Today’s guest post is by Sherry Knutson and Brenda Sweet of Tucker Ellis, and concerns the recently passed legislative repeal of a Michigan statute that, for several decades had effectively immunized prescription drugs from ordinary product liability actions under Michigan law. For background, here’s a prior blogpost that focused on the now-repealed statute. As our guest post describes, that is no more, and we will need to dust off our Michigan law books. Fortunately, our guest bloggers assure us, the repeal should not be retroactive. As always our guest bloggers deserve all the credit (and any blame) for their writings.

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As the DDL blog has previously reported, Michigan’s longstanding presumption of non-defectiveness applicable to FDA-approved drugs was recently repealed by the Michigan legislature in S.B. 410.  As both the blog and many of us defense practitioners can attest, the statute before repeal, Mich. Comp. Laws Ann. §600.2946, successfully barred plaintiffs from obtaining recovery (notably, in the Taxotere and PPI MDLs, which resulted in the mass dismissal of hundreds of plaintiffs in the past 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 cases)) and discouraged countless others from being filed.

But as of February, 13 2024 – the effective date of the revisions – that is no longer the case.  The two of us recently wrote about the issue of retroactivity of Michigan S.B. 410 repeal in Law360 (i.e., whether it applies to plaintiffs who were allegedly injured before February 13 but file suit after), and the short answer is, it is not.  That is primarily because, pursuant to Michigan’s four LaFontaine factors (see LaFontaine Saline, Inc. v. Chrysler Grp., LLC, 852 N.W.2d 78, 85-86 (Mich. 2014)) for determining retroactivity, the recent repealer statute has no specific language stating it should be given retrospective application and the revised statute imposed a new duty (specifically, a new duty on manufacturers/sellers).  These two particular factors bear repeating here, as (going forward) does a quick primer on relevant Michigan products liability law.

Retroactivity:  Intent of the Legislature and Creation of a New Duty

The Michigan Supreme Court held that legislative intent is the “primary and overriding factor” to determine retroactivity.  Frank W. Lynch & Co. v. Flex Techs., Inc., 624 N.W.2d 180, 182 (Mich. 2001).  As to S.B. 410, there is not much “intent” to read into it, as the Michigan legislature indicated only that it was effective February 13, 2024.  Nothing about retroactivity.  Nothing about it applying to claims accruing on a certain date in the past.  Without more, the Michigan Supreme Court held in Johnson v. Pastoriza that such a statute “should be applied prospectively only.”  818 N.W.2d 279, 287 (Mich. 2012).  It’s also worth noting that Michigan state Senator Jim Irwin, who sponsored S.B. 410, admitted that he did not believe Michiganders could receive payouts retroactively. 

Additionally, if applied retroactively, the revisions would impose a new duty on pharmaceutical drug manufacturers and sellers at the time the injury occurred, where none had existed before.  This defies logic, fairness, and – unsurprisingly – due process.  In such cases where a new duty has been created, Michigan courts have recognized that “because plaintiff’s claim had already accrued on the day she was injured, the retroactive application [of the revised statute] would effectively rewrite history as to the duty defendant owed plaintiff . . . . This is precisely what the third [LaFontaine] factor disallows.” Buhl v. City of Oak Park, 968 N.W.2d 348, 354 (Mich. 2021).

Consistent with this disfavor of rewriting history as to the duty of the defendant after a cause of action accrued, Michigan courts focus on which law applied on the date of the injury, even if the complaint was filed after the effective date.  See Schilling v. City of Lincoln Park, No. 342448, 2019 WL 2146298, *9 (Mich. Ct. App. May 16, 2019) (declining to apply new law where cause of action accrued before effective date, but case filed after effective date).  Thus, drugmakers and sellers should anticipate that they will no longer be immune from suit relating to any injuries occurring on or after February 13, 2024.

Michigan Products Liability Law:

Because of §600.2946, many blog readers may not have encountered other aspects of Michigan product liability law.  Few counsel have had to defend a pharmaceutical products liability case in Michigan in the past 25-plus years, but the defense side is equipping ourselves to do so.  To help, here is a quick primer on the lay of the Michigan legal landscape.  It is apparent that defense advocacy in developing Michigan law on various concepts will be needed.

Strict Liability:  Michigan does not recognize a separate “strict liability” cause of action in product liability cases.  See Johnson v. Chrysler Corp., 254 N.W.2d 569, 571 (Mich. Ct. App. 1977); see also Klein by Klein v. Caterpillar Inc., 581 F. Supp. 3d 912, 922 (E.D. Mich. 2022) (recognizing the following product defect liability theories:  “(1) negligent design of the product; (2) negligent manufacture of the product; (3) negligent failure to warn about some aspect of the product; (4) breach of express or implied warranty; or (5) misrepresentation or fraud”).

Impact of FDA Approval:  While there is no blanket immunity after February 13, there remains a rebuttable presumption that the manufacturer or seller is not liable if the aspect of the product that allegedly caused the harm complied with relevant standards set forth in a federal or state statute or was approved by, or was in compliance with, regulations or standards relevant to the event promulgated by a federal or state agency responsible for reviewing the safety of the product.  See Mich. Comp. Laws Ann. §2946(4).  As this provision is newly applicable to FDA-approved products, it has not been tested by the courts on this issue.

Alternative Design:  To establish a design defect claim, a plaintiff must establish that “a practical and technically feasible alternative production practice was available that would have prevented the harm without significantly impairing the usefulness or desirability of the product to users and without creating equal or greater risk of harm to others.”  Mich. Comp. Laws Ann. §2946(2).

Learned Intermediary:  Decades-old authority supports the proposition that Michigan courts would apply the learned intermediary doctrine.  See Smith v. E.R. Squibb & Sons, Inc., 273 N.W.2d 476, 479 (Mich. 1979); Mowery v. Crittenton Hospital, 400 N.W.2d 633, 637 (Mich. App. 1986). 

Statute of Limitations:  Michigan’s statute of limitation is three years for product liability claims.  Mich. Comp. Laws Ann. §600.5805(2), (12).  Critically, there is no discovery rule, and the cause of action accrues when the wrong occurs.  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 applicable statute of repose in Michigan; however, after a product “has been in use for not less than 10 years, the plaintiffs, in proving a prima facie case, must do so without the benefits of any presumption.”  Mich. Comp. Laws Ann. §600.5805 (12).  To which “presumptions” this statute applies is undefined, and case law on this issue is not well 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 are not interchangeable concepts under Michigan law.  Punitive damages, which are designed to punish a party for misconduct, are “generally not recoverable in Michigan” unless expressly authorized by statute.  Casey v. Auto Owners Ins. Co., 729 N.W. 2d 277, 286 (Mich. Ct. App. 2006).  Thus, they are not imposed as to products liability (Buhland v. Fed. Cartridge Co., No. 12-cv-244, 2013 WL 12085097, at *4 (W.D. Mich. May 9, 2013)) or wrongful death cases (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 outrage, and indignity resulting from injuries ‘maliciously, willfully and wantonly’ inflicted by the defendant.  Unibar Maintenance Servs., Inc. v. Saigh, 769 N.W.2d 911, 923-24 (Mich. Ct. App. 2009) (citations omitted).  Michigan courts have recognized that although “product-liability actions do not usually involve such circumstances,” exemplary damages are technically available (Buhland, 2013 WL 12085097, at *4) – but again, not in wrongful death cases (White, 579 B.R. at 813).

Damages Caps:  Non-economic damages are capped but subject to change every year based on inflation.  For 2024, they are capped at $569,000, unless the defect caused death or permanent loss of a vital bodily function, in which case non-economic damages are capped at $1,016,000..  See Mich. Comp. Laws Ann. §600.2946a(1).  These caps do not apply if the trier of fact determines the death or loss was the result of gross negligence (Mich. Comp. Laws Ann. §2946a(3), or if the court determines that at the time of manufacture or distribution the defendant willfully disregarded “actual knowledge” that the product was defective and that there was “a substantial likelihood that the defect would cause the injury.”  Mich. Comp. Laws Ann. §600.2949a.