Wisconsin Drug & Medical Device Immunity Proposal is Misplaced

Below is an article I recently wrote for the Wisconsin Association for Justice:

Wisconsin State Senator Rich Zipperer of Pewaukee hasrecently proposed a bill under the pretense of attempting to create Wisconsin jobs.  The proposed law would bar claims for injuryor death by Wisconsin citizens injured by dangerous drugs or medical devicessimply because the drug or device had been FDA approved.  Not only is it impossible to imagine how sucha law would create a single Wisconsin job, but the simple truth is that such alaw is horrible for Wisconsinites.

First of all, under the proposed law, it doesn’t matterwhether or not the manufacturer or seller of the dangerous drug or medicaldevice is based in Wisconsin.  This iscritical to the claim that the proposed law would help create Wisconsinjobs.  Under the bill, the manufactureror seller could be based in any state in the nation or country in theworld.  Thus, the law won’t encourage anymanufacturers or sellers of drugs or medical devices to move from Illinois orChina to Wisconsin.  In fact, the onlyother state in the nation to have a similar law is Michigan, which granted drugmanufacturers such immunity in 1996, and it has one of the highest joblessrates in the country.

Secondly, the only consumers affected by the law areWisconsin citizens.  Wisconsinites injuredor killed by a dangerous drug or medical device lose their legal rights underthe proposed law.  These are legal rightsthat citizens of Illinois, Iowa, Minnesota, and other states retain.  What does this mean?  Well, if such a drug or device kills a Wisconsinfamily member, the Wisconsinites get no day in court and no justice.  However, if such a dangerous drug or devicekills a family member from Minnesota or elsewhere, those citizens get their dayin court.  It is hard to imagine how sucha law benefits Wisconsin.

Finally, and most importantly, the FDA’s rubber stamp doesnot mean that dangerous drugs and medical devices will not get to market.  It also does not mean that manufacturers orsellers of such products will act responsibly both before and after obtaining FDAapproval.  Where manufacturers andsellers of such products do not act responsibly before or after obtaining FDAapproval, they must be held legally responsible to those injured or killed. 

An outstanding article from the American Association forJustice entitled “TheyKnew and Failed to…: True stories of corpations that knew their products weredangerous, sometimes deadly” recounts true stories behind numerous FDAapproved dangerous drugs and medical devices. Some products mentioned in the article include:

·        Guidant Heart Defibrillators

·        Medtronic Sprint Fidelis

·        Bjork-Shiley Heart Valve

·        A.H. Robbins Dalkon Shield IUD

·        G.D. Searle Copper-7 IUD

·        Playtex Super-absorbent Tampons

·        Renu Contact Lens Solution

·        Johnson & Johnson’s Propulsid

·        Bayer’s Trasylol

·        GlaxoSmithKline’s Avandia

·        Eli Lilly’s Zyprexa

·        AstraZeneca’s Seroquel

·        Johnson & Johnson’s Ortho Evra

·        SSRIs – Prozac, Paxil and Zoloft

·        Chiron’s Flu Vaccine

The article conclusively shows how irresponsibly individuals at drugand medical device companies can act and that such negligence can occur both beforeand after obtaining an FDA rubber stamp. Too frequently, product warnings turn out to be wrong, design flawsdiscovered, and problems and side effects revealed.  Yet, often those responsible for thesedangers ignore or attempt to hide such dangers. In such instances, the manufacturers or sellers must be heldaccountable.

 Senator Zipperer’s proposed law does nothing to createWisconsin jobs, only harms Wisconsin consumers, and wrongly assumes thatmanufacturers and sellers of dangerous drugs and medical devices will actresponsibly.

Wisconsin personal injury attorney Frank Pasternak is managing partner of Pasternak & Zirgibel S.C. in Brookfield, Wisconsin.  He is on the Board of Directors for theWisconsin Association for Justice and a Charter Member of the AmericanAssociation for Justice President’s Club. He is AV® rated by Martindale-Hubbell and listed on the “Top 50” Wisconsin “Super Lawyers”list published in Milwaukee Magazine. His practice focuses on personal injuryand wrongful death cases particularly cases involving serious accidents andliability for asbestos caused mesothelioma.

Wisconsin Personal Injury Lawyer