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The heavily footnoted report, "A Tragic Blunder: Michigan's Drug Industry Immunity Law", concludes the law should be repealed: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 This law undermines public safety, is devastating to many people in Michigan and needs to be repealed."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

Time to target lawmakers' hunting break

There's a lot of important work that won't be accomplished in Lansing for the next couple of weeks.

And you can thank the Legislature's annual November hunting/Thanksgiving break for that.

As Laura Berman so puckishly points out in her Detroit News column, the break doesn't have very much to do with legislators heading for the woods and bringing home the venison. Very few have even acquired a hunting license. Some of the non-hunters justify the break as an opportunity for some grassroots work with constituents, or to spend time with families.

Well and good, but this year in particular, the lawmakers' extended break from sessions in the Capitol should give us all plenty to be steamed about.

Unfinished business on an important business tax remains unfinished.

There will be no work on a legislative remedy for the much-battered Jan. 15 primary election. The battle instead moves to the Michigan Court of Appeals in the wake of an Ingham County Circuit Court ruling that declared the primary law unconstitutional in its current form.

The Kreiner fix bill will continue to bob around in the backwaters of the Senate Judiciary Committee. A measure to repeal Michigan's drug immunity law will languish on the Republican side of the aisle.

Some would say these two measures would continue to be ignored even if the lawmakers were actually earning their keep between now and the end of the month. Those who say this would be right. Those who say it's high time to get going on this legislation would be especially right.

In the meantime, a citizens' group is planning organizational meetings in Clarkston this week to push for a petition drive to make official what seems to be the current state of affairs - a part-time Legislature. They need 300,000 signatures to put a proposal on the November 2008 ballot. Plans call for a 90-day limit on session days, dropping the number of lawmakers from 148 to 100, no life-time health benefits, frozen salaries and an extension of term limits for some elected officials.

Throw in a ban on the hunting break and I'll be the first to sign.

Bill to keep cars from judiciary motors along

Compensation for Michigan Supreme Court justices and Court of Appeals judges would not include the use of state-owned or state-leased vehicles under legislation that has cleared the Michigan House General Government Committee.

The committee has reported out (see pages 8 and 9 in the linked document) a pair of bills, HB 5005 (amends the Revised Judicature Act) and HB 5006 (same thing but amends the Management and Budget Act), that address the matter.

The legislation has a bit of the "Department of Redundancy Department" feel to it because, if enacted, it will accomplish by law what has already been put into practice by the MSC justices and COA judges themselves. The bills also include all the state's trial-court judges, who never had state-owned vehicles to begin with.

Responding to media reports last April about the costs associated with issuing judicial branch employees state cars, all of the justices and COA judges turned theirs in, amid some grousing and speculation that using their private vehicles for court business may be a false economy once they're reimbursed for mileage.

MSC recusal standards: constitutional amendment being drafted

A state constitutional amendment that would require Michigan Supreme Court justices to recuse themselves "in any proceeding in which the judge's impartiality might reasonably be questioned" is in the works at the request of Rep. Mark Meadows, (D-East Lansing).

This would include situations where campaign contributions to a justice from a party's lawyer or the lawyer's law firm exceed a specified amount over a given time period.

The amendment is being patterned after Rule 2.11(A)(4) of the American Bar Association's (ABA) Model Code of Judicial Conduct, according to a spokesperson from Meadows' office.

Meadows, a member of the House Judiciary Committee, asked the Legislative Service Bureau to prepare the amendment earlier this month, after the committee took testimony from Rich Robinson of the Michigan Campaign Finance Network (MCFN).

The MCFN has been making its case for the MSC to develop recusal standards when justices, litigants and money are intertwined. This is a suggestion the court is not likely to act on any time soon. See, Michigan Lawyer: Campaign cash and recusal: a lost cause in the MSC?

Public financing of MSC election campaigns has also been a long-standing priority for the MCFN. See, Michigan Lawyer: Justices, money, elections and recusal In his testimony, Robinson told the committee that public financing of MSC election campaigns would eliminate "much of the cause for concern about recusal."