Michigan drug immunity law: Court access blocked, promised economic benefits not realized, says new report

Michigan's drug immunity law received some national attention today in a report released by the Center for Justice & Democracy in New York.

The report's key assertions: the law keeps residents harmed by dangerous drugs out of the courtroom and has not delivered any the economic benefits promised by the law's backers.

The heavily footnoted report, "A Tragic Blunder: Michigan's Drug Industry Immunity Law", concludes the law should be repealed:

"In 1995, under the leadership of then Governor John Engler, the Michigan legislature passed an unprecedented law that prevents its residents from gaining access to the civil justice system if they were harmed by dangerous drugs approved by the Food and Drug Administration (FDA), with the limited exception that the drugmaker did not withhold information from the FDA. Michigan is the only state in the nation that has a drug industry immunity law which allows drug companies to escape accountability in this manner.

"Over the last 15 years or more, as drug companies have had an increasing amount of influence over FDA decision-making and policy, the FDA has fallen down on its job of protecting the public. The result has been perilous for all Americans, with the news now replete with reports of drug industry marketing unsafe drugs to the public with the FDA's knowledge - Rezulin, Vioxx, and Trasylol, recently featured on 60 Minutes, to name just a few. Yet unlike the residents of any other state, Michiganders have no legal recourse should they be hurt by these or other dangerous drugs that the FDA failed to keep off the market.

"What Michigan lawmakers accomplished with this law is exactly what the pharmaceutical industry has been trying to accomplish unsuccessfully for the last three decades in Congress and state legislatures around the country - eliminating their liability for marketing unsafe drugs, and shielding them from responsibility when their harmful products hurt or kill.

"With the problematic nature of the FDA, it is clear that Michigan needs the protection of its civil justice system. This law undermines public safety, is devastating to many people in Michigan and needs to be repealed."

The report also discusses the promised economic benefits that were touted by the law's supporters:

"The Michigan Manufacturers Association, a strong pro-business lobbying group, has stated that it supported the drug immunity law in order to 'encourage companies - including pharmaceutical companies - to stay in Michigan.' The high-paying pharmaceutical jobs, however, began trickling out of Michigan even as Governor Engler was signing the bill into law.

"In 1995, the Kalamazoo-based pharmaceutical company Upjohn Co., the company the immunity law was meant to protect, merged with the Swedish company Pharmeacia Corp. After the merger, the new company moved its headquarters and cut hundreds of jobs in Michigan. In 2003, Pharmeacia & Upjohn merged with Pfizer and cut over a thousand additional jobs in Western Michigan.

"In December 2006, responding to an effort to repeal the drug company immunity law, the Detroit News ran an editorial praising Pfizer for providing so many good jobs in the state. Less than a month later, Pfizer announced it was closing the Kalamazoo and Ann Arbor research and development facilities - a move that affected thousands of jobs in Michigan. A year later, the Ann Arbor site was nearly abandoned and hundreds of Pfizer employees and their families had moved out of the state."

In an editorial last Sunday, the Detroit News again took to the stump to support the drug immunity law:

"State lawmakers should abandon efforts to repeal the Michigan law, which protects drug companies that comply with standards set by the U.S. Food and Drug Administration (FDA) and whose products were tested and approved by the agency. ...

"The whole idea of the FDA is to set and enforce national standards, including rules for drugs and medical devices. As a result, U.S. health care is one of the most advanced systems in the world. New and exotic procedures and drugs save lives even though most all carry some risk.

"To the extent there's a problem with FDA procedures, it belongs to Congress and the agency itself. If stricter or looser rules are needed for a product line, both federal lawmakers and FDA officials can make that happen."

But according to the center's report, the Michigan Senate, which has resisted repeal efforts, has tacitly admitted the FDA's oversight leaves something to be desired.

"[I]n late January 2008, just hours before Governor Jennifer Granholm's State of the State address in which she expressed support for repeal, the Senate passed a non-binding resolution calling on the FDA to 'establish stricter standards for the drug approval process.' This was an obvious concession that the FDA was failing in its job, yet the Senate continued to support immunity for those harmed by the FDA's failures."

The repeal legislation is still awaiting a hearing in the Senate. See this post: The Michigan Lawyer: Drug immunity law: politicos jockey for position

Eastern District Bankruptcy Court seeks pro bono volunteers

If you're a member of the bankruptcy bar, Eastern District Bankruptcy Court Chief Judge Steven Rhodes is looking for your help.

Specifically, 150 or more of you.

Judge Rhodes is seeking volunteers to help with the court's pro bono program.

"The Court's pro bono program provides free legal services to indigent debtors involved in adversary proceedings related to the discharge and non-dischargeability of certain debts. The program also provides service to an indigent former-spouse of a debtor regarding the dischargeability of obligations in the judgment of divorce. The program does not provide legal services related to bankruptcy cases."

Judge Rhodes says if a couple hundred attorneys get on board, each could expect to get an appointment under the program every three or four years.

Click here for more information and an application.

Michigan House: Give the police more DNA

Ever seen someone booked into jail?

The officers in charge take a lot of stuff.

They take the arrested individual's picture and fingerprints, for obvious reasons.

They take personal belongings, i.e., wallet, purse, watch and other jewelry, cell phone and such because all of this, if left with the suspect, could cause many problems for both jailers and inmates alike.

They take shoelaces and belts because these could become weapons or implements of self-destruction.

And, under House Bill 4092, which passed yesterday on a 104-4 vote, they could take a DNA sample from anyone arrested for a violent crime, according to an Associated Press report.

Supporters say this is just the thing to solve cold cases, stop crimes by catching repeat offenders earlier and absolve the innocent. Others wonder about things like privacy and the presumption of innocence.

The bill heads to the Michigan Senate, which typically loves this sort of thing.

All of this comes amid a report in The Lansing State Journal that the state police crime labs can't keep up with DNA test requests for live-wire prosecutions.

$1.1M proposed for mental health court program

The Michigan Senate Fiscal Agency's overview of the Granholm administration's new budget notes a $1.1 million appropriation for a pilot mental health courts program.

The funding proposal may help move SB 199 and SB 200, which were introduced by Sen. Liz Brater (D-Ann Arbor) a year ago and sent to the Senate Judiciary Committee, where, so far, nothing has happened.

Michigan Senate Democrats describe the mental health courts program this way:

"Modeled after the successful Drug Courts system, Mental Health Courts would allow judges to direct people with mental illness charged with minor offenses to treatment rather than jail. As lawmakers strive to control Michigan's soaring corrections costs, this proposal will ensure the best use of limited resources and the most appropriate sentencing for offenders."

The bills are backed by, among others, Michigan Partners in Crisis, a broad coalition of judges, law enforcement officials and mental health care activists. The Lansing State Journal recently printed an overview story about the group and its efforts.

There is an overabundance of mentally ill people incarcerated in this state's many prisons. The prison system is ill-equipped to appropriately respond to them.

The mental health court legislation and the governor's funding proposal could be part of the cure.

Public financing of MSC elections: the heat's on, the Legislature should act

For more than a year, SB 128, which would provide for public financing of Michigan Supreme Court elections, has been tucked away in a dark corner of Michigan Senate's Committee on Campaign and Election Oversight.

Sen. Michelle McManus, R-Lake Leelanau, chairs the committee and would be the person to schedule hearings on the bill.

Now, word comes from The Detroit News that a delegation of Traverse City residents, including former Michigan first lady Helen Milliken, will be in Lansing on Tuesday see if they can bring SB 128 out into the daylight.

Charlie Cain, the ace chief of the News' Lansing Bureau, provides a cogent description of SB 128 in his story today:

"Under the proposed legislation, a candidate for the top court would have to raise $50,000 in contributions of no more than $500 each to show that the person is a serious candidate for the bench. The candidate would then qualify for public financing equal to the average amount spent by candidates in the two previous election cycles. In 2006, the average spent by a Supreme Court candidate was $944,000 and in 2004 it was $1.78 million. The public money would come from taxpayer check-off contributions to the State Campaign Fund, which was established to provide public financing for candidates for governor who forgo raising their own campaign money."

Michigan Lawyer has previously blogged about judicial campaign finance reform:

The Michigan Lawyer: Judicial election reform buzz getting louder

The Michigan Lawyer: Justices, money, elections and recusal

And a couple of days ago, Detroit Free Press columnist Brian Dickerson again warmed to the topic.

According to Dickerson, here's what the fuss is all about:

"Since 2000, the Michigan Chamber of Commerce has spent $6 million to promote the images of five Republican state Supreme Court justices (and smear the incumbents' Democratic challengers) in a series of TV ad campaigns. It's likely that those who bankrolled the initiative include insurers, retailers and other companies who've benefited directly from high court rulings curtailing the liability of corporate defendants.
"But we can't be sure who sponsored the ads because so-called issue campaigns, such as the chamber's, are exempt from public-disclosure rules that govern election expenditures like the Acme recall effort. All that's certain is that a bunch of unknown corporations spent truckloads of cash to buy a state Supreme Court they hoped would be less sympathetic to consumers -- and got what they paid for."

There are some folks out there who would debate Dickerson on his viewpoint. Others embrace it as gospel. But if the truth be told, over the years, there have been more than enough shenanigans to go around from all over the political spectrum.

But all of that is beside the point.

And the point is this: large quantities of soft, shadowy, hard-to-trace money should have no place in any elective process, let alone the Michigan Supreme Court elections.

People are talking. Are you listening, Sen. McManus?

Markman says MSC majority tripped up in pothole case

"Darkness at the break of noon ...
"Eclipses both the sun and moon ..."
- Bob Dylan, "It's Alright, Ma (I'm Only Bleeding)"

Pavement, potholes, injured plaintiffs and demands for damages have been a much tougher sell ever since the Michigan Supreme Court announced its open-and-obvious-special-aspects analysis in Lugo v. Ameritech Corp., 464 Mich. 512 (2001).

But throw in a debate about lighting and you just might have something.

In Galliher v. Trinity Health-Michigan, an unpublished per curiam decision by the Michigan Court of Appeals, the panel said a woman who fell in a large pothole could get to the jury on her personal injury claim.

The trial court noted that plaintiff provided photographs, which showed that the conditions were sunny but that a building's shadow was obscuring the pothole.

The Galliher panel framed the issue this way:

"[W]hether the absence of natural light and illumination from other lighting sources can cause an otherwise open and obvious condition to be hidden for purposes of premises liability."

The panel (Judges E. Thomas Fitzgerald, David H. Sawyer and Peter D. O'Connell) concluded:

"Plaintiff presented evidence that a rather large, deep pothole existed in defendant's parking lot, that plaintiff did not see the pothole even though she looked where she was walking, that the pothole could have been seen had there been adequate illumination, whether natural or artificial, and that at the time of the fall it was dark and there was no artificial light in the area. ... [W]e agree with the trial court that plaintiff established a question of fact regarding whether the pothole was open and obvious."

Last week, the Michigan Supreme Court denied leave to appeal on a 6-1 vote. There was no comment from the majority in its Feb. 8 order, but an obviously flabbergasted Justice Stephen Markman had plenty to say.

"Because I cannot imagine any more 'open and obvious' condition than a pothole in a driveway during daylight hours, I would reverse the Court of Appeals judgment and remand for entry of an order granting summary disposition to defendant. '[P]otholes in pavement are an "everyday occurrence" that ordinarily should be observed by a reasonably prudent person.' Lugo v Ameritech Corp, Inc, 464 Mich 512, 523 (2001)."

Markman scolded his colleagues and shined his own light on the record.

"It is hard to know whether the majority is more persuaded here by the argument: (a) that a shadow cast by a hospital on a pothole constitutes a 'special aspect,' thus removing the pothole from the realm of the 'open and obvious'; (b) that plaintiff's testimony that she fell during 'dark evening hours' should be accorded credit despite the fact that 4:00 pm to 5:00 pm on the afternoon of March 1, 2003, the time of the accident, was a daylight hour; (c) that plaintiff's simultaneous arguments that there were sunny conditions at the time of her accident, thereby creating a shadow over the pothole, and that there were 'overcast' conditions at the time of the accident with 'heavy, dense clouds and fog and scattered snow showers,' thereby obscuring the pothole, should be accepted as legitimate alternative arguments; or (d) that plaintiff's assertion that she 'did not discover the condition' is somehow relevant to this Court's analysis of premises liability cases."

Markman said that the majority was pushing Lugo into the shadows.

"That any of these arguments have been found to be persuasive by this Court evidences why Lugo has become an increasingly 'dead letter,' to be replaced by no coherent alternative rule of law."

So, should we light a candle for Lugo?

Where did they say this happened? Who did they say was involved?

Last week, there were a couple of reports about folks who were charged with possessing marijuana. Happens all the time, you may be thinking.

Read on.

According to the Associated Press, in Hazel Park, just north of Detroit, authorities asked a fellow to empty his pockets. A bag of marijuana and a pipe to smoke it with surfaced.

And the Kalamazoo Gazette reported that a man was charged with possessing a small metal tin containing suspected marijuana.

Here's what should give you pause:

In the Hazel Park incident, the AP says the person involved was a 68-year-old man on probation, who tried to pass through the security checkpoint at the 43rd District Court.

The Gazette reported allegations that an attorney was going through a metal detector at the Kalamazoo County District Court when the tin containing suspected marijuana set the machine off.

And just when you thought you've heard it all.

How to get censured by the Michigan Supreme Court

"[W]e order that the Honorable Norene S. Redmond be publicly censured. This order stands as our public censure."
In re: The Honorable Norene S. Redmond Judge, 38th District Court Eastpointe, Michigan. SC: 134481 (Michigan Supreme Court Order).

Nobody likes to be called an "asshole."

Especially a judge.

Especially if she finds out about it.

And especially when it's coming from the mouth of a 16-year-old whose mother is waiting in a jail cell for someone to throw her $500 bail that the judge just ordered on the mother's misdemeanor domestic violence and felony resisting and obstructing charges.

What's a judge to do about a situation like this to avoid censure by the Michigan Supreme Court?

Here are some things not to do:

Don't reconvene the bond hearing on the record without the mother present.

Especially when she's not represented by counsel.

Especially when you state for the record that her kid has called you a bad name.

And especially when the when next thing you do is up the ante on the mother's bail from a $5,000/10 percent bond to $25,000 cash or surety.

And even more especially when the kid comes before you a few minutes later, accepts responsibility, asks that he be punished instead of his mother, and you don't back down.

* * *

Nobody likes guys who are accused of stealing from the elderly.

Especially a judge who is arraigning two of them in a courtroom under the watchful eyes of television cameras.

Especially when the police say they went inside a 90-year-old woman's house, swiped $800 and overcharged her for a painting job.

Especially when the police suggest the guys are flight risks.

What's a judge to do about a situation like this to avoid censure by the Michigan Supreme Court?

Here are some things not to do:

Don't respond to a defense attorney's argument for a low bond because his client's record is clean, he lives in the state and would likely get probation if convicted, by using words to the effect that it would be a shame if that's the way things turned out.

Especially when the next thing you do is set the guy's bond at $750,000 and, for good measure, tell the other guy, who does have a rap sheet, that his bond is a cool $1 million.

And even more especially, when doing all of this might give folks the idea that the whopping big bails were intended to punish these guys before they even went to trial instead of just making sure that they show up for it.

***

Nobody trying to get a decent night's sleep likes a noisy party that lasts until almost dawn.

Especially when this happens more than once.

Especially when one of the partygoers is on the hostess's front porch at 4 a.m., talking loudly on a cell phone.

Everybody likes it very much when the cops come and write the hostess a noise ticket that requires her to appear in court.

Especially when they'll have the opportunity to go to court as well and tell the judge just what they think about what's been going on in the neighborhood.

What's a judge to do about a situation like this to avoid censure by the Michigan Supreme Court?

Here are some things not to do:

Don't read a petition from the complaining neighbors without disclosing that you know some of them.

Especially when you let the neighbors repeatedly interrupt the hostess, who had no attorney, during the course of the proceedings.

Especially when you repeat some of the comments and complaints, even though they have nothing to do with the matter at hand.

And especially when doing all of this could make people think that the sentence you handed down for a noise ticket -- fines and costs, two years reporting probation with the first 30 days served in jail, daily preliminary breath tests, home visits, 100 hours of community service, no parties unless approved by the neighbors who signed the petition, and no one to spend the night except the folks who live there -- just might have been motivated by personal anger and an approving crowd.

***

Judges don't like to be censured by the Michigan Supreme Court.

Especially when they think they are right.

What's a judge to do about a situation like this?

Judge Redmond issued a statement. As reported in the Detroit Free Press:

"I have always done what I believe is right for the community and I will continue to do so[.] ... I know that I can put my head on my pillow tonight and be at peace with the decisions that I made."

Related reading:

Judge Redmond's Judicial Tenure Commission Settlement Agreement

Macomb Daily: Supreme Court scolds judge

Detroit News: Court censures Redmond

Sunshine websites: State AG's new one eclipsed by governor's?

Michigan Attorney General Mike Cox held a press conference yesterday, featuring guest-star-consumer-advocate-via-telephone Ralph Nader, and supporting roles by House Minority Leader Craig DeRoche, (R-Novi), and Rep. Jack Hoogendyk, (R-Kalamazoo), to roll out a new section on the AG department's web site called "Tracking Your Taxes."

A press release from Cox's office declared:

"that his office is the first in state government to create a page on the department's website detailing the expenditures of the AG's office, including contracts, salaries and wages, equipment and other spending."

Cox also did a little trumpeting himself:

"Our office is a leader in defending Freedom of Information requests and Open Meetings Acts. Letting the sunshine in on state government expenditures is the next step in open government. The public has a right to see how their tax dollars are being spent. Our 'Track Your Taxes' webpage will let all Michigan citizens see how the Attorney General's office puts their money to work."

And Nader, after dishing up telephonic kudos to the AG, let it be known that he hoped Gov. Jennifer Granholm "follows his example and makes the full text of all Michigan state contracts available to the public via the Internet."

But wait a minute.

"The governor long ago ordered all state contracting information to be available online, and it is," the Associated Press quoted Granholm spokesperson Liz Boyd as saying.

It is, indeed. Right here.

Rusty Hills, Cox's spokesperson, did some quibbling. From the AP's dispatch:

"Cox spokesman Rusty Hills questioned the thoroughness of the list of contracts compiled by the Granholm administration. He said Cox's list includes six pages of contracts for one department, while the state lists 16 pages for everything else."

And as for the completeness of the AG's "Track Your Taxes" website? Of the eight categories listed, clicking seven of them, "Building Occupancy," "Contract Services," "Supplies & Maintenance," "Equipment," "Information Technology," "Insurance/Fringe Benefits," "Rent," "Salary & Wages" and "Travel," returns only a figure representing spending for the first quarter of Fiscal Year 2008.

According to the Associated Press, "Cox said that in a perfect world, he would like his site to be more interactive. But he noted it did not cost anything to create and his staff put it together quickly."

The contract category that Hills mentioned has a spread sheet listing, but not the full text of the contracts, as Nader urged the governor to provide. Here, you can actually learn some details, such as

• Ikon Office Solutions has been awarded a bunch of equipment leases.
  
  
• The department has a one-year, $3,555 contract with insider newsletter Gongwer News Service.
  
  
• Miller Canfield has a legal services contract for $343,559.50 ending in June 2008, with $43,233.72 left unspent at the end of last month.
  
  
• Lucille S. Taylor, the wife of Michigan Supreme Court Chief Justice Clifford Taylor, has a legal services contract worth $24,500 through the end of September 2008, with $20,320 not spent at the close of the quarter.
  

Click here for more AG sunshine.

Eastern District Bankruptcy Court: PDA paradise

Now, here's something you don't run across everyday: a chief judge who doesn't care if folks in the courtroom tap away on computers, calculators and Blackberries.

Or, get this, chat on a cell phone.

Just keep it down.

That's the word from Steven W. Rhodes, chief judge of the Bankruptcy Court for the Eastern District of Michigan.

You can only guess what prompted the judge's Feb. 4 memo to security officers in the court's Detroit, Flint and Bay City facilities. But his message is clear:

"It is the policy of the Bankruptcy Court that electronic devices may be used in court facilities in our building, including courtrooms, as long as their use is quiet and does not disrupt court proceedings."

The judge hasn't forgotten about the Luddites out there. Rhodes' memo also permits newspaper reading.

Just keep it down.

Very unappealing: MSC says missing deadlines is 'ineffective assistance'

There are deadlines and then there are DEADLINES.

Dinner reservations, parties, dates? Punctuality is appreciated but there's usually forgiveness for the fashionably late.

The stuff in the Michigan Court Rules, and, for purposes of today's blog, the stuff about when to file a criminal appeal? Now, those are DEADLINES.

A handful of recent Michigan Supreme Court orders make the point loud and clear.

The Court of Appeals had dismissed each of the appeals because of a blown filing deadline. When the criminal defendants tried their luck with leave applications at the Supreme Court, instead of getting a deaf ear, their attorneys were ordered to file supplemental briefs explaining the circumstances that led to the dismissals. Roe v. Flores-Ortega, 528 U.S. 470 (2000), provides a way out for those who miss a filing deadline: defendants can't complain if, obviously, they tell counsel not to bother with an appeal, or if the defendants share the blame for things not happening when they should.

Here's the punch line from the Michigan Supreme Court in People v. Means, People v. McCoy, and People v. Kipfer:

"[I]n lieu of granting leave to appeal, we REMAND this case to the Court of Appeals. That court shall treat the defendant's application as having been filed within the deadline set forth in MCR 7.205(F) and shall decide whether to grant, deny, or order other relief, in accordance with MCR 7.205(D)(2). The defendant's attorney acknowledges that the defendant did not contribute to the delay in filing and admits his sole responsibility for the error. Accordingly, the defendant was deprived of his appeal as a result of constitutionally ineffective assistance of counsel. See Roe v Flores-Ortega, 528 US 470, 477; 120 S Ct 1029; 145 L Ed 2d 985 (2000); Peguero v United States, 526 US 23, 28; 119 S Ct 961; 143 L Ed 2d 18 (1999)."

Ouch!

In People v. Rodgers, the order reads this way:

"[I]n lieu of granting leave to appeal, we REMAND this case to the Court of Appeals. That court shall treat the defendant's delayed application for leave to appeal as having been timely filed and shall decide whether to grant, deny, or order other relief, in accordance with MCR 7.205(D)(2). The defendant was deprived of his direct appeal as a result of constitutionally ineffective assistance of counsel. See Roe v Flores-Ortega, 528 US 470, 477; 120 S Ct 1029; 145 L Ed 2d 985 (2000); Peguero v United States, 526 US 23, 28; 119 S Ct 961; 143 L Ed 2d 18 (1999)."

Still, ouch!

More ouch: the court told each of the attorneys to write a $250 check out of their own pocket, payable to the court, and hand it over to the court clerk.

In one case, People v. DeKubber, the attorney explained that the appeal was not pursued because her fees had not been paid. No excuse, said the majority, which noted that counsel let the deadline pass without withdrawing from the case. But Justice Maura Corrigan's dissenting statement suggested there may be more to the story:

"The defendant's retained appellate attorney missed the deadline for late appeal in the Court of Appeals. As a result, his appeal was dismissed for lack of jurisdiction. Under Roe v Flores-Ortega, 528 US 470, 486 (2000), a defendant alleging that ineffective assistance of counsel deprived him of his appeal must show that, 'but for counsel's deficient conduct, he would have appealed.' Thus, the defendant must establish, as a factual matter, that his appellate attorney caused him to forgo an appeal by rendering assistance that fell below professional norms. His attorney may not be the but-for cause of his lost appeal if the defendant contributed to the delay or indicated that he did not wish to appeal. Cf. Peguero v United States, 526 US 23, 25-26, 28 (1999). Here, the defendant replaced his appointed appellate attorney by retaining a second attorney almost 11 months after his convictions and sentences were entered. After the retained attorney filed an unsuccessful motion for resentencing in the trial court, the defendant's family did not pay his legal bills on time. His retained attorney asserts that, although the family's inability to pay was 'not Defendant's fault,' she waited to prepare and file his appeal until she received payment. She also claims that she informed the defendant and his family that she would not pursue an appeal until the defendant paid his outstanding legal bills and an additional retainer. Under these circumstances, questions of fact remain regarding whether the retained attorney caused the defendant to forgo his appeal by rendering assistance that fell below professional norms and whether the defendant contributed to the delay. Accordingly, I would remand for the trial court to address these questions at a Ginther hearing. People v Ginther, 390 Mich 436 (1973)."