Posted December 4th, 2019.
Selectboard reverses course, decides to sign on to class action, based on new legal advice
By Olga Peters/The Commons
BRATTLEBORO—The Selectboard has reversed an earlier decision and will join a national class-action lawsuit seeking compensation for the costs of the opioid epidemic.
At the Nov. 26 meeting, board members voted unanimously to join the suit, seeking damages against opiate manufacturers, pharmacies, distributors, and groups that decide which medications are covered by insurance.
According to the Vermont Department of Health, the number of opioid-related deaths has continued to increase every year in the state. The VDH’s data shows Windham County as having the highest number of deaths in the state in 2018.
At Brattleboro Selectboard meetings, conversations have often turned to how the opioid epidemic has put more pressure on residents in general and on emergency services specifically.
According to Town Attorney Robert Fisher, the national suit includes all municipal governments in the United States. On Nov. 1, Vermont Attorney General T.J. Donovan Jr. sent a letter to selectboard members, mayors, and city councils in the state, urging them to seriously consider joining the civil action.
At its Nov. 19 meeting, board members decided to opt out, in part because the town is already part of a separate multi-jurisdictional lawsuit, often referred to by the board as the “Bennington suit” after the town that initiated the legal action in September.
On Nov. 26, however, Fisher urged the board to reconsider, noting the advice of special counsel.
The town has retained the services of two law firms for the multi-jurisdictional lawsuit: Attorney Joanne Cicala of the Cicala Law Firm, PLLC in Dripping Springs, Texas, and Sanford Heisler Sharp, LLP of New York City.
The Cicala Law Firm offers “particular expertise in prosecuting commercial, consumer and health care fraud matters on behalf of individuals, businesses and governmental clients,” according to its website.
Fisher said the day after the town submitted the opt-out form, Cicala expressed concern with the decision.
According to Fisher, the special council felt that opting-out of the national lawsuit could “be detrimental to the town’s leverage” in the Bennington lawsuit.
Cicala advised that if the town left the national lawsuit, it would lose access to any shared discovery or evidence that the national case gathered, he said.
Also, Fisher said, the Bennington suit could essentially “move to the back of the line” in terms of the court case’s timing, potentially barring Brattleboro from entering negotiations with the defendants.
Fisher recommended that the board heed the advice of its special council, as he conceded that he is not an expert in national opiate litigation.
“I apologize, this is a bit sloppy,” he said.
Fisher said, “As far as the ability to rescind the opt out, that has been done before.”
Several counties in New York had opted out of the national lawsuit based on advice from the state’s attorney general. Fisher said that when the attorney general similarly received new information that remaining in the case would better serve those counties, they were able to join the suit.
“If the board tonight wishes to reconsider its decision to opt out, then the ability to rescind should put you back into that opt-in class for that national class litigation,” he said.
Board Vice Chair Tim Wessel said he agreed with the advice overall, but was nervous that opting back in to the national case felt a little like “backing away” from the town’s separate case.
Fisher clarified that while the town couldn’t receive double recovery — that is, it can’t receive two payments from the same defendant for the same wrong — being a party in both lawsuits would give the town more protection.
For example, the national case might not include all the defendants that Brattleboro’s case names, Fisher said. If this happens, then the town can still pursue legal action against defendants not named in the national case.
“In that way, you’re even more covered than towns that do the national class, because you’ve got a separate suit that is actually naming this large group of defendants,” Fisher said.
The board unanimously approved reversing its original decision.
“We’re hedging our bets,” said Selectboard Clerk Elizabeth McLoughlin. “Let’s go.”