Published November 13, 2019
By DAN TOMASELLO
LYNNFIELD — The town’s lawsuit against opioid manufacturers and distributors will be moving forward in state court after the Board of Selectmen voted to opt out of a federal case on Nov. 5.
Town Counsel Tom Mullen recalled that the town filed litigation against “various pharmaceutical manufacturers and distributors” as part of an effort to recoup past expenditures fighting the opioid epidemic. The town has retained the legal services of Scott and Scott for the lawsuit.
“I am here to recommend that you choose to opt out of what is called the negotiation class in the pending opioid litigation,” said Mullen. “Most communities have been gathered together in what is called a multidistrict litigation forum in federal court in Ohio. The purpose of that was to manage a settlement on a collective basis among thousands of plantiffs and a large number of defendants.”
Mullen said, “There is now a pending proposal in that multidistrict litigation for what is called a negotiation class to be certified solely for the purpose of negotiating a settlement.” He said the negotiation class “would include any and all counties, cities and towns throughout the whole country, including Lynnfield.” He said the only way for the town not to be included is if the selectmen voted to “opt out” of the negotiation class.
“The purpose of the negotiation class is to try and reach some kind of a collective agreement,” said Mullen. “It may never happen, but if it does happen and we have not opted out, then we would be bound to accept that settlement and we would not have any right to proceed with our existing pending litigation in state court.”
By voting to opt out of the negotiation class, Mullen said the town’s lawsuit would proceed in state court.
“We would not be part of the negotiation class and we would not be bound by any decision to settle,” said Mullen. “The downside is we would not receive any money from that settlement. It’s not clear that there would ever be a settlement and if there is, it’s not clear how much money would be generated.”
Mullen said a number of the plantiffs’ attorneys involved in the negotiation class “are content to file a complaint, sit back, let the case be removed to federal court, let the federal court consolidate all of the cases for settlement purposes in Ohio, and do nothing other than collect a check when there is ultimately some kind of settlement.”
“I find that reprehensible,” said Mullen. “I believe that as a matter of strategy, it is much smarter to adopt an aggressive posture. Scott and Scott is an aggressive law firm. They sold us on themselves by saying, ‘Hire us, we will sue in state court and we will fight to stay out of federal court even though the defendants are going to try to suck us in there, and we will fight or settle the case ourselves.’”
Mullen also said Scott and Scott vowed to be “a thorn in the side of the opioid manufacturers and distributors.” He said Scott and Scott’s strategy has been successful to date.
“Scott and Scott filed a complaint in state court and managed to defeat the efforts of the defendants to remove the case to federal court,” said Mullen. “We are before a good judge in Superior Court in Massachusetts and we are able, as long as we are not part of the negotiation class, to drive that litigation through discovery and ultimately to trial. It is through that leverage that I believe we are going to achieve the best settlement, if a settlement is possible. And it is the only way that we are going to have a serious trial on the merits of our own case. Scott and Scott recommends that we opt out for these reasons.”
Board of Selectmen Chairman Phil Crawford noted that any settlement reached in Ohio “may not go to any of the cities, towns and counties.”
“For us to opt out, we have to file an exclusionary request form by Nov. 22,” said Crawford. “At this point, you are asking us to approve having the town administrator sign that form by the 22nd?”
Mullen said Crawford’s statement is correct.
In response to a question from Selectman Dick Dalton, Mullen said Scott and Scott is representing between 10 to 12 communities in the lawsuit.
“They tend to be larger communities,” said Mullen. “Wakefield and Lynnfield are among the smaller communities.”
After the discussion, the selectmen unanimously voted to opt out of the negotiation class in federal court in order to pursue litigation in state court.
Mullen informed the selectmen he plans on recommending that the Wakefield Town Council also vote to opt out of the negotiation class in Ohio.
