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reported, Michigan’s longstanding presumption of non-defectiveness applicable to FDA-approved drugs was recently repealed by the Michigan legislature in S.B. 410.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.

Read the Drug & Device Law blog guest post by Sherry Knutson and Brenda Sweet here.