Late in March, a miracle occurred in Lansing. House Republicans and Democrats actually agreed on something, and it was an issue that had the potential to be one of those political wedge issues that pits corporate interests against the little guy.
For years, Democrats have fought to repeal a law that prohibits people from suing drug manufacturers if the drug was compliant with FDA standards.
But it has been met with strong Republican opposition by lawmakers who say that it would be harmful to business at a time when Michigan needs to send a business-friendly message to the corporate world.
It’s a fight that has gone nowhere, and the statute — section 2946 of the Revised Judicature Act, as amended by 1995 PA 249 — remains in place.
But that law bit the Republican Michigan Attorney General in the behind last October, when the Michigan Supreme Court opined in Attorney General State of Michigan, et al. v. Merck Sharp & Dohme Corp. that the AG cannot join a class action against the manufacturer of Vioxx.
When every other state in the country could join the suit, but Michigan could not recover the $20 million that Michigan paid for Vioxx prescriptions dispensed to Medicaid patients, it didn’t sit well with members of either party.
So state representatives Ellen Cogen Lipton, D-Huntington Woods, and Fred Durhal, D-Detroit, proposed an amendment to the House Appropriations Subcommittee on General Government. The amendment would require Michigan’s Attorney General to report the money lost by Michigan residents from not participating in the federal class action lawsuits brought by states against drug companies whose products were found to be harmful.
And it got bipartisan support.
Lipton said that she thinks Michigan is missing out on being able to recover millions of dollars every year, money that should be put back into Medicaid. And she said that if the state is going to continue to provide drug makers that level of immunity, lawmakers should at least have a full understanding of the consequences of the law.
“We might decide after we have the information that it’s not worth it to repeal that statute,” Lipton said. “But at least we’d be making an informed decision.”
The amendment must now be presented Wednesday to the House Appropriations Committee. And it might not survive, despite at least tentative interest on both sides of the aisle.
It’s possible that no other lawmaker than Sen. Roger Kahn, R-Saginaw Twp., has been a bigger proponent of immunity for drug makers. He consistently corrects anyone who calls it immunity by interjecting a quick “FDA defense.”
Kahn is a cardiologist who said he’s seen first-hand how beneficial new drugs have been in his patients’ lives. He wants Michigan to be a beacon to other states who want to pass immunity … err, FDA defense … laws.
And some have done just that. A handful of states have weaker versions of Michigan’s law. They either bar punitive damages in suits against manufacturers of drugs that are FDA-approved, or they have a rebuttable presumption that FDA warnings are adequate to protect consumers.
And even Kahn said in a phone interview this morning that he’d like to hear a full debate of Lipton and Durhal’s bill. It’s premature to say that he supports it, but he said, “I want to hear a debate and keep an open mind.”
By golly, there’s hope for us all.
The Michigan Lawyer 