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INTERESTING ARTICLE ON MICHIGAN DRUG IMMUNITY LAW IN THE "POP TORT"

Michigan is the only state in the Union that has a "Drug Immunity" law, which shields drug manufacturers from civil liability for any damages caused by the drugs they make, so long as those drugs have been approved by the FDA.  Even though the rationale that FDA approval confers immunity has been explicitly rejected by the US Supreme Court in the recent case of Wyeth v Levine, don't look for the Republican majority in the Michigan Senate to pass any of the bills introduced (and passed by the House) to repeal the law.

Senate Republicans in Michigan continue to chant the mantra that "Repeal will hurt Michigan's economy".  Those five words have superficial appeal in a state hard hit by the recession.  The Republicans hope that fearful Michigan citizens will oppose anything that might result in making things worse than they are now.  Republicans then throw in the magic words "trial lawyers" and feel pretty confident that they can continue to keep a bad law on the books without incurring the wrath of the citizens they are supposed to represent.  And they won't incur the wrath of the corporations that fund their campaigns.

The website "The Pop Tort", has just run an article about the Michigan law, entitled, "If I've Said It Once, I've Said It a Million Times...".  A very good article, all around, but it makes a couple of especially interesting points.  The article lists some of the ways the drug companies have rewarded the State of Michigan since it passed the country's only drug immunity law:

• "In 1995, the Kalamazoo-based pharmaceutical company Upjohn Co., the company the immunity law was meant to protect, merged with the Swedish company Pharmeacia Corp.  After the merger, the new company moved its headquarters and cut hundreds of jobs in Michigan.  

• In 2003, Pharmeacia & Upjohn merged with Pfizer  and cut over a thousand additional jobs in Western Michigan. 

• In December 2006, responding to an effort to repeal the drug company immunity law, the Detroit News ran an editorial praising Pfizer for providing so many good jobs in the state.   Less than a month later, Pfizer announced it was closing the Kalamazoo and Ann Arbor research and development facilities – a move that lost 2,700 jobs in Michigan.  

• By 2008, the Ann Arbor site was nearly abandoned and hundreds of Pfizer employees and their families had moved out of the state."

Another issue concerns the money the law costs the state:

"What the Michigan Manufacturer’s Association should be worried about is how much taxpayer money is being wasted because of this law.  According to State Senator Gretchen Whitmer (D-East Lansing), the law prevents Michigan from reclaiming costs for medical care, Medicaid reimbursement, and liability for overcharges for later-recalled drugs.  Other states like Texas and New York have been successful in recovering hundreds of millions of dollars from drug companies for Medicaid costs of fraud and overpricing."

Excellent points.  One might also wonder why no other state has joined Michigan in passing a drug immunity law, if its economic benefits are so apparent.

If Senate Republicans truly believe in the economic benefits of the Michigan drug immunity law, maybe it is truly evidence of a drug problem in Michigan.  The use of hallucinogenics in the state Senate's Republican Caucus.

 

       

CLARENCE DARROW'S BIRTHDAY

April 18 marked the anniversary of the birth of Clarence Darrow (1857-1938).  During his illustrious career as a "trial lawyer" he represented Eugene Debs, John T. Scopes (Monkey Trial), Leopold and Loeb, Big Bill Haywood (leader of the IWW-the "Wobblies").

He spent a year at the University of Michigan Law School.  Too bad he didn't go to Wayne State Law School--he might have made something of himself.

Here are some famous quotes attributed to Mr. Darrow:

As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever.

Chase after the truth like all hell and you'll free yourself, even though you never touch its coat tails.

Even if you do learn to speak correct English, whom are you going to speak it to?

History repeats itself. That's one of the things wrong with history.

I am a friend of the working man, and I would rather be his friend, than be one.

I am an agnostic; I do not pretend to know what many ignorant men are sure of.

I do not consider it an insult, but rather a compliment to be called an agnostic.

I don't like spinach, and I'm glad I don't, because if I liked it I'd eat it, and I just hate it.

GREAT INSURANCE COMPANY ADS-2

Today's entry might also be included in several special sub-categories.  AIG has many commercials to be found on YouTube, and may deserve its own sub-category.  We can also file this one in a category entitled:  Irony.  700 Billion.  Where have I heard that before.  Taking further shots at AIG here is just too easy.  And I am short on time right now.  Later.

OK, just one.  Does anyone know what "terrorist" former AIG CEO Hank Greenberg hired to sue his former employer?

OPEN AND OBVIOUS ARTICLES ON WWW.ATTORNEYBUTLER.NET

With my up-coming presentation to the Michigan Association for Justice Premises Law Seminar on April 16, I thought I would list a few of the posts I have written for www.attorneybutler.net  about the Open and Obvious "Doctrine" in Michigan premises liability cases.

Open and Obvious in Michigan-The Statutory Argument Against

Open and Obvious-An Average Citizen's Experience

Snow 

Legacy of Lugo?

Open and Obvious-I Officially Don't Get It

Annals of Michigan Justice-Only a Newsboy

And the one that started it all:

Sharp Observations

FACT FINDING FAIL

For those who haven't taken Civil Justice 101, in civil jury cases, the jury decides disputed fact issues between the contending parties.  The judge doesn't decide the facts.  He instructs the jury on what law to apply to the facts as it decides them. 

Now in some cases, if there are no disputed facts, the judge can decide the case without a jury by applying the law to the undisputed facts.  But, under no circumstances, in a jury case, must the judge to the jury''s job and decide the facts.

Often one side, usually the Defendant, will contend that there are no disputed factual issues and ask the judge to decide the case, without ever calling a jury.  In such cases, the judge must specifically find that there are no disputed facts, and that based on those undisputed facts, one side or the other, is entitled to judgment summarily.

My chief problem with the administration of justice in the state of Michigan is that judges make findings of fact all the time when deciding these "Motion for Summary Disposition"; they just won't admit it.  And by so doing, they destroy the civil jury system in this state.

The worst abuses of judicial fact finding come in the "Open and Obvious" premises liability law cases.  Judges routinely insert their own judgment about what Plaintiff's should or shouldn't have done, what they knew or should have known in cases before them.  They are not supposed to do that.  That is why we have juries, and have had the right to have juries decide these matters as a basic right for over 800 years. 

Every day, judges decide a condition is factually "open and obvious" as a matter of law.  No need for a jury to decide anything.  According to Lugo v Ameritech, all potholes and cement defects at all times and places and under all conditions are open and obvious as a matter of law.  No need to see pictures, or hear testimony about a particular defect, hole or accident from the party actually there.  According to our judges, certain conditions have certain, indisputable attributes as a matter of law.

So, I was very interested to read a recent Court of Appeals case where certain indisputable, ever present, always existing, legal attributes were granted to the humble freight elevator. 

According to the opinion in Loveland v Specrtum Health Court of Appeals case no. 278497, decided November 18, 2008 and to be found here,

"The freight elevator doors are manually operated. Passenger elevators have power doors. The freight elevator’s two outer steel doors close horizontally. On passenger elevators, the doors close vertically."

These features of a freight elevator were held to be open and obvious and therefore any injury sustained on such an elevator was essentially the fault of the injured party. 

I read the Loveland case to hold that the features of a freight elevator are self-evident, and exist in all freight elevators at all times and in all places.  All human beings must then, instinctively know, that all freight elevator doors open horizontally and are all manually, not with power doors.

Imagine my shock when recently I traveled but 10 feet outside my office door, entered our office floor's utility room, to find, next to the slop sink, what I thought to be our floor's freight elevator, as pictured below.  And yet, contrary to Michigan law, the doors opened not horizontally, but vertically.  And if this was not enough, the doors opened at the mere push of an electrical button, again contrary to the rulings of our own Court of Appeals. 

I didn't know what to do.  Should I call OSHA, the police, the Court of Appeals Security Officers?  Good Lord, an illegal elevator in Southfield.

Perhaps this is why we have a jury system.  Let juries decide cases based on evidence, like they are supposed to, and have done since the days of King John.  We shouldn't have judges imposing their experience on the rest of us, and making it the law.  They should never be the finders of fact in these cases.  Because,as we see, they find them incorrectly.  And we all suffer for it.

 

MICHIGAN GOVERNMENTAL IMMUNITY QUIZ

The Michigan legislature has given the Michigan government immunity from responsibility for its own negligence in most situations.  Many Michigan citizens don't think that is fair.  Michigan Courts have addressed that unfairness.  In cases like Lugo v Ameritech, 464 Mich 512 (2001), the Supreme Court has effectively extended the immunity from responsibility for negligence enjoyed by public institutions and given it to private property owners as well.

If you are not politically astute, let me explain.  Governmental immunity saves our state government the money it would have to spend to compensate people it hurts through its negligence.  With that money saved, the state government can run on a sound financial basis.  Like now.  (Oops.)

The reasoning behind the Court decisions creating private immunity is similar(at least if you listen to the state Chamber of Commerce).  Freedom from responsibility for negligence saves corporations and their insurance companies money.  With that money saved, corporations and insurance companies in Michigan will have increased profits.  Companies will flock to Michigan to do business.  Like now.  (Oops.)

To be fair to the legislature, at least, there are a few statutory exceptions to the governmental immunity statute.  One is MCLA 691.1402, known as the defective highway exception.  It basically states that the government shall maintain its highways in reasonable repair so that they are reasonably safe and convenient for public travel.  (Sounds reasonable.)

So, on to today's quiz.  With the help of pictures from the Failblog, www.failblog.org , readers are asked to guess whether the government is or isn't immune from suit for damage caused by the highway situations depicted.  

A. 

B.

 

C.

 

Answers: A-Immune.  B-Immune.  C-Not immune (I think).

For an explanation, but not necessarily for enlightenment, see Nawrocki v Macomb County Road Commission 463 Mich 143 (2000)

CONTINUING LEGAL EDUCATION

Last weekend, April 3-4, the Redford in Northwest Detroit (Grand River and Lahser) ran the Spring installment of its twice yearly Three Stooges festival.  The theatre was opened in 1928, and has been almost fully restored by its current owners, the Motor City Theatre Organ Society.  It shows classic movies on the big screen every other weekend, and is staffed totally by volunteers. www.redfordtheatre.com

Watching a movie at the Redford is a great experience, and there is always an appreciative audience, especially for the Stooges.  It is not surprising that each feature is preceded by an organ prelude and there is also an organ intermission.  I am a little embarrassed to say that I am not a real big fan of organ music, as it makes me feel like I am at a roller skating rink.  That aside, the Redford Theatre is a living reminder of a by-gone era, and is an increasingly more polished gem in Northwest Detroit.

I attended the Friday performance as part of a group of five lawyers.  The outing had been well planned well in advance.  My companions that evening have requested that their names be withheld, though I cannot understand why.  There was certainly a continuing legal education component to the performance, as one of the films was "Disorder in the Court."

There is a clip shown below. The trial practitioner can learn a lot from this movie about the rules of evidence, the use of in-court re-enactments, and the weight to be given the testimony of parrots. The administration of the oath to Curly raises First Amendment issues particularly relevant today.

CLE Credits: .3 hour.

It is a tribute to my character and priorities in life, that on Saturday night I returned to the Redford with my daughter to see the same films, thereby missing the Michigan State victory over Connecticut in the Final Four.  Hard to believe?  Well, as Curly said:

"Truth is stranger than fiction, Judgie-Wudgie."

PRESIDENT (BARTLETT) TAKES DOWN TEXTUALISTS (BIBLICAL)

I stopped watching the West Wing during its initial run after it had been pre-empted for several weeks for the Olympics, or something.  I am now sorry I did.  Recently, I came across the episode from which this clip is taken. 

I have written about those Justices in Michigan who call themselves "textualists", former Justice Cliff Taylor, and current Justices Maura Corrigan, Stephen Markman and Robert Young.  The textualists follow the letter, rather than the spirit of the law, and volumes of the Michigan Compiled Laws are the books of the textualist Bible, and a dictionary (any one among thousands will do) is the textualist Talmud.

The textualist "Revelation" of the plain meaning of Michigan Law has done much injustice to the State's citizens.  And, to be honest, the textualist doctrine really allow its devotees the freedom to do whatever they wish, while wrapping the process with a pious label.  To continue the Biblical metaphor a bit, I believe that history will find the the Books of Textualist Revelation, being those volumes of the Michigan Reports from the days of the "Engler" Justices, were built not on a foundation of rock, but on a foundation of sand.

Now to the clip, where President Bartlett addresses a Biblical textualist, that is one who believes in the plain meaning of words of the Bible (a primary source more authoritative, one would think, than that used with such deference by Justices Corrigan, Markman and Young).

NEW CATEGORY-GREAT INSURANCE COMPANY ADS

There have been many complaints about lawyers' TV ads over the years, and some have been featured on this site.  Nearly all of the criticism is justified.  Many are tasteless, at best.

However, let us not let the insurance industry off the hook.  It is not exactly a model of restraint, taste, and decorum, when lobbying to get the public's premium dollars.  

It has been nearly a year since I ran the Tasteful Insurance Company Ad, I find there are enough examples of the bad, the tasteless, the misleading, the stupid, and more, to make a new bi-weekly category.  Please note the new category logo, which I did not manipulate myself.

So, here goes.  This one is tasteless from beginning to end and on so many levels, it may deserve the designation of "Instant Classic".