Early this year, Johnson & Johnson and the three largest distributors of prescription opioids—Cardinal Health, AmerisourceBergen, and McKesson Corp—announced settlements with Indian Tribes and tribal health organizations totaling approximately $565 million. The settlements arise from the ongoing nationwide litigation against manufacturers, distributors, and retail dispensers of prescription opioids for their role in the national opioid crisis. All Tribes and Alaska Tribal Health Organizations are eligible to participate in the settlements, regardless of whether or not they are participating in the litigation.
Last week, Special Master David Cohen and the Honorable Judge Layn Phillips released the proposed process for determining the inter-tribal allocation formula for the distribution of settlement funds. Their memorandum to Tribes and their Counsel is attached to this Memorandum.
Special Master Cohen and Judge Phillips are starting from the inter-tribal allocation formula approved by two federal bankruptcy courts in separate proceedings involving Purdue Pharma, the manufacturer of Oxycontin, and Mallinckrodt plc, a major manufacturer of generic opioids. That formula weighs the following six factors: (1) the morphine milligram equivalents imputed to each Tribe for the years 2006-2014 (in other words, the volume of prescription opioids shipped to each Tribe’s geographic area for that period); (2) drug and prescription opioid overdose rates imputed to each Tribe from county and state data for the years 2003-2017; (3) Indian Health Service user population for each Tribe, based on 2018 data; (4) citizenship population for each Tribe, based on the CARES Act population list and other sources (as verified or updated by Tribes that participated in the verification process); (5) relative poverty rates imputed to each Tribe based on Census data for 2018; and (6) the relative cost of living imputed to each Tribe, based on the C2ER Cost of Living Index for Health Care expenses for 2020.
Special Master Cohen and Judge Phillips are soliciting comments on the use of these factors, and are receiving suggestions regarding additional or alternative metrics or allocation formulas. Tribes that wish to comment must submit their opening briefs on allocation by October 14, 2022. Tribes may submit an additional brief responding to other Tribes’ opening submissions by November 4, 2022. Tribes may also elect to meet by video-conference in lieu of submitting a written brief. Requests for video conferences must be made by September 26, 2022.
Additional information about the proposed formula and its development, as well as all pertinent deadlines, can be found in the attached memorandum. For more about these and other tribal opioid settlements, visit www.tribalopioidsettlements.com. Additional details regarding the Purdue allocation formula can be found on the website at: https://www.tribalopioidsettlements.com/Documents/Janssen/Purdue_Allocation.pdf.
