The U.S. Judicial Panel on Multidistrict Litigation recently ruled to consolidate McKinsey & Company opioid lawsuits into a separate MDL. Purdue Pharma hired the consulting giant to craft marketing strategies for a drug—OxyContin—irrefutably responsible for widespread addiction and overdose. Along with major drugmakers, McKinsey is named across suits for its role in the opioid crisis. But instead of consolidating with other pending prescription opioid cases, the Panel chose to keep McKinsey actions separate.
The Panel’s Decision
McKinsey is currently facing 17 lawsuits and 22 potentially related causes of action throughout 11 different districts. The defendants moved to centralize the lawsuits to the Southern District of New York. None of the cases are pending in this venue but it’s where a McKinsey defendant is based. The parties’ position on consolidation varied. But the main issue in dispute was whether the McKinsey cases should join the existing multi-district litigation, National Prescription Opioid Litigation, MDL No. 2804, or create a new and separate MDL.
The Panel found that McKinsey would be prejudiced if it were to join multidistrict litigation already over three years old. This choice was despite the factual overlap with MDL No. 2804. The existing MDL was also in various stages. A number of bellwether trials for pharmacy defendants are scheduled in the upcoming year. Meanwhile, other categories of cases have not yet significantly progressed.
An Already Complex MDL
McKinsey performed consulting work for Purdue and other defendants named in MDL. No. 2804. Despite this, the Panel held that: “Adding a relatively unique defendant such as McKinsey to an already exceedingly complex and contentious MDL may hinder the transferee judge’s ability to efficiently manage the range of cases now before him.” As such, the Panel felt it appropriate to establish a separate MDL for these “relatively recent” claims.
The Panel also discussed the issue of centralization generally. It found that the pending individual actions and those on behalf of cities, counties, tribal governments, and related tribal entities all involve common factual issues. The commonalities regarded McKinsey’s role in providing marketing and sales advice to opioid manufacturers.
Plaintiffs brought similar claims against McKinsey. These claims included negligence, negligent misrepresentation, fraud, unjust enrichment, public nuisance, and violations of consumer protection laws. Plaintiffs in eight actions have also filed federal claims under the Racketeer Influenced and Corrupt Organizations Act. All actions are in their infancy. As such, centralization will eliminate duplicative discovery, avoid inconsistent pretrial rulings, and conserve judicial resources.
Assigned to California’s Northern District
The Panel chose the Northern District of California as the transferee district and assigned Judge Charles R. Breyer to the MDL. Judge Breyer was a member of the Panel at the time of MDL No. 2804’s initial centralization. He also presided over a bellwether remand action. As the Panel explained, Judge Breyer’s experience has afforded him “granular insight into the federal opioid litigation that few other judges have obtained.” The newly consolidated MDL is In Re McKinsey & Co. Inc. National Prescription Opiate Consultant Litigation, No. 2996.
The various lawsuits all share the general claim that McKinsey advised its drugmaker clients to engage in misleading marketing practices. Specifically, it allegedly pushed for unclear safety information about prescription opioids. This, purportedly, resulted in over-prescription, misuse, and abuse. In an effort to “turbocharge” Oxycontin sales, plaintiffs allege that McKinsey advised Purdue to increase sales calls to physicians. These calls specifically focused on doctors known to be frequent providers in an effort to subvert restrictions on higher dosages.
Impact on Opioid Litigation
McKinsey is not new to opioid-related litigation. Back in February 2021, the firm entered into a nearly $600 million settlement. Mckinsey reached this agreement with attorneys general in 47 states, five territories, and the District of Columbia, for its role in the opioid crisis. A month later, Nevada, which did not join the previous settlement, entered into its own agreement with McKinsey for $45 million. This agreement is three and a half times larger than the average settlement for the other states.
Despite these settlements, the consulting firm now faces more than 20 additional lawsuits. Various cities, counties, and tribal governments—including over 20 New York counties—filed these actions. McKinsey maintains that these entities are “double-dipping” into the previous state settlements. The firm hopes that an MDL will resolve these issues.
A McKinsey spokesperson stated: “Rather than waste judicial resources litigating similarly meritless claims in multiple courts, this MDL will allow the courts to efficiently resolve these attempts by plaintiffs’ lawyers to double-dip on the fair settlement negotiated with State Attorneys General, the District of Columbia and five territories to provide fast, meaningful support to communities affected by the opioid epidemic.”
McKinsey’s separate consolidation starts litigation “ from scratch.” This arrangement also maintains distance from actual opioid manufacturers. As McKinsey representatives have been quick to point out, they entered into settlements “despite never manufacturing, distributing, or dispensing a single opioid medication.” The centralization of these suits may help McKinsey in their fight against allegedly meritless claims. Though, if the barrage of newly filed suits is any indication, this could be just the beginning for the newly created MDL.