Michigan Senate votes to repeal drugmaker immunity shield

• Plan to eliminate 1995 drugmaker immunity law passes Michigan Senate with bipartisan support
• The nation’s toughest pharmaceutical company shield has prevented residents from suing over drug injuries
• Business and industry groups fear a flood of lawsuits

LANSING — The Michigan Senate voted Wednesday to repeal Michigan’s drugmaker immunity law, blowing a hole in the nation’s strongest corporate liability shield that for nearly three decades has made it nearly impossible to bring lawsuits in the state over medications that cause injuries. 

Supporters say the plan, now heading to the House, would align Michigan with other states that allow lawsuits against drug manufacturers but provide companies with “rebuttable presumption” against liability if their products were approved by the U.S. Food and Drug Administration.

The repeal comes less than two weeks after 200 Michiganders were shut out of a $425 million settlement with AstraZeneca, a British pharmaceutical giant that produced a popular heartburn medication, Prilosec, that is linked to kidney disease (the company did not admit fault in settling a slew of lawsuits).

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A federal judge struck Michigan plaintiffs from the case in February because of the state’s immunity law, which the Michigan Supreme Court has ruled gives manufacturers an "absolute defense" to liability claims if a drug and labeling were in compliance with prior FDA approval at the time of production.

The 1995 law has prevented people from suing "if they are harmed or if a loved one is killed” by a drug and has "kept Michiganders out of millions of dollars of settlements," said Sen. Jeff Irwin, D-Ann Arbor, who sponsored the repeal legislation. 

Senate approval, in a 30-8 bipartisan vote, "gives me hope that Michigan will no longer be the only state that prohibits its residents from seeking justice when they're harmed by a pharmaceutical product," Irwin told reporters.

The repeal is opposed by business and industry groups that pushed for the law in 1995 as a way to attract and retain pharmaceutical companies to the state, which hasn’t happened in overwhelming numbers.

Repealing the law would unleash an "onslaught of new litigation against doctors, pharmacists and pharmaceutical companies," Wendy Block of the Michigan Chamber of Commerce, warned lawmakers this month in committee. 

New lawsuits would discourage innovation, increase drug prices and discourage doctors from prescribing medications that are subject to litigation even if those cases fail, Stephen Rapundo, president and CEO of the Michigan Biosciences Industry Association, told lawmakers in written committee testimony.

Irwin, the Democratic sponsor, said it will “very challenging for a resident to actually prove, against a multi-billion dollar pharmaceutical company, that they were harmed and deserve compensation,” he said after Wednesday’s repeal vote.

“There’s already a presumption built into the law that these drugs are safe,” and plaintiffs would still need to overcome that presumption, Irwin added. 

The immunity law has also prevented the state from suing to recoup costs of Medicaid-funded care for low-income residents injured by drugs. That happened in 2011, when the Michigan Court of Appeals dismissed a $20 million suit that Republican Attorney General Mike Cox brought against Merck over an arthritis medication later shown to increase the risk for heart attacks. 

Michigan Attorney General Dana Nessel, a Democrat, supports the repeal effort and has said the drugmaker immunity law complicated her ability to sue companies that played a role in "creating the opioid epidemic.” 

Nessel took a unique approach by suing opioid distributors as drug dealers, and Michigan was ultimately able to join national settlements that will bring more than $1.5 billion to local communities ravaged by the opioid crisis.