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The weight-loss pill maker Wyeth, LLC will survive an appeal to review jury's favorable verdict for defendant. The First Circuit court found with regards to the plaintiff's negligent design claim, he'd failed some other less dangerous weight loss pill design.
The interesting thing about this case is that it makes it clear that Massachusetts will not hear cases of negligent design unless the plaintiff offers a reasonable alternative. For a weight-loss pill that allegedly causes hypertension? Good luck.
Wyeth Pharmaceuticals marketed a drug called Pondimin from 1989 until 1997. The pill was promoted as a weight loss drug. But sometime during the middle of the 90s it became clear that the drug was linked to increased risk of valvular disease and hypertension. The FDA eventually required that Wyeth warn doctors of risks and essentially forced a "black-box" warning to Pondimin's label. Pondimin eventually was just withdrawn from the market.
Tersigni, the plaintiff, was diagnosed with hypertension several years after he stopped taking it. He brought several claims against Wyeth including negligent design and negligent failure to warn. A number of the plaintiff's claims were dismissed. The jury returned a verdict for Wyeth. In his appeal, Wyeth argued that his claim of negligent design should not have been dismissed.
At issue for the First Circuit was whether or not the Massachusetts law could even apply product liability negligent design doctrine to medicine. Past case law saw Massachusetts law apply to food and to durable goods, but the state seemed not to have any relevant law to the point -- an amazing case of first impression. But even if a stretched understanding of the Restatements might even give Massachusetts the ability to hear such a claim, the claim would most likely fail because Tersigni's failure to at least offer an alternative design for another safer weight loss pill.
Tersigni tried to save his case by arguing that the alternative design were other, safer methods available -- like eating less. Of course, this argument was completely dismissed by the court because it did not offer an alternative design of the product itself. Consider the quote from Caterpillar Inc. v Shears: "A motorcycle could be made safer by adding two additional wheels and a cab, but then it is no longer a motorcycle." Well said.
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