Is Michigan Ready To Challenge Drugmaker Immunity Again? - (Part 3)

Converging On The Capitol 

(Continued from Part 2)  Wednesday, March 18th, promises to be a day of converging and opposing forces in the state capital city of Lansing, Michigan.

That’s when the House Judiciary Committee plans to take testimony on efforts to repeal Michigan’s drugmaker immunity law, the only in the nation that prevents those injured from pharmaceuticals to file a lawsuit.

When the Diana Levine case concluded in the Supreme Court March 4^th, the theory of federal preemption as a shield protecting drug companies from litigation, and a model for Michigan's law, was rejected as “meritless,” putting the state in the nation’s glare.  

Just two weeks before the Levine decision, three bills were introduced to overturn the law. 

HB 4316 (LISA BROWN) eliminates the language barring Michigan citizens from suing drug companies over any drug with FDA approval;  HB 4317 (KENNEDY) would give people whose drug product liability claims were barred by the current law a 3 year window to commence a claim; and HB 4318 (SLAVENS) would expand the Consumer Protection Act to make it an unfair trade practice to make inaccurate representations concerning risks of certain drugs, medications, and supplements. 

On January 27^th, state Sen. John Gleason (D-Michigan 27^th District), introduced a Senate version (SB0019) that repeals drug immunity law. Gov. Jennifer Granholm supports the repeal. Consumers do too. 

WILX TV News 10 in Lansing in a poll at the end of 2007 found nearly 86 percent responded that Michigan’s drugmaker Immunity Law should be repealed.  14.2 percent responded no.

It almost passed in 2007 when the Michigan state House voted 70-39 to rescind the law but a bottleneck took place in the Senate. That’s where you hear the names Kuipers and Bishop.

Wayne’s World   

Senator Wayne Kuipers (R-Holland) represents the 30^th District of Michigan, in the southwestern portion of the state.

Kuipers is a resident of Holland, Michigan which bills itself as an “All-American City with a Dutch accent”.  The Curragh Irish Pub is a featured site by the Chamber of Commerce and the Tulip Time Festival is called the “Best Small Town Festival” in America. 

Dutch immigrants settled alongside the Ottawa Native Americans. The local politics are very conservative and Republican. 

Before joining the Michigan Senate in 2002, Kuipers worked in the landscaping industry.  Today he chairs the Senate Judiciary Committee. Wayne Kuipers for Senate shows campaign contributions from Wyeth Good Government Fund, Pharmacy Action Council, and Aetna, among others.

“Senator Kuipers is one of the biggest shills for the drug companies in Michigan evidenced by his refusal to allow the Michigan Senate to vote on a bill that would repeal drug company immunity,” says David Mittleman on his IB Blog. (Mittleman is a partner of IB News through his Church Wyble law firm in Lansing.)

Sen. Kuipers would not return numerous requests for an interview by IB News.

Mike Bishop  

Sen. Mike Bishop is a lawyer representing the 12^th Senate District in Michigan where he is in his final term. As head of the Republican Caucus, Bishop directs the agenda.

Last year, the agenda was to refuse to let a drug immunity repeal bill, approved by the Democratic majority in the House, come up for a vote in the Senate. At the end of the year, it died.

Sen. Bishop’s office did not return phone calls requesting an interview. But in his response to the state of the state address in February he characterized Michiganders by saying, “Michiganders are resilient, our people and their work ethic are tougher and stronger, and we’re not afraid to stare down adversity and meet our challenges head on.” 

While Bishop may be referring to the ailing auto industry, there promises to be a good deal of staring down on Wednesday.

Citizens who claim injury from dangerous drugs, or their survivors plan to converge in the capital. Represented will be many from Michigan Citizen Action, DIIME (Drug Industry Immunity Must End), and Michigan Association for Justice. 

And if the past is any indication, lobbyists from Merck, GlaxoSmithKline, Abbott Laboratories, Sanofi-Aventis, Wyeth, Eli Lilly will be converging on Lansing too.  

Michigan State Medical Society, Michigan Osteopathic Association, Michigan Chamber of Commerce, and the tort reform group Michigan Lawsuit Abuse Watch have all figured prominently in supporting the state’s drugmaker immunity bill.     

The amount of lobbying by the drug industry to protect its special immunity status while our people are put at risk is simply obscene,” said Progress Michigan Executive Director Dan Farough in an interview last October. "The drug industry has deployed at least two lobbyists for every Senator in effort to squash citizen’s right to them accountable when they sell dangerous drugs that kill.”

Supporters of drugmaker immunity include MichBio, the trade group trying to attract new business to Michigan.

MichBio Executive Director Stephen Rapundalo tells IB News his group support a drugmaker immunity law because, “It lends itself to a business friendly environment. When folks are looking at Michigan, especially smaller companies. If I know I’m going to lose on the regulatory side, why should I do business here?” he said, pointing to a 7 to 10 percent growth in sectors that support healthcare, labs and research in Michigan.

He admits that Pfizer leaving Michigan, despite drugmaker immunity, has created a net loss of pharmaceutical industry jobs in the state.

After public discussion, the legislation to repeal will go to the House, where the Democratic majority is expected to give its approval. Then it’s onto the Senate, where Kuipers and Bishop set the agenda. 

But this time around facing powerful opposition within their own party.

Sen. Gretchen Whitmer (D 23^rd District- East Lansing), who many say has a promising future as Attorney General of Michigan, came out swinging at her Republican colleagures the day after the Supreme Court decision.    

“The Senate majority leader has the opportunity to put this embarrassing chapter in Michigan history where people come second and drug company profits come first.  You can’t just claim to care about consumer protection, you have to act.  Can we ensure our injured Michigan citizens have the same rights the citizens in other 49 states enjoy?”

Leslee Wiltjer, from Boyne City, Michigan, plans to be in Lansing. Her husband suffered a stroke after he began taking Celebrex. “I really don’t know how Michigan senators can tell the U.S. Supreme Court they happen to know more than they do.  To me it says every American citizen who pays their taxes has this right,” she says.  

In his March 4^th editorial to the Detroit Free Press, Dr. Henry Greenspan, who teaches about the FDA, ethics, and policy at the University of Michigan, in Ann Arbor, said the Levine decision was, “A good day for America, not Michiganders.

“In a stinging summary, the court declared that the shield argument is “meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power.”

“The premise of the Michigan drug immunity law was overturned by the Levine case,” he tells IB News.

“This is a statutory decision so it’s “still theoretically within purview of individual states to create what they choose. It’s not a standard for the nation. Obviously we’re on another planet with this law.”    #