Michigan drug immunity law: Court access blocked, promised economic benefits not realized, says new report

Michigan’s drug immunity law received some national attention today in a report released by the Center for Justice & Democracy in New York.

The report’s key assertions: the law keeps residents harmed by dangerous drugs out of the courtroom and has not delivered any the economic benefits promised by the law’s backers.

The heavily footnoted report, “A Tragic Blunder: Michigan’s Drug Industry Immunity Law”, concludes the law should be repealed:

“In 1995, under the leadership of then Governor John Engler, the Michigan legislature passed an unprecedented law that prevents its residents from gaining access to the civil justice system if they were harmed by dangerous drugs approved by the Food and Drug Administration (FDA), with the limited exception that the drugmaker did not withhold information from the FDA. Michigan is the only state in the nation that has a drug industry immunity law which allows drug companies to escape accountability in this manner.

“Over the last 15 years or more, as drug companies have had an increasing amount of influence over FDA decision-making and policy, the FDA has fallen down on its job of protecting the public. The result has been perilous for all Americans, with the news now replete with reports of drug industry marketing unsafe drugs to the public with the FDA’s knowledge – Rezulin, Vioxx, and Trasylol, recently featured on 60 Minutes, to name just a few. Yet unlike the residents of any other state, Michiganders have no legal recourse should they be hurt by these or other dangerous drugs that the FDA failed to keep off the market.

“What Michigan lawmakers accomplished with this law is exactly what the pharmaceutical industry has been trying to accomplish unsuccessfully for the last three decades in Congress and state legislatures around the country – eliminating their liability for marketing unsafe drugs, and shielding them from responsibility when their harmful products hurt or kill.

“With the problematic nature of the FDA, it is clear that Michigan needs the protection of its civil justice system. This law undermines public safety, is devastating to many people in Michigan and needs to be repealed.”

The report also discusses the promised economic benefits that were touted by the law’s supporters:

“The Michigan Manufacturers Association, a strong pro-business lobbying group, has stated that it supported the drug immunity law in order to ‘encourage companies – including pharmaceutical companies – to stay in Michigan.’ The high-paying pharmaceutical jobs, however, began trickling out of Michigan even as Governor Engler was signing the bill into law.

“In 1995, the Kalamazoo-based pharmaceutical company Upjohn Co., the company the immunity law was meant to protect, merged with the Swedish company Pharmeacia Corp. After the merger, the new company moved its headquarters and cut hundreds of jobs in Michigan. In 2003, Pharmeacia & Upjohn merged with Pfizer and cut over a thousand additional jobs in Western Michigan.

“In December 2006, responding to an effort to repeal the drug company immunity law, the Detroit News ran an editorial praising Pfizer for providing so many good jobs in the state. Less than a month later, Pfizer announced it was closing the Kalamazoo and Ann Arbor research and development facilities – a move that affected thousands of jobs in Michigan. A year later, the Ann Arbor site was nearly abandoned and hundreds of Pfizer employees and their families had moved out of the state.”

In an editorial last Sunday, the Detroit News again took to the stump to support the drug immunity law:

“State lawmakers should abandon efforts to repeal the Michigan law, which protects drug companies that comply with standards set by the U.S. Food and Drug Administration (FDA) and whose products were tested and approved by the agency. …

“The whole idea of the FDA is to set and enforce national standards, including rules for drugs and medical devices. As a result, U.S. health care is one of the most advanced systems in the world. New and exotic procedures and drugs save lives even though most all carry some risk.

“To the extent there’s a problem with FDA procedures, it belongs to Congress and the agency itself. If stricter or looser rules are needed for a product line, both federal lawmakers and FDA officials can make that happen.”

But according to the center’s report, the Michigan Senate, which has resisted repeal efforts, has tacitly admitted the FDA’s oversight leaves something to be desired.

“[I]n late January 2008, just hours before Governor Jennifer Granholm’s State of the State address in which she expressed support for repeal, the Senate passed a non-binding resolution calling on the FDA to ‘establish stricter standards for the drug approval process.’ This was an obvious concession that the FDA was failing in its job, yet the Senate continued to support immunity for those harmed by the FDA’s failures.”

The repeal legislation is still awaiting a hearing in the Senate. See this post: The Michigan Lawyer: Drug immunity law: politicos jockey for position

Eastern District Bankruptcy Court seeks pro bono volunteers

If you’re a member of the bankruptcy bar, Eastern District Bankruptcy Court Chief Judge Steven Rhodes is looking for your help.

Specifically, 150 or more of you.

Judge Rhodes is seeking volunteers to help with the court’s pro bono program.

“The Court’s pro bono program provides free legal services to indigent debtors involved in adversary proceedings related to the discharge and non-dischargeability of certain debts. The program also provides service to an indigent former-spouse of a debtor regarding the dischargeability of obligations in the judgment of divorce. The program does not provide legal services related to bankruptcy cases.”

Judge Rhodes says if a couple hundred attorneys get on board, each could expect to get an appointment under the program every three or four years.

Click here for more information and an application.

Michigan House: Give the police more DNA

Ever seen someone booked into jail?

The officers in charge take a lot of stuff.

They take the arrested individual’s picture and fingerprints, for obvious reasons.

They take personal belongings, i.e., wallet, purse, watch and other jewelry, cell phone and such because all of this, if left with the suspect, could cause many problems for both jailers and inmates alike.

They take shoelaces and belts because these could become weapons or implements of self-destruction.

And, under House Bill 4092, which passed yesterday on a 104-4 vote, they could take a DNA sample from anyone arrested for a violent crime, according to an Associated Press report.

Supporters say this is just the thing to solve cold cases, stop crimes by catching repeat offenders earlier and absolve the innocent. Others wonder about things like privacy and the presumption of innocence.

The bill heads to the Michigan Senate, which typically loves this sort of thing.

All of this comes amid a report in The Lansing State Journal that the state police crime labs can’t keep up with DNA test requests for live-wire prosecutions.

$1.1M proposed for mental health court program

The Michigan Senate Fiscal Agency’s overview of the Granholm administration’s new budget notes a $1.1 million appropriation for a pilot mental health courts program.

The funding proposal may help move SB 199 and SB 200, which were introduced by Sen. Liz Brater (D-Ann Arbor) a year ago and sent to the Senate Judiciary Committee, where, so far, nothing has happened.

Michigan Senate Democrats describe the mental health courts program this way:

“Modeled after the successful Drug Courts system, Mental Health Courts would allow judges to direct people with mental illness charged with minor offenses to treatment rather than jail. As lawmakers strive to control Michigan’s soaring corrections costs, this proposal will ensure the best use of limited resources and the most appropriate sentencing for offenders.”

The bills are backed by, among others, Michigan Partners in Crisis, a broad coalition of judges, law enforcement officials and mental health care activists. The Lansing State Journal recently printed an overview story about the group and its efforts.

There is an overabundance of mentally ill people incarcerated in this state’s many prisons. The prison system is ill-equipped to appropriately respond to them.

The mental health court legislation and the governor’s funding proposal could be part of the cure.

Public financing of MSC elections: the heat’s on, the Legislature should act

For more than a year, SB 128, which would provide for public financing of Michigan Supreme Court elections, has been tucked away in a dark corner of Michigan Senate’s Committee on Campaign and Election Oversight.

Sen. Michelle McManus, R-Lake Leelanau, chairs the committee and would be the person to schedule hearings on the bill.

Now, word comes from The Detroit News that a delegation of Traverse City residents, including former Michigan first lady Helen Milliken, will be in Lansing on Tuesday see if they can bring SB 128 out into the daylight.

Charlie Cain, the ace chief of the News’ Lansing Bureau, provides a cogent description of SB 128 in his story today:

“Under the proposed legislation, a candidate for the top court would have to raise $50,000 in contributions of no more than $500 each to show that the person is a serious candidate for the bench. The candidate would then qualify for public financing equal to the average amount spent by candidates in the two previous election cycles. In 2006, the average spent by a Supreme Court candidate was $944,000 and in 2004 it was $1.78 million. The public money would come from taxpayer check-off contributions to the State Campaign Fund, which was established to provide public financing for candidates for governor who forgo raising their own campaign money.”

Michigan Lawyer has previously blogged about judicial campaign finance reform:

The Michigan Lawyer: Judicial election reform buzz getting louder

The Michigan Lawyer: Justices, money, elections and recusal

And a couple of days ago, Detroit Free Press columnist Brian Dickerson again warmed to the topic.

According to Dickerson, here’s what the fuss is all about:

“Since 2000, the Michigan Chamber of Commerce has spent $6 million to promote the images of five Republican state Supreme Court justices (and smear the incumbents’ Democratic challengers) in a series of TV ad campaigns. It’s likely that those who bankrolled the initiative include insurers, retailers and other companies who’ve benefited directly from high court rulings curtailing the liability of corporate defendants.
“But we can’t be sure who sponsored the ads because so-called issue campaigns, such as the chamber’s, are exempt from public-disclosure rules that govern election expenditures like the Acme recall effort. All that’s certain is that a bunch of unknown corporations spent truckloads of cash to buy a state Supreme Court they hoped would be less sympathetic to consumers — and got what they paid for.”

There are some folks out there who would debate Dickerson on his viewpoint. Others embrace it as gospel. But if the truth be told, over the years, there have been more than enough shenanigans to go around from all over the political spectrum.

But all of that is beside the point.

And the point is this: large quantities of soft, shadowy, hard-to-trace money should have no place in any elective process, let alone the Michigan Supreme Court elections.

People are talking. Are you listening, Sen. McManus?

Markman says MSC majority tripped up in pothole case

“Darkness at the break of noon …
“Eclipses both the sun and moon …”

– Bob Dylan, “It’s Alright, Ma (I’m Only Bleeding)”

Pavement, potholes, injured plaintiffs and demands for damages have been a much tougher sell ever since the Michigan Supreme Court announced its open-and-obvious-special-aspects analysis in Lugo v. Ameritech Corp., 464 Mich. 512 (2001).

But throw in a debate about lighting and you just might have something.

In Galliher v. Trinity Health-Michigan, an unpublished per curiam decision by the Michigan Court of Appeals, the panel said a woman who fell in a large pothole could get to the jury on her personal injury claim.

The trial court noted that plaintiff provided photographs, which showed that the conditions were sunny but that a building’s shadow was obscuring the pothole.

The Galliher panel framed the issue this way:

“[W]hether the absence of natural light and illumination from other lighting sources can cause an otherwise open and obvious condition to be hidden for purposes of premises liability.”

The panel (Judges E. Thomas Fitzgerald, David H. Sawyer and Peter D. O’Connell) concluded:

“Plaintiff presented evidence that a rather large, deep pothole existed in defendant’s parking lot, that plaintiff did not see the pothole even though she looked where she was walking, that the pothole could have been seen had there been adequate illumination, whether natural or artificial, and that at the time of the fall it was dark and there was no artificial light in the area. … [W]e agree with the trial court that plaintiff established a question of fact regarding whether the pothole was open and obvious.”

Last week, the Michigan Supreme Court denied leave to appeal on a 6-1 vote. There was no comment from the majority in its Feb. 8 order, but an obviously flabbergasted Justice Stephen Markman had plenty to say.

“Because I cannot imagine any more ‘open and obvious’ condition than a pothole in a driveway during daylight hours, I would reverse the Court of Appeals judgment and remand for entry of an order granting summary disposition to defendant. ‘[P]otholes in pavement are an “everyday occurrence” that ordinarily should be observed by a reasonably prudent person.’ Lugo v Ameritech Corp, Inc, 464 Mich 512, 523 (2001).”

Markman scolded his colleagues and shined his own light on the record.

“It is hard to know whether the majority is more persuaded here by the argument: (a) that a shadow cast by a hospital on a pothole constitutes a ‘special aspect,’ thus removing the pothole from the realm of the ‘open and obvious’; (b) that plaintiff’s testimony that she fell during ‘dark evening hours’ should be accorded credit despite the fact that 4:00 pm to 5:00 pm on the afternoon of March 1, 2003, the time of the accident, was a daylight hour; (c) that plaintiff’s simultaneous arguments that there were sunny conditions at the time of her accident, thereby creating a shadow over the pothole, and that there were ‘overcast’ conditions at the time of the accident with ‘heavy, dense clouds and fog and scattered snow showers,’ thereby obscuring the pothole, should be accepted as legitimate alternative arguments; or (d) that plaintiff’s assertion that she ‘did not discover the condition’ is somehow relevant to this Court’s analysis of premises liability cases.”

Markman said that the majority was pushing Lugo into the shadows.

“That any of these arguments have been found to be persuasive by this Court evidences why Lugo has become an increasingly ‘dead letter,’ to be replaced by no coherent alternative rule of law.”

So, should we light a candle for Lugo?

Where did they say this happened? Who did they say was involved?

Last week, there were a couple of reports about folks who were charged with possessing marijuana. Happens all the time, you may be thinking.

Read on.

According to the Associated Press, in Hazel Park, just north of Detroit, authorities asked a fellow to empty his pockets. A bag of marijuana and a pipe to smoke it with surfaced.

And the Kalamazoo Gazette reported that a man was charged with possessing a small metal tin containing suspected marijuana.

Here’s what should give you pause:

In the Hazel Park incident, the AP says the person involved was a 68-year-old man on probation, who tried to pass through the security checkpoint at the 43rd District Court.

The Gazette reported allegations that an attorney was going through a metal detector at the Kalamazoo County District Court when the tin containing suspected marijuana set the machine off.

And just when you thought you’ve heard it all.