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McKinsey consulting firm to face negligence claims from pregnant mothers over opioid crisis

The mothers claimed that McKinsey conspired with Oxycontin maker Purdue Pharma to boost sales of the pill while downplaying risks of addiction, causing health issues in their children.

SAN FRANCISCO (CN) — A federal judge allowed on Thursday some claims to proceed from a narrow class of consumers in an ongoing suit against management consulting company McKinsey and Co. over its role in the opioid crisis, specifically for how it affected women who took opioids during their pregnancy and their children. 

McKinsey was accused of devising strategies for its client, Oxycontin maker Purdue Pharma, that boosted sales of high-dose pills with deceptive messaging to doctors that downplayed the risks of addiction.

The original class of plaintiffs in the multi-district litigation were private citizens, city governments, Native American tribes, school districts, and mothers of children with neonatal abstinence syndrome from opioid exposure in the womb. They argued that McKinsey consultants conducted extensive research that helped Purdue carry out a targeted marketing plan to increase sales.

Most parties settled their claims against McKinsey, but 11 mothers who say they used opioids while they were pregnant declined to settle, claiming that their children’s exposure to the opioids in utero caused neonatal abstinence syndrome, a condition that mimics drug withdrawal.

U.S. Senior District Judge Charles Breyer ruled that negligence and failure to warn claims from the pregnant women can proceed because precedent has established that McKinsey can be held liable for injuries they or their conspirators inflicted on the public.

McKinsey argued for these claims to be dismissed because it said it did not intend to harm any of the victims. Breyer wrote that intent did not matter because McKinsey’s failure to warn consumers about opioid risks harmed the class nonetheless.

“The allegations are that the failure to adequately disclose these risks was an intentional object of agreement between McKinsey and its clients, and that the failure to warn harmed the NAS plaintiffs," Breyer wrote. "That these underlying torts are not themselves usually categorized as ‘intentional torts’ is irrelevant. Plaintiffs may hold McKinsey liable for harms caused by its clients’ breaches of duty where these were carried out in furtherance of a common design with McKinsey.”

Breyer tossed misrepresentation and fraud claims under the theory of public nuisance, however, because the plaintiffs had not pleaded a special injury.

The judge wrote that the personal injuries from opioid exposure were not suffered by a few but rather by millions of adults and minors alike, and the NAS plaintiffs had not explained how they were uniquely harmed by their exposure to opioids.

“Plaintiffs’ special injury allegations are stuck between two fatal problems,” Breyer wrote. "If plaintiffs characterize the nuisance more or less as they did in the original pleading—as an epidemic of opioid overprescription and abuse—then cannot show how their injuries are different in kind from those suffered by others who suffered injuries from using or abusing opioids."

“And if plaintiffs characterize the nuisance differently, as the creation and maintenance of an illegal secondary market in opioids that interferes with the public’s rights ‘to use and enjoy public spaces ... and to be free from the deleterious health and safety effect of an illegal drug trade,’ then it is difficult to see how the NAS Plaintiffs were injured by the nuisance,” he added.

Conspiracy claims based on fraud and intentional misrepresentation did not survive either. Breyer determined the plaintiffs could not reliably prove the theory of the underlying fraud — that their doctors relied on McKinsey and its conspirators' misrepresentations about the benefits and risks of opioid use.

The plaintiffs argued that if their doctors had not been misled, the doctors would not have prescribed opioids to the plaintiffs.

“At this stage plaintiffs are not able to determine what specific information their doctors received and relied on regarding the risks of opioid use. The best plaintiffs can do is allege ‘on information and belief’ that their doctors relied on the alleged misrepresentations and that some of them were on McKinsey ‘target lists’ meaning lists of high-volume prescribers McKinsey compiled for its clients’ sales representatives,” Breyer wrote.

Requests for comment from lead attorneys for both sides were not returned before publication.

Categories / Courts, Health, Personal Injury

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