Wednesday, October 19, 2011

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 has recently proposed a bill under the pretense of attempting to create Wisconsin jobs.  The proposed law would bar claims for injury or death by Wisconsin citizens injured by dangerous drugs or medical devices simply because the drug or device had been FDA approved.  Not only is it impossible to imagine how such a law would create a single Wisconsin job, but the simple truth is that such a law is horrible for Wisconsinites.

First of all, under the proposed law, it doesn’t matter whether or not the manufacturer or seller of the dangerous drug or medical device is based in Wisconsin.  This is critical to the claim that the proposed law would help create Wisconsin jobs.  Under the bill, the manufacturer or seller could be based in any state in the nation or country in the world.  Thus, the law won’t encourage any manufacturers or sellers of drugs or medical devices to move from Illinois or China to Wisconsin.  In fact, the only other state in the nation to have a similar law is Michigan, which granted drug manufacturers such immunity in 1996, and it has one of the highest jobless rates in the country.
Secondly, the only consumers affected by the law are Wisconsin citizens.  Wisconsinites injured or killed by a dangerous drug or medical device lose their legal rights under the proposed law.  These are legal rights that citizens of Illinois, Iowa, Minnesota, and other states retain.  What does this mean?  Well, if such a drug or device kills a Wisconsin family member, the Wisconsinites get no day in court and no justice.  However, if such a dangerous drug or device kills a family member from Minnesota or elsewhere, those citizens get their day in court.  It is hard to imagine how such a law benefits Wisconsin.
Finally, and most importantly, the FDA’s rubber stamp does not mean that dangerous drugs and medical devices will not get to market.  It also does not mean that manufacturers or sellers of such products will act responsibly both before and after obtaining FDA approval.  Where manufacturers and sellers of such products do not act responsibly before or after obtaining FDA approval, they must be held legally responsible to those injured or killed. 
An outstanding article from the American Association for Justice entitled “They Knew and Failed to…: True stories of corpations that knew their products were dangerous, sometimes deadly” recounts true stories behind numerous FDA approved 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 drug and medical device companies can act and that such negligence can occur both before and after obtaining an FDA rubber stamp.  Too frequently, product warnings turn out to be wrong, design flaws discovered, and problems and side effects revealed.  Yet, often those responsible for these dangers ignore or attempt to hide such dangers.  In such instances, the manufacturers or sellers must be held accountable.

 Senator Zipperer’s proposed law does nothing to create Wisconsin jobs, only harms Wisconsin consumers, and wrongly assumes that manufacturers and sellers of dangerous drugs and medical devices will act responsibly.

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 the Wisconsin Association for Justice and a Charter Member of the American Association 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 injury and wrongful death cases particularly cases involving serious accidents and liability for asbestos caused mesothelioma.

Wisconsin Personal Injury Lawyer