BRATTLEBORO — The Brattleboro Selectboard decided Tuesday to opt back into a national negotiating class seeking a settlement to opioid litigation, a week after voting to opt out.
Meanwhile, the town will also proceed with its own lawsuit against drug makers, distributors, pharmacy chains and pharmacy benefit managers — part of a wave of similar lawsuits that local governments have brought in recent years accusing the companies of fueling the opioid crisis through fraudulent marketing and negligence.
Town Attorney Robert M. Fisher said at Tuesday’s selectboard meeting that, after the board’s decision last week to opt out, the attorney working with the town on the separate lawsuit raised concerns about the move. In particular, she worried “the town was losing leverage by not being in that national class,” Fisher said, according to an online livestream of the meeting.
The negotiating class has been formed to pursue comprehensive settlements with drug companies, distributors and pharmacy chains named in the lawsuits. It includes every town, city and county in the country except those that have opted out.
The numbers are massive: more than 34,000 potential class members, led by 49 counties and cities serving as class representatives, negotiating with up to 13 corporate defendants. Class members have the right to vote on any proposed settlements. Approval requires a 75 percent supermajority according to several different metrics.
Being in the negotiating class doesn’t prevent a town or city from bringing its own lawsuit. But a municipality can’t collect twice from the same defendant. Say, for example, Brattleboro settles individually with CVS but not with Walgreens. If the negotiating class later reaches class-wide settlements with both companies, Brattleboro would not be included in the CVS one. But it would still share in the Walgreens settlement.
Fisher explained that some companies might not reach settlements with the negotiating class. So, he said, it makes sense to keep the town’s separate lawsuit alive as a way of pursuing claims individually against companies that don’t settle.
“There may be defendants that that national class doesn’t cover, and in that way you’re actually more covered” than towns that do not have pending lawsuits, he said.
The selectboard voted unanimously Tuesday to rejoin the negotiating class. The board has been following attorneys’ advice throughout the process, said board member David Schoales. “It wouldn’t necessarily be wise to stop doing that now.”
Almost 400,000 people in the U.S. died from opioid overdoses between 1999 and 2017, according to the Centers for Disease Control and Prevention. That includes prescription medications as well as illicit drugs like heroin.
Twenty-four people died of drug overdoses in Windham County last year, according to the Vermont Department of Health.
Brattleboro officials are modeling their lawsuit on one filed by Bennington, Vt., though decided against including locally owned pharmacies. The Bennington suit accuses manufacturers of pushing highly addictive painkillers on the market despite knowing the risks, and alleges pharmacies and distributors failed in their duty to monitor and control suspicious orders, which were then diverted for illicit use.
The companies have generally denied the claims in the various lawsuits, saying they were working to ease patients’ pain, stressing the complexity of causes behind the opioid crisis and pointing to other parts of the supply chain.