Cherokee Nation Sues Rx Distributors, Retailers Over Opioid Crisis

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By Dana A. Elfin

The Cherokee Nation is the latest entity to enter the legal fray over the country’s prescription opioid crisis.

The Cherokee Nation is suing major drug distributors and pharmacy retailers, including McKesson Corp., Cardinal Health Inc., AmerisourceBergen, CVS Health, Walgreens Boots Alliance Inc., and Wal-Mart Stores Inc., alleging they fueled the opioid crisis and profited from opioid sales ( The Cherokee Nation v. McKesson Corp. , Cherokee Nation District Court, No. 2017-CV-00203, complaint filed 4/20/17 ).

The lawsuit, filed by the Cherokee Nation Attorney General Todd Hembree in Cherokee Nation tribal court in Oklahoma, is the first civil attorney general suit seeking to hold both drug retailers and distributors responsible for the epidemic, Richard Fields of Fields PLLC, who represents the Cherokee Nation as special counsel in the action, told Bloomberg BNA April 20.

Last year, the state of West Virginia sued McKesson and other drug distributors, accusing them of flooding the state with prescription opioids, but the West Virginia action doesn’t include pharmacies as defendants.

The Cherokee Nation’s case also is unique because it’s premised on a diversion theory, Fields said. “We will prove there is an oversupply of opioids fueling the epidemic,” he said.

Suspicious Orders

The nation claims the companies enabled prescription opioids to fall into illegal channels, didn’t alert regulators to suspiciously large quantity orders and used financial incentives to increase opioid sales.

The defendants are accused of failing to monitor their supply chain under the Controlled Substances Act and of violating the Cherokee Nation’s Unfair Trade and Deceptive Practices Act.

The complaint also includes claims of nuisance, gross negligence and unjust enrichment.

Overdoses Doubled

“These companies must be held accountable for their gross negligence, which has fueled the opioid epidemic,” Hembree said in an April 20 statement announcing the suit. “They enabled prescription opioids to fall into illicit distribution channels, failed to alert regulators of extreme volume, and incentivized sales of these drugs with financial bonuses.

“We will not stand by while children are born addicted to opioids and our citizens die.”

According to reports from the Centers for Disease Control and Prevention, deaths from opioid-related overdoses more than doubled in the Cherokee Nation from 2003 to 2014.

“We look forward to presenting this evidence to the Cherokee tribal court so that the citizens most harmed by the opioid epidemic can get the justice they deserve,” said William Ohlemeyer of Boies Schiller & Flexner in Armonk, N.Y., who represents the Cherokee Nation along with Fields.

Bloomberg BNA contacted the companies named in the suit for comment. Walgreens declined to comment on the pending litigation, but AmerisourceBergen said the company was reviewing the complaint.

“We’re reviewing the filing now but can say immediately that the issue of opioid abuse is a complex one that spans the full healthcare spectrum, including manufacturers, wholesalers, insurers, prescribers, pharmacists and regulatory and enforcement agencies,” Gabriel Weissman, a spokesman for AmerisourceBergen, told Bloomberg BNA April 20. “All of these entities must work together to ensure medicine is available, as appropriate and prescribed, to patients while also limiting and preventing abuse.”

McKesson, Cardinal Health, CVS Health and Wal-Mart didn’t respond to requests for comment.

More Suits Likely

More such suits are likely on their way as communities grapple with the financial and social burdens of the opioid epidemic, Fields said.

“You’re likely to see many more of these suits. There are a number of governmental entities that could end up filing,” he said.

Meanwhile, opioid-related legal actions drew attention last year too, with the West Virginia attorney general’s action, two suits by West Virginia counties and Cardinal Health paying $44 million to settle claims it failed to alert regulators about suspicious orders for controlled substances.

Trade Association Weighs In

John Parker, with the Healthcare Distribution Alliance (HDA), a trade group for health-care distributors, told Bloomberg BNA April 21, “We recognize the seriousness of opioid abuse on communities across the country.” But Parker added, "[T]here needs to be a clear recognition of how each player operates in the supply chain to understand how we move forward from this epidemic, rather than casting blame on one sector. Distributors do not manufacture opioids, license registrants, write prescriptions or dispense medicines, and they cannot make medical determinations regarding patient care or provider prescribing.”The HDA supports focusing on “system-wide solutions that support safe, effective prescribing, patient education and awareness, and improved collaboration among regulators and all members of the supply chain,” he said.

Bloomberg BNA also contacted the National Association of Chain Drug Stores, the trade association for chain pharmacies, about the suit, but the group declined to comment.

The Cherokee Nation is represented by Fields of Fields PLLC in Washington and Steve Zack and William Ohlemeyer of Boies Schiller & Flexner in Miami and Armonk, N.Y., respectively.

To contact the reporter on this story: Dana A. Elfin in Washington at delfin@bna.com

To contact the editor responsible for this story: Brian Broderick at bbroderick@bna.com

For More Information

A copy of the lawsuit is available at http://src.bna.com/n71.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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