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Michiganders Left Behind By Levine (Part 2)

Posted by Jane Akre
Monday, March 16, 2009 12:52 PM EST
Category: Major Medical, Protecting Your Family
Tags: Vioxx, Drug Immunity Law, Diana Levine, Michigan, Federal Preemption, Tort Reform

Dr. David Cox never had his day in court against Merck because of Michigan's drug immunity law and may not qualify for the settlement as well.


Michiganders hurt by drugs cannot sue under the state's drug immunity law.

Leslie Richter, YouTube video

  • Michigan Association for Justice Web site
  • Drug Industry Immunity Must End (DIIME)  Web site


Gov. John Engler supported the drug immunity bill in Michigan.

IMAGE SOURCE:  Gov. John Engler, National Association of Manufacturers Web site


"But My Case Isn't Frivolous"

(Continued from Part 1)

J. Douglas Peters and Lansing attorney, David Mittleman (and IB Partner at Church Wyble PC) are just two of a handful of attorneys in Michigan who will talk to people injured by pharmaceuticals.   

Mittleman says he turns away people every week who have been injured by drugs.

“But my case isn’t frivolous” they say. 

He tells IB News, “They get it, but after the fact they get it, and unfortunately that’s what happens time and time again.  I tell them, you’ve been brainwashed by corporate interests in America to make everyone think they’re out for the lottery.  This is a right that you have, you live in America.”

Back in the mid-1990s, former Governor John Engler and some in the business community backed a law that provides immunity from lawsuits for the pharmaceutical industry. It was promoted as a way for the state to save jobs and attract industry.  Pharmaceutical giant Pfizer left the state anyway, taking with it 2,700 jobs.

Michigan now has the dubious distinction of being the only state in the country that does not allow dangerous drug lawsuits to proceed to court, despite the recent U.S. Supreme Court decision in favor of Diana Levine that stated drug companies’ claim of a shield under FDA preemption is “meritless”.  

Hundreds if not thousands of residents have quietly gone away, injured and uncompensated. Others have not gone away quietly.  

Leslie Richter

Richter 65, of Lansing cries today when she talks about her husband who, in 2003, died of a stroke two years after taking Vioxx. 

“I knew when I met him I loved him, I miss him so. He was healthy, then he died.”

Richard Richter worked for General Motors for 31 years. He had some arthritis pain when his doctor put him on Vioxx.

“At one point he doubled up. All of a sudden things started happening to his heart. He was fighting back from the first stroke and doing well then he had a brain-stem stroke. All he could do was blink his eyes. The doctor said he knew exactly what was going on around him. For 44 days he lived that way. 

“You take a healthy man who worked in a factory 31 years, he was an avid hunter, walked in the woods. He was in good health. The children and I could not understand what was happening. It wasn’t until Merck pulled Vioxx from the shelves; we knew absolutely that was what happened to him.”

Court documents from litigation have revealed that drugmaker Merck company insiders had concerns about cardiovascular complications from Vioxx as far back as 1997, but the drug continued to be marketed until its voluntary recall on September 30, 2004.

Instead of looking forward to retirement with her husband, Richter, despite her own failing health, has become an activist with Drug Industry Immunity Must End (DIIME), a grassroots citizen’s group representing the injured and their survivors.

She has tried to meet with lawmakers who have blocked passage of a repeal of the state's drug immunity bill, but says they have refused her request.

“One of the rude House members advised me to move out of state if I wanted legal recourse. I wondered how horrible is that that you’ve lived here made a home for our children.  It will never bring my husband back.”

Dr. David Cox

In April 2003, Dr. David Cox, was working in his Michigan office talking to a resident when he felt an excruciating pain in his head. He tried to make it home but passed out. Later in the emergency room, doctors told Dr. Cox that he might have had an aneurysm, a spot in an artery in the brain. They were going to perform an arteriogram to confirm the suspicion. If it looked bad, surgery would need to be performed immediately.

“The worst thing you can ever hear as a patient is, ‘Are your affairs in order?’” he says in an InjuryBoard video. 

It was not an aneurysm but Cox had suffered a brain-stem stroke and was unable to walk and had difficulty talking.

Overnight he went from training residents and an active medical practice treating children and their families with attention deficit disorder, to slurred speech, being unable to walk, to drive, or practice medicine.

Today Dr. Cox is out of a job and has moved to Gainesville, Florida to avoid the extremes of temperature that aggravate his symptoms. His three children remain behind in Michigan as does his career as a family practitioner.

He had no idea what caused his stroke. Tests had revealed no plaque in his arteries which is the typical cause of stroke. He was not overweight and did not smoke.

Sometime later when Dr. Cox put on his lab coat, a light bulb went off. In the pocket was a sample of Vioxx he had been taking for a herniated disc in his neck.  

Later the next year Vioxx would be taken off the market after it was found to radically increase the risk of heart attack, stroke or blood clots.

While Dr. David Cox should have been a dream client for injury – no preexisting conditions, evidence Vioxx caused his stroke, an earning potential that could last another 20 years, instead he found no one willing to take his case – because he’s from Michigan.

He tells author Stephanie Mencimer in her 2006 book, “Blocking the Courthouse Door,” (Free Press) that former Gov. John Engler and his business backers are to blame.

Engler is now CEO of the National Association of Manufacturers (NAM), which lobbies for drug companies in Washington.

“The representatives from his association say they want to reduce frivolous lawsuits. I’d be all for a law like that. I think that’s what people think they’re getting with tort reform.”

But after being around other people injured by drugs, he now says, The people I’ve seen, they’re not frivolous cases." 

Ironically, this medical doctor who was training others and recommended the use of Vioxx, nearly lost his life because he didn’t have the data Merck was later found to have suppressed.

In December 2005, the editors of the New England Journal of Medicine (NEJM) said Merck withheld key heart risk data in a study it published in the NEJM in November 2000. Other critics include Dr. Eric J. Topol, director of the Scripps Translational Science Institute in La Jolla, Calif., who also claims Merck hid evidence about the risk of heart attacks and stroke.

Instead, the professional who used to donate time to those who couldn’t afford treatment, spoke to schools and volunteered at his kid’s sports teams has moved literally across the country with no opportunity to have his day in court.

Dr. Cox and Leslie Richter were helped by Lansing attorney, David Mittleman, to file paperwork with a New York firm representing the injured in the $4.85 billion Vioxx settlement.  Because they are from Michigan it is the only way they could possibly qualify.

To date, neither one has heard whether they will be included.

The Human Cost

 “Do people understand?  Jesse Green of Michigan Association for Justice asks.

“Do you have any idea how much this costs the people of Michigan. If I kill 47 people in the flea market, and you give me immunity, the deaths and costs don’t go away. What happens to people when the breadwinner suffers a stroke from Vioxx? They go through bankruptcy, and lose their home unless they had been able to hold the drug company accountable.”

“It probably cost Michigan millions and millions of dollars.”

Litigation generally uncovers the numbers of injured persons in a state. Wthout litigation, estimates are that at least 1,600 Michiganders had a heart attacks or stroke from Vioxx, says Green, costing the state an estimated $82 million in unreimbursed Medicaid costs.

Dr. Cox, now living in out of state and still unemployed, is optimistic 2009 could be the year Michigan overturns its drug immunity law, especially following the Supreme Court’s rejection of the idea that federal preemption shields drug company liability.    

“It just reveals a political stance that is unacceptable anywhere in the state of Michigan. That the Supreme Court of our land has decided that state tort remedies are a very important part of the regulatory process, therefore the people in the state of Michigan should be afforded the same rights as everyone else.

“I think it will happen, there’s too much political pressure in Michigan.  I don’t see how anyone can argue.  What will be their argument now?”

Cox, Richter and other Michiganders will soon find out. 

Just before the Levine decision, three new bills to repeal Michigan’s law were introduced into the state House.    #


Anonymous User
Posted by JOAN M. PETTY
Monday, March 16, 2009 8:15 PM EST

There is No law for Product Liability for prescription drugs, They are immune, except under the Civil RICO Act, there is no immunity for "White Collar Crime" or Domestic Terror, you know and I know Merck and the 3 CEO's perpartated a criminal act when they knew Vioxx was a toxic killer pill and they produced it, fraudulently marketed it, with the practice and pattern of conspiracy to racketeer. Any person can filed a Civl Racketeering Influence Corrupt Organization complaint (RICO). Triple the damages.

Posted by Rita Waters
Monday, April 06, 2009 6:26 PM EST

I would like to get in contact with Dr. David Cox. How would I go about doing that?

Comments for this article are closed.

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