Shelby County Chancellor Jim Kyle left no doubt in his ruling Tuesday, Nov. 14, about who was correct between county mayor Mark Luttrell and the county commission over opioid abuse litigation in Circuit Court.

Kyle ruled unequivocally that the commission and its chairwoman, Heidi Shafer, violated the county charter when Shafer hired a law firm earlier this month to pursuit a lawsuit against opioid manufacturers and distributors and the commission ratified that decision days later.

Kyle cited chapter and verse of the county charter and the Tennessee Constitution.

But he also ruled after a one-hour hearing that it is in the public interest to keep in place the Circuit Court lawsuit filed against two dozen defendants, led by Purdue Pharma, and including CVS and Rite-Aid.

Kyle, in effect, put the Circuit Court lawsuit on hold – enjoining the commission and its attorneys from taking any action on it – for the six weeks left in the calendar year.

Kyle said during that time Luttrell and his administration would have a chance to file to intervene in the Circuit Court lawsuit. Kyle noted that Luttrell had said out of court that his administration would likely hire a law firm by the end of the year.

Mark Luttrell

“We will intervene to take – for lack of a better word – control of that particular lawsuit and then we will determine the best way to proceed,” Luttrell said after being briefed on the outcome. “We’ll have to evaluate the entire lawsuit as printed and present it and then we’ll make decisions on how to proceed with it. That includes everything as it relates to that filing.”

That means the administration could ultimately go with a different law firm.

Kyle’s ruling upholds the lead role the administration plays in determining the course of such litigation.

“We had to have clarity as it relates to the function of the legislative branch of government and the executive branch of government,” Luttrell said.

Attorney Allan Wade, representing commissioners, argued in court the opioid lawsuit filed by commissioners on behalf of Shelby County government in Circuit Court should also have been the place to settle who had the authority to pursue the case.

Wade likened it to “a fight in a tent.”

“Not only are we not in a tent,” countered attorney Kirk Caraway, representing the administration, “we’re not even in the campground.”

Wade countered that the lawsuit and hiring of legal counsel falls under the legislative function of the county commission specifically because of the issue it involves.

“We have a health emergency crisis,” he said of opioid abuse and the demands it is making on county emergency and medical services. “The fire department is now the opioid response department. This is vital to their legislative function to respond.”

But the commission’s authority does not include retaining counsel for the purposes of filing a lawsuit on behalf of the county, Caraway argued, not matter what issue was at stake in the litigation.

Caraway and Luttrell said they haven’t seen a copy of the contract Shafer made with the Napoli Shkolnik PLLC law firm. 

Kyle echoed that point from the bench.

“We really don’t know what they hired them to do,” he said.

Shafer did not attend the Tuesday hearing, but six commissioners on both sides of the question did.

Following the commission’s vote to ratify her decision to hire outside counsel for the opioid lawsuit, Shafer told reporters, “We don’t wish to be in the position of managing the lawsuit.”

Wade said he would await a written copy of Kyle’s ruling, but indicated that he would have no objection to the administration intervening in the Circuit Court lawsuit. He advocated the administration do that during the hearing.

Luttrell made a distinction between urgency and something being an emergency when it comes to taking legal action on opioid abuse.

“There is an urgent need to do something. It’s not an emergency that requires a less-than-well-thought-out strategy. I think what the county commission did was, their strategy was not very well thought out,” Luttrell said. “The resolution as it relates to opiate lawsuits is an extremely lengthy litigation process that takes years and years and years. It was our contention when commissioner Shafer and commissioner (Terry) Roland held a press conference that the crisis they were referring to was not imminent, that we were following a very political process to try to get this thing resolved.”