-

v. Langtey,

34g

Ark. 167,72S.W.3d 95 (2002). The test for determining the likelihood

 of success on the merits is whether there is a reasonable probability of success in the

litigation. ld.

6.

The Court finds that Plaintiff has established a reasonable probability of

success on its claims for:

(a.)

Rescission Based on Misrepresentation of a Medical License and
Rescission Based on Unilateral Mistake;

)
(c.)

RePlevin; and

(b

Unjust Enrichment.

Thus, Plaintiff established a likelihood of success on the merits in this litigation.

7.

The Court finds that in the absence of a preliminary injunction, Plaintiff

will suffer irreparable harm which cannot be adequately compensated by money
damages or redressed by a court of law.

B.

Based upon these findings, the Court hereby restrains and enjoins

Defendants from using or disposing of the vecuronium bromide they obtained from

plaintiff. This prohibition shall remain in effect until further order of the Court. At this
time, the Court is not ordering Defendants to return the vecuronium bromide to Plaintiff
as a final hearing has not been held.

g.

The parties may contact the Court's Trial Court Administrator to schedule

a hearing on Defendants' Motion to Dismiss and Defendants' Motion for Change of
deadline
Venue, said hearing to occur on an agreed date and time that occurs after the

for all responses and replies have passed. No one has requested that response and
reply times be shortened. Plaintiffs are entitled to formally respond to Defendants'

that a
Motion to Dismiss and Motion for Change of Venue. Any party may also request

 final hearing be scheduled on Plaintiffs Motion for Temporary Restraining Order or
Preliminary ! njunction.
FOR THE FOREGOING REASONS, Plaintiffs Motion for Temporary Restraining
Order or Preliminary lnjunction is hereby granted. Defendants are hereby restrained
and enjoined from using or disposing of the vecuronium bromide they obtained from
Plaintiff until further order of the Court.
IT IS SO ORDERED,

E S. GRAY
CIRCUIT JUDGE

Steven W. Quattlebaum
John E. Tull
Lee Rudofsky
Colin Jorgensen