Parents of Opioid Victims Have Claims Trimmed in McKinsey Case

Children of opioid users who suffered Neonatal Abstinence Syndrome had some of their claims tossed in the sprawling litigation against McKinsey & Co. alleging liability for its role facilitating opioid sales.

Judge Charles R. Breyer , of the US District Court for the Northern District of California, dismissed five of the NAS victims’ various claims alleging a conspiracy to push opioid sales on behalf of pharmaceutical companies. The NAS plaintiffs, who are 11 victims across eight states, allege that McKinsey is liable under negligence per se, public nuisance, and fraud theories.

The plaintiffs’ public nuisance theory falls short because they failed to plead that a special injury arose from the nuisance, Breyer said. When private entities allege public nuisance, they must allege that they suffered injuries while “exercising the right common to the general public that was the subject of interference,” Breyer wrote.

Plaintiffs Julieann Valdez and Brandi Shatnawe had their nuisance-based claims dismissed because Nevada and Oklahoma law precluded them, respectively, Breyer said.

The victims allege that McKinsey engaged in fraud by lying to their healthcare providers about the benefits and risks of opioid use, according to the order. But Breyer said the plaintiffs failed to establish that they were justified in believing that the statements from their healthcare providers were actually true.

"[A]t this stage plaintiffs are not able to determine what specific information their doctors received and relied on regarding the risks of opioid use,” Breyer wrote.

But Breyer said most of the plaintiffs sufficiently alleged that McKinsey could face liability under the plaintiffs’ negligence per se theory. He said there is enough evidence to show McKinsey conspired with the drug companies to use “unlawful means” to push opioid sales, even if it didn’t intend to hurt any of the plaintiffs.

Plaintiff Sarah Riley, suing on behalf of E.A.B., had all of her claims dismissed without prejudice because her child had reached adulthood at the time of the lawsuit, so Riley lacked standing, Breyer ruled.

Various other entities sued McKinsey in 2021 as a part of the multidistrict litigation, including municipalgovernments and school districts. McKinsey has settled with many of plaintiffs, agreeing to pay as much as $230 million in some cases.

Martzell Bickford & Centola APC, Calwell Luce diTrapano PLLC, Fayard & Honeycutt APC, Fayard Law Firm LLC, The Creadore Law Firm PC, Cooper Law Firm LLC, Thompson Barney Law Firm represent the NAS plaintiffs. Dinsmore & Shohl LLP, Todd and Weld LLP, Hogan Lovells US LLP, and Goodwin Procter LLP are lead counsel for McKinsey.

The case is In re: McKinsey & Co., Inc. National Prescription Opiate Consultant Litigation, N.D. Cal., 3:21-md-02996, 5/16/24.