Drug immunity law: politicos jockey for position

Democratic lawmakers have been running into a brick wall trying to repeal MCL 600.2946(5), Michigan’s one-of-a-kind law that grants drug manufacturers lawsuit immunity if the federal Food and Drug Administration has approved the complained-of medication.

Sen. John Gleason (D-Flushing), has been leading the effort in the Republican-controlled Senate but to no avail. His repeal legislation is bobbing in the backwaters of the Senate Judiciary Committee.

In her State of the State address delivered Tuesday evening, Gov. Jennifer Granholm took a poke at this state of affairs:

“[C]onsumers in every other state have the right to hold drug companies accountable when their products lead to injury and even death. Michigan consumers should have that right, too.”

Interestingly, Senate Republicans, earlier Tuesday, tried to make a little hay with the issue in the legislative session. Sen. John Pappageorge (R-Troy),introduced Senate Resolution 134, which called upon the FDA to toughen up standards for the drug approval process. The resolution impliedly acknowledged the Vioxx situation. The FDA approved the drug, which, it was belatedly discovered, apparently had the disastrous side effect of causing sometimes-fatal strokes and heart attacks. The drug was later pulled from the market.

“Whereas, Incidents of harmful side effects raised concerns that the FDA post-marketing monitoring needs strengthening. Although American drugs are arguably the safest in the world, allegations of detrimental consequences from FDA-approved drugs show that there is room for improvement. Stricter standards for the FDA’s investigation and response to consumer reports of harmful side effects should be established to enhance the safety of drugs approved by the FDA and on the market. The FDA must immediately investigate consumer reports of harmful side effects and act quickly to protect the public. In this way, Michigan’s tort law and strict FDA standards will ensure that Michigan residents can have confidence in the drugs and medications they take; now, therefore, be it
“Resolved by the Senate, That we memorialize the United States Congress and United States Food and Drug Administration to establish stricter standards for the drug approval process[.]”

Not good enough, said Gleason.

He offered an amendment that would have linked the resolution to Democratic efforts to repeal the drug immunity law by striking this language:

“In this way, Michigan’s tort law and strict FDA standards will ensure that Michigan residents can have confidence in the drugs and medications they take”

and replacing it with this:

“We pledge, as the Michigan Legislature, to continue ongoing efforts to remove current statutory obstacles which hinder the ability of Michigan residents to obtain just compensation for injuries caused by FDA-approved drugs.”

Sen. Buzz Thomas (D-Detroit) opportunely requested a roll call vote for the amendment, which, predictably, was voted down on party lines but left the Democrats with a paper trail to use against Republicans come election time.

The resolution, sans amendment, passed the Senate on a non-accountable voice vote.

Sen. Gretchen Whitmer (D-East Lansing), was quick to point out what she apparently believed was the resolution’s specious nature:

“[L]et me get this straight: Our drug immunity law is based on the FDA standard. The rationale behind that public policy is that the FDA standard is strict enough to protect our consumers, our citizens here in Michigan.
“Now instead of taking action like the other 49 states in the country have to protect our citizens, we are once again advocating and asking Congress to enact a stricter standard because we don’t think their standard is strict enough, but that is our standard.
“So it leaves you to conclude that our law is not sufficient to protect Michigan citizens.”

To which Michigan drug-injury claimants might wistfully add, “But more than sufficient to protect the drug manufacturers.”

The Senate’s proceedings on Resolution 134 can be found here (scroll to page 102 or search the document for “Senate Resolution No. 134”).

Feds’ campaign finance prosecution of Geoff Fieger falling apart?

Maybe so, opines Detroit Free Press scribe Brian Dickerson in his column today.

“Federal prosecutors who want to put him in prison are reeling from the latest blow to their case — and U.S. District Judge Paul Borman could be days away from dismissing it outright.”

Fieger, his partner, Ven Johnson (also charged with campaign finance violations) and their legal team have steadfastly claimed that the prosecution reeks of political motivation. Dickerson writes:

“Fieger has been screaming foul ever since November 2005, when 77 federal agents raided his Southfield law offices and ambushed 30 of his employees and associates at home in search of evidence that Fieger and his partner, Ven Johnson, illegally funneled $127,000 to John Edwards’ 2004 presidential campaign.
“When the pair was formally charged last November, their lawyers countered with a motion asserting that vindictive Bush administration officials had singled them out for selective prosecution, a constitutional no-no.
“Fieger’s lawyer, Gerry Spence, said Justice Department records would prove his client was the target of a government vendetta, and asked Borman to order prosecutors to produce them.”

Last week, Borman obliged with a 31-page opinion, which ordered the U.S. Justice Department to shed some light on the decision to take U.S. Attorney Stephen Murphy and two of his underlings off the case seven months into the investigation. Borman also said Fieger and Johnson are entitled to information about other cases featuring big sweeps by FBI agents.

According to Dickerson:

“If the DOJ declines to turn over the information, as prosecutors have hinted it may, Borman could dismiss the case as soon as the next pretrial conference, now scheduled for Friday.
“The government likely would appeal such a dismissal.
“But the wheels of justice turn slowly, and by the time appellate judges are done scrutinizing Borman’s work, a new president and attorney general may be deciding whether U.S. v. Fieger is still worth the candle.
“And though polls suggest otherwise, the way the prosecutors’ luck is going in this case, that new president will be John Edwards.”

Great laugh line, Brian! (Update 1/31/08: Edwards has dropped out of the race and federal prosecutors have provided Fieger with what he was after. Both events occurred shortly after Dickerson’s column and this post were first published – no apparent connection detected.)

Meanwhile, in the January issue of the Michigan Bar Journal, current and former heavyweights of the Michigan Association for Justice have signed on to a letter (scroll to the bottom of the page to find it), which echoes Fieger’s accusations against the justice department:

“Pleadings filed in the case suggest the U.S. Department of Justice undertook the largest criminal investigation of alleged campaign finance violations in U.S. history against the Fieger firm in disproportionate reaction to allegations of technical violations usually handled in a civil manner.
“Utilizing an army of dozens of federal agents, investigators raided firm members’ homes and harassed their families, seized bank records without proper warrants, attempted to compel firm members and their families to reveal who they voted for in presidential elections, and engaged in other such apparently unconstitutional and illegal acts.
“These tactics of intimidation and harassment aimed at attorneys and their families are cause for great concern among the collective bar in Michigan, and among all Americans who value the rule of law and our political freedoms.”

Here are some goodies from the MAJ website:

Fieger Indictment

Motion to Dismiss for Selective and Vindictive Prosecution

Macomb prosecutor, district court judge settle drug court differences

Michigan is one of the states that has led the way in establishing drug courts, which focus on supervised treatment for drug and alcohol abusers.

A drug court is a diversion program that offers offenders the carrot of treatment, education and employment, backed up with the stick of weekends in jail and other punishments for missteps along the way.

There are many drug courts statewide but the one in Warren headed by 37th District Court Judge Dawnn Gruenberg hasn’t seen much activity in the last year. The judge and Macomb County Prosecutor Eric Smith haven’t seen eye-to-eye on how the court was being administered, reports the Detroit Free Press.

Smith, concerned that Gruenberg’s drug court was becoming a “revolving door” for repeat offenders who should be jailed through the regular court system, only referred nine offenders to the judge’s drug court last year, compared to 75 in 2006.

Chief Circuit Court Judge Richard Caretti, acutely aware that drug offenders were being denied a chance to turn their lives around, and that $200,000 in state funding might evaporate, was eager for a resolution.

He got one last week when Gruenberg and Smith agreed to a sanction system that spells out the number of chances participants get before they are booted from the drug court and sent back to the regular court system. The judge also agreed to provide the prosecutor with information about participants’ miscues.

Everybody’s happy now.

Will patience pay off in civil suit against prosecutors and police?

In February 2006, Claude Zain McCollum was convicted of murdering a Lansing Community College professor, but he walked out of prison last fall after Ingham County Prosecutor Stewart Dunnings III told the Michigan Court of Appeals a mistake had been made.

Yesterday, McCollum’s legal team walked into Ingham County Circuit Court and filed a 50-page civil complaint against almost everyone, including Dunnings, who had anything to do with his arrest and prosecution.

The complaint contains an impressive mix of constitutional and tort-based claims. Whether this actually goes anywhere remains to be seen. Most of the named defendants are prosecutors and police officials. Governmental immunity is a pretty thick shield to pierce.

But you can’t fault McCollum for trying.

According to McCollum’s complaint, when Dunnings asked the Court of Appeals in September 2007 to vacate the conviction, he said a new suspect had been identified. He also cited videotape evidence “showing that [McCollum] may have been somewhere other than the crime scene at the time of the crime.” The complaint alleges that what Dunnings didn’t tell the COA is that the defendants in McCollum’s civil complaint allegedly had known about that video evidence since March 2005, a couple of months after the professor was killed and McCollum had been arrested. The complaint goes on to say that the evidence was never disclosed to McCollum’s trial attorney, and the jury never heard about it.

At an October 2007 press conference to announce that he was seeking dismissal of the charges against McCollum, Dunnings again mentioned the new suspect. Later, the Michigan State Police went one better. They said the new suspect had confessed to the murder.

Last Sunday, the Lansing State Journal published an exhaustive report about McCollum’s saga, including the fact that his attorneys had a civil suit in the works.

On Tuesday, Jan. 22, Dunnings said he still believes McCollum is innocent but wants to keep open the option to recharge McCollum on the off chance that the Michigan State Police, who are resifting the evidence, might turn up something against him. For that reason, Dunnings said, he would resist McCollum’s efforts to have the dismissal of the murder charge converted from a dismissal without prejudice to a dismissal with prejudice.

Yesterday, as mentioned, McCollum’s suit was filed. Paragraph 123 of the complaint unambiguously states what McCollum’s lawyers think about Dunnings’ latest statements: “Defendant Prosecutors furthermore continue as recently as January 22, 2008 to threaten Plaintiff [McCollum] with possible prosecution, motivated not out of a search for the truth for the real killer, but for political or other improper means, if not continued animus toward Plaintiff, all to his significant detriment.”

The Lansing State Journal, in its Sunday report about McCollum’s case, said he “is not bitter about his imprisonment. If anything, he expects wrongs will be righted.

“‘I believe by being patient,’ the Lansing man said, ‘it will pay off.'”

Time will tell. He may need the patience of Job for this one.

MSC mulls rules to regulate temporary bar admissions

If out-of-state attorneys not admitted to the State Bar of Michigan file appearances on your clients’ behalf, and especially if you have a favorite or two with whom you associate on a regular basis, then sit up and pay attention.

The Michigan Supreme Court is considering some rule changes that would limit temporary admissions to the bar (pro hac vice appearances) to three cases in a 365-day period.

It’ll cost $135 for each appearance. There’s a fair amount of paperwork that will go along with it. And attorneys seeking permission to appear under a temporary admission automatically consent to the jurisdiction of Michigan’s attorney discipline system.

In fact, the Attorney Grievance Commission would be the clearinghouse for all temporary admissions and would pocket the appearance fee, which is equal to the amount Michigan attorneys pay each year to fund the discipline system and the client protection fund.

The genesis for all of this was a State Bar of Michigan proposal floated in November 2006. Bar heavyweights were concerned that pro hac vice was a convenient way to get around having to formally apply for admission, and pay dues, to the State Bar of Michigan. The bar was apparently willing to tolerate three pro hac vice appearances in a year before insisting on formal admission.

The bar’s proposal received a public hearing and then died a quiet death. One big sticking point with some of the justices was language in the bar’s proposal that seemingly would have held a Michigan attorney responsible for any mischief by the out-of-state attorney. Any such notion is conspicuous in its absence under the MSC’s version.

The court is taking comments on the new proposal until April 1. Send them to Corbin Davis, Supreme Court Clerk in writing or electronically by April 1, 2008, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. Refer to ADM File No. 2004-08. And post a copy as a comment to this blog, while you’re at it.

Judicial election reform buzz getting louder

Proponents of the notion that the way we select and elect our judges in Michigan is broken and needs fixing have been creating a lot of buzz recently.

Yesterday, State Rep. Lamar Lemmons, Jr. (D-2nd District) introduced a state constitutional amendment that would level the playing field by eliminating the now-constitutionally mandated incumbency designation on judicial ballots. Lemmons’ proposal has been sent to the House Judiciary Committee.

The value of the incumbency designation should not be underestimated.

“In the last 20 years, at least 95 percent of all judges in Michigan seeking re-election have been returned to office,” says Bill Ballenger, the venerable publisher of Inside Michigan Politics. Ballenger has kept tabs on such things in his newsletter since 1987.

Earlier this week, the Midwest Democracy Network rolled out an online book, “Democratic Renewal – A Call to Action from America’s Heartland”. The book assesses the scene in the Great Lakes states, and has plenty of observations about perceived wrongs and how to right them. Rich Johnson, the Executive Director of the Michigan Campaign Finance Network, wrote the book’s Michigan section. Among Johnson’s proposals:

  • Ethics law should be extended to cover the legislative and judicial branches of government.
  • Michigan should establish a commission to evaluate the merits of a system of voluntary full public funding for all State election campaigns.
  • The Michigan Supreme Court should develop standards for recusal in cases involving individuals and interest groups who have substantial financial ties, whether personal or political, to any justices.

A previous blog noted Michigan Supreme Court Justice Elizabeth Weaver’s reform plan, which she floated on her private web site over the year-end holidays. Weaver’s proposals have received mixed reviews in the Kalamazoo Gazette and, more recently, in the Grand Rapids Press.

Heard it before: Battani boots another Fieger bias claim against MSC

Geoff Fieger’s federal-court crusade — that he can’t get a fair shake in front of the Michigan Supreme Court because Chief Justice Clifford Taylor, and Justices Maura Corrigan, Robert Young and Stephen Markman are biased against him and won’t step aside when his cases come up — received another setback last Friday.

U.S. District Court Judge Marianne O. Battani ruled that Fieger’s allegations in Fieger v. Taylor, et al., sounded suspiciously, no, make that exactly, like the ones advanced (and rejected) in Fieger v. Ferry, et al., and dismissed the suit after a hornbook application of res judicata principles.

From Battani’s opinion: “Plaintiff’s complaint in Ferry was wide-ranging. It stated, in relevant part, that Plaintiff had the constitutional right ‘to have his cases … decided by a fair, independent and impartial tribunal, following a fair hearing, as guaranteed by the Due Process Clause … [and] the Defendants … have deprived, and continue to deprive, the Plaintiff Fieger’s civil rights by the expression of public, personal, political, and professional animus.’ …

“The current complaint states that ‘[h]aving publicly expressed their personal and professional animus toward Mr. Fieger while continuing to sit in judgment of his cases, Defendants … are denying to Mr. Fieger … a fair hearing before an impartial tribunal’ and are thus violating Plaintiff’s due process rights. … The access to courts claim states that ‘[b]y failing to provide [Plaintiff] a fair hearing before an impartial tribunal, Defendants … are depriving [Plaintiff] adequate, effective, and meaningful access to the courts.’ … The issues presented for litigation – the alleged ongoing constitutional violations caused by the absence of a fair hearing for recusal – are identical in both cases ….”

Although Fieger hasn’t had much luck with his claims that Taylor, et al., shouldn’t review his cases, the topic of formulating recusal standards for the MSC has been getting some legislative attention because it’s fairly clear that this is a project the court won’t take up on its own.

What’s in a number?

One million (1,000,000). This a delusion-based figure representing the number of dollars in a “Pray (sic) For Damages” included in a pro se prisoner’s civil rights complaint that crossed my desk during my clerkship with U.S. Magistrate Judge Hugh W. Brenneman, Jr. in the Western District of Michigan. The inmate’s gripe, as I recall, had something to do with the quality of the bedding in his cell.

One billion, gagillion, fafillion, shabolubalu million illion yillion (numeric symbols unknown). This is a gag-based figure representing the number of yen contained in Dr. Evil’s ransom demand to the world in the movie “Austin Powers in Goldmember.” Quick side note for the uninitiated: Dr. Evil is frozen in the 1960s and thawed out in the late 90s. The movie characters zip between the two decades via time travel. Dr. Evil is bent on destroying the world unless his demands for cash are satisfied. Dr. Evil’s first ransom demand after he is defrosted is $1 million (laughably small by 1997 standards). In a later movie, he time-travels to the 60s and demands $100 billion (that kind of money simply wasn’t around back then).

Five trillion, eight hundred seventy eight billion, four hundred ninety nine million, eight hundred fourteen thousand, one hundred eighty six and one-half (5,878,499,814,186.5). This is a reality-based figure representing the number of miles a beam of light travels in a year – the light-year. Astronomers use this number to measure unfathomable interstellar distances. Proxima Centauri, the star closest to Earth, is 4.3 light-years away.

Three quadrillion, fourteen trillion, one hundred seventy billion, three hundred eighty nine million, one hundred seventy six thousand, four hundred ten (3,014,170,389,176,410). This is a frustration-based figure representing the amount of a claim filed against the U.S. Army Corps of Engineers for the failure of flood walls and levees following Hurricane Katrina on Aug. 29, 2005.

The Associated Press reports that

Of roughly 489,000 total claims, the U.S. Army Corps of Engineers said it has received 247 for at least $1 billion apiece, including the one for $3 quadrillion. …

Some residents may have grossly exaggerated their claims to send a message to the corps, which has accepted blame for poorly designing the failed levees. …

Little is known about the person who claimed $3 quadrillion. It was filed in Baker, 93 miles northwest of New Orleans. Baker is far from the epicenter of Katrina’s destruction, but the city has a trailer park where hundreds of evacuees have lived since the storm.

And it’s not just residents who are seeking astronomical figures. The Big Easy itself has a claim pending for $77 billion. Area-wide, insured losses are estimated at $60 billion and Gulf Coast states are looking at a $125 billion bill.

The claims cut-off was Aug. 29, 2007 but the Corps says claims are still being filed – 100 or so in the last three weeks.

Some of the numbers may be fanciful but they sure don’t lie.

They’re still hurting out there, folks.

Weaver picks up partial support for latest reform plan

Michigan Supreme Court Justice Elizabeth Weaver’s latest plan for reforming the election/selection process for the court picked up a little editorial steam from the Kalamazoo Gazette today.

The Gazette’s editorial board isn’t happy with the current election/selection process, but had a lukewarm response to the idea of term limits for justices, a primary feature of Weaver’s newest proposal.

Our beef with the Michigan Supreme Court isn’t that justices stay too long.

It’s with the way they get there in the first place. And with the manner in which they are elected and re-elected.

Michigan’s process for selecting a justice is at the same time maddeningly partisan and frustratingly opaque at the ballot box.

Candidates who want to run for the state Supreme Court must seek out the nomination of their political parties at state party conventions. That’s the maddeningly partisan part.

The frustratingly opaque part is what voters face on Election Day. None of the Supreme Court candidates are designated with Rs or Ds. Unless they’ve done their homework ahead of time, voters have no indication from the ballot the political affiliation of the people for whom they’re voting. All they can tell is whether the candidate is the incumbent or not.

The Gazette also gave passing recognition to Weaver’s on-going jousting with the rest of the court’s Republican wing.

Weaver, a Republican, has frequently been at odds with her fellow Republicans over the ideological direction of the court, over what she perceives as justices’ conflict of interest and, especially, with Chief Justice Clifford Taylor, a John Engler appointee.

The Gazette favors adoption of the Missouri Plan, under which judges are first appointed to the bench and then must weather a retention election.

The Missouri Plan sounds like a huge improvement over Michigan’s way of picking judges.

For decades, its advocates have been trying to sell it here — with no luck.

We hope that it doesn’t take a full-blown partisan scandal at the Michigan Supreme Court before this state realizes there are better ways to pick a court.

As to that last point, it’s a safe bet there are plenty of folks who would make the argument that the current state of affairs is already partisan and scandalous.

Injury cases dominate MSC’s Jan. oral argument calendar

Plaintiff-side and insurance defense lawyers have a lot to look forward to when the Michigan Supreme Court hears its January calendar of oral arguments.

The high court’s docket is top-heavy with personal injury cases this month. The court’s crack public information staff, led by Michigan Lawyers Weekly alumna Marcia McBrien, has prepared a comprehensive case guide.

Some selected highlights:

Estate of Buckner v. City of Lansing: Three Lansing children, on their way to a fast-food restaurant, found the sidewalk blocked by ice and snow, at least partially the result of the city’s snowplowing efforts. They walked in the street instead of crossing over to another sidewalk, which was cleared. Two were hit by a car. One died. Two suits were filed. The first alleged that the city’s failure to remove an unnatural accumulation of ice and snow from the sidewalk forced the children to use the street. The second suit theorized that the sidewalk was physically defective and that the city was negligent by not properly closing the sidewalk. The city said the highway exception to governmental immunity did not apply to either case. The Court of Appeals dismissed the second suit but let the first one go forward. COA decision here. Parties’ MSC briefs here.

Allison v. AEW Capital Mgt.: A tenant slipped and fell on snow and ice in the apartment complex parking lot and sued the landlord for violating MCL 554.139(1), which require a landlord to keep “the premises and all common areas” fit for “the use intended by the parties” and to “keep the premises in reasonable repair during the term of the lease. The bone of contention in this case is a footnote in Teufel v. Watkins, 267 Mich. App. 425 (2005), which stated that snow and ice are not premises defects, so a landlord has no statutory duty to deal with snow and ice removal. The Court of Appeals, in ruling that the landlord violated the statute, said the footnote was ignorable dicta. The landlord argues the footnote is binding precedent. COA decision here. Parties’ MSC briefs here.

Rodriguez v. A.S.E. Indus.: A factory worker’s scalp was ripped from her head by an unguarded machine roller. In the resulting product liability litigation, a jury awarded her $10 million and found the machine manufacturer 30 percent at fault. The jury also found the manufacturer was not grossly negligent. This finding would normally trigger a statutory cap on damages but in this case, the trial court refused to apply the cap after making independent factual determinations that the manufacturer knew about the defect, willfully disregarded that knowledge and that injury was likely to occur. The COA affirmed after ruling that a trial court may make factual findings inconsistent with the jury’s findings, and may independently determine that the non-economic damages cap does not apply. COA decision here. Parties’ MSC briefs here.

Mintner v. City of Grand Rapids.: A police car struck a pedestrian while she crossed the street. Toe and neck injuries, a closed head injury and a forehead scar were the basis of her no-fault complaint. The trial court tossed the suit but the COA saved the closed-head and scar claims. There should be lots of tangling with Kreiner v. Fischer, 471 Mich. 109 (2004), in this one. COA lead opinion here. COA concurring opinion here. COA concurring/dissenting opinion here. Parties’ MSC briefs here.

Arguments begin Jan. 8 and 9 at 9:30 a.m. at the Hall of Justice in Lansing. Michigan Government Television will broadcast live, joining the court in progress at 10:00 a.m. each day. MGTV has a handy station locator for your local cable system. There are replays throughout the month, and tapes can be ordered. More information here.