Excessive Litigation - All or Nothing?

We seem to be moving toward a nation of exterme positions. Where's the middle ground. I don't mean the "compromise" (or compromised) position. I mean the point of balance... the point where all interests are served reasonably... the point where license and prohibition are excluded so that a reasonable accomodation can be achieved.

The following letter appeared in the Detroit Free Press:

Drug victims have no recourse in Michigan

I want to thank the 12 Americans from Texas who, with no financial stake in the outcome of the Vioxx case, determined that corporate profit at any cost is unacceptable.

Dozens of documents -- internal memos, e-mails and opinion pieces by scientists and officers -- showed Vioxx increased heart risks. Jurors witnessed statements and conduct by Merck officials that showed that -- despite problems -- Merck tried to rush federal approval of Vioxx just to beat a competitor.

In letters to doctors, Merck seriously understated the heart risks to patients taking Vioxx and told drug salesmen to play "Dodge ball" when doctors voiced concern.

In Michigan, Merck will never face a jury. The Michigan Legislature handed the drug industry a "get out of jail free" card that will allow it to keep every nickel of blood money profit from drugs that injure and kill citizens in our state.

Despite misleading claims from advocates for immunity like Lawrence Mann ("Drug lawsuits demand one national rule," Aug. 31), there is no exception to the drug industry's immunity from responsibility in Michigan. The U. S. Supreme Court has declared that Michigan victims of Vioxx and other deadly drugs cannot bring such claims, and the U.S. Court of Appeals for the Sixth Circuit has held that the drug industry's immunity is absolute. In Michigan -- unlike any other state -- there is no exception, there is no recovery and there is no justice.

Jesse M. Reiter
President-Elect
Michigan Trial Lawyers Association
Bloomfield Hills

What did the 12 Texans do?

In August 2005, Merck & Co. lost its first Vioxx trial in a Texas state court after the jury found that Vioxx was responsible for the death of Robert Ernst, and awarded his widow a verdict of $253 million.

What is the Michigan situation?

Compensatory Damages

Economic

No limit

Non-Economic: Limited in medical liability actions

• Total noneconomic damages recoverable by all plaintiffs against all defendants in a medical liability action are limited to $280,000, adjusted annually for inflation, except in cases where the plaintiff is hemiplegic, paraplegic, or quadriplegic due to an injury to the brain or spinal cord, or where the plaintiff has permanently impaired cognitive capacity, or the plaintiff has had a permanent loss of or damage to a reproductive organ, then noneconomic damages shall not exceed $500,000.

Mich. Comp. Laws § 600.1483.

Punitive Damages

Allowed: Not permitted*

• *Michigan permits “exemplary” damages as compensation for mental suffering consisting of a sense of insult, indignity, humiliation, or injury to feelings, but does not permit punitive damages for purposes of punishment.

Yamaha Motor Corp. v. Tri-City Motors, 429 N.W.2d 871 (Mich. Ct. App. 1988).

It seems the difference between Texas and Michigan is just under $253 million. The question is: where is the point of balance? Is it an arbitrary limit or "the sky's the limit"? The problem is that the process of deciding the range of damages is not very apparent.