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 But alas, Michigan repealed that law effective February 13, 2024, thus discarding a defense that over the years has successfully done away with hundreds of product liability claims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 § 600.2946 (repealed).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...
