Inside Cherokee Lawsuit to Fight Opioid Epidemic

Cherokee Nation in Oklahoma is suing distributors and pharmacies who handle opioids, alleging they ignored "red flags" of falsified prescriptions

"We just kinda had to step back and say, 'How do we make it stop?'" says one lawyer for the Cherokee Nation. Credit: Backyard Productions/Alamy

The Cherokee Nation, like much of the United States, is suffering from an opioid epidemic. "For months and years, we have seen the effects of the opioid abuse in every aspect of our government and society," says Todd Hembree attorney general for the Cherokee Nation. "We see it in outright death in Cherokee citizens."

Hembree and the Cherokee Nation knew they needed to do something to curb the tide of opioids into their community in Oklahoma, home to 177,000 tribal members. The state leads the nation in opioid abuse, but they knew arresting drug users wasn't going to help and they didn't have the resources to track down every doctor who wrote a questionable prescription for oxycodone or every poor patient who sold their stash. So they decided to aim their resources where they thought it would be most effective. "We just kinda had to step back and say, 'How do we make it stop?' We became aware that other states were bringing this type of lawsuit," he says, referring to West Virginia and Illinois, among others. "We sat around our conference table and said, 'Well, if states can bring it, why can't the Cherokee Nation?'" Now, the Cherokee Nation is suing top drug distributors and pharmacies alleging that the corporations are profiting by not doing enough to stem the tide of highly addictive and deadly painkillers into the Cherokee community in Oklahoma. Walgreens, CVS Health, and Walmart are all named in the suit, along with the nation's three largest pharmaceutical distributors: AmerisourceBergen, McKesson, and Cardinal Health. 

"The distributors that we've named in this complaint, distribute close to 90 percent of the opioids in this country," says Richard Fields, one of the attorneys working with the Cherokee Nation. "The pharmacy chains have over 80 percent of the market share." The lawsuit, which was filed in April, is in some ways a last ditch effort to force the hands of companies who many see as responsible for the growing opioid epidemic. In 2015, it was estimated that two million people in the United States suffered from addictions to prescription opioid pain relievers. Among those, Native American have the highest rate of substance abuse and drug-induced deaths in the country. The Cherokee Nation's lawsuit estimates opioid abuse led to over 350 deaths within the Cherokee Nation between 2003 and 2014, which is the reason they were forced to act.

As Hembree describes it, the lawsuit is meant to work in two ways: reimbursement and discouragement. They hope the companies will reimburse them for the costs associated with a drug epidemic, including increased law enforcement costs and money they've spent on child welfare cases. "Every life flight that we have to take to save an addicted child or treat an overdose, that's a cancer treatment that we don't have money for. That's diabetes treatment that we don't have money for," says Hembree. "You don't have to be addicted to opioids to be harmed by this. The resources of the Cherokee Nation are being spent on this crisis that otherwise should be spent on our ordinary, everyday healthcare needs which are very significant."

Perhaps more important, Hembree hopes the lawsuit will encourage the pharmacies and manufacturers to change their behavior and help stem the tide of opioids into the Cherokee Nation. According to attorney Bill Ohlemeyer, another member of the Cherokee Nation legal team, it's a relatively simple problem. "The more you learn about how controlled substances like this are supposed to be distributed, the more you realize that there is a very simple cause to all this and that is the oversupply of these drug," he says. "When you look at statistics, you see how many of these drugs end up in places where it doesn't make sense, in quantities that are orders of magnitude greater than any legitimate purpose. You start asking yourself, 'How does that happen?'" Ohlemeyer argues that it amounts to over-supplying drugs that are meant to be extremely limited in supply. To that end, the lawsuit alleges that the pharmacies and manufacturers aren't living up to their legal duty. If they did, Ohlemeyer says, there would not be such a large-scale problem.

"We want them to follow the federal law, the Controlled Substance Act and put in those practices that they're already supposed to do," says Hembree. "I've been Attorney General for six years and there's usually two ways that you can change someone's behavior. Number one is to put them in jail. Number two is to hit them economically hard enough. Well, I don't have the authority to put them in jail, but we have calculated the damages as to these defendants that we will get their attention enough, that they will comply with the law and put in those best practices that will stem this flood of opioids that is going into northeastern Oklahoma, or to the Cherokee Nation."

Of course, the pharmacies and manufacturers already believe they are living up to their obligations under the law. "CVS Health is committed to the highest standards of ethics and business practices, including complying with all federal and state laws ... and is dedicated to reducing prescription drug abuse and diversion," CVS Health spokesperson Michael DeAngelis said in an email. "We also have stringent policies, procedures and tools to ensure that our pharmacists properly exercise their corresponding responsibility to determine whether a controlled substance prescription was issued for a legitimate medical purpose before filling it."

Courtney Tobin, a spokesperson for Cardinal Health, issued a similar statement, adding that the lawsuit mischaracterized the facts and misunderstood the law. "Cardinal Health is confident that the facts and the law are on our side, and we intend to vigorously defend ourselves," Tobin wrote. "We believe these lawsuits do not advance the hard work needed to solve the opioid abuse crisis – an epidemic driven by addiction, demand and the diversion of medications for illegitimate use." (AmerisourceBergen declined to comment, and Walmart, Walgreens and McKesson did not respond to interview requests.)

Ohlemeyer expected the plaintiffs to say as much. "They're going to say that they do everything they can to comply with the rules and regulations, but the facts will prove otherwise," he says. Fields agrees that the problem goes far beyond just the letter of the law. "If you have a patient that's getting too many scripts, or if you have a drug dealer who's falsifying scripts, buying scripts from a doctor, that's going to be visible to everybody in the system and filling those scripts is illegal," he explained. "I think you'll see as this story develops over the next several months, that some of the behavior that some of the pharmacies have engaged in is just completely outrageous. Because it's not complicated, right? When somebody comes in the store with scripts from 5 different doctors in 3 different states and a bag of cash and says, "Fill these." And that happens it doesn't take a brain surgeon to know that that's a violation of the Controlled Substance Act."

Now it's up to the courts to decide whether or not the pharmacies and manufacturers are living up to their obligations under the law. While President Trump campaigned on the promise of curbing the opioid epidemic that is ravaging parts of the nation, his new budget slashes Medicaid, the program that treats about 30 percent of opioid and heroin addicts in the nation. As states and tribes reel with the emotional and financial impact of the opioid crisis, lawsuits may prove to be their best bet at recouping some of their losses. The financial ones, anyway.