As a landmark federal lawsuit against opioid manufacturers and distributors trudges toward a resolution, the majority of South Carolina counties say they don't want any part of it.
Many counties chose to opt out of the negotiating group, forsaking the opportunity to share in a nationwide settlement and hedging a bet that they will have more success in local courts.
Thousands of local governments across the country have sued the manufacturers and distributors, alleging the companies helped to create an epidemic of overdoses and did little to stem the opioid crisis.
Many of those cases were grouped in federal court in Ohio. To encourage a resolution, Judge Dan Polster approved a new kind of negotiating class that will bargain on behalf of a "class" of all local governments nationwide.
Polster's order, signed in September, gave all of those governments until Friday to decide if they wanted to participate, even if they haven't brought any legal action against the opioid makers and distributors.
Complaints from five South Carolina counties are among the 2,600 that have been grouped together as a class in Ohio.
Thirty-six counties in the state have decided to turn down the Polster's ultimatum to join the consolidated case, said Marc Bern, a New York attorney who is leading counties' litigation in state court.
Joe Rice, an attorney with the Mount Pleasant-based law firm Motley Rice, is co-lead counsel in the federal litigation. He said taking part in that case wouldn't impede the state-level complaints.
"The purpose of the negotiating class was to create an ability for the municipalities to speak with one voice and get a seat at the table," Rice said.
A representative group of about 50 counties and cities will vote on any proposed settlements. If 75 percent favor a deal, it will be sent to the judge for approval. South Carolina's local governments are not part of that voting group. If a settlement is agreed to, all governments in the class will be required to drop their lawsuits.
As of Wednesday, fewer than 200 municipalities had opted out, Rice said. Roughly 34,500 local governments are eligible to participate. Lawyers won't know how many local governments chose to opt out until next week.
Bern's firm advised its county clients to opt out. Of the 80 he represents across the country, Bern said at least 70 would not participate in the Ohio class.
"I think the better course is to see what will happen as we proceed hopefully to trial in South Carolina," Bern said. "We're confident that we are going to prevail."
Charleston, Berkeley and Richland counties all chose to sue in federal court. Dorchester and Horry counties are among those that have opted out.
The option to participate in the negotiating group came with a calculator that estimates how much each local government could receive in a hypothetical settlement of $1 billion.
All told, South Carolina local governments in the class could have received about $11.7 million combined. Greenville County was eligible to receive the most, at $1.3 million.
A number of towns and cities have also sued. Local attorney Sandy Senn, who's also a state lawmaker, represents Mount Pleasant, Summerville, Charleston and North Charleston. All decided to stay in the class, she said, in large part because the federal litigation appears to be moving faster toward a resolution.
"It became apparent that the state court action was likely going to take much longer to either settle or go to trial," Senn said. "The federal judge appears to have accelerated his class action such that it will be in a better position to resolve sooner, which would allow our local governments to be paid back for money spent fighting the opioid crisis and would allow them to ramp up more education and intervention efforts."
Settlements in the federal case have already been reached with some defendants. Pharmaceutical companies Teva, Cardinal Health, AmerisourceBergen and McKesson finalized a $260 million agreement in October, hours before their federal trial was scheduled to begin. Several others struck a deal in September.
Meanwhile, cases filed in state court in South Carolina are stalled for the moment while lawyers on opposing sides file motions.