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Tersigni v. Wyeth

United States Court of Appeals, First Circuit

March 23, 2016

MICHAEL J. TERSIGNI, Plaintiff, Appellant,
v.
WYETH, a/k/a Wyeth, LLC, f/k/a American Home Products Corp.; AMERICAN HOME PRODUCTS, INC.; WYETH AYERST LABORATORIES; WYETH PHARMACEUTICALS, a/k/a Wyeth Pharmaceuticals, Inc., f/k/a Wyeth- Ayerst Pharmaceuticals, Inc.; f/k/a Ayerst Laboratories, Inc.; WYETH-AYERST PHARMACEUTICALS, INC.; AHP SUBSIDIARY HOLDING CORPORATION, f/k/a Wyeth-Ayerst Laboratories Company, a division of Wyeth; AYERST LABORATORIES, INC., a division of Wyeth, Wyeth- Ayerst Pharmaceuticals, Inc., Defendants, Appellees

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Richard G. Stearns, U.S. District Judge.

         Louis M. Bograd, with whom Center for Constitutional Litigation, P.C., Gregory J. Bubalo, Paula S. Bliss, and Bubalo Goode Sales & Bliss, PLC were on brief, for appellant.

         Theodore V.H. Mayer, with whom William J. Beausoleil, Michael D. Tiger, Hughes Hubbard & Reed LLP, Peter L. Welsh, Jesse M. Boodoo, and Ropes & Gray LLP were on brief, for appellees.

         Before Lynch, Circuit Judge, Souter, Associate Justice,[*] and Stahl, Circuit Judge.

          OPINION

Page 365

          STAHL, Circuit Judge.

          For a period of time in 1997, the appellant, Michael Tersigni, was prescribed Pondimin, a weight loss drug developed and sold by the appellee, Wyeth.[1] Tersigni later sued Wyeth, alleging that Pondimin caused him to develop a dangerous condition known as primary pulmonary hypertension (" PPH" ). The district court entered summary judgment for Wyeth on most of Tersigni's claims, including his claim for negligent design, and allowed only a single claim for negligent failure to warn to go to trial. In separate rulings, the district court denied a pair of motions in limine in which Tersigni sought to exclude

Page 366

reference at trial to his past incarceration and use of cocaine.

         The jury returned a verdict for Wyeth on Tersigni's surviving negligent failure to warn claim. In this appeal, Tersigni claims that the district court erred by entering summary judgment for Wyeth on the negligent design claim and by denying his motions in limine. After careful consideration, we AFFIRM.

         I. Facts and Background

         From 1989 until 1997, Wyeth marketed Pondimin as a medication to promote weight loss. In the mid-1990s, however, clinical research began to emerge linking Pondimin to an elevated risk for valvular heart disease and PPH.[2] Eventually, in July 1997, the Food and Drug Administration (" FDA" ) required Wyeth to warn doctors of these risks and to add a so-called " Black Box" warning to Pondimin's label. Soon thereafter, the FDA ordered that Wyeth withdraw Pondimin from the market entirely.

         Tersigni was one of millions of Americans to receive a prescription for Pondimin. He was prescribed (and apparently took) the drug for an approximately six-month period beginning in early 1997, and ending in July 1997, when Tersigni's doctor learned of the FDA's required Black Box warning.

         In 2011, several years after Tersigni stopped taking Pondimin, he was diagnosed with PPH. Thereafter, he sued Wyeth in federal district court in Massachusetts, asserting claims for, inter alia, negligent design[3] and negligent failure to warn. In effect, Tersigni's negligent design claim alleged that Wyeth knew, or should have known, that Pondimin was unreasonably dangerous, but nonetheless continued to market it.

         Wyeth moved for summary judgment on most of Tersigni's claims. The district court granted this motion, reasoning in relevant part that Massachusetts courts would not recognize a cause of action for the negligent design of a prescription drug. See Tersigni v. Wyeth-Ayerst Pharm., Inc., No. 11-10466-RGS, 2014 WL 7464759, at *1 (D. Mass. June 25, 2014). Following the entry of summary judgment, only Tersigni's claim for negligent failure to warn remained for trial.

         Separately, Tersigni moved to preclude reference at the trial both to his previous incarceration in 2008 for non-payment of child support, and to his occasional use of cocaine several decades earlier. Wyeth opposed both motions, arguing that this evidence was relevant to the defense's theory that cocaine use and the stress associated with Tersigni's incarceration contributed to his ...


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