Photo of Stephen McConnell

Happy Birthday, Eric Clapton. (Today is also the birthday of painters Goya and Van Gogh. Is there something about March 30 that breeds people who turn their blues into art?) Clapton has been around so long it is easy to take him for granted. He has built up a formidable body of musicianship. He is the only three-time inductee in the Rock and Roll Hall of Fame, for his solo work as well as his stints with the Yardbirds and Cream. We remember how, in the late 1960s, one of our sisters would scribble on her school notebooks that “Clapton is God.” That sister later married a very nice, very hip guy, who was also a Clapton fan. A couple of years ago Clapton’s autobiography came out. Our brother-in-law summarized the book thusly: “I made a lot of music, took a lot of drugs, caused a lot of damage to relationships and health, but in the end, everything was pretty cool.” Just so.

In the early 1990s, we were working at a law firm representing the Robert Stigwood Organization (RSO). You might remember RSO as the force behind the soundtracks for Grease and Saturday Night Fever. RSO also managed the careers of the Bee Gees, Andy Gibb, Yvonne Elliman, and Clapton. In our case, RSO, along with Eric Clapton, was being sued by Jim Gordon, the drummer in the short-lived rock group Derek and the Dominos. Gordon claimed he had been denied writing credit and money for the long piano coda in the all-time great song, “Layla.” By the time he filed the lawsuit, Gordon was a resident of the Atascadero Prison for the criminally insane. Somewhere along the way, Gordon had started hearing a voice. That voice told him to kill his mother. With a hammer and butcher knife. He obeyed that voice. Needless to say, the deposition of Gordon behind prison walls was odd. Earlier in the case, our firm sent a representative to London to meet with our co-defendant, Mr. Clapton. That assignment went to another associate – one who didn’t even like Clapton’s music that much – certainly not as much as we did. Our bitterness and envy were complete. We insisted that the lucky associate (a close friend of ours, but his musical tastes ran more toward c&w and happy pop than toward guitar gods) relay a message to Clapton that, of all the versions of “After Midnight,” the best was the slow one that ran on the Michelob beer commercials. Imagine our delight when we were told that after Clapton listened to that opinion, he paused thoughtfully, nodded, and gently assented: “Yes. That one is the most soulful.”

It would be hard to list all of the great songs that Clapton worked on, but here is a start:

  • “For Your Love” (with the Yardbirds. Clapton hated the poppy-ness of the song and left the group just before the song climbed the charts)
  • “White Room” (listen to that solo and try arguing that the Drug and Device Law Sister was wrong all those years ago about deifying Clapton – go ahead, we dare you!)
  • “Sunshine of Your Love”
  • “Badge” (written with George Harrison. On the track credits, the rhythm guitarist is listed as L’Angelo Misterioso- that’s Harrison, who couldn’t use his real name for legal reasons. Damn lawyers.)
  • “Crossroads”
  • While My Guitar Gently Weeps” (we read somewhere that John Lennon contemplated replacing Harrison with Clapton, but Clapton wasn’t interested in becoming a Beatle)
  • “Layla” (the title song of rock’s greatest double album. Like most of the songs on that magnum opus, it is about Clapton falling in love with Harrison’s wife, Patti Boyd. Ms. Boyd, by the way, was one of the screaming, predatory schoolgirls in the Hard Day’s Night movie)
  • “Why Does Love Got To Be So Sad”
  • “Bell Bottom Blues”
  • “I Shot The Sheriff” (Maybe the original version by Bob Marley is better, but Clapton’s is also superb)

[The founder of this blog wants us to include “Wonderful Tonight” on our list of Clapton favorites. Who are we to refuse? But who knew there was a softer side of Bexis?]

Another one of Clapton’s hits was “Cocaine.” And thus we have an introduction to today’s case, Tersigni v. Wyeth, 2016 U.S. App. LEXIS 5393 (1st Cir. March 23, 2016). Tersigni was a diet drug case, and the alleged injury was Primary Pulmonary Hypertension (PPH). PPH is a very bad disease. The claims were brought under Massachusetts law for negligent design and negligent failure to warn. The trial court dismissed the negligent design claim. The negligent failure to warn claim went to the jury, which returned a defense verdict. On appeal, the plaintiff raised these issues:

  • The negligent design defect claim should not have been dismissed
  • The court should not have admitted evidence at trial that the plaintiff had been incarcerated
  • The court should not have admitted evidence at trial of the plaintiff’s cocaine use

The First Circuit panel that reviewed the appeal included retired United States Supreme Court Justice David Souter. He did not author the opinion, but his presence on the panel must have been a thrill for the lawyers at oral argument. Souter was a bit of a puzzle while on the Supreme Court. To call him unpredictable would be an understatement. Republicans today talk of Souter the way they used to talk of Earl Warren and William Brennan (and, amazingly, some today even talk of C.J. John Roberts): as a mistake, as someone who went off the ideological rails. Democrats used to say something similar about Felix Frankfurter and Byron White. Souter definitely marched to his own drummer. We cannot recall any of his opinions off-hand, and we do not have any particular fix on his judicial philosophy, but there is something about Souter that we can’t help loving: he writes with a fountain pen. Anyway, Souter retired from the high court in 2009, and is still only 76 years old. (That ‘only’ works only when talking about Article III judges, doesn’t it?) Souter stays pretty active, hearing First Circuit cases.

[This ability of retired Supreme Court Justices to continue hearing appellate cases reminds us of when we began working on a law firm hiring committee and encountered a candidate who adorned his resume with a Potter Stewart clerkship. You had to look at the dates on the resume carefully to realize that the clerkship was after Stewart had stepped down from the Supreme Court. Stewart is probably most famous (to his regret) for saying this about obscenity, “I know it when I see it.” Stewart, like Souter, kept active in retirement, occasionally sitting on Sixth Circuit panels. Getting that post-Supreme Court clerkship has simply got to be easier than getting one with an active Justice, but one couldn’t help being impressed by the candidate’s career ingenuity. We know a slick move when we see one.]

Back to Tersigni. The analysis upholding the lower court’s ruling was straightforward. Here is the skinny on how the court disposed of this diet drug case:

Is there a claim under Massachusetts law for negligent design of a prescription drug? The court below reasoned that the Massachusetts Supreme Court had adopted Restatement (Second) Torts, section 402A, comment K. As most of you know, comment K says that there are some useful products that are inherently incapable of being made safe, so application of strict liability would be crazy. But would this preclusion also apply to a claim for negligent, as opposed to strict, design liability? In the end, the First Circuit punted on the issue, holding that the claim failed because the plaintiff had failed to proffer evidence of a safer reasonable alternative. (For that same reason, the First Circuit also dodged deciding the defendant’s preemption argument.) The plaintiff never suggested how some tinkering could have made the diet drug safer. Instead, the plaintiff discussed safer methods of weight control. But those alternatives would not be a safer product; they would be an entirely different product. As the Tersigni court pointed out, a motorcycle could be made safer by adding two additional wheels, but then it would no longer be a motorcycle.

At this point, the plaintiff attempted to escape the safer alternative requirement by suggesting that the Massachusetts courts would likely adopt the Third Restatement of Torts which, according to the plaintiff, would ease up on the safer alternative requirement, at least for prescription drugs. For anyone practicing in Pennsylvania, as we do, this argument is more than a little reminiscent of the ‘will-they-or-won’t-they’ debate over whether courts will plump for the Third Restatement over the Second. The Pennsylvania state courts have not made the move, but some federal courts predicted they would. The First Circuit was not in the predicting business: “As a federal court applying Massachusetts law, we are bound to apply state law as it exists, not as it may become, or as the plaintiff wishes it to be.” Speculating on the adoption of the Third Restatement was “a bridge too far, and we decline to cross it.” The First Circuit, accordingly, upheld the dismissal of the negligent design claim.

Should the trial court have admitted evidence that the plaintiff had been incarcerated for failure to pay child support? The defendant argued that incarceration was a “stressful event” for the plaintiff, and might have contributed to his cardiopulmonary symptoms. The fact of incarceration came up four times during trial. The First Circuit concluded that it need not decide whether admission of this evidence was an abuse of discretion, because the evidence made no difference. Even if there was error, evidence of the plaintiff’s incarceration was harmless. That conclusion is rooted in the jury’s verdict, which decided that the defendant had not failed to warn the doctor of the relevant risks. The jury never reached the issue of medical causation, which was the issue for which the fact of incarceration had been introduced.

Should the trial court have admitted evidence of the plaintiff’s cocaine use? The plaintiff had “occasionally” used cocaine several decades before the alleged injury. Again, the defendant wanted to cite this evidence as a possible alternative cause of the PPH. The trial court denied the plaintiff’s motion in limine to exclude the evidence of cocaine use, pending evaluation of defense expert testimony connecting the cocaine dot with the PPH dot. Understandably, the plaintiff probably thought that would be too late. The jury would already have heard the damning evidence. Also understandably, the plaintiff at trial wanted to get out front on the issue. Consequently, the plaintiff’s counsel mentioned cocaine in the opening statement and during direct exams of plaintiff witnesses. It was an effort to remove the sting of the damaging evidence. But there is SCOTUS and First Circuit authority that fronting bad evidence constitutes a waiver of the right to appeal admissibility of such evidence. The plaintiff pointed to a 2000 amendment to Federal Rule of Evidence 103 (on preserving claims of error), but the First Circuit held the amendment and Advisory Committee Note too unclear to dislodge existing authority. To our eyes, it looks like a close call. We could well imagine being on the other side of that thorny problem. But for now, we must applaud the defense lawyer for intelligence, foresight, and resistance to temptation. By not mentioning the cocaine use in the defense opening, by forcing the plaintiff to front the issue, the defense elicited a waiver of a viable appellate issue. Having strong evidence is one thing, but as for real trial mastery … well, as per the title of another great Clapton song, “It’s in the Way that You Use It.”