The district court’s order applying Michigan law and dismissing one plaintiff’s complaint in the Tapezza MDL may be the last of a dying breed. The court faithfully enforced Michigan’s statute providing a presumption of non-defectiveness for FDA approved drugs and dismissed the plaintiffs’ case. But alas, Michigan repealed that law effective February 13, 2024, thus discarding a defense that over the years has successfully done away with hundreds of product liability claims against drug manufacturers. See Mich. Comp. Laws Ann. § 600.2946 (repealed). Of course, in the high-regulation-low-litigation model that we favor in our drug and medical device space, we quite like laws like Michigan’s woebegone presumption. But if the recent Tapezza order is the last gasp of reason, so be it.
The recent dismissal order in In re Tapezza, No. 1:23-cv-03568, 2024 WL 4590744 (N.D. Ill. Oct. 28, 2024), involved one in a long line of Michigan residents trying to escape Michigan law—a member of the “Michigan diaspora,” as Bexis sometimes says. Here, the plaintiff lived in Michigan, was treated with the product in Michigan, and experienced an alleged injury in Michigan. She sued, however, in Illinois and sought application of Illinois law—which does not have a presumption of non-defectiveness for FDA-approved drugs comparable to Michigan’s.
Applying Illinois choice-of-law rules, the district court rejected the plaintiff’s arguments and applied Michigan law. First, the court found a dispositive conflict between Michigan and Illinois law because Michigan law “in effect at the time of [the plaintiff’s] alleged injury and the filing of her complaint bars ‘a product liability action” against a manufacturer of an FDA-approved drug.” Id. at *2. This is really important because it confirms that the repeal of section 600.2946 is not retroactive. This is the correct outcome, as we explained here. Claims that accrued before February 13, 2024, are still subject to the law, which is good.
From there, it was relatively straightforward for the court to rule that Michigan law applied and that the complaint should be dismissed. Under Illinois choice-of-law rules, there is a “strong presumption that the law of the place of injury . . . governs the substantive issues.” Id. (quoting Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 155 (2007) (emphasis in original). Michigan law therefore carried substantial weight from the start, as would be the case under most states’ choice-of-law rules.
Moreover, a weighing of the relevant factors failed to dislodge Michigan law. Some of the alleged wrongful conduct occurred in Illinois, which is where the defendant was headquartered and manufactured the drug. But other conduct occurred in Michigan, including the diagnosis of the plaintiff’s condition and administration of the drug. Id. at *3. The same goes for the domicile of the parties—the defendant was incorporated in Delaware and headquartered in Illinois, but the plaintiff was domiciled in Michigan. These factors were neutral. Finally, the relationship between the parties was formed in Michigan, where the plaintiff was treated with the defendant’s product.
The plaintiff argued that Illinois’ interest in regulating its corporate citizens exceeded Michigan’s interest in enforcing a now-repealed “exercise in corporation protectionism.” The district court, however, rejected that argument and reasoned that one of the policy concerns behind section 600.2946 was to increase access to affordable prescription drugs for Michigan residents, not mere “corporate protectionism.” The court further reasoned that a consumer-versus-corporation paradigm was simply not useful and that laws limiting liability are deserving of equal dignity:
In any case, “pro-consumer” and “pro-business” labels do not further the analysis. “[T]ort rules which limit liability are entitled to the same consideration when determining choice-of-law issues as rules that impose liability.” The fact that Michigan law is less favorable to [the plaintiff] is not an appropriate policy consideration.
Id. at *4 (quoting Townsend). If the Michigan legislature had intended to abandon its interest in enforcing section 600.2946, it would have repealed the law retroactively, which it probably could not have legally done even if it wanted to. Id. And, even if Illinois’ interest in regulating its corporate citizens outweighed Michigan’s interest in enforcing a repealed statute, that still does not overcome the strong presumption that Michigan law should apply.
Our “last of a dying breed” lamentation at the beginning was a little overdramatic. Call it blogger’s license. The reality is that the repeal went into effect less than one year ago, and there are probably many pending cases to which Michigan’s presumption of non-defectiveness still applies. Defendants should not be bashful in pressing it as a defense in those cases.