McKinsey & Co. and its affiliates face allegations that the consulting services it provided to opioid manufacturers harmed children’s health. According to the lawsuit, these actions led to increased educational costs. Putnam County school board leads the Florida class action lawsuit. This class action mirrors similar lawsuits filed by school districts in other states, such as West Virginia and Kentucky. Those lawsuits are currently pending before a California federal court.
The Lawsuit’s Allegations
The complaint alleges that the opioid epidemic had adversely affected schools. There has been an increased need for special education and other support services as rates of addiction and overdose skyrocket. Specifically, the lawsuit describes a condition affecting children known as Neonatal Opioid Withdrawal Syndrome (or “NOWS”). NOWS can cause cognitive or developmental delays and behavioral and learning problems. According to the lawsuit, children born with NOWS “disproportionately need and receive mandated costly ‘special education’ services.” Oftentimes, children with NOWS need these services throughout the entirety of their education.
The complaint cites “limited hospitalization data.” The data indicates that the number of children born in Florida hospitals born with NOWS tripled from 2008 to 2017. The costs incurred by the school districts to provide special education services are nearly double the cost of general education. As required by federal law, the schools are providing “mitigation and abatement services” to students affected by opioids. As plaintiff attorney, Wayne Hogan, explains: “This is something they have to do. It’s something they should do…But the taxpayers of the communities are paying for this. To the extent that this has been imposed by the opioid industry, McKinsey included, on the school districts, it is appropriate for these efforts to be supported by funding out of any settlement or trial verdict or resolution that occurs.”
McKinsey’s role in the opioid Litigation
The complaint alleges that McKinsey “played a central role in the unfolding, propagation, and exploitation of the opioid crisis by advising multiple opioid manufacturers and other industry participants on how to sell as many opioids as conceivably possible.” Furthermore, “[t]he connection between McKinsey’s role as the architect of a scheme to ‘turbocharge’ opioid sales and substantial harms to public schools is direct and proximate,” the lawsuit claims. According to the lawsuit, opioids flooded the market as a result of McKinsey’s action. However, because of federal privacy laws pertaining to students, schools are not privy to the underlying reasons that a child might need special education services, “making it more difficult to directly tie McKinsey to increased educational costs resulting from opioids’ crippling impact on students and their families.”
The Future of the Case
The case, Putnam County School Board v. McKinsey & Company, Inc., has been transferred to the Northern District of California. Similar school district lawsuits are pending in this district in a consolidated multidistrict litigation. The Putnam County case is expected to be consolidated with the other local governments and school districts suing McKinsey for unspecified damages related to McKinsey’s opioid marketing.
McKinsey is attempting to have the MDL dismissed. According to McKinsey, its prior settlements with states should cover damages related to education. “As a matter of law, sound public policy, and efficient judicial administration, plaintiffs’ claims—as well as any future claim by any political subdivision, school district, or municipal body of any kind—should be dismissed in their entirety because they have already been resolved,” the firm argued in its brief. Putnam County’s counsel maintains that pre-litigation settlement with states does not foreclose the opportunity of school districts and local governments to pursue their own recovery for costs incurred from its local residents and opioid addiction.
Last year, McKinsey entered into a nearly $600 million settlement with 47 states, five territories, and the District of Columbia. The amount settled claims that the firm “turbocharged” opioid sales despite knowing the substance’s highly addictive and deadly nature. The consulting firm did not admit to any wrongdoing. However, part of the settlement included restricting the firm’s work with addictive narcotics. The settlement also required McKinsey to publicize its documents related to its opioid work. The settlement money will go toward state programs for opioid treatment, prevention, and recovery.
Florida is expected to receive about $40 million per the settlement agreement. However, it is likely that school districts will not directly benefit from this payout. The school districts maintain that they are best suited to “help offset the negative effects of opioid addiction and enable kids to thrive as adults.” The plaintiff’s counsel highlighted a fund Purdue Pharma created as part of its bankruptcy plan as a model for future settlements. The fund is specifically for education and allows districts and other entities to apply for grants.
How Can the Experts Help?
In order to establish the extent of the damage the opioid crisis caused, the plaintiffs will need an addiction specialist. A physician who specializes in addiction and substance abuse can testify to how addiction develops and the causal factors. This physician can also opine on the treatment options.
Previous Expert Testimonies in Cases
For example, earlier in April of this year, a managing director of Health Management Associates Institute on Addiction testified during a trial in West Virginia against Teva Pharmaceutical Industries. The managing director testified that opioid exposure was the biggest risk factor as to whether someone would develop an addiction. “The fundamental piece of addiction is really a core disruption of the part of the brain responsible for reward,” he testified. Addiction specialists, along with experts in pain management, can also provide pertinent background information concerning the opioid market and how prescriptions reached a groundswell over the past two decades. For both sides, experts in the pharmaceutical industry, specifically in regard to development and marketing, can help establish (or defend against) claims that McKinsey purposely marketed opioids, and the risk of addiction, in a misleading manner.
As to the damages and requested relief, an attorney may call upon a public health expert. This expert would be able to quantify the cost of any health program. The expert could also discuss the implementation of such programs. For example, in a Purdue Pharma multidistrict litigation a few years ago, a John Hopkins public health professor estimated the cost of a national abatement plan to be more than $480 billion over the span of 10 years. The estimated cost included drug treatment, preventative education, foster care, criminal justice resources, and other services.
Overall, the school district cases share similarities with other opioid-related lawsuits. However, the damages to the schools are unique and particularized to an educational setting. It will be interesting to see how the case unfolds and whether it shares a similar trajectory to its predecessors.