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VOL. 132 | NO. 227 | Wednesday, November 15, 2017

Opioid Lawsuit Filed as County Dispute on Legal Action Goes to Court

By Bill Dries

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UPDATE: Shelby County Chancellor Jim Kyle ruled Tuesday, Nov. 14, that the Shelby County Commission overstepped its role and powers within county government when the commission hired a law firm and had its own attorney file a lawsuit in Circuit Court against pharmaceutical companies over opioid abuse.

And Kyle enjoined that lawsuit from moving forward  for the remaining six weeks of 2017 to give the county administration time to consider intervening in the lawsuit.

Shelby County Mayor Mark Luttrell said later that the administration will file to intervene in the lawsuit to oversee its direction and possibly make changes in it that could include legal representation.

Kyle's ruling came in a lawsuit filed by Luttrell against county commission chairwoman Heidi Shafer after Shafer signed and approved a contract with a law firm for the opioid litigation. The commission later voted to ratify her decision and Luttrell broadened the Chancery Court lawsuit to include them as well.

Attorneys for the commission argued in Tuesday's hearing that Kyle should take no action and could take no action affecting a case in another court. They also argued the administraton was free to file to intervene in the Circuit Court lawsuit.

Attorneys for the administration argued the two legal matters were different and that the issue in Chancery Court was the commission's violation of the county charter -- specifically the separation of powers between the executive and legislative functions.

Kyle agreed with the administration on that. But he noted that Luttrell has said the administration intended to file a lawsuit against opioid manufacturers by the end of the year anyway.

Van Turner

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The first lawsuit by Shelby County government against Big Pharma was filed in Shelby County Circuit Court and amended earlier this month.

That was as the Shelby County Commission and County Mayor Mark Luttrell were preparing to appear in Chancery Court over a lawsuit Luttrell filed against the commission for hiring a law firm to pursue such litigation.

Walter Bailey

The Chancery Court matter was due before Chancellor Jim Kyle Tuesday afternoon, Nov. 13, and it wasn’t clear if Kyle would rule on the matter then or take it under advisement for a later written ruling.

Meanwhile, commissioners approved a resolution Monday, Nov. 13, directing the county attorney to withdraw the administration’s lawsuit against the commission.

Luttrell is suing the commission over the move by commission chairwoman Heidi Shafer to hire a law firm to pursue opioid abuse litigation. Shafer’s decision was affirmed last week by the commission in a vote at a special meeting of the body. Luttrell then amended the original lawsuit naming only Shafer to include every commissioner.

Luttrell is seeking a court decision that would void the commission’s contract with the Napoli Shkolnik PLLC law firm and contends neither Shafer nor the commission has the authority to unilaterally pursue such a contract under terms of the county charter.

The commission, in its resolution that passed on an 8-5 vote, directs the county attorney to drop that lawsuit and to come to the commission for approval of any lawsuit or litigation the county pursues.

“We are trying to address a crisis,” said commissioner Van Turner, who is an attorney. He contends the commission is within its authority under the county charter, starting with the allegation that pharmaceutical companies are using deceptive practices against the populace.

“That we would have anything that is done against citizens of this county as far as deceptive practices is something that is within our purview,” Turner said. “I mean, what else are we here to do? If there are deceptive practices are we just not to address it? It is a legislative function for us to address an opioid crisis that is impairing this community.”

Commissioner Walter Bailey, who voted against it and is also an attorney, argued that it was “cutting off” the administration’s access to court.

Bailey said was Luttrell was “exercising his responsibility and that his suit against the commission wasn’t that unusual, noting his own lawsuits in the past as a commissioner filed against the county and other commissioners over redistricting and term limits.

“It goes with the territory,” he said.

“I think we are all of pure motives in this situation,” Bailey added. “It’s not for us to carry on a contract with a law firm and sue on behalf of Shelby County. That’s not our function. Our function is to follow the direction in that kind of regard from the mayor’s office in the name of the people of Shelby County.”

Commissioner Mark Billingsley said the clash over who gets to hire which law firm is “overshadowing” the issue the litigation would get at – opioid abuse.

“I’ll spend my time on this body advocating for mental health support, rehab support for people who need our help. … Why don’t we drop this and really have a conversation about opioid deaths in Shelby County?” Billingsley said. “To overshadow this with politics is disrespectful.”

The resolution is the latest salvo in a larger controversy that has spanned the last 2 1/2 years – commissioners hiring their own legal counsel as the city council has done for the last 25 years.

Luttrell contends the county charter is different than the city charter on the matter.

Meanwhile, the commission, through its attorney, Julian Bolton, filed a civil suit in Shelby County Circuit Court against Purdue Pharma LP and two dozen other pharmaceutical companies and individuals including CVS and Rite Aid over the impact opioid abuse has had on the services county government provides.

The plaintiff in the first filing Nov. 2 is Oakville Healthcare Center.

In other action Monday, a move to raise the pay of the county’s top 19 elected positions effective with the winners of the 2018 county elections fell short of the two-thirds majority needed to pass.

The two ordinances to raise the pay of the county mayor, county sheriff and the county trustee, county register, county clerk and assessor each failed on 8-5 votes on third and final reading. They needed nine votes to pass and take effect.

A third ordinance to raise the pay of all 13 positions on the county commission also failed on a 4-6 vote with several commissioners abstaining.

The raises ranged from a 10.3 percent hike for commissioners to 32.4 percent for sheriff.

The proposal was made by several commissioners based on a study of pay for county officials in comparable cities done by Luttrell’s administration. But Luttrell and his administration made it clear they were not supporting the proposal.

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