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

Would the Tylenol tampering lawsuits have survived Wisconsin’s new product liability laws?

In 1991, the Chicago law firm I was working at, Corboy & Demetrio, settled a highly publicized product liability case. The law firm represented the families of three individuals who died in 1982 after ingesting cyanide-laced Tylenol. The Tylenol tampering deaths caused a nationwide poisoning scare and eventually led to tamper-resistant packaging on all over-the-counter medicines.

Twenty years later, in 2011, Wisconsin Governor Scott Walker signed product liability law changes that he claimed businesses needed to create jobs here. Despite the fact that the Chamber of Commerce ranked Wisconsin in the top half of states to do business in 2010, Walker felt the new law was necessary. Unfortunately, the simple truth is that the new law harms Wisconsin consumers by giving manufacturers and sellers of dangerous products large legal loopholes for skirting responsibility to those they injure.

Essentially, the new law gives corporations a variety of new defenses and makes defendant-oriented changes to prior Wisconsin product liability law. The changes and defenses make it easier for manufacturers to sell dangerous and defective products and not be held responsible for the injuries or deaths such products cause. I would like to use the Tylenol tampering lawsuits to demonstrate the effect of the new law.

One of the most egregious examples of the new law’s anti-consumer bias is a dismissal of all sellers and distributors of products if the manufacturer defends the case. Thus, any company that sold or distributed the cyanide-laced Tylenol would be off the hook under the new law because the manufacturer, Johnson & Johnson, appeared. This is despite the allegation that the Tylenol was tampered with after it left Johnson & Johnson. So, despite the fact that companies profited from selling or distributing the cyanide-laced Tylenol, they would not be held accountable under the new law.

Additionally, a distributor or seller cannot be held accountable if the distributor or seller receives the product in a sealed container and had no opportunity to inspect it. Thus, any company that sold or distributed the cyanide-laced Tylenol in a sealed container would be off the hook under the new law.

Another new defense for manufacturers of dangerous products is the presumption that their product is not defective if it complied with applicable state and federal regulations or specifications. So if the Food and Drug Administration had approved the non-tamper resistant bottles for Johnson & Johnson, any Wisconsin jury hearing the case would have to presume that the bottles were not defectively designed.

A further new defense can limit what a jury can know about actions take by the company after the cyanide-laced Tylenol was found. A Wisconsin jury may never learn that Johnson & Johnson put tamper-resistant lids on all of its Tylenol bottles. The only way evidence of the tamper-resistant lids is admitted is if the injured person showed the risk of harm posed by the product could have been reduced or avoided by the lids because it was a reasonable alternative design.

An additional defense provided under the new law is a 15-year time limit. This time limit provides manufacturers immunity from claims by those injured by a defective product that was manufactured 15 years or more before the injury. Thus, if one of those defective bottles of cyanide-laced Tylenol were still here in Wisconsin today, and someone ingested one and died, there would be no case. Not even Johnson & Johnson would be responsible. Note, however, there is one exception to this new law, which is claims for damages caused by a disease that doesn’t appear for several years, such as mesothelioma caused by exposure to asbestos.

Governor Scott Walker’s new product liability law is replete with reasons as to why the Tylenol tampering lawsuits would not have survived in Wisconsin. With the stroke of a pen, the Governor changed years of Wisconsin law and tragically harmed Wisconsin’s consumers.

Wisconsin Personal Injury Lawyer

Wisconsin Car Insurance Law Proposal

Oshkosh newspaper has a solid editorial: Go slow on rolling back insurance law. It has a great quote:

"Ask anyone who has had significant injuries from a car crash and they'll tell you that a $50,000 limit on personal injury, much less $25,000, doesn't come close to covering the cost of hospital treatment, recovery and rehabilitation. Rolling back the insurance requirement merely furthers the harm done to those already injured in an accident."

A hand full of legislators want to go back to the car insurance levels in Wisconsin that were enacted in 1982. What? The also want to revisit the law which give greater protection to those severely injured or killed by drivers who fail to carry insurance (uninsured) and drivers who carry the lowest legal limits (underinsured). When Wisconsin 4th Cheapest State for Car Insurance, it makes no sense at all to do this. Unfortunately, legislators hope to punish trial lawyers with this law, but the fact is changing these laws hurts Wisconsin families.

Wisconsin Personal Injury Attorney

Wisconsin Product Liability Law Proposal

Despite the fact that the Chamber of Commerce ranks Wisconsin in the top half of states to do business in, Governor Scott Walker has recently proposed several changes to Wisconsin tort law, including product liability law changes, claiming these will create jobs. None of the proposed changes will do that and one of these proposed changes will immunize sellers of dangerous and defective products that cause injury or death. No seller of a dangerous or defective product should ever be given what is essentially a blanket immunity.

For a very sad example of how products can kill people, read Asbestos & Insulation Contractors at my Wisconsin Asbestos & Mesothelioma blog.

Wisconsin Injury Attorney

Wall Street! How do you like CAPS now?

President Obama wants to limit certain CEO's pay to $500,000 so I'm wondering now how Wall Street likes caps now. Wall Street CEOs like ex-AIG man Hank Greenberg and the Wall Street rag are always asking for tort reform and love CAPS on personal injury damages!

Wisconsin has caps in nearly all wrongful death, medical malpractice, and municipality cases. Citizens here usually aren't aware how the caps effect them - until they or someone close to them is injured or killed. For example, the cap on all damages in many personal injury cases against Wisconsin municipalities is $50,000. How fair is that? It's not; it's total garbage.

Wall Street now is on the receiving end of caps. An arbitrary number chosen by politicians limiting their right to compensation. I think it's wrong too, but I wonder if Wall Street recognizes how unfair caps are - in personal injury cases.

Wisconsin Personal Injury Attorney

Wisconsin Cheerleading Lawsuit

Wisconsin's Supreme Court issued Noffke v. Bakke yesterday and it's been discussed in the news, Wall Street Journal's Blog, and by legal professors, Legal Profession Blog and Sports Law Blog. The Blogosphere discussion seems to focus on cheerleading as a contact sport, which I'm sure law scholars can debate ad infinitum.

Simple lawyers like me though wonder, why didn't a jury get to decide whether this fellow cheerleader and school district acted reasonably? I ask that rhetorically because I know the reason is because a prior Wisconsin legislature and governor decided to give IMMUNITY.

Noffke v. Bakke shows two types of immunity statutes in Wisconsin - governmental immunity (school districts, cities, villages, etc.) and recreational immunity (certain sports, activities, etc.). In my opinion, immunity laws are a horrible form of tort reform, which occurs too often in Wisconsin personal injury law.

Wisconsin Personal Injury Lawyer

True Justice from the new Dept of Justice?

In a prior post, I explained how federal agencies can and have been used to strip Americans of legal rights. In Revival of Justice: What Obama's DoJ appointees should do first, Yale Law School's Judith Resnik sets forth some ideas for the new administration to revive true justice.

The highlights from my perspective are:

• Acknowledge that the courts are for all citizens;
• Stop government lawyers from cutting off access to courts for civil litigants;
• Don't use support "tort reform" laws ("reform" is really short for deform);
• Give consumers, employees and tort victims more access to court;
• Stop mandatory arbitration (see e.g. your credit card contract);
• Let consumers with tiny claims aggregate in classes so they can get lawyers; and
• Eliminate immunities for government officials and private contractors.

Wisconsin Personal Injury Attorney

Ingenix Lawsuit Settled

UnitedHealth Care through an outfit called Ingenix allegedly engaged in some insurance company behaviors I've mentioned. So it settled the lawsuit relating to that paying $350,000,000.00 to resolve class action lawsuits and $50,000,000.00 to the NY AG.

I found one interesting aspect of such lawsuits to be the hypocrisy of doctors bringing the cases since they are typically the ones seeking to limit your rights in medical malpractice litigation.

Wisconsin Personal Injury Lawyer

Olbermann Countdown Gets 3 Cheers

Almost missed posting on this well done piece. Unbeknowst to many Americans, sometimes an administrator at some federal agency can strip them of their rights.

Wisconsin Personal Injury Attorney

Accident insurers put on the boxing gloves

I saw this from the American Association for Justice and it says what you need to know about Allstate and car accident insurers listed as the worst insurers, like Farmers, Liberty Mutual and State Farm. I might add Progressive, American Family and Sentry Insurance. Car accident insurance companies really want:

~ Premiums not claims
~ To deter valid lawsuits
~ The public to think lawsuits are bogus
~ You to feel guilty for making legitimate claims
~ You to say "I'm not the kind of person who files a lawsuit"
~ Jurors to think plaintiffs are dishonest
~ Your rights minimized and theirs preserved
~ Verdicts for damages to be less than fair
~ Caps on damages
~ And judges who won't hold them accountable.

Wisconsin Personal Injury Lawyer

Allstate's Obstructing Justice

Allstate guarding profits scheme is the title of an article in the Miami Herald today. Seems pretty consistent with what I've said about insurance companies before. Some highlights: "Allstate is facing contempt charges in Missouri -- with a $25,000-a-day fine -- and now it can't sell new auto policies in Florida, in part, because it wants to protect a report written by a corporate consultant." "According to an attorney who has seen the report from consultant McKinsey & Co., it advises Allstate on how to improve profitability: pay less on claims and take a longer time to pay those claims."

No Surprise. CNN exposed Allstate. Sentry Insurance sued an 81-year-old woman for failing to shovel snow. State Farm, Nationwide, Allstate and USAA have been accused of trying to take advantage of Katrina Hurricane victims. And American Family Insurance has extreme profits, denies claims, is pro-tort reform, and pays "when pigs fly.".

Wisconsin Personal Injury Attorney