Attacking the root cause of the opioid crisis in Indian Country by suing big pharma

Muscogee (Creek) Nation sets a precedent by filing against several big pharma companies, distributors, manufacturers and big chain pharmacies

In a move demonstrating big pharma companies are one of the root causes of opioid problems plaguing Indian Country, more than 100 tribes are setting the stage to file lawsuits against the big prescription drug companies, which include pharmaceutical manufacturers and distributors of opioids.

There are now also about 2,000 plaintiffs who have filed cases.

Judge Dan Polster of Cleveland, Ohio, who is presiding over the case from his bench in the United States District Court for the Northern District of Ohio is describing the filing as the “largest and most complex civil litigation in U.S history.”

The impact of the opioid crisis on American Indians and Alaska Natives is immense. The Centers for Disease Control and Prevention reported that American Indians and Alaska Natives had the highest drug overdose death rates in 2015 and the largest percentage increase in the number of deaths over time from 1999-2015 compared to other racial and ethnic groups. During that time, deaths rose more than 500 percent among American Indians and Alaska Natives.

In March 2017, the Indian Health Service chartered the National Committee on Heroin, Opioids and Pain Efforts (also known as the HOPE Committee). The HOPE committee consists of a multidisciplinary team of health care professionals across IHS that work to promote appropriate and effective pain management, reduce overdose deaths from heroin and prescription opioid misuse, and improve access to culturally appropriate treatment.

“The opioid epidemic has hit Indian Country pretty hard,” said attorney Lloyd B. Miller, a partner with the law firm Sonosky, Chambers, Sachse, Miller & Munson. “The data is staggering in Indian Country. That’s problem number one.

“Understandably, tribal governments should not be dependent on state governments to take care of the welfare of the tribal communities,” said Miller, who received his law degree from the University of Virginia. “Tribal governments have to do this on their own – the Muscogee (Creek) Nation and many other tribes have now filed over 100 lawsuits against the opioid industry to recover damages and to get these companies to pay the massive costs it’s going to entail to help people through the crisis of opioid addiction.

“It’s easy for people to get (opioids) because of the greed,” said Miller. “Greed drives the (opioid) manufacturers to promote them for treatment of any ailment that might cause some pain. Greed drives the distributors to move their pills to the Wal-Marts of the world, and greed drives Wal-Marts of the world to sell as many pills as they possibly can. Everybody is making money and nobody cares about the victims.

“The industry put profits over lives. That’s pretty clear,” said Miller, who has devoted his career to litigation against the federal government on behalf of tribes and tribal organizations.

The Muscogee (Creek) Nation and the Blackfeet Nation have been selected by Judge Polster to be the test cases, even though the Creeks filed relatively late. According to Miller, when selecting the test cases the judge didn’t look at who filed first but rather who had the most substantial claims. Another factor was who is the tribe suing?

The Muscogee (Creek) Nation not only is suing the big manufacturers but also the distributors, pharmacy chains and local pharmacies in the Muscogee jurisdictional area. The next step will be the selection of tribal cases to go forward. The outcome of the test cases will hopefully persuade the parties to settle. If the test cases go bad for the defendants they will not want to go through 2,000 cases, they will look to settle. It is predicted that a potential settlement will be billions and billions of dollars.

“Prescription practices here in the United States, including tribal communities, have changed dramatically in the last five years. You see opioid treatment programs rising up around Indian Country,” said Miller, who represents around 20 tribes across the U.S. from Alaska to Oklahoma, Montana, Arizona, Washington, Oregon, etc. “We are trying to get manufacturers to own up for its responsibility. They made hundreds of billions of dollars and they can afford to make things right.”

During the first hearing in the case, in early January, Polster informed lawyers that he intended to dispense with legal norms like discovery and would not preside over years of “unraveling complicated conspiracy theories.” Then he ordered them to prepare for settlement discussions immediately.

Polster added, “a settlement that will provide meaningful solutions to a national crisis — by the end of this year. I did a little math. About 150 Americans are going to die today, just today, while we’re meeting.”

In a media release, the Muscogee (Creek) Nation described their filing against opioid manufacturers Purdue Pharma L.P., Purdue Pharma Inc., The Purdue Frederick Company, and Endo Health Solutions Inc., distributors McKesson Corporation, Cardinal Health, Inc. and AmerisourceBergen Corporation, and pharmacies CVS Health Corporation, Walgreens Boots Alliance, Inc. and Wal-Mart Stores, Inc. and cited how the defendants “failed to prevent the flow of illicit opioids into the Muscogee (Creek) Nation.”

“Our communities simply do not have enough families to accept all of the children who are born addicted or whose addicted parents are no longer able to care for them,” said Muscogee (Creek) Nation Principal Chief James Floyd in the release. “We run the risk of losing children from the tribe forever when they must be placed in custody outside of tribal homes. This crisis also threatens our children and communities in other ways—every dollar that is spent addressing the opioid crisis is a dollar that cannot be spent on other pressing healthcare needs, education, and economic development.”

“The defendants’ misconduct, and failure to comply with their legal obligations has led to an epidemic of prescription opioid abuse,” said Muscogee (Creek) Nation Attorney General Kevin Dellinger. “In order to protect the health, safety, and welfare of all our citizens, we seek to hold these companies accountable for their negligence and wrongdoing within the Muscogee (Creek) Nation.”

“Native Americans have suffered extraordinary and disproportionate harm because of the opioid crisis,” said Richard Fields, a special counsel for the nation. “Their death rate is higher than any other population group, their addiction rate is 64 percent higher than the national average, and many tribes pay a far higher proportion of their citizens’ health care costs than other governments.”

As offered in the release: The full complaint, which was filed in U.S. District Court for the Northern District of Oklahoma, can be viewed here.

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Harlan McKosato is a former host of Native America Calling and has served as an adjunct professor of journalism at the Institute of American Indian Arts. In 2005 McKosato was recognized by his alma mater, the University of Oklahoma, as a “Distinguished Alumnus of the Gaylord College of Journalism.” He received his bachelor’s degree in Journalism & Mass Communications (Radio/TV/Film) from OU in 1988. Harlan is a citizen of both the United States and the Sac and Fox Nation of Oklahoma.

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