Preemption Repeal Stalls In Michigan Senate
1 CommentBy Ed Silverman // December 13th, 2007 // 10:07 am
Along with consumer advocates, state Democrats are fighting with Michigan’s Republican-led senate to repeal a 1996 state law protecting drugmakers from product liability lawsuits. The move comes after Merck announced a $4.85 billion settlement to end thousands of state and federal Vioxx lawsuits, but Michigan residents can’t join the settlement because of the state’s drug immunity law.
Here is a report from a Michigan TV station.
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. Here’s why some hate preemption in Michigan.
The Democratic-led House earlier this year passed legislation to repeal the law, but the bill has stalled in the senate. Democrats say Michigan citizens are being denied an opportunity other Americans have to hold companies accountable for harmful products, while Republicans argue the law prevents frivolous lawsuits that would hurt the state economy.
Justice in Michigan
As anyone who watches the report will see, not only do we have a very bad law, but our local TV stations aren’t always stellar either.
As I’ve said before, the notion of “second-guessing” regulators is the rhetoric of company defense lawyers. The Vioxx litigation, for example, has involved many issues that have nothing to do with “second-guessing regulators.” I.E.
- using a variety of delay techniques to avoid the CV warning that was finally added as a “precaution” (the famous 14 months). (Along with calculating how much each day’s delay might award the company.)
- campaigns of intimidation against academic researchers and their universities.
- sending out “false and misleading” (FDA’s language) materials on Vioxx to physicians, for which Merck got formal warning letters twice - in 2001 and earlier.
- possibly acting _not_ to stop the VIGOR trial when some of its observers thought it should be.
- misleading statistical analyses of the AVANTAGe trial (which Merck says were innocent mistakes) which supported what we now know is the bogus 18-month claim.
And on. And on.
The “second-guessing” arguments serve to divert us from the essential patterns of conduct in cases like this. Once again:
1. What did a company know?
2. When did they know it?
3. What did they do about it?
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