In 2004, Merck pulled the arthritis drug, Vioxx, off the market because it caused serious heart and other health problems. The State of Michigan sued Merck to recover millions spent for Medicaid patients, alleging that Merck made false claims in representing the safety and efficacy of Vioxx.
Now, the Michigan Court of Appeals has ruled against the State in a prescription drug case which could cost the state millions of dollars. The irony here is that Michigan’s former Governor Engler and the Michigan legislature is responsible for this “taste of their own medicine” by passing this grossly unfair, total immunity statute for the benefit of drug manufacturers. They passed this legislation to cause pain to trial lawyers and their prospective clients, but, ironically, they also screwed the State out of millions in Medicaid reimbursement. And, as ususal, the cruel joke is on the taxpayers. In a 2-1 decision, the Appeals Court ruled that the State, itself, cannot sue Merck for fraud. The Court said that the drug company is protected by 1995 Michigan’s drug liability immunity law, which grants immunity to drug makers for any drug that has been approved by the FDA. (What drug reaches an American pharmacy shelf without FDA approval? This law amounts to total immunity for drug manufacturers!) Even if it is later found to be harmful or deadly, the drug manufacturer cannot be held liable.
Michigan’s immunity statute is the only one of its kind in the United States, and it is causing severe harm to the people and the state. Michigan residents have no legal recourse after being victimized by the negligence of the multi-billion dollar drug industry. This immunity results in huge profits for the drug industry and uncompensated tragedies for the victims of these bad drugs. It is really that plain and simple. Merck profited $2.3 billion from Vioxx in the first year alone. Michigan is allowing drug makers to kill and disable people with deadly drugs while the industry is guaranteed mammoth profits. Why should the people of Michigan pay the bill for drug makers who kill with dangerous products? In other states, citizens can sue the manufacturers for the damages they cause; these lawsuits and the potential compensation due helpless victims are a serious deterrent to negligent conduct. But, sadly, not in Michigan, where the quality of life and the safety of its citizens was deemed subordinate to corporate profits.
While then Governor Engler promised that the immunity law would reduce the cost of prescription drugs and save Michigan drug industry jobs, that didn’t happen. Two years after the law went into affect Pfizer left Michigan taking 2,100 jobs. Eventually and thankfully, Governor Engler left, too. Soon, Michigan residents found that they were the only American citizens unable to receive compensation from injury or death stemming from taking an FDA-approved drug. Ironically, one such victim was a doctor who had spent his life treating families with ADD before suffering a stroke. He later recalled that he had taken Vioxx for a herniated disc in his neck. He cannot pursue compensation; attorneys cannot assist him because he is from Michigan. Of course, he blames Gov. Engler and his supporters.
The “tort reform” lobby was heavily invested in Engler and his cronies and it is substantially responsible for this gross injustice. This anti-justice lobby, of course, blames the trial lawyers and frivolous lawsuits and claims that industry needs protection from litigation. But, dangerous drugs that kill and disable is not a “frivolous” matter. Why does this billion dollar industry deserve total protection in one State? Trial lawyers do not kill and injure people with dangerous drugs. Trial lawyers are the “drug police”; they protect and serve victims of negligence, much like the real police protect us from becoming victims of crime. If drug companies did not manufacture and sell dangerous and fatal drugs, there would be no injuries or deaths, no victims, and their loved ones would not have to seek compensation and justice. Manufacturing and selling safe drugs is the only way a drug manufacturer should be “immune” from suit.
Injury Board Member, David Mittleman, says he constantly turns away victims who have been injured by drugs; it is not because their cases are frivolous. Dr. Cox agrees that this immunity law has nothing to do with reducing frivolous lawsuits. “I’d be all for a law like that (one that reduces "frivolous" lawsuits). I think that’s what people think they’re getting with tort reform.” After being around other people injured by drugs, he now says, “The people I’ve seen, they’re not frivolous cases."
As reported by Mittleman in a recent Injury Board post, Michigan State Representative Lisa Brown has introduced a bill that would “end this inexplicable pro-corporation, anti-consumer policy.” Representative Brown is leading the push to hold drug companies accountable when their products harm, maim, or kill innocent Michigan citizens. She plans to fight for personal safety over corporate profits. Why shouldn’t Michigan residents have the same rights as all other Americans?
In the last four years, this corrective legislation has twice passed the Michigan House, but was blocked in the Senate. It almost passed in 2007 before it hit two bottlenecks – Senators Wayne Kuipers and Mike Bishop. Michigan residents are still left helpless when they or a loved one fall victim to one of these dangerous products. Putting citizens at such risk, without the right to pursue litigation, is ludicrous and, viciously, anti-citizen. Lisa Brown says:
“For years we’ve had legislation ready that would help countless Michigan families whose lives have been turned upside down by the drug industry… Michigan lawmakers have repeatedly failed our residents by not passing this legislation. It’s unbelievable to me that people have been severely injured and lives have been lost – and yet this plan is still not law. We have a duty to protect the health, welfare and rights of our residents and the Legislature needs to do its job and end drug industry immunity in Michigan.”
Give’em hell, Lisa! It is time to repeal Michigan’s Drug Industry Immunity Law.
Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by a plaintiff involved in pending, personal injury, litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.
Experienced attorney, lawsuit funding expert, certified civil mediator, and award-winning author of the Zachary Blake Legal Thriller Series. The series features super-trial lawyer Zachary Blake handling "ripped from the headlines" legal and political issues of the day. The series currently consists of Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, and Betrayal High, with a sixth Zachary Blake novel due out later this year. To learn more about these topical social justice legal thrillers. please visit markmbello.com. Mark is a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.
A great article. Have been involved with a group supporting Lisa (and others') attempts to repeal this unjust law in 2009-2010. Have hundreds of names from across Michigan who agree.
This subject needs to again be brought before the public. The impact on all of us as covered here, may help.
Dr. Henry Greenspan
Yes, indeed. Let's roll.
Some of you will know that a bill has been introduced in North Carolina that would be the first state that carbon copied our immunity law. It is clear that a state-by-state strategy is the preemptors plan post Wyeth/Levine.
The only good thing about this is that it makes drug industry immunity a national issue again--like union-busting, taxing senior, trashing schools, and other projects we've come to know.
thnx for the shout-out Mark - the people of the State Michigan deserve the protection Rep Lisa Brown has introduced.....the victims of corporate negligence become victims again of MI laws as do all people of OUR State when WE can't hold corporations accountable!
I hope Lisa Brown is able to move her repeal through the house and senate. I am concerned about the republicans being in control. Being that the law has caused the state millions of dollars while looking for ways to balance the budget will help.
Our lawmakers need to realize Michigan citizens are not second class. We should have the same rights as the rest of the country. It sounds like a communist country that don`t allow citizens their day in court.
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