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On the Drug and Device Law Son’s 13th birthday, back in 2008, we reflected on the contrast between his experience as a Philly sports fan versus that of a 13 year old in Boston.  Our son had no idea what a sports championship looked like.  Philly had not hoisted a banner since Moses Malone led the Sixers to the “Fo Five Fo” payoff run in 1983.  But a 13 year old New Englander probably had come to assume championships as a birthright.  The Celtics had a parade that Spring, the Patriots had won three Super Bowls (one against the Eagles), and even the Sawcks, who had dashed the hopes of the region for four score and six years, had managed to break the curse of the Babe and win the World Series in 2004 and 2007.  (In the 1915 World Series, the Red Sox demolished … Philadelphia.)  The Bruins had not won a championship in that 13 year period, but they would soon.

The Boston-Philly rivalry is an old one, and more one-sided than makes sense.  Even a Penn professor, Digby Baltzell, acknowledged that Boston seemed to overachieve while Philly persistently underachieved.  He thought that the historical Puritanism of Boston pointed the way toward public proofs of accomplishment and virtue, while the Quaker roots of Philly prompted people to tend to their own gardens and steer clear of the public sphere. The theory explained why Bostonians were braggarts and Philadelphians tended toward self-disparagement.  The Puritans hanged the Quakers, and both were happy.  Of course, it is hard to imagine how these old religious differences could say much about current mores.  We know some Quakers here, but not that many. In our four years in the Boston-area, we never encountered a Puritan.  Still, there are some odd points supporting Baltzell. Boston leaders are usually home-grown, but Philly has often chased away local high-achievers (Harvard’s main library came from a Philly-area fortune) and has frequently brought in outsiders to run things.  The most consequential Philly mayor in recent times hails from NYC.  We’re not sure how this fact fits in with Baltzell’s theory, but Ben Franklin fled Beantown and ended up doing fairly well in Philly.

We have no problem liking both cities a lot.  Both have great history, great schools, great museums, and great bars.  For many key criteria, Philly comes out ahead. Philly’s citizens get abused for their supposed hostility (throwing snowballs at Santa Claus, blah-blah-blah), but have you ever tried sharing a street with Boston drivers?  Philly is much better for bike riders.  Philly’s weather is okay; Boston’s is horrible.

But every once in a while, we have our doubts.  A year or so ago we were walking through the Boston Public Garden one evening, looked around at the green and the glass and the glow, and had to admit that, yeah, it is a stunning city that makes you glad to be alive.  Sometimes we even find ourselves taking the side of Boston when we read a legal decision.

Tersigni v. Wyeth Ayerst Pharmaceuticals, Inc., 2014 U.S. Dist. LEXIS 86993 (D. Mass.  June 25, 2014), is an example.  Tersigni was a case in which the plaintiff claimed injuries from diet drugs.  The plaintiff agreed that the case was essentially a negligence action and dismissed a number of his claims including, apparently, a strict liability design defect claim.  Nevertheless, the plaintiff was not content with a mere “failure to warn” theory of negligence; he also wanted to pursue a claim under a “failure to discontinue marketing” theory of liability.  What is it with these flinty New Englanders and their urge to argue that a manufacturer should make a product safer by ceasing to sell it?  (Remember, the Bartlett case came out of New Hampshire.)  Well, Holmes, Story, Orr, Bird, and Ortiz can all rest easy, because the Massachusetts federal court didn’t buy the plaintiff’s theory that the defendant should have stopped selling:  “Such a theory is contrary to Massachusetts case law adopting comment k of Restatement Second) of Torts §402A – involving unavoidably unsafe products, such as prescription drugs.”  The law on comment k is clear and well-established in Massachusetts.  So what’s an enterprising plaintiff to do?  The plaintiff in Tersigni pointed to the recent excrescence from the Pennsylvania Supreme Court, Lance v. Wyeth, 2014 Pa. LEXIS 205 (Pa Jan. 21, 2014), in which the highest court in our Commonwealth dazedly smiled at a design defect attack against FDA-approved prescription drugs.  (Also diet drugs, by the way.)  Would the Massachusetts court buy what the Pennsylvania court was selling?  Thankfully, no.  The Tersigni court paid the requisite tribute to the Erie doctrine, recognizing that it was bound “by a current interpretation of that law formulated by the state’s highest tribunal,”  and that litigants who reject a state forum in order to bring suit in federal court under diversity jurisdiction “cannot expect that new trails will be blazed.”  Accordingly, the Tersigni court, being bound by Massachusetts law as declared by the Supreme Judicial Court, declined to depart “from adherence to comment k.”  The Bostonians did what they usually do in the face of incoherence from the more Southerly colonies – they ignored them.  Good for them.

Interestingly, the plaintiff in Tersigni seized upon the selfsame issue that we Keystone state defense hacks have seized upon to try to minimize the Lance scourge.  We have been arguing that to the extent the Lance rule makes even a jot of sense, it must be limited to those cases where the drug has already been withdrawn from the market.  The plaintiff in Tersigni argued that allowing a claim of “failure to withdraw from the market” would not be inconsistent with comment k because, unlike the examples referred to in comment k, the diet drug at issue was indeed withdrawn from the market and has been subject to an FDA ban.  Here again, the Massachusetts court does Emerson, Thoreau, and Affleck proud, reasoning that “[i]f 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.”


A couple of months after the DDL Son’s 13th birthday, the Phillies broke the 25 year jinx (100 seasons of futility for the four major teams in the City of Brotherly Love!) and won the World Series.  They went again to the Series the following year, only to lose to the disreputable American League franchise from New York.  Maybe fortunes in the Boston-Philly rivalry were reversing?  Err, not really.  The Red Sox won again, the Bruins won again, and the Bay State elected a first term senator who is way more interesting than any of our sorry politicos.  Once again, we’re down, looking up.

Then again, we don’t have Aaron Hernandez.