Michigan Democrats Try To Repeal Preemption
6 CommentsBy Ed Silverman // November 20th, 2007 // 7:04 pm
Along with consumer advocates, state Democrats are demanded that Michigan’s Republican-led Senate draft legislation that would repeal a 1996 state law protecting drugmakers from product liability lawsuits, the Associated Press reports. The move comes after Merck announced a $4.85 billion settlement to end thousands of state and federal Vioxx lawsuits. But Michigan residents apparently can’t join the settlement because of the state’s drug immunity law.
For those who don’t recall, Michigan is the only state with a law that bars its citizens from filing product-liability lawsuits against drugmakers. The rationale - the FDA should be the last word on safety and effectiveness. And so a state court judge or jury can’t second-guess the federal regulator. In other words, the agency’s authority trumps, or prempts, a state court action. The FDA also has a rule to this effect, which drugmakers would like to see adopted nationwide. Others pushing for legislation are Michigan Citizen Action and the liberal-leaning Progress Michigan. Here’s why some hate preemption in Michigan.
The Democratic-led House earlier this year passed legislation to repeal the law, but the bill received no vote or committee hearing in the senate. The senate’s Minority Leader, Mark Schauer, accused Republicans of “telling Michigan residents they don’t matter when compared to drug companies, or even other victims across the country,” the AP writes. Democrats say the law harms patients who have no recourse in state courts, leaving drugmakers unaccountable for making harmful products.
Republicans, however, argue the bills would raise the price of prescriptions drugs and hurt Michigan’s efforts to recruit life sciences jobs. Matt Marsden, a spokesman for the senate Majority Leader, Mike Bishop, tells the AP that the drug immunity bill isn’t a priority right now because the senate is focused on repealing an expanded tax on services before it takes effect Dec. 1.
Justice in Michigan
Ah, my favorite topic. Yes, indeed, the struggle continues in Michigan in the wake of the Vioxx settlement offer.
Let me note again that the argument about “second-guessing the FDA” is, from my perspective, pure rhetoric, without substance. FDA’s determinations figure in every product liability case involving a drug. In our state, most of us would be very happy to have FDA approval as a “rebuttable presumption” of a company’s innocence, as is the law in a few other states. That is, you have to show that - in spite of being “in compliance” with FDA regulations - a company nevertheless acted in ways for which they can appropriately be held liable.
There are many such ways that could happen: What Jerry Avorn calls “passive-aggressive compliance” (playing as much with, as by, FDA regulations though a variety of delaying and fudging tactics that don’t rise to the level of felony fraud); intimidating researchers (totally outside purview of FDA); spinning medical journal articles in misinforming ways (as in the now infamous JAMA article on CLASS) and, again, journal editorial policy is an area over which FDA has no authority whatsoever; and so on.
Bottom line: Until the last few years, FDA itself has described its own regulations and civil liability as two, usually complementary, layers of consumer protection. Only in our state did one of those layers get thrown away.
Justice in Michigan
Continuing the conversation with myself….
While it is true that Michigan Dems have been out front in the effort to rescind drug industry immunity, one-third of the those who voted in favor of the bill for rescinding that passed in the House were Republican state reps.
The key issue in the shift of majority was not so much vote count but rather who was the House Speaker. The former Republican Speaker was personally committed to sustaining our shield law, even when many in his party were not. As Speaker, however, he was able to keep a vote from coming to the House floor.
One of the reasons the Republicans lost the majority in the House was precisely this issue.
That same situation now prevails in the Senate. If history is any guide, the Republicans may well lose the state Senate too, in part as a result of their leadership’s unwillingness to allow any hearings (let alone a vote) on this issue.
Partisanship narratives may make good AP stories, but the reality is more complicated.
Ed Silverman
Hi Justice,
Why was the House speaker so committed to this law? And is there any one state senator who is likely to take on the same role? Let’s converse.
ed at Pharmalot
Paulette
Lets get real here, the more I read about politics the more I think that our country is losing a battle. I far as I can see if they cared so much about the ‘PEOPLE’ then they wouldn’t have passed bills to tax the daylights out of those people who are already in a pinch. I am one of those that has filed a law suit against Merck, and from how I read the law is that You need to prove that Merck was wrong, even if the FDA okayed it. I also read in Judge Fallon’s report that everything is being handled under the law Of New York, and that no state be able to say whether I can have that money or not. Everybody wants money, but no one wants to give it up. I feel sorry for the people of Michigan, they have been screwed. They are losing their jobs, their homes and for some they lost their lives because a ‘BIG COMPANY’ didn’t do the right thing. I just don’t feel that Michigan is going to survive, and that is from a person who has lived and worked in Michigan all her life. It is not about Republican or Democrat, it is about ‘HUMAN BEINGS””’
Justice in Michigan
I’m just seeing the last two posts now, so probably beside the point. But, for Ed, even as I write the battle in the state Senate is going on - pushes for and against a vote to bring repeat of immunity out of the committee that is attempting to suffocate it. More and more people here are informed, angry, and know BS when they hear it.
Yes, Paulette, we have been on the wrong end of the drill bit. But perhaps….a turn around is coming.
merck recall
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