Cherokee Nation seeks to hold large companies accountable for opioid crisis

Sovereign Cherokee Nation sues U.S.’ largest drug distributors for tragedies wrecked by the opioid crisis

Cherokee Nation recently sued six companies – including some of the nation’s largest pharmacies and drug distributors – on the grounds that they inundated Indian Country with lethal amounts of prescription opioids. The defendants include Walmart, Walgreens, and CVS, as well as AmerisourceBergen, Cardinal Health and McKesson Corp. — three of the nation’s largest drug distributors, which control almost 85% of the country’s prescription pill distribution.

Cherokee Nation’s opioid addiction crisis far surpasses that of the U.S. overall.  Last year, the U.S. Surgeon General observed that the “prescription opioid abuse epidemic that is sweeping across the U.S. has hit Indian Country particularly hard.” (Pet. ¶ 70).

• Nearly 13% of American Indian teens have used OxyContin by 12th grade (Pet. ¶ 70)
• American Indian 12th graders’ OxyContin use is about double the national average (Pet. ¶ 71)
• American Indian 8th and 10th graders’ heroin OxyContin use is about 2-to-3 times the national average (Pet. ¶ 71)
• Pregnant American Indian women’s rate of opioid dependency or abuse is 8.7 times that of the next-highest race/ethnicity. In some communities, around 1 in 10 pregnant American Indian women has been diagnosed with opioid dependency or abuse. (Pet. ¶ 76)
• Oklahoma, the state in which most Cherokee Nation citizens reside, has been routinely ranked first nationally as the state with the most nonmedical use of prescription opioids in adults (Pet. ¶ 65)
• Cherokee Nation utilizes a prescription drug monitoring program (Pet. ¶ 64)
• Cherokee Nation eliminated certain opioids from its prescription drug “formulary” that were most prone to abuse, including hydrocodone (Pet. ¶ 64)
• Cherokee Nation stopped using hardcopy prescription pads, relying entirely on electronic prescriptions to eliminate risk of forgery (Pet. ¶ 64)

The suit asserts that “[t]he brunt of the [opioid] epidemic could have been, and should have been, prevented by the defendant companies acting within the U.S. drug distribution industry, which are some of the largest corporations in America. These drug wholesalers and retailers have profited greatly by allowing the Cherokee Nation to become flooded with prescription opioids.” (Pet. ¶ 3)

Cherokee Nation’s petition also asserts that the defendants:

• failed in their duty to secure and monitor opioids as they flowed from the manufacturers to the patients,
• ignored or remained willfully ignorant to known problems in their supply chains,
• filled suspicious pharmacy orders for opioids (which allowed pharmacies to fill suspicious patient orders), and
• created an environment that made it easy for large quantities of drugs to be diverted into the black market.
  (Pet. ¶¶ 4-6)

Because of this conduct, Cherokee Nation argues that the defendants should bear legal responsibility for the tragedy that has befallen the Cherokee Nation – including hundreds of deaths and monetary costs tallying in the hundreds of millions of dollars. (Pet. ¶ 7) These monetary damages include the costs of medical care for those suffering from addiction, rehabilitative services, treatment for infants born with opioid-related conditions, social services for children whose parents are incapacitated by opioid abuse, and law enforcement or public safety responses to the opioid epidemic. (Pet. ¶ 8)

Whose duty is it to stop the epidemic?

The Controlled Substances Act imposes a duty on pharmaceutical distributors to guard against illicit drug diversion by monitoring for suspicious ordering patterns; to do this, they must verify the legitimacy of their customers’ orders prior to fulfilling them.  The DEA educates distributors about how regulatory changes can affect downstream demand for drugs and provides them with detailed information about their customers’ purchasing trends (volume and frequency of orders, percentage of prescriptions that are for controlled substances, etc.).  Federal law similarly requires pharmacists to refrain from dispensing a prescription of questionable or suspicious origin – and pharmacists who fill them anyway (without verifying that they’re supported by legitimate medical need) can be criminally prosecuted. At the pharmacist level, these protections aim to prevent “doctor shoppers,” or patients who obtain multiple opioid prescriptions, from filling multiple orders.

In response to the lawsuit, the defendants’ reactions ranged from “no comment” to claims that Cherokee Nation’s allegations “mischaracterized” their conduct.

Updates will be provided as the lawsuit progresses.

Sources cited:

Josh Saul, Cherokee Nation sues Walmart, others over illegal opioids, News Week (Apr 20, 2017).

Michael Overall, Cherokee Nation sues drug companies for alleged ‘epidemic’ of prescription painkiller abuse, Tulsa World (Apr 20, 2017).

Tim Talley, Cherokee Nation sues opioid wholesalers, retailers for abuse, Associated Press (Apr 20, 2017).

Olivia Beavers, Cherokee Nation sues drug firms over opioid epidemic: report, The Hill (Apr 20, 2017).

Megan Thielking, Cherokee Nation files lawsuit targeting CVS and other pharmacies in opioid crisis, STAT (Apr 20, 2017).

Scott Hingham and Lenny Bernstein, Cherokee Nation sues drug firms, retailers for flooding communities with opioids, The Washington Post (Apr 20, 2017).

About the author

Erin K. Jackson is Jackson LLP’s Managing Partner. She is responsible for all aspects of firm management, is a sought-after speaker for healthcare conferences, and is a published author. She is specifically focused on the intersection of the patient experience in healthcare with the legal and ethical responsibilities of providers.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.