MICHAEL J. TERSIGNI, Plaintiff, Appellant,
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
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. Hon. Richard G. Stearns, U.S. District Judge.
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.
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.
Lynch, Circuit Judge, Souter, Associate
Justice,[*] and Stahl, Circuit Judge.
period of time in 1997, the appellant, Michael Tersigni, was
prescribed Pondimin, a weight loss drug developed and sold by
the appellee, Wyeth. 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
reference at trial to his past incarceration and use of
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,
Facts and Background
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. 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.
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.
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 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
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
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 ...