SAN FRANCISCO – A California federal judge has denied parts of a motion to dismiss some Neonatal Abstinence Syndrome claims against a management consulting company, allowing the claims of some West Virginia children to move forward.
In his May 16 opinion, Senior U.S. District Judge Charles R. Breyer granted drug manufacturer McKinsey & Co.’s motions to dismiss fraud-based and nuisance-based claims as well as conspiracy claims brought against it by one Nevada plaintiff in the hundreds of Multi-District Litigation cases before him.
But Breyer, the younger brother of former U.S. Supreme Court Justice Stephen Breyer, denied the motion to dismiss the claims entirely. He ruled that the negligence and failure to warn claims can proceed, saying the company can be held liable because of precedent establishing McKinsey or their conspirators inflicted injury on the public.
Jesse W. Forbes
| forbeslawwv.com
“The recent result is a very positive step in the right direction that will allow these children to bring their claims and move toward achieving accountability,” attorney Jesse Forbes told The West Virginia Record. “Injustices such as Neonatal Abstinence Syndrome caused by the opioid epidemic should never happen and these children deserve to be recognized in this litigation. We look forward to the next steps in these and all of the cases that will hopefully bring some relief to these innocents and provide civil justice for all of the young children that are suffering from Neonatal Abstinence Syndrome.”
Forbes and other Charleston attorneys represent hundreds of West Virginia children who are suffering the effects of NAS as a result of opioid exposure during pregnancy. They have filed some cases in the federal MDL in San Francisco before Breyer, and others are pending in West Virginia’s Mass Litigation Panel. McKinsey is one of the defendants in the state MLP cases as well, but the panel has granted defense motions to dismiss.
The West Virginia MLP cases currently are on appeal in the Intermediate Court of Appeals. The plaintiffs are asking the ICA to reverse the MLP ruling to dismiss the claims and allow them to file amended complaints similarly to what was allowed before Breyer.
In the federal court MDL, most of the subgroups of plaintiffs that had sued McKinsey — including political subdivisions, school districts, Native American tribes and third-party payor entities — have settled or are near settling, their claims. But 11 mothers who used opioids during pregnancy declined to settle.
McKinsey is accused of developing strategies for Purdue Pharma to increase sales of some opioid pills through deceptive messages to doctors downplaying the chance of addiction. The plaintiffs claim McKinsey research helped Purdue’s targeted marketing plan to increase sales.
The 11 NAS plaintiffs are children born with birth defects, cognitive deficits, developmental delays or other symptoms. Each of the NAS plaintiffs’ birth mothers took opioids while pregnant. The babies were born across eight states: California, Colorado, Kentucky, Oklahoma, Nevada, Tennessee, West Virginia and Utah.
If their doctors had not been misled, the mothers say their doctors would not have prescribed opioids to them.
Breyer initially granted motions to dismiss the children’s claims as well, but he allowed the plaintiff’s attorneys to file amended complaints. Breyer said the NAS plaintiffs initially had failed to show McKinsey owed them any direct legal duties. Now, Breyer is denying a bulk of the issues raised in McKinsey’s motion to dismiss and allowing the claims to be litigated.
“This is a positive step forward in the long-fought legal battle on behalf of these young children,” attorney L. Dante diTrapano told The Record. “Our entire team is extremely pleased and we are ready to move forward with these claims for these most vulnerable victims of the opioid epidemic. The impacts that children with NAS suffer on a daily basis are devastating and affect them for the rest of their lives.
“We have continued to pursue these claims through these forums and are extremely appreciative at the recognition that the children’s claims are viable and that they should have their day in court. The opioid epidemic has devastated communities throughout the country but West Virginia children have unfortunately been on the front lines of this crisis. It is time that those responsible are held accountable and that is precisely what we intend to do through this litigation.”
In the amended complaint, the NAS plaintiffs uses concerted-action theories premised on conspiracy and aiding-and-abetting liability. In short, they claim McKinsey may not itself have owed the NAS plaintiffs a legal duty, but the opioid manufacturer clients did. So, they argue McKinsey is liable for working with those clients to intentionally breach those duties.
Breyer compared the matter to a drag race.
“While plaintiffs’ theory may seem counterintuitive, it is not as strange or novel as it sounds,” Breyer wrote in his 43-page opinion. “Imagine two motorists who agree, whether tacitly or explicitly, to have a drag race. During the race, the motorists drive at unlawful speeds and violate a state law against street racing. As a result of their dangerous and unlawful driving, one of the drivers ends up hitting and injuring a pedestrian.
“Neither driver intended to hurt anyone, and both drivers may even have preferred if no one was hurt. But they did intend to break the law, and the intended violation was the proximate cause of the plaintiffs’ injuries. Both the restatement (Second) and California law recognize these facts as a basis for both racers’ joint and several liability to the pedestrian.”
Breyer says opioid manufacturers Purdue, Endo, Mallinckrodt and Johnson & Johnson used McKinsey to help increase the sale of their opioid drugs and had “a unique vantage point on the opioid market.”
“McKinsey could, for example, allegedly use its information about which doctors were writing the most prescriptions for a competitor opioid to devise prescriber ‘targeting’ efforts for the manufacturer of another opioid,” Breyer wrote. “Or it could exploit insider knowledge about the shortcomings of one product to identify market opportunities for another.
“Thus, although McKinsey advised Purdue’s sales representatives to emphasize that OxyContin lasted 12 hours, it allegedly knew that the effects lasted only about eight hours. This presented a growth opportunity for other manufacturers, whom McKinsey could then advise to market their opioids as solutions for possible ‘breakthrough pain’ experienced by OxyContin users who were finding that the drug did not really last as long as advertised.”
The plaintiffs allege McKinsey orchestrated the preparation of misleading submissions to the FDA, both in connection with applications for approval of new drugs and ongoing disclosures regarding existing ones. They say McKinsey advised its clients on strategies designed to increase the size of the entire opioid market, not just a given drug’s share of it.
The amended complaint, for example, characterizes McKinsey’s work with Purdue as a knowing, intentional effort to increase sales of OxyContin through unlawful means.
“For example, plaintiffs tell a detailed story about McKinsey’s efforts to help Purdue recapture sales that were lost when Purdue introduced a new Abuse-Deterrent Formulation of OxyContin called ADF OxyContin, and regulators began to impose tighter access restrictions on the drug,” Breyer wrote. “Both McKinsey and Purdue understood that the lost sales had been going largely to illegitimate users of OxyContin. McKinsey helped Purdue recapture these users.
“McKinsey did so, according to the amended complaint, by advising Purdue to focus its sales efforts on the highest-volume prescribers and by suggesting ways to circumvent access restrictions. And McKinsey helped Purdue to implement these strategies by compiling lists of high-volume prescribers for sales targeting and crafting messaging for salespersons.”
“No child deserves to be born into this world with this kind of suffering,” Forbes told The Record. “These are innocent babies that were horrifically attacked in the womb by opioids and we look forward to holding all those responsible to account. These are children suffering from developmental delays, seizures, vision problems and other serious medical conditions that should have never happened. Unfortunately, these children will spend the rest of their lives dealing with these issues.”
The West Virginia plaintiffs are being represented by diTrapano and Alex McLaughlin of Calwell Luce diTrapano, Forbes of Forbes Law Offices in Charleston, Rodney Jackson of Charleton, Steve New of Stephen New & Associates in Beckley, Kevin Thompson and David Barney of Thompson Barney in Charleston and by Booth Goodwin, Benjamin Ware and Stephanie Daly of Goodwin & Goodwin in Charleston. Tony Majestro of Powell & Majestro presented the argument at the recent hearing in California before Breyer.
U.S. District Court for the Northern District of California case number 3:21-md-02996