Opioid MDL against McKinsey heads to San Francisco

A new opioid multidistrict litigation is heading to federal court in San Francisco, after the panel overseeing such cases decided Monday several false advertising lawsuits against McKinsey & Co should be kept out of an existing opioid MDL in Ohio.

McKinsey faces accusations that it contributed to an opioid crisis by advising drug manufacturers like Purdue Pharma which deceptively downplayed the risk of addiction in marketing prescriptions. All the actions were filed this year, most after McKinsey announced a nearly $600 million settlement with all 50 state attorneys general in February.

Similarly, the ongoing litigation in the Northern District of Ohio involves claims brought by thousands of cities, counties, tribes, and other plaintiffs, who say Purdue and other pharmaceutical companies created a public nuisance and an opioid addiction crisis by violating state and federal false advertising and unfair competition laws when they marketed opioids to patients seeking pain relief for noncancer chronic pain. The total plaintiffs' claimed damages are believed to be in the billions.

While some plaintiffs in the McKinsey litigation were in favor of consolidating claims into the Ohio MDL, the seven-judge Judicial Panel on Multidistrict Litigation panel in Washington D.C. found that adding "a relatively unique defendant such as McKinsey" to the already complex and contentious MDL could hinder the Ohio judge's ability to manage the many cases before him.

"This litigation concerns work McKinsey performed for Purdue and other MDL ... defendants, so we understand why some parties would think it logical for these actions to proceed in that MDL," the panel wrote Monday in its transfer order. "Despite this factual overlap, we find merit in McKinsey's argument that it will be prejudiced by having to join the three-and-a-half-year-old MDL ... at this late stage."

Assigning the new multidistrict litigation to U.S. District Judge Charles R. Breyer in San Francisco, the panel found that Breyer's experience in presiding over an opioid trial in San Francisco likely afforded him "granular insight into the federal opioid litigation that few other judges have obtained."

The new litigation will include 11 actions brought by cities and counties and six actions filed by tribal governments throughout the U.S. Ten of the actions will bring statewide class claims against McKinsey entities such as public nuisance, negligence, negligent misrepresentation, fraud, unjust enrichment and violation of consumer protection statutes. Eight actions are federal civil racketeering claims.