Diana Levine, March 4, 2009
IMAGE SOURCE: NPR image of Diana Levine
Michigan Sen. Gretchen Whitmer, fromYouTube video
Dr. Henry Greenspan, Univ. of Michigan, Courtesy, Dr. Greenspan
Former Mi. Gov. John Engler, from National Association of Manufacturers (NAM)
(top) IMAGE SOURCE: The Wiltjer family, Boyne City, Michigan, Courtesy, Leslee Wiltjer
The Wiltjer Family
Justice For America, Not For Michigan
When the Supreme Court rejected the argument of drugmaker Wyeth in its case against Diana Levine last Wednesday, citizen and pro-justice groups across the country rejoiced.
Wyeth asserted preemption - the argument that federal authority (and presumed scrutiny) by the Food and Drug Administration (FDA) should provide a shield to product liability, or failure-to-warn lawsuits against drugmakers.
The high court’s rejection returned rights to states and citizens to be able to take pharmaceutical companies to court to hold them accountable for alleged injuries.
Citizens of 49 states felt they had their civil rights restored - that is - unless you live in Michigan.
Levine not only restored but highlighted Michigan's pharmaceutical company immunity law, the only in the country.
The day after the Levine decision, state Sen. Gretchen Whitmer told her fellow Michigan lawmakers, “It makes Michigan stand out like a sore thumb. If you are an injured Michigander you are still out of luck. Our draconian law precludes us, our people, our injured people the right to recover. Aren’t we supposed to be protecting the consumer like the other 49 states?"
“It was a good day for justice in America, but not for Michigan,” says Dr. Henry Greenspan, who teaches ethics at the University of Michigan.
He tells IB News, “It’s still up to state court and state legislature to change state law because it’s not a constitutional issue. So the fight goes on and will probably go on.”
“Legally, Michigan is even more of a victimized outlier than we were before,” says Jesse Green of the Michigan Association for Justice to IB News.
Michigan was the only state before Levine that expressly preempts lawsuits against drugmakers. After Levine, despite the fact that the law is based on the same arguments rejected by the Supreme Court, the Michigan state law stands.
Had the Diana Levine been decided in favor of Wyeth the rest of the country might look like Michigan.
In 1995, the Republican-controlled legislature and Republican Governor John Engler amended the state’s product liability law, shielding any liability drugmakers might face if their drug was approved by the federal Food and Drug Administration (FDA).
In a concession to industry, the Engler bill was intended to be a favor to the Upjohn Company, the Kalamazoo, Michigan-based pharmaceutical company founded in 1886.
While Gov. Engler promised that the immunity law would reduce the cost of prescription drugs and save Michigan drug industry jobs, that didn't happen. By 2007, a large Pfizer facility in Ann Arbor left Michigan and moved to Connecticut, where there is no drugmaker immunity law.
2,100 jobs were lost at the plant in Ann Arbor, and 250 jobs were lost when the Pfizer plant in Kalamazoo downsized.
Gov. Engler left too.
Today he is the CEO of the National Association of Manufacturers (NAM), which lobbies for pharmaceutical companies in Washington.
In a 2004 interview with Crain’s Detroit Business, Engler said, “I believe that for something like drugs, national standards make a lot of sense. Federal regulators such as the FDA must do their job well, and we should be able to rely on them. I think the Michigan law reflects a rational approach, and a federal law modeled after it would be a rational way to protect bringing new products to market.”
In January, Georgia flirted briefly with similar legislation proposed by Gov. Sonny Purdue to attract industry to the state. Georgia Watch’s Beth Malone says it was unpopular.
"From what we’ve seen in Michigan big companies actually left the state so there was no proof this bill would create jobs. We didn’t think Purdue’s reasoning held water.” The proposal was voted down by the senate and disappeared.
Engler had hoped to make Michigan the model for a national plan of drugmaker immunity.
While the Levine decision makes that very unlikely, the Engler legacy lives on.
Michiganders Left Behind By Levine
Not long after the Engler proposal became law in 1995, thousands of Michiganders would find they were unable to receive any compensation from drug injuries that resulted from Rezulin, Vioxx, Celebrex, Baycol, Fen-Phen, Bextra, or any FDA-approved drug that were recalled, or received "black box," additional safety warnings.
* In 1997, the weight loss drug Fen-Phen was banned after it was linked to heart-valve abnormalities in tens of thousands of people nationwide. Seven years later, the Michigan Supreme Court threw out injury cases from the diet drug.
Instead of compensation, attorney J. Douglas Peters, tells IB News injured citizens such as Tamara Taylor and Lee Anne Rintz are supported by taxpayers through Medicaid, shielding the drugmaker from the cost of the heart and lung disorders the women suffered from use of the diet drug.
* Leslee Wiltjer of Boyne City, tells IB News, her husband suffered a stroke from Celebrex, but finding a lawyers to represent the family was impossible. "They said in the state of Michigan there is a law that won't do us any good unless the law is repealed," she says.
* Rezulin, the popular diabetes pill won fast-track government approval but was pulled off the market in March 2000, but not before it was linked to nearly 400 deaths and thousands of cases of liver failure.
Kimberly Kent, the daughter of Virginia Kent, claimed her mother’s death was caused by the blockbuster drug.
She became one of 187 former users of Rezulin who claimed injury but saw their cases rejected in February 2005 by a New York federal judge overseeing the national litigation.
The judge pointed out they were from Michigan. # (Continue -Michiganders Left Behind By Levine - Part 2)