Hundreds of Native American and Alaska Native tribes would split more than half a billion dollars if they accept a proposed settlement with drug manufacturer Johnson & Johnson and the opioid distributors AmerisourceBergen, McKesson and Cardinal Health.
The proposed settlement was announced this week following litigation by more than 400 tribes, whose lawyers argued opioid misuse and death have disproportionately affected Native people, including in costs to the tribes for healthcare and social services.
Anchorage-based lawyer Lloyd Miller represented 120 tribes involved in the lawsuit, and he calls the litigation and outcome historic.
The following transcript has been lightly edited for clarity.
Lloyd Miller: This is the first time that American Indian tribes have not only bound together in litigation, but have successfully established their position as governmental plaintiffs in litigation against private industry. The last time something on this massive scale occurred was the tobacco litigation. (But) they were basically the poor stepchildren of other governments. But this case, you see tribes on an equal footing with the United States of America and the 50 states in litigating against Big Pharma.
Casey Grove: But it’s still just a proposed settlement, and you need to get a majority of the tribes or a certain number of the tribes to agree to it, right?
LM: That’s correct. And a case like this, where you have 408 tribes actually litigating, out of the 574, against the industry — the way to organize a settlement, if there are only a few defendants as they are here, is to negotiate a proposed settlement that can then be recommended by the attorneys. In this case, the settlement is really just a proposed settlement. And it only goes into effect if 95% of the tribal populations represented by the tribal governments sign on to the settlement. That’s about 80% of Indian country. So most all of Indian country has to be on board. And from the defendant standpoint, it makes sense. If only a few tribes were interested in the settlement, and most tribes wanted to litigate, the defendants would have no interest in paying anything to anybody. But if they can, with $700 million almost, secure peace from the litigation, then that’s attractive to them. And that’s why they’ve insisted on this kind of condition in the settlement.
CG: People might hear that number and think that’s a lot of money. But I guess if you split it up a lot of ways, it’s not as much. But I think also I wanted to ask you what you thought about the actual cost to the tribes from dealing with the opioid epidemic? And how does that compare to, now, this settlement amount, this proposed settlement?
LM: I think these dollar amounts often boggle the mind. You’ve got almost a billion dollars, $665 million here. In the state and local government settlements, you’ve got $26 billion. People hear those numbers and think, “Oh, my goodness, what a tremendous recovery.” The most that can possibly be done will be funded by this. But in fact, the economists have estimated that the damage caused by the opioid epidemic is in the trillions. It’s actually only a drop in the bucket. And when you divide it up among 574 tribes, and the large tribes and the small tribes, it actually will only help the tribes deal with some portion of the opioid epidemic or the aftermath of the epidemic. (You) can’t bring people back who’ve died from overdoses. But you can provide treatment, often lifetime treatment to people who still suffer addictions. And that’s something that the tribes will be able to do with this funding, combined with other funding. Hopefully, by piecing all of these together, you can partially fund the tribal programs that will be addressing opioid addiction in tribal communities. But you’re absolutely right. The actual number, although it sounds big, pales in comparison to the need.
CG: Also, as part of this, the other side, at least on paper, gets to claim no responsibility or that this settlement is not an admission of guilt. What do you think of that, though, at this point?
LM: I’ve been in litigation for over 40 years. I’ve recovered a couple billion dollars against the United States government. I have never done a settlement where the defendant admitted responsibility. So all I can say about statements like that is the decision to pay these kinds of funds speaks for itself, in terms of the acceptance of some responsibility.