By Jon King, Michigan Advance
After decades of Democrats calling for a repeal of Michigan’s one-of-a-kind law that prevents state lawsuits against drug manufacturers, a bill to do just that is on the Senate floor.
Senate Bill 410, sponsored by state Sen. Jeff Irwin (D-Ann Arbor) on Thursday, October 12 passed out of the Senate Civil Rights, Judiciary and Public Safety Committee with a bipartisan 7-0 vote.
If Gov. Gretchen Whitmer signed the legislation, residents, as well as state and local governments, would be allowed to sue pharmaceutical companies and distributors for injuries caused by their products for the first time in nearly 30 years.
Irwin told the Michigan Advance that he was already optimistic about the bill passing because it’s good policy, but the unanimous vote by the committee made its chances even better.
“It gives me even more hope that we saw strong bipartisan support in the committee,” he said. “Getting a unanimous vote on the committee, I think, gives it an extra boost.”
Signed in 1995 under then-Gov. John Engler, the law was intended to make Michigan more business-friendly for the biomedical industry like Pfizer, whose largest manufacturing site is in Portage. The drugmaker chose the facility as one of the sites to produce the COVID-19 vaccine.
According to OpioidSettlementTracker.com, settlements stemming from the nation’s opioid crisis have exceeded $54 billion alone. The Michigan law was specifically cited by a federal judge in February when she dismissed nearly 200 Michiganders from litigation against British pharmaceutical giant AstraZeneca, which resulted in a $425 million settlement over claims the company’s heartburn drugs, Nexium and Prilosec, caused chronic kidney injuries.
“Over the course of this law’s existence, residents in Michigan have been denied justice, and that is a moral problem,” Irwin said. “They deserve access to the courts, they deserve access to justice, but it’s also cost our people millions, and probably billions, of dollars.”
Irwin said when the state of Michigan tried to sue drugmakers based on the damage their products did to residents through the Medicaid program — prescription drugs that taxpayer dollars paid for — they were not only unable to recoup those costs, but then then had to pay for the damage that the drugs did.
“The tort system is the system that we have in this country to hold corporations accountable and eliminating corporate accountability for drug makers is a terrible idea in the first place,” he said. “So I’m really hopeful that we’re going to be able to restore that accountability and restore the rights of our citizens to be able to seek justice when they’re harmed.”
At the initial hearing on the bill on Oct. 5, Wendy Block of the Michigan Chamber of Commerce, submitted written testimony against the bill, arguing that while the current law may not be perfect, it strikes an appropriate balance between recognizing the risks associated with all prescription drugs and the ability to let Michigan residents file suit if the U.S. Food and Drug Administration (FDA) determines a drug manufacturer has committed wrongdoing.
“Rather than repealing Michigan’s current FDA defense law and opening the door to a new onslaught of new litigation against doctors, pharmacists and pharmaceutical companies, we would encourage you to look at how other states handle these claims and seek a more balanced approach,” said Block.
However, several people testifying on Thursday backed Irwin’s bill.
Bruce Timmons was a key Republican legislative attorney on the House Judiciary Committee for more than 40 years until his retirement about 10 years ago.
“We’re the only state whose residents are denied recovery for harm caused by FDA-approved drugs which turn out to be defective,” he said. “The FDA is not a guarantor of the drug. They do not do independent studies. They relied on the manufacturer to come up with the studies and the arguments in favor of something which is then approved. So relying on the FDA is a sort of a false insulator of basically bad drugs.”
Timmons added that the suggestion that the Legislature look at what other states are doing was unlikely to be productive.
“I would note that for nine, two-year sessions, this exact state bill had been introduced in the Legislature and if there were other avenues, they would’ve been explored by now. There’s no reason to hesitate action on the bill currently,” he said.
Following the unanimous vote to move the bill out of committee, the Advance asked Irwin why this attempt at repealing the immunity shield had momentum where other attempts did not.
“I think the difference is control of the chamber and who has the authority to bring a bill up for a vote,” he said, referring to Democrats having control of both the state House and Senate this term. “Restoring the rights of our citizens to seek justice has been popular for a long time, but as you saw it today, there are certain entities who don’t like that big pharma manufacturers put in a card today in support of this immunity. Those are bigger stakeholders in the Republican coalition and I think they were always successful in simply preventing a vote from moving forward.”
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