At this time’s visitor put up is by Sherry Knutson and Brenda Candy of Tucker Ellis, and issues the not too long ago handed legislative repeal of a Michigan statute that, for a number of many years had successfully immunized prescribed drugs from peculiar product legal responsibility actions underneath Michigan regulation. For background, right here’s a prior blogpost that centered on the now-repealed statute. As our visitor put up describes, that’s no extra, and we might want to mud off our Michigan regulation books. Luckily, our visitor bloggers guarantee us, the repeal shouldn’t be retroactive. As all the time our visitor bloggers deserve all of the credit score (and any blame) for his or her writings.
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Because the DDL weblog has beforehand reported, Michigan’s longstanding presumption of non-defectiveness relevant to FDA-approved medication was not too long ago repealed by the Michigan legislature in S.B. 410. As each the weblog and many people protection practitioners can attest, the statute earlier than repeal, Mich. Comp. Legal guidelines Ann. §600.2946, efficiently barred plaintiffs from acquiring restoration (notably, within the Taxotere and PPI MDLs, which resulted within the mass dismissal of tons of of plaintiffs prior to now few years, see In re Taxotere (Docetaxel) Prods. Liab. Litig., 2021 WL 1285087 (E.D. La. Apr. 7, 2021) and Doc. 13327 (Oct. 12, 2021); In re Proton Pump Inhibitor Prods. Liab. Litig., 2022 WL 5265300 (D.N.J. Sept. 20, 2022) (dismissing 197 circumstances)) and discouraged numerous others from being filed.
However as of February, 13 2024 – the efficient date of the revisions – that’s not the case. The 2 of us not too long ago wrote concerning the situation of retroactivity of Michigan S.B. 410 repeal in Law360 (i.e., whether or not it applies to plaintiffs who have been allegedly injured earlier than February 13 however file go well with after), and the quick reply is, it’s not. That’s primarily as a result of, pursuant to Michigan’s 4 LaFontaine elements (see LaFontaine Saline, Inc. v. Chrysler Grp., LLC, 852 N.W.2nd 78, 85-86 (Mich. 2014)) for figuring out retroactivity, the current repealer statute has no particular language stating it ought to be given retrospective software and the revised statute imposed a brand new responsibility (particularly, a brand new responsibility on producers/sellers). These two specific elements bear repeating right here, as (going ahead) does a fast primer on related Michigan merchandise legal responsibility regulation.
Retroactivity: Intent of the Legislature and Creation of a New Obligation
The Michigan Supreme Court docket held that legislative intent is the “main and overriding issue” to find out retroactivity. Frank W. Lynch & Co. v. Flex Techs., Inc., 624 N.W.2nd 180, 182 (Mich. 2001). As to S.B. 410, there’s not a lot “intent” to learn into it, because the Michigan legislature indicated solely that it was efficient February 13, 2024. Nothing about retroactivity. Nothing about it making use of to claims accruing on a sure date prior to now. With out extra, the Michigan Supreme Court docket held in Johnson v. Pastoriza that such a statute “ought to be utilized prospectively solely.” 818 N.W.2nd 279, 287 (Mich. 2012). It’s additionally price noting that Michigan state Senator Jim Irwin, who sponsored S.B. 410, admitted that he didn’t consider Michiganders may obtain payouts retroactively.
Moreover, if utilized retroactively, the revisions would impose a brand new responsibility on pharmaceutical drug producers and sellers on the time the harm occurred, the place none had existed earlier than. This defies logic, equity, and – unsurprisingly – due course of. In such circumstances the place a brand new responsibility has been created, Michigan courts have acknowledged that “as a result of plaintiff’s declare had already accrued on the day she was injured, the retroactive software [of the revised statute] would successfully rewrite historical past as to the responsibility defendant owed plaintiff . . . . That is exactly what the third [LaFontaine] issue disallows.” Buhl v. Metropolis of Oak Park, 968 N.W.2nd 348, 354 (Mich. 2021).
In step with this disfavor of rewriting historical past as to the responsibility of the defendant after a reason behind motion accrued, Michigan courts give attention to which regulation utilized on the date of the harm, even when the criticism was filed after the efficient date. See Schilling v. Metropolis of Lincoln Park, No. 342448, 2019 WL 2146298, *9 (Mich. Ct. App. Might 16, 2019) (declining to use new regulation the place reason behind motion accrued earlier than efficient date, however case filed after efficient date). Thus, drugmakers and sellers ought to anticipate that they may not be immune from go well with regarding any accidents occurring on or after February 13, 2024.
Michigan Merchandise Legal responsibility Regulation:
Due to §600.2946, many weblog readers might not have encountered different points of Michigan product legal responsibility regulation. Few counsel have needed to defend a pharmaceutical merchandise legal responsibility case in Michigan prior to now 25-plus years, however the protection facet is equipping ourselves to take action. To assist, here’s a fast primer on the lay of the Michigan authorized panorama. It’s obvious that protection advocacy in growing Michigan regulation on numerous ideas will probably be wanted.
Strict Legal responsibility: Michigan doesn’t acknowledge a separate “strict legal responsibility” reason behind motion in product legal responsibility circumstances. See Johnson v. Chrysler Corp., 254 N.W.2nd 569, 571 (Mich. Ct. App. 1977); see additionally Klein by Klein v. Caterpillar Inc., 581 F. Supp. 3d 912, 922 (E.D. Mich. 2022) (recognizing the next product defect legal responsibility theories: “(1) negligent design of the product; (2) negligent manufacture of the product; (3) negligent failure to warn about some side of the product; (4) breach of specific or implied guarantee; or (5) misrepresentation or fraud”).
Influence of FDA Approval: Whereas there isn’t any blanket immunity after February 13, there stays a rebuttable presumption that the producer or vendor isn’t liable if the side of the product that allegedly precipitated the hurt complied with related requirements set forth in a federal or state statute or was accredited by, or was in compliance with, rules or requirements related to the occasion promulgated by a federal or state company accountable for reviewing the security of the product. See Mich. Comp. Legal guidelines Ann. §2946(4). As this provision is newly relevant to FDA-approved merchandise, it has not been examined by the courts on this situation.
Different Design: To determine a design defect declare, a plaintiff should set up that “a sensible and technically possible various manufacturing follow was accessible that will have prevented the hurt with out considerably impairing the usefulness or desirability of the product to customers and with out creating equal or larger danger of hurt to others.” Mich. Comp. Legal guidelines Ann. §2946(2).
Discovered Middleman: A long time-old authority helps the proposition that Michigan courts would apply the realized middleman doctrine. See Smith v. E.R. Squibb & Sons, Inc., 273 N.W.2nd 476, 479 (Mich. 1979); Mowery v. Crittenton Hospital, 400 N.W.2nd 633, 637 (Mich. App. 1986).
Statute of Limitations: Michigan’s statute of limitation is three years for product legal responsibility claims. Mich. Comp. Legal guidelines Ann. §600.5805(2), (12). Critically, there isn’t any discovery rule, and the reason for motion accrues when the improper happens. Good v. Howmedica Osteonics Corp., No. 15-cv-10133, 2015 WL 8175256, at *3 (E.D. Mich. Dec. 8, 2015).
Statute of Repose: There is no such thing as a relevant statute of repose in Michigan; nevertheless, after a product “has been in use for not lower than 10 years, the plaintiffs, in proving a prima facie case, should accomplish that with out the advantages of any presumption.” Mich. Comp. Legal guidelines Ann. §600.5805 (12). To which “presumptions” this statute applies is undefined, and case regulation on this situation isn’t properly developed. See Prasol v. Cattron-Theimeg, Inc., No. 09-cv-10248, 2010 WL 4982899, at *5-6 (E.D. Mich. Dec. 2, 2010).
Punitive Damages v. Exemplary Damages: These will not be interchangeable ideas underneath Michigan regulation. Punitive damages, that are designed to punish a celebration for misconduct, are “typically not recoverable in Michigan” except expressly approved by statute. Casey v. Auto House owners Ins. Co., 729 N.W. 2nd 277, 286 (Mich. Ct. App. 2006). Thus, they aren’t imposed as to merchandise legal responsibility (Buhland v. Fed. Cartridge Co., No. 12-cv-244, 2013 WL 12085097, at *4 (W.D. Mich. Might 9, 2013)) or wrongful loss of life circumstances (White v. FCA US, LLC, 579 B.R. 804, 813 (E.D. Mich. 2017)). Exemplary damages are designed to compensate plaintiffs for “humiliation, sense of shock, and indignity ensuing from accidents ‘maliciously, willfully and wantonly’ inflicted by the defendant. Unibar Upkeep Servs., Inc. v. Saigh, 769 N.W.2nd 911, 923-24 (Mich. Ct. App. 2009) (citations omitted). Michigan courts have acknowledged that though “product-liability actions don’t often contain such circumstances,” exemplary damages are technically accessible (Buhland, 2013 WL 12085097, at *4) – however once more, not in wrongful loss of life circumstances (White, 579 B.R. at 813).
Damages Caps: Non-economic damages are capped however topic to vary yearly based mostly on inflation. For 2024, they’re capped at $569,000, except the defect precipitated loss of life or everlasting lack of an important bodily perform, wherein case non-economic damages are capped at $1,016,000.. See Mich. Comp. Legal guidelines Ann. §600.2946a(1). These caps don’t apply if the trier of reality determines the loss of life or loss was the results of gross negligence (Mich. Comp. Legal guidelines Ann. §2946a(3), or if the court docket determines that on the time of manufacture or distribution the defendant willfully disregarded “precise data” that the product was faulty and that there was “a considerable probability that the defect would trigger the harm.” Mich. Comp. Legal guidelines Ann. §600.2949a.
