As I explain in "Tort Victim Tragedies: Third Edition - Tort Reformers Argue That Cheaper is Better Than Safer," the one of its kind Michigan blanket immunity law is incredibly overbroad and allows a great deal of pharmaceutical company misconduct to be precluded from sanction in the civil justice system such as:
"A company may submit raw data to the FDA, but the company's own interpretation of that data, and its potentially ominous significance, is left out."
"Deliberately misleading information about a drug is submitted, not to the FDA, but to physicians and the public."
"Negotiations over aiding or refining warnings on a drug's label are dragged out for months - not because of honest scientific disagreement, but because of pure market considerations."
"Going after academic researchers who question company claims, including the use of bald threat and intimidation."
"Manipulating endpoints and design studies after the fact in order to make the results look more favorable for the product than they were." (quotes taken from the testimony of Henry Greenspan, Founding Board Member of Justice in Michigan, to the Michigan State Legislature)
My August 11th "Tort Tragedies" piece is now buttressed by a recent ruling in the Vioxx trials. On August 17th:
(more click here)
The jury of eight men said Merck was negligent for failing to adequately warn doctors about the risks associated with the drug. The jury also found that Merck "knowingly misrepresented or failed to disclose" information about the drug to the plaintiff's doctors.
On the same day, another judge called for a new trial in light of new evidence:
"New Jersey state court judge Carol Higbee has thrown out the verdict in a Vioxx trial from November, citing new evidence. The jury had sided with Merck, finding that Merck wasn't liable for injuries to Frederick "Mike" Humeston, a postal worker and Vietnam War veteran who sued Merck over his heart attack."(more click here)
Of course, if you live in Michigan, the only state in which drug companies have successfully pushed through full immunity for all drugs at some point approved by the FDA (even if subsequently withdrawn), you are legally precluded from suing because the FDA previously approved the drug.
Michigan residents might want to consider changing their law, or maybe they can just hope that the drug companies like Merck ( the producer of Vioxx) which can make enormous products when their product are approved by the FDA, will always be fully forthcoming with information which might jeopardize their drug's approval.
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Senior Fellow in Civil Justice
Drum Major Institute for Public Policy Cyrus Dugger