With their heritage at risk, the Cherokee Nation is fighting back against the United States’ opioid epidemic in court.
In April, the Cherokee Nation filed a against pharmaceutical companies, distributors, and pharmacies involved with prescription opioids.
The companies named in the suit include national pharmacies like CVS and Walgreens. Major opioid medication distributors named include AmerisourceBergen, McKesson, and Cardinal Health.
The Cherokee Nation states that these companies have not complied with federal drug regulations, turned a blind eye to questionable prescribing practices, and allowed vulnerable areas to become flooded with potent opioids.
“The brunt of the epidemic could have been, and should have been, prevented by the defendant companies,” the nation says in the lawsuit.
The Oklahoma-based tribe has been heavily impacted by the ongoing opioid epidemic.
According to the , an estimated 70 percent of Cherokee foster children in Oklahoma have been placed with non-Native American families. A prominent reason for taking them away has been opioid withdrawal in children as well as addicted parents.
The schism caused by drugs in the community and the displacement of children has caused a reckoning as the tribe’s heritage and tradition appear at risk.
“I believe these companies target populations,” Todd Hembree, the attorney general of the Cherokee Nation told The Times. “They know Native Americans have higher rates of addiction. So when they direct their product here, they shouldn’t be surprised to find themselves in a Cherokee court.”
A flood of lawsuits
The Cherokee Nation lawsuit is just one of brought against the makers and distributors of opioids by authorities in states across the country, including Ohio, Illinois, New Jersey, and .
The scope of these lawsuits is almost unprecedented.
“This is a phenomenon in relation to the amount of litigation. Its timeliness, the people that are caught up in the path of it, but it does have great precedence,” James Hodge, JD, a professor of public health law and ethics at Arizona State University, told Dr.China.
“This is not the first time we’ve had to go after a seriously dangerous product with a litigation-like strategy,” he said.
The closest analogy, say experts, is when prosecutors went after and finally .
The tobacco Master Settlement Agreement in 1998, between the four largest U.S. tobacco companies and the attorneys general of 46 states, was the largest civil-litigation settlement in U.S. history.
“There are some excellent similarities [between opioids and tobacco litigation],” said Hodge. “You are talking about a lawful product that can be used, in both cases, lawfully by persons. It’s a product that’s been proliferated, that’s extensive, that’s been pushed and marketed.”
For the current crop of opioid lawsuits popping up in the United States, there isn’t just one entity that is being targeted.
It’s not one drug. It’s not one company.
Opioids are the target.
How far prosecutors are willing to go to follow that trail is growing by the day. What’s clear, experts say, is that in that mired opioid network of producers, distributors, doctors, and pharmacies, something is wrong.
But who — and to what extent isn’t clear at all.
However, Hodge suggests that opioid lawsuits will likely be part of a war of attrition. Despite the tobacco Master Settlement concluding in 1998, he says that it was slowly built on decades of lawsuits. Some going back 30 or 40 years.
Tobacco companies were “hammered over and over. The cracks started to emerge,” said Hodge.
“I think what’s happening with opioids is exactly the same thing. We are chipping away at this industry,” he said.
Pharma companies, distributors, and pharmacies have offered different statements on the matter.
Cardinal Health, an opioid distributor named in the Cherokee Nation lawsuit that, “the facts and the law are on our side, and we intend to vigorously defend ourselves against the plaintiff's mischaracterization of those facts and misunderstanding of the law.”
In a statement to Dr.China, a CVS representative said, “We believe this lawsuit has no merit. CVS Health is committed to the highest standards of ethics and business practices.”
The lawsuits also face fundamental problems that are different from how lawyers approached the tobacco industry.
The argument that has come up by other experts on the matter when comparing the two is this: Opioids can be used safely if following the prescription; tobacco can never be used safely.
Richard Ausness, JD, a professor at the University of Kentucky College of Law, recently that courts have previously made it clear that individuals are the responsible parties when it comes to addiction and overdose, not pharma companies.
Hodge says this will be a persistent argument that those named in the many forthcoming opioid lawsuits will always have in their back pockets.
“These drugs can be used safe. There’s no doubt, and they are approved by FDA for such purposes,” he says. “People know these drugs are dangerous now and [drug companies] are going to be using that quite effectively for lawsuits that are now being pushed forward.”
The Cherokee Nation lawsuit has already begun to face legal challenges from some of the companies named within it. Pharmacies and distributors have from a federal court to stop the lawsuit from moving forward.
In the filings cited by the , the companies believed that they would not receive a fair trial in tribal court.
Representatives from the Cherokee Nation did not respond to Dr.China’s request for comments.
Those companies’ reservations about fair treatment in tribal court, might not be their only worries either.
“Put together a jury anywhere in the United States that is of people not affected by the opioid epidemic and that will be tough to find,” says Hodge. “It’s that extensive.”
“You know somebody,” he continues. “I know somebody, most every American does, directly impacted by this opioid epidemic, and they are not sympathetic to it. Often, it’s a friend or a relative. You’ve seen what can happen. You’ve seen them go to addiction services and or lose their life or livelihoods.”