Whitmer signs repeal of nation’s only immunity law that shielded drugmakers from legal liability

Gov. Gretchen Whitmer signing repeal of Michigan’s immunity shield for drug manufacturers at the Genesee County Probate Courthouse in Flint, December 7, 2023. (Whitmer office photo)

By Jon King, Michigan Advance

With the stroke of a pen, Michigan’s one-of-a-kind law that prevented state lawsuits against drug manufacturers, is no more.

On Thursday morning in Flint, Gov. Gretchen Whitmer signed into law a repeal of a nearly 30-year-old law that gave drug manufacturers immunity if their drugs caused harm for Michiganders. 

“Imagine if the prescriptions you take to heal were actually harming you and there was no way to make sure that they didn’t harm anyone else,” said Whitmer. “Some of you don’t have to imagine. You’ve lived this, but not anymore. Now Michiganders will have a voice under the law to speak up, to get justice when something isn’t right. We’ve needed accountability, especially when it comes to our health.”

Whitmer noted that the immunity law’s limitations were especially apparent over the last few years as the opioid crisis played out. 

“This summer, our very own attorney general, Dana Nessel, fought to win a $26 billion multi-state agreement from three major pharmaceutical opioid distributors,” Whitmer said. “Michigan will be receiving nearly $800 million, which we’ll use to help communities better address the opioid crisis and fund effective treatment. While Attorney General Nessel was able to secure this huge win for us, our drug immunity law did not help. It made it harder for Michigan to pursue recovery against pharmaceutical distributors and opioid manufacturers, and that’s why today’s legislation is so important.”

Nessel said prior to Thursday’s repeal, Michigan was singularly deficient in the legal means at its disposal.

“I’ll never forget going to Washington D.C. for a special meeting just on the opioid litigation, sitting around a table with all the other attorneys general in the United States, and not just the states, but also the territories, and being the only attorney general that could not bring some of this opioid litigation because of this law,” she said.

However, with Whitmer’s signature, residents, as well as state and local governments, are now allowed to sue pharmaceutical companies and distributors for injuries caused by their products for the first time in nearly 30 years.

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. 

The primary piece of legislation that repealed the law, Senate Bill 410, was sponsored by state Sen. Jeff Irwin (D-Ann Arbor), who was also present at Thursday’s signing ceremony and emphasized the circumstances that made the repeal possible.

“Every time citizens came to the Capitol to say, ‘We deserve justice, we deserve access to the courts, we deserve access to holding these companies accountable,’ they were told no by a Republican majority,’’ said Irwin. “But now for the first time in 40 years, we have a Democrat majority, but we also have a governor who, when she was in the legislature, introduced legislation to repeal this terrible law that does nothing but take rights away from our citizens.”

Despite that, the legislation had strong bipartisan support, passing the Senate on a 30-8 vote, before it sailed through the House 79-30.

But by no means is everyone on board with the repeal. Wendy Block of the Michigan Chamber of Commerce, who submitted written testimony against the bill when it came before the Senate Civil Rights, Judiciary and Public Safety Committee in October, argued that while the law wasn’t perfect, it struck 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,” Block said.

Speaking to that point, Whitmer said the expectation that repealing the immunity law, the only one of its kind in the nation, would create an “onslaught” of litigation misses the point entirely of providing an opportunity for Michigan drug manufacturers to maintain a reputation for producing safe and effective medications. 

“If we hold bad actors accountable, good actors will benefit,” she said. “Increasing accountability ensures that companies doing good work can outcompete and outperform companies that prioritize padding their profits or delivering quality products for people.”

Afterward, when asked by Michigan Advance to expand on that idea, Whitmer said having the same rules that every other state and territory has makes it predictable what will happen in Michigan. 

“We know that there are bad actors and when we hold bad actors accountable, it actually benefits good actors,” she said. “And so I don’t anticipate it’ll change much in terms of the lay of the land of pharmaceutical companies’ presence here in Michigan. In fact, I think it shows that we are serious about holding bad actors accountable and continuing to grow our life sciences sector right here in Michigan.”

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