Squabble over Mich. Drug Law Intensifies after Vioxx Settlement

December 17, 2007

More than 1,000 Michigan residents could end up getting part of a $4.85 billion national settlement if they or their loved ones took the painkiller Vioxx.

But that hasn’t squelched a firestorm over the state’s unique 1995 law shielding pharmaceutical makers from product liability lawsuits over drugs such as Vioxx.

Michigan’s law is the toughest in the country, allowing legal damages only if plaintiffs prove a company withheld or misrepresented information about a drug that would cause the Food and Drug Administration to not give or to withdraw its approval.

That law seemed to pose an insurmountable barrier for Michigan residents who wanted to file claims that Vioxx had harmed them or a family member. But some took a chance on suing Vioxx manufacturer Merck & Co. in Merck’s home state of New Jersey.

A New Jersey judge decided not to toss out the lawsuits, keeping their cases alive and enabling them to join the settlement, assuming certain conditions are met. If the Michigan residents don’t like the settlement and want to continue in court, though, they’re out of luck.

That’s because the New Jersey Supreme Court ruled 5-2 earlier this year that Michigan’s drug immunity law applied to a Michigan resident who sued another New Jersey-based drug manufacturer because he said the acne medicine Accutane caused him to become suicidal.

The court decision leaves Michigan residents stuck living under Michigan’s law, regardless of what other states are doing.

“Michigan’s interest in promoting the availability of affordable prescription medications to its citizens outweighs New Jersey’s interest in deterring New Jersey corporations from providing inadequate warnings,” the court majority said.

Other state and federal courts have made similar decisions applying Michigan law to Michigan residents who sue drug makers out of state.

That’s one reason Democratic lawmakers in Michigan are so intent on getting the law changed. The Democratic-majority House has passed a measure repealing the law, but the GOP-controlled Senate has not taken it up.

The state law is favored by business groups and Republicans who say companies need protection from greedy trial lawyers who file exorbitant lawsuits. They add that lawsuits discourage companies from creating new drugs for society’s benefits.

Those who want the law overturned say legal action gets drug makers’ attention and helps to compensate the injured or their families.

Democrats who want to get rid of the law have said Michigan residents will be left out of the Vioxx settlement. Merck officials say that isn’t true, as long as the residents had cases pending before the settlement was announced Nov. 9.

“Under the agreement, Michigan consumers have the same rights as those who live in other states,” said Merck legal spokesman Ted Mayer. “There is nothing in the Michigan statute that prevents them from participating in the settlement agreed to several weeks ago.”

Leslie Richter, a leading activist who has sought to reverse the state law, is on a list of state plaintiffs who could receive money. The 64-year-old Lansing woman says her husband, Richard, died in 2003 after using Vioxx, which was pulled from the shelves by Merck after studies showed it increased the risk of heart attacks and strokes.

In 2006, Richter talked about her husband’s death in TV ads that helped defeat a Jackson-area state representative.

“I know Merck lied and my husband died,” Richter said during a news conference held last week by the group Drug Industry Immunity Must End _ also known as D.I.I.M.E. She helped unveil YouTube testimonials urging the Senate to repeal the law.

But John Truscott, a consultant for the pharmaceutical industry, pounced on the news that Richter and other Michigan residents had sued Merck in New Jersey and stood to benefit from the settlement.

“The fact they were telling the Legislature and public for a couple years now they could not sue, yet the main spokesperson filed a case in New Jersey, completely shreds their credibility on this and completely takes away their argument,” Truscott said.

The only reason Richter and others may qualify for the settlement, supporters say, is because a sympathetic New Jersey judge, Carol Higbee, put their cases on hold because she knew of the legislative debate in Michigan.

Paul Rheingold, a New York attorney, said five or six Michigan residents are among 65 to 68 Vioxx plaintiffs his firm is representing who could participate in the settlement. Michigan lawyers knew Michigan courts would be a roadblock, so they referred clients to Rheingold and other out-of-state lawyers.

After the New Jersey Supreme Court ruling in March, “we didn’t have any hopes anymore for Michigan cases except for a settlement,” Rheingold said.

Fortunately for Richter and other Michigan residents, Merck decided to settle.

The company wanted a nationwide deal and will pay out no more than $4.85 billion regardless of how many people share in the settlement.

That doesn’t comfort critics of the Michigan law. In the decade since in took effect, various FDA-approved drugs have gone to market and later been withdrawn: diet drug Fen-Phen, insulin substitute Rezulin and others. Michigan residents who took those drugs or Vioxx were unable to sue or told they couldn’t, according to critics.

“Our people have suffered too long,” said Sen. John Gleason, D-Flushing, who’s pushing a repeal bill in the Senate. “We shouldn’t ride on the back of New Jersey or New York. We should be big enough to offer relief and remedies to our citizenry with our own volition.”

Richter continues to work to get the law repealed, even if she could eventually share in the settlement.

“There is nothing phony about my commitment or the commitment made by others to get this unfair and unjust law repealed,” she said.
For more information go to http://www.legislature.mi.gov

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