Civil justice system works, as tribes show in major opioid settlements

jJlogo-300x139No matter how wrong-headed critics may assail the civil justice system, Native Americans have clear evidence that liability lawsuits really do work. For hundreds of tribes and their members, the pursuit of  justice in the courts soon will help remedy the disproportionate damage they suffered at Big Pharma’s hands in the still-raging opioid abuse and drug overdose crisis.

As major media organizations have reported, indigenous communities reached a tentative $590 million settlement with Johnson & Johnson and the nation’s three largest drug distributors: McKesson, Cardinal Health and AmerisourceBergen.

J&J denied any wrongdoing, while the others either declined to comment or emphasized that the settlement — atop an earlier deal by the companies with the Cherokee Nation for $75 million — will provide big urgently needed sums to help Native people and communities struggling with the drug addicted and debilitated. The companies, in contrast to other cases in which they are involved, have said they will speed payments to plaintiffs. As the New York Times reported:

“A signature development in this deal is the [payment] timetable, which is far faster than the one tentatively agreed to last summer with states and local governments. Johnson & Johnson will pay the tribes its $150 million portion over two years, starting as soon as the deal is finalized; the distributors — AmerisourceBergen, Cardinal Health and McKesson — will pay $440 million over 6½ years. By contrast, the drug manufacturer will pay thousands of local governments and states $5 billion over nine years, with the distributors paying $21 billion over 18 years.”

The deal still requires approval by hundreds of tribes, with the potential beneficiaries to include those that did not even join the lawsuit. As NPR reported:

“All 574 federally recognized tribes are eligible to receive part of the settlement, even if they did not participate in the litigation, the tribes’ lawyers say … The settlement requires 95% of litigating tribes and 14 of 17 non-litigating tribes with populations exceeding 5,000 tribal members to agree to it before taking effect.”

The settlement, as media organizations have reported, is huge for Native peoples for at least two significant reasons: They were harmed disproportionately in the opioid crisis, and, at least in this instance, their aggressive pursuit of justice was not derailed by others.

To the point about the damage the tribes suffered when Big Pharma inundated their communities with powerful prescription painkillers, the Washington Post reported:

“Nationwide from 2006 to 2014, Native Americans were nearly 50% more likely to die of an opioid overdose than non-natives, according to a Washington Post analysis. ‘American Indians have suffered the highest per capita rate of opioid overdose and are more likely than other group in the United States to die from drug-induced deaths,’ Chairman Douglas Yankton of the Spirit Lake Nation in North Dakota said in a statement. ‘Given this, the dollars that will flow to tribes under this initial settlement will help fund crucial, on-reservation, culturally appropriate opioid treatment services.’”

As for the legal breakthrough the settlement represents, the New York Times reported:

“If, as expected, most tribes sign on, the deal would be notable for its size as well as its acknowledgment of the 574 federally recognized tribes as a distinct litigating entity. Their voices have traditionally been excluded or downplayed in earlier national settlements involving the states, such as the landmark [deal with] big tobacco companies in the 1990s … Geoffrey Strommer, a lawyer for the tribes, said the tribes were determined that the bitter outcome of the Big Tobacco litigation [would] not be repeated in the opioid litigation. [Back then] a court blocked the tribes from suing. And though states used tribal population and the impact of cigarettes on tribal health during negotiations with tobacco companies, Mr. Strommer said that the states never set aside money from the Big Tobacco funds for the tribes themselves. So, the question of whether tribes would get their own seat at the negotiating table against the pharmaceutical companies or would be excluded altogether was vigorously debated … [But U.S. District] Judge Dan Aaron Polster, who is presiding over thousands of opioid cases merged in federal district court in Cleveland, insisted the tribes had an equal right to bring their own cases, independent of the states.”

Good for Judge Polster. In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them by dangerous drugs.

The opioid crisis took time to blow up, fueled by Big Pharma and abetted by doctors, nurses, hospitals, insurers, and many others in health care. While progress appeared to have been made in dealing with this mess, this public health menace exploded anew during the coronavirus pandemic. It demands a full-on response to put down. It is unacceptable that this nightmare will claim 100,000-plus American lives this year. It is ghastly that criminals are tainting all kinds of pills with super powerful fentanyl, a synthetic and increasingly prevalent street opioid that is lethal in even tiny doses.

Yes, law enforcement authorities must crack down on street criminals who addict, debilitate, and kill opioid users. Yes, local, state, and federal authorities must increase their efforts to rebuild lives and communities shattered by opioid abuse and drug overdoses. Yes, doctors, nurses, hospitals, and the medical establishment must help those in pain — and bust those who have enriched themselves at their patients’ expense by wrongful acts with opioids.

And, yes, those who have evidence that they were mistreated and harmed in the crisis, especially by the callousness, negligence, or abusive practices of Big Pharma, should seek justice in the civil system. It provides an important way to get big institutions to fix systemic problems as well as to address the real needs of those injured, despite critics counterfactual claims to the contrary. We have much work to do to quell what is one of the major public health crises of recent time, a menace that has claimed the lives of an estimated 500,000 Americans in the last decade.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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