Local pharmacies excluded from town opioids suit

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This article was updated on Wednesday at 1:35 p.m.

BRATTLEBORO — Local pharmacies will be left out of litigation the town is pursuing to recoup costs associated with dealing with the opioid crisis.

"There's no evidence of local culpability," Select Board member David Schoales said during a board meeting Tuesday.

The board decided to join Bennington and other municipalities across the United States in suing drug manufacturers, distributors, pharmacies and pharmacy benefit managers for their role in contributing to the epidemic. It opted out of a national class-action suit against drug manufacturers, distributors and large pharmacies.

"Pharmacies have a duty not to fill suspicious prescriptions," Town Attorney Bob Fisher said, "and from a national level, there's evidence that many of the national chains are not fulfilling their duty not to fill suspicious prescriptions."

He said the police department ran a search and could not find any criminal complaints against locally owned pharmacies but he was not sure whether agencies that oversee the pharmacies had seen any issues.

Fisher told the board the town could not recover money twice from the same defendant if it were involved in the two suits. He said the class-action suit could bring a settlement based on population. With larger cities involved, he added, "it may make sense to opt out and go our own way."

Board member Daniel Quipp said he feels it is appropriate to name chain companies in the complaint. He had been "on the fence" over the last few weeks as the board explored whether to include local pharmacies.

"We don't have any evidence that they have failed in their duty and so I feel that it's a really, really tough decision for us to make," he said. "And I hope that Hotel Pharmacy and Brattleboro Pharmacy and other local folks have really done a good job in making sure opioids have been distributed in a way that's appropriate, legal and responsible."

Board member Elizabeth McLoughlin said "if evidence should arise, we can always add them to this suit but I don't want to essentially sue these people without any knowledge or basis for the suit."

"I'm hoping that hard evidence never hits this table and we don't have to worry about that," Board Chairwoman Brandie Starr said. "I take this very seriously."

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McLoughlin spoke in favor of sticking with the suit modeled off Bennington's as the town already has a relationship with an attorney working on the litigation. The suit alleges public nuisance, unjust enrichment, fraud, negligence, conspiracy, racketeering and more. It was filed in federal court in Ohio as part of a multi-district action.

Board Vice Chairman Tim Wessel maintained his previous position; based on the Bennington complaint, there were no specific allegations against local pharmacies and they therefore should not be included. He described the class-action suit as "very vague."

"It's a national prescription opioids litigation," Fisher said. "Not all of the parties are known or named. And as far as how that local settlement would work, not all of the defendants have agreed to be bound by that type of an arrangement."

He said the class-action suit is in its "very early stages," with a lot left to be negotiated.

Andrew Miller, owner of Brattleboro Pharmacy, told the Reformer he did not think it makes any sense to include local chain pharmacies without any evidence of wrongdoing. The Bennington suit describes issues with larger entities outside of the region.

"I am just unsure of how an example of activities at a chain pharmacy located somewhere else in the United States translates directly back to those operating in Brattleboro," Miller wrote. "I think all pharmacies operating in Brattleboro do a good job every day and try to help their patients every day. Are we all perfect? Of course not, but we all do a good job, and I think healthcare professionals working in the community would confirm this."

Miller questioned whether the board's discussion on the potential for including pharmacies later on made his pharmacy and others a target. He said he feels he may need to practice pharmacy in a different manner out of fear of being in the suit.

"Has the SB now become a quasi-regulatory agency for me with the punishment of being placed back on the lawsuit?" he wrote. "Is the SB currently doing more research on the independent pharmacies behind the scenes? I don’t know. I hope no one ever has to feel the professional and personal stress of the threat of a lawsuit like this, originating from an out-of-state firm, and initially embraced by your own town officials."

Miller described the practice of pharmacy as "an ever-evolving, complex profession.

"We use our education, training and experience everyday to benefit patient outcomes," he said. "I just hope that a pharmacist was included in some of the behind the scenes executive sessions on this matter so the town and the SB could actual interact and ask questions to someone with real industry experience and knowledge."

Reach staff writer Chris Mays at cmays@reformer.com, at @CMaysBR on Twitter and 802-254-2311, ext. 273.


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