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Michigan Lawyers Weekly
By Carol Lundberg
March 16, 2009
The U.S. Supreme Court's Wyeth v. Levine decision gives no help at all to Michigan lawyers and clients seeking to sue pharmaceutical companies for injuries caused by drugs approved by the federal Food and Drug Administration.
That's because Michigan is the only state in the country with laws that give vast immunity to drug manufacturers.
And although some plaintiffs’ attorneys and Democratic lawmakers are pushing to repeal that immunity, there is no sign the Republican majority in the state Senate is backing away from its staunch defense of the status quo.
In Wyeth v. Levine, the U.S. Supreme Court on March 4 affirmed a $6.7 million Vermont state court verdict against a drug company.
Diana Levine, a former musician, had to have her arm amputated after she suffered an injury caused by an improper intravenous push of Phenergan, a drug manufactured by Wyeth.
The Supreme Court's 6-3 opinion states that federal oversight of drug labeling does not prevent state level consumer liability lawsuits against drug companies.
But in Michigan, people cannot sue if they are injured as the result of using drugs that have passed the FDA's standards.
Those who favor the status quo say Michigan's immunity laws will help persuade pharmaceutical companies to move here. Those who oppose the laws point out that immunity did nothing to keep the pharmaceutical companies from leaving Michigan, and the laws hurt state residents injured by FDA-approved drugs.
Clients have nowhere to turn
As much as he was thrilled by the Supreme Court's decision, Mark Bernstein, a Farmington Hills personal injury lawyer with The Bernstein Law Firm, said he is frustrated by Michigan's drug-immunity laws.
Bernstein said every week, he turns away dozens of potential clients who claim injury as a result of pharmaceuticals, while his friends and peers in other states are pursuing cases against a long list of drugs, including Accutane, Baycol, Prempro and Paxil.
David Mittleman, of Lansing-based Church Wyble PC, is frustrated as well.
"The state attorney general for the most part has done a good job in Michigan, but with regard to this law, he says Michiganders can go to other states to file a complaint against drug companies," Mittleman said. "That's simply not true in most cases. Most judges send it to federal courts, which apply Michigan laws, and kick it out."
Bernstein says that since Pfizer left Michigan in 2008, the pharmaceutical industry in Michigan is nearly nonexistent, so keeping laws that heavily favor the industry while penalizing residents is "asinine."
"The biotech companies are not knocking down the doors to locate in Michigan," Bernstein said. "The only ones who knocked got run over by Pfizer on its way out."
Not only the injured suffer as a result of the state laws, he said, adding that the state is losing out on revenue.
If Michigan had participated in just the Vioxx case at the same level states of similar size did, the economic effect would have been substantial.
"We would have had 1,650 cases in Michigan. That's just for Vioxx," Bernstein said. Bernstein's firm took only a handful of cases, filed in New Jersey, where Vioxx is manufactured. In a global settlement, Merck agreed to pay some $4.85 billion to settle all 27,000 pending cases, including the ones filed by the Bernstein firm.
"My average client paid almost $50,000 (in medical reimbursement liens) to one of three places: health insurance companies, medical providers, and Medicaid," he said. "That would have been $82 million coming back to doctors and hospitals and Blue Cross and Medicaid. It's not far-fetched, and that's just Vioxx."
The human toll is harder to calculate, Bernstein said.
"The most troublesome part of this is that you talk to someone from Monroe, and you have to tell them that if they lived 10 miles south of where they live, they would have a case. They'd be able to file in Ohio," Bernstein said. "It's impossible to explain the reason because it's a complete injustice."
The Wyeth decision could be the catalyst to change the law.
"Wyeth has turned the tide," Jill Wheaton, of Dykema, said. "It may result in fewer findings of pre-emptions and may result in legislative changes at the federal and state level. This case may cause the Michigan Legislature to look again."
Wheaton said she disagrees with the Supreme Court's ruling. She said she thinks drug makers should be protected if the FDA approves their labeling.
Furthermore, she said, "Intellectually, Michigan's law is correct."
Still, the law could be changing.
Following the release of the opinion, state Democrats announced they would fast track a package of bills that would repeal the state's pre-emptive immunity laws, and would make the repeal retroactive to 1996. That is the year the immunity laws were passed, said State Rep. Lisa Brown, D-West Bloomfield, who sponsored one of the bills.
She does think the bills will have support in the House of Representatives, but are likely to be blocked in the Senate, she said.
"In the other chamber, the Senate will keep blocking the protection of Michigan residents," she said. She said a bill to overturn pharmaceutical immunity is stuck in the Senate Judiciary Committee. She said she thinks that unless there is strong constituent pressure to do otherwise, the Senate will kill her bill, even if it's widely supported in the House.
Mittleman said he thinks that, despite the roadblock in the Senate Judiciary Committee, some Senate Republicans oppose the immunity laws.
"I firmly believe there is a philosophical majority that would change the current status of the law, if they were allowed to vote on it," Mittleman said.
The reason there is no public outrage over drug immunity laws, Brown said, is that the only people who are aware of the issue are those who are already injured or their survivors.
"People aren't aware until they're already injured and find out there's nowhere for them to turn," she said.
Matt Marsden, a spokesman for the Republican State Senate Majority Leader Mike Bishop, said the Senate's position has not changed in the wake of the Supreme Court's decision.
"We are facing a down economy, and what the Democrats are pushing is regulating the pharmaceutical and life-sciences industries, which we're trying to grow here in Michigan," Marsden said. "We'll look at whatever the House sends us, but our position has not changed."
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