Tersigni v. Wyeth et al

Filing 125

Judge Richard G. Stearns: ORDER entered. MEMORANDUM AND ORDER granting in part and denying in part defendants' renewed motion for summary judgment. As detailed in the attached memorandum, the court will dismiss Counts I, II, IV, V, and VI of the Second Amended Complaint, and plaintiff will be limited to a negligent "failure to warn" theory, and will not be permitted to advance a "failure to withdraw from market" theory.(RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 11-10466-RGS
MICHAEL J. TERSIGNI
v.
WYETH-AYERST PHARMACEUTICALS, INC., et al.
MEMORANDUM AND ORDER ON DEFENDANTS’ RENEWED MOTION
FOR SUMMARY JUDGMENT
June 25, 2014
STEARNS, J.
Plaintiff Tersigni has agreed that this case is essentially a negligence
action. For this reason, and for the benefit of jury comprehension, the case
to be tried will be narrowed to Count III, and the court will dismiss Counts
I, II, IV, V, VI. Count VII, the Chapter 93A claim, will be reserved for the
court. (The court notes that defendant Wyeth has withdrawn its motion to
dismiss Count VII, reserving the right to seek dismissal of this count at the
conclusion of plaintiff’s case-in-chief).
Tersigni nevertheless maintains that the action should not be limited
to a “failure to warn” theory of negligence, but should also be construed to
allow a “failure to discontinue marketing” theory of liability. Counsel for
Wyeth correctly pointed out at the June 24 hearing that such a theory is

simply an attempt at a “backdoor” resuscitation of the dismissed Count I,
and is contrary to Massachusetts case law adopting comment k of
Restatement (Second) of Torts § 402A (1965) – involving unavoidably
unsafe products, such as prescription drugs. Comment k states, in relevant
part, that,
[t]here are some products which, in the present state of human
knowledge, are quite incapable of being made safe for their
intended and ordinary use. These are especially common in the
field of drugs . . . . Such a product, properly prepared, and
accompanied by proper directions and warning, is not defective,
nor is it unreasonably dangerous. . . . The seller of such
products, again with the qualification that they are properly
prepared and marketed, and proper warning is given, where the
situation calls for it, is not to be held to strict liability for
unfortunate consequences attending their use, merely because
he has undertaken to supply the public with an apparently
useful and desirable product, attended with a known but
apparently reasonable risk.
RESTATEMENT (SECOND) OF TORTS § 402A cmt. k (1965).
Massachusetts court decisions have consistently hewed to the letter of
comment k. See, e.g., Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 22
(1998) (stating that “liability under the implied warranty of merchantability
in Massachusetts is congruent in nearly all respects with the principles
expressed in Restatement (Second) of Torts § 402A”) (citation and internal
quotation marks omitted); see also Payton v. Abbott Labs, 386 Mass. 540,
573 (1982) (citing comment k as consistent with public policy); cf. Lareau
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v. Page, 840 F. Supp. 920, 933 (D. Mass. 1993) (“There are some products,
especially drugs, which are quite incapable of being made safe for their
intended and ordinary use, and yet the marketing and use of which is
justified because they may avert an otherwise inevitable death. Such a drug,
properly prepared, and accompanied by proper directions and warnings,
is not defective, nor is it unreasonably dangerous.”) (emphasis added).
While Tersigni points to a recent decision of the Pennsylvania
Supreme Court, Lance v. Wyeth, 2014 Pa. LEXIS 205 (Pa. Jan. 21, 2014),
which adopts a position that is similar, though not altogether identical, to
the theory advanced by plaintiff here, “a federal court sitting in diversity
jurisdiction and called upon in that role to apply state law is absolutely
bound by a current interpretation of that law formulated by the state’s
highest tribunal.” Daigle v. Maine Med. Ctr., Inc., 14 F.3d 684, 689 (1st
Cir. 1994). “[L]itigants who reject a state forum in order to bring suit in
federal court under diversity jurisdiction cannot expect that new trails will
be blazed.” Ryan v. Royal Ins. Co. of Am., 916 F.2d 731, 744 (1st Cir. 1990);
see also Federico v. Order of St. Benedict in Rhode Island, 64 F.3d 1 (1st
Cir. 1995) (same). Because this court is bound by Massachusetts law as
declared by the Supreme Judicial Court, it declines to depart from

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adherence to comment k,1 consistent with the rulings of other courts in this
district. See, e.g., Sprague v. Upjohn Co., 1995 WL 376934 (D. Mass. May
10, 1994) (noting that “as a matter of law [a] claim of negligent design must
be dismissed” with regard to a prescription drug, because while a court may
review the way in which a drug “was marketed to [a] user [and may]
evaluate any alleged harm derived therefrom,” the question of “whether it
was unreasonable to market the drug at all” is “improper”).
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

Plaintiff states that allowing a claim of “failure to withdraw from the
market” would not be inconsistent with comment k because it is now
undisputed that the risks of Pondimin do outweigh any possible benefits,
unlike the examples referred to in comment k – Pondimin was indeed
withdrawn from the market and has been subject to an FDA ban. If
anything, this fact simply supports the exclusion of a “failure to withdraw
from market” theory from the court’s purview, as it would usurp the role of
the FDA as the preeminent agency regulating the prescription drug market.
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