Published in the March 14, 2018 edition

By DAN TOMASELLO

LYNNFIELD — The opioid epidemic has caused massive devastation and societal upheaval in communities across the country, including Lynnfield.

While the epidemic has torn apart families and communities, the crisis has taken a financial toll on municipalities as well. As part of an effort to recoup past expenditures fighting the epidemic, a number of lawsuits have been filed against the pharmaceutical manufacturers and distributors of opioids.

The Board of Selectmen voted unanimously to join this litigation last week.

Town Administrator Rob Dolan recently began investigating a “national, state and local litigation against the major opioid manufacturers in the United States.”

“Attorney General Maura Healey and a number of municipalities have joined the lawsuit in an attempt to hold those opioid pharmaceutical companies accountable for the many issues that are happening across the country, particularly the cost to local government as a result of their actions,” said Dolan.

Town Counsel Tom Mullen agreed.

“Many communities across the country are signing up with law firms to engage in litigation against manufacturers and distributors of opioids to recover damages for the costs imposed on those communities by the opioid crisis,” said Mullen.

Dolan, Mullen and Wakefield Town Administrator Steve Maio recently interviewed a firm, Scott & Scott, that has filed cases in state court. Mullen noted he has received “multiple solicitations” from law firms seeking to have both Lynnfield and Wakefield file lawsuits against opioid manufacturers.

“Frankly, I have been leery of getting involved,” said Mullen. “First because I am not familiar with the out-of-state law firms that control the litigation and second because lawyers who specialize in plantiffs’ class action lawsuits are generally an unsavory crew. One law firm, however, stood out for me in a good way because they partnered locally with the firm Anderson & Kreiger, which Wakefield has hired successfully on several occasions. Lynnfield retained them many years ago on a rail trail related matter. I regard Anderson & Kreiger as the best law firm in Boston that specializes in municipal work.”

Mullen said Anderson & Krieger has partnered with Scott & Scott in the opioid litigation.

“Scott & Scott is a firm with more than 70 lawyers headquartered in Connecticut and has offices in three states,” said Mullen.

Two of Scott & Scott’s partners gave a thorough overview of the lawsuit during the meeting with Dolan, Mullen and Maio.

“They explained that they specialize in class action lawsuits and have done things such as security fraud cases, antitrust pharmaceutical cases and they had a big piece of the Bernie Madoff matter,” said Mullen. “They represent cities in five states in the pending opioid cases. In Massachusetts, they represent Worcester, Springfield and Haverhill.”

Mullen said Scott & Scott’s “theory of the case is that manufacturers and distributors, knowing the dangers of addiction,” encouraged doctors to prescribe opioids as pain relievers.

“This has led to the crisis our town and many others are suffering through,” said Mullen. “Tactically, I think what they are doing is very interesting. They want to avoid federal court, where hundreds of cases have been consolidated before a single judge in Ohio, who is urging quick settlement and is resisting efforts to move the cases along. (Scott & Scott’s) approach is to file in state court, so they can control the litigation.”

Mullen noted that the only cities and towns that were compensated for tobacco-related deaths “were the ones that filed their own lawsuits.” He said, “Signing up with Scott & Scott appears to be risk free.”

“They offer a pure contingent fee arrangement, taking 22.5 percent of any recovery as a fee,” said Mullen. “They front all expenses, which are likely to be substantial because a lot of expert testimony has to be obtained. If there is a recovery, they will recover the expenses from it. If there were not a recovery, they would forgive those expenses. The worst-case scenario for the town is zero. It’s not negative, and I do not see how any defendant could assert a counter claim against the town.”

Mullen said he reviewed a complaint that Scott & Scott filed in Florida state court.

“I find it very impressive and thorough,” said Mullen. “I like the idea they have an active and aggressive posture. I would not recommend that we merely hire a firm that wants to park our case in Ohio and take a cut of whatever is negotiated there without working on it. I recommend that the board retain Scott & Scott for the purposes of pursuing opioid litigation, which is the same recommendation I am making to the Wakefield Board of Selectmen.”

Selectmen’s reaction

Selectman Dick Dalton inquired what would be a “favorable decision” if the town joined the opioid litigation fight.

Mullen said it would be “huge win” if the town could use any damages awarded to “fund a person employed by the School Department to work on drug issues.”

Selectmen Chairman Chris Barrett inquired how many communities have joined the opioid litigation fight.

“There are 350 cases consolidated in Ohio,” said Mullen. “I don’t know how many are in state court. The one thing that impresses me about this firm is they have the big communities. Outside of Boston, Worcester and Springfield are the biggest communities in Massachusetts.”

In response to a question from Barrett, Mullen anticipates Scott & Scott would file a lawsuit on the town’s behalf in state court in a couple of weeks or months.

“The firm has been refining its complaint, learning with every complaint that it files, to anticipate the defenses that the defendants come up with,” said Mullen. “That is why these complaints get longer.”

Selectman Phil Crawford thanked Mullen for bringing the proposed lawsuit to the selectmen. If the town is awarded damages, Crawford inquired if damages would be “contingent on some costs that the town has to prove we incurred?”

“It’s like any other litigation,” said Mullen. “The burden is on the plantiff not just to prove an entitlement that they were wronged, but also that they were harmed and the amount of the harm. This firm would have their lawyers sit down and work that out with us. They would look through our budget for the last few years and see a good deal, for example, of our costs for ambulances and for health insurance. Those types of things would be attributable.”

Crawford expressed his support for filing the lawsuit. In addition to possibly funding a position for the School Department, Crawford said the funds could be used for programming that the town’s substance abuse coalition, A Healthy Lynnfield, wants to implement.

“I don’t see any reason why we wouldn’t want to be part of it,” said Crawford.

After the discussion, the selectmen voted to retain Scott & Scott.