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Is Michigan Ready To Challenge Drugmaker Immunity Again? - (Part 3)

Posted by Jane Akre
Monday, March 16, 2009 7:26 PM EST
Category: Major Medical, Protecting Your Family
Tags: Michigan, Drugmaker Immunity Law, Federal Preemption, Diana Levine, Tort Reform, John Engler

Michigan's capital will see a convergence of opposing forces over drug immunity this Wednesday.


The Wiltjers promise to be in Lansing for the meeting over the drug immunity law.

The Wiltjer Family


Sen Wayne Kuipers from Michigan opposes repealing drug immunity bill.

Michigan Sen. Wayne Kuipers, (R-Holland), from his Web site


IMAGE SOURCE:  (top) Sen. Gretchen Whitmer (D-East Lansing, Michigan, Senate TV)


Michigan Senator Mike Bishop fighing drug immunity law repeal.

Michigan Sen. Mike Bishop, (R-Richester), from his Web site 


Converging On The Capitol 

(Continued from Part 2)  Wednesday, March 18th, promises to be a day of converging and opposing forces in the state capital city of Lansing, Michigan.

That’s when the House Judiciary Committee plans to take testimony on efforts to repeal Michigan’s drugmaker immunity law, the only in the nation that prevents those injured from pharmaceuticals to file a lawsuit.

When the Diana Levine case concluded in the Supreme Court March 4th, the theory of federal preemption as a shield protecting drug companies from litigation, and a model for Michigan's law, was rejected as “meritless,” putting the state in the nation’s glare.  

Just two weeks before the Levine decision, three bills were introduced to overturn the law. 

HB 4316 (LISA BROWN) eliminates the language barring Michigan citizens from suing drug companies over any drug with FDA approval;  HB 4317 (KENNEDY) would give people whose drug product liability claims were barred by the current law a 3 year window to commence a claim; and HB 4318 (SLAVENS) would expand the Consumer Protection Act to make it an unfair trade practice to make inaccurate representations concerning risks of certain drugs, medications, and supplements. 

On January 27th, state Sen. John Gleason (D-Michigan 27th District), introduced a Senate version (SB0019) that repeals drug immunity law. Gov. Jennifer Granholm supports the repeal. Consumers do too. 

WILX TV News 10 in Lansing in a poll at the end of 2007 found nearly 86 percent responded that Michigan’s drugmaker Immunity Law should be repealed.  14.2 percent responded no.

It almost passed in 2007 when the Michigan state House voted 70-39 to rescind the law but a bottleneck took place in the Senate. That’s where you hear the names Kuipers and Bishop.


Wayne’s World   

Senator Wayne Kuipers (R-Holland) represents the 30th District of Michigan, in the southwestern portion of the state.

Kuipers is a resident of Holland, Michigan which bills itself as an “All-American City with a Dutch accent”.  The Curragh Irish Pub is a featured site by the Chamber of Commerce and the Tulip Time Festival is called the “Best Small Town Festival” in America. 

Dutch immigrants settled alongside the Ottawa Native Americans. The local politics are very conservative and Republican. 

Before joining the Michigan Senate in 2002, Kuipers worked in the landscaping industry.  Today he chairs the Senate Judiciary Committee. Wayne Kuipers for Senate shows campaign contributions from Wyeth Good Government Fund, Pharmacy Action Council, and Aetna, among others.

“Senator Kuipers is one of the biggest shills for the drug companies in Michigan evidenced by his refusal to allow the Michigan Senate to vote on a bill that would repeal drug company immunity,” says David Mittleman on his IB Blog. (Mittleman is a partner of IB News through his Church Wyble law firm in Lansing.)

Sen. Kuipers would not return numerous requests for an interview by IB News.


Mike Bishop  

Sen. Mike Bishop is a lawyer representing the 12th Senate District in Michigan where he is in his final term. As head of the Republican Caucus, Bishop directs the agenda.

Last year, the agenda was to refuse to let a drug immunity repeal bill, approved by the Democratic majority in the House, come up for a vote in the Senate. At the end of the year, it died.

Sen. Bishop’s office did not return phone calls requesting an interview. But in his response to the state of the state address in February he characterized Michiganders by saying, “Michiganders are resilient, our people and their work ethic are tougher and stronger, and we’re not afraid to stare down adversity and meet our challenges head on.” 

While Bishop may be referring to the ailing auto industry, there promises to be a good deal of staring down on Wednesday.

Citizens who claim injury from dangerous drugs, or their survivors plan to converge in the capital. Represented will be many from Michigan Citizen Action, DIIME (Drug Industry Immunity Must End), and Michigan Association for Justice. 

And if the past is any indication, lobbyists from Merck, GlaxoSmithKline, Abbott Laboratories, Sanofi-Aventis, Wyeth, Eli Lilly will be converging on Lansing too.  

Michigan State Medical Society, Michigan Osteopathic Association, Michigan Chamber of Commerce, and the tort reform group Michigan Lawsuit Abuse Watch have all figured prominently in supporting the state’s drugmaker immunity bill.     

The amount of lobbying by the drug industry to protect its special immunity status while our people are put at risk is simply obscene,” said Progress Michigan Executive Director Dan Farough in an interview last October. "The drug industry has deployed at least two lobbyists for every Senator in effort to squash citizen’s right to them accountable when they sell dangerous drugs that kill.”

Supporters of drugmaker immunity include MichBio, the trade group trying to attract new business to Michigan.

MichBio Executive Director Stephen Rapundalo tells IB News his group support a drugmaker immunity law because, “It lends itself to a business friendly environment. When folks are looking at Michigan, especially smaller companies. If I know I’m going to lose on the regulatory side, why should I do business here?” he said, pointing to a 7 to 10 percent growth in sectors that support healthcare, labs and research in Michigan.

He admits that Pfizer leaving Michigan, despite drugmaker immunity, has created a net loss of pharmaceutical industry jobs in the state.

After public discussion, the legislation to repeal will go to the House, where the Democratic majority is expected to give its approval. Then it’s onto the Senate, where Kuipers and Bishop set the agenda. 

But this time around facing powerful opposition within their own party.

Sen. Gretchen Whitmer (D 23rd District- East Lansing), who many say has a promising future as Attorney General of Michigan, came out swinging at her Republican colleagures the day after the Supreme Court decision.    

“The Senate majority leader has the opportunity to put this embarrassing chapter in Michigan history where people come second and drug company profits come first.  You can’t just claim to care about consumer protection, you have to act.  Can we ensure our injured Michigan citizens have the same rights the citizens in other 49 states enjoy?”

Leslee Wiltjer, from Boyne City, Michigan, plans to be in Lansing. Her husband suffered a stroke after he began taking Celebrex. “I really don’t know how Michigan senators can tell the U.S. Supreme Court they happen to know more than they do.  To me it says every American citizen who pays their taxes has this right,” she says.  

In his March 4th editorial to the Detroit Free Press, Dr. Henry Greenspan, who teaches about the FDA, ethics, and policy at the University of Michigan, in Ann Arbor, said the Levine decision was, “A good day for America, not Michiganders.

“In a stinging summary, the court declared that the shield argument is “meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power.”

“The premise of the Michigan drug immunity law was overturned by the Levine case,” he tells IB News.

“This is a statutory decision so it’s “still theoretically within purview of individual states to create what they choose. It’s not a standard for the nation. Obviously we’re on another planet with this law.”    #  


Anonymous User
Posted by JOAN M. PETTY
Tuesday, March 17, 2009 11:25 PM EST

In 1962 Congress omitted product liability for any remedy for an individual that is injured or killed by a defective prescription drug. when Congress amended the FDA FDCA Act they placed a Shield of protection by preempting the law leaving the public at risk. There is No Federal or State laws in the United States that can prosecute for criminal acts of killing or injury. There is NO Product Liability for medical devises or prescription drugs the way the law stands presently. This FDCA ACt needs to be amended to add Product Liability for Medical Devises and Prescription drugs. This would put the burdin of accountability on the manufacturing of the drug products and protect the consumers. Any government elected official who attempts to continue to give the drug companies immunity for killing and injuring American Citizens is in violation of Derelict of Duty to protect and defend the Constitution. Presently the Citizens are not equal protected under the law. There is No law, Federal or State for product liability for a defective prescription drugs.

Anonymous User
Posted by Henry Greenspan
Thursday, March 19, 2009 12:21 PM EST

To add to Jane's good story, it does appear that the preemptors have been moving to a state-by-state strategy (already in process), accelerated by the defeat in Levine.

They have already been mostly run out of Georgia, but they'll be back. The core target now appears to be Oklahoma.

Anonymous User
Posted by Chad Fauskee
Friday, March 20, 2009 4:20 PM EST

Interesting take on the issue of drugmaker immunity. I have yet to hear a single argument representing an opposing view. Is it possible that to repeal the immunity would create a firestorm of litigation in our already crowded judicial system? Or that it would cause drugmakers to cut their R&D programs because their company would have to make up the cost difference due to the new litigation? Or even that lawyers will get rich off the backs of their class action clients taking 1/3 of their reduced settlement and leaving the already victimized client worse off? Try to see each issue from both sides before publishing your propaganda pieces.

Posted by Darren Wilson
Friday, March 20, 2009 7:37 PM EST

Hi Chad,

Thanks for your comments here. We welcome visitor feedback. If you'd like to see arguments representing the drugmakers views, visit:
or the National Chamber of Commerce's websites. You'll find plenty of "propaganda" there as well, I think.

As to the impact of litigation on the drug makers' precious R&D budgets, it is estimated that they spend 2 or 3 times their R&D budgets on "marketing" (some think it is much more than that): LINK

Victims of bad drugs, and the lawyers that represent them won't damage the viability the drug companies that don't deserve to be penalized for harming patients and consumers. You won't miss a few drug commercials, will you? I know I won't.

I'd also like to point out that with preemption and drug company immunity, there will be no suits for the people that are harmed by their drugs, and no lawyers to pay, which means that damaging or ending the lives of patients who took their drugs costs the drug companies next to nothing (aside from paying for the campaigns of certain sympathetic judges as in Michigan).

Which victimizes the client more? No legal recourse at all, or a successful lawsuit and recovery (which are very expensive and difficult to bring, I might add) for which the firm is paid 1/3 for their efforts and successful representation on behalf of the client?

We have considered both sides of this issue, and yes, we are partial to the preservation of the Civil Justice System and the constitutional right to a fair jury trial. We'd like for a jury of the people (rather than corporations, lobbyists, and politicians) to be able to "see each issue from both sides," as you suggest.

Posted by Jane Akre
Saturday, March 21, 2009 12:25 AM EST


I notice you don't dispute any of the facts in the story I wrote above. It is not a "take" on an issue - it happens to be what is happening in the state. Nothing is manufactured. These are real people with real issues, pain, and no options.

While MichBio and Gov Engler are represented in the four part story, I don't see any substantiation for a "firestorm of litigation". Where has that occured without a drug immunity bill?

Estimates are seven out of eight people who are injured by medical malpractice do not file a lawsuit. Do you know how difficult it is to bring a lawsuit and to see it through?

Pharmaceutical companies are pulling back because of market conditions not lawsuits. (See Friday's story) The facts are that the pharmaceutical companies are in a consolidation mode and have shrinking profits because a) people can't afford drugs, b) patents are disappearing and c) more generics are prescribed. We are not predicted to see double-digit profits in the pharma industry. Growth was just 1.3 percent last year.

Chad- I would be happy to interview someone who feels they are worse off with two-thirds of a settlement rather than nothing.

You need some facts here to back up your POV, otherwise it is full of tired cliches, created by industry that feels it's okay to throw a few hundred (or thousands) under the bus for the greater business good.

I guess Chad you have to ask yourself what kind of world you want to live in.

If you or a loved one was injured or killed by a drug or medical device that did not receive adequate review, wouldn't you want options to seek some compensation so you didn't lose your home and have to live on public assistance for the rest of your life?

Thanks for joining in..

Comments for this article are closed.

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