STAHL, Circuit Judge.
For a period of time in 1997, the appellant, Michael Tersigni, was prescribed Pondimin, a weight loss drug developed and sold by the appellee, Wyeth.
The 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, we AFFIRM.
From 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.
Tersigni 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.
In 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
Wyeth 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 for trial.
Separately, 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 cardiopulmonary symptoms. The district court denied Tersigni's motions, ruling that, subject to certain restrictions,
Following an eleven-day trial on Tersigni's negligent failure to warn claim, the jury found in Wyeth's favor, concluding that Wyeth had not negligently failed to warn Tersigni's doctor of the risks posed by Pondimin. Consequently, the jury did not reach the separate question of whether Pondimin caused Tersigni to develop PPH. This appeal followed.
We review the district court's order granting summary judgment on Tersigni's negligent design claim de novo, assessing the record in the light most favorable to Tersigni and resolving all reasonable inferences in his favor. Bingham v. Supervalu, Inc., 806 F.3d 5, 9 (1st Cir. 2015). "In so doing, `we are not bound by the district court's decisional calculus but, rather, may affirm the decision ... on any ground made manifest by the record.'" Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 7 (1st Cir.2015) (quoting Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir.2007)). The entry of summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Bingham, 806 F.3d at 9 (quoting Fed.R.Civ.P. 56(a)).
By way of background, Section 402A of the Restatement (Second) of Torts subjects to strict liability certain sellers of products which are "in a defective condition unreasonably dangerous to the user or consumer." Evans v. Lorillard Tobacco Co., 465 Mass. 411, 990 N.E.2d 997, 1011 (2013) (quoting Restatement (Second) of Torts § 402A (1965)). However, Comment K to Section 402A ("Comment K") offers an exception and exempts from strict liability the manufacturer of certain products (including drugs) that are highly beneficial but may carry known risks:
Restatement (Second) of Torts § 402A cmt. k.
In granting summary judgment to Wyeth on Tersigni's negligent design claim, the district court reasoned that because the Supreme Judicial Court ("SJC") had previously adopted Comment K, Massachusetts courts would not recognize a negligent design claim where the product in question is a prescription drug. See Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171, 189-90 (1982) (adopting Comment K).
As both parties acknowledge, Massachusetts courts do recognize claims predicated on the negligent design of a variety of consumer products and other goods. For example, in Smith v. Ariens Co., 375 Mass. 620, 377 N.E.2d 954 (1978), the SJC permitted a claim to go forward where the plaintiff sought to prove that the negligent design of a snowmobile had caused her to sustain injury. Id. at 957; see also Evans, 990 N.E.2d at 1010 (cigarettes); Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 696 N.E.2d 909, 912 (1998) (silicone breast implants); McDonough v. Whalen, 365 Mass. 506, 313 N.E.2d 435, 440-41 (1974) (septic system).
The parties dispute, however, whether Massachusetts courts would recognize a
It is thus quite uncertain whether Massachusetts courts would recognize Tersigni's negligent design claim. We need not decide this issue, however, because even if we were to assume that such a claim is cognizable under Massachusetts law, the claim would nonetheless fail based on Tersigni's inability to proffer evidence of a reasonable alternative design.
Tersigni does not contend here, nor did he contend before the district court, that there exists a reasonable alternative design which would have made Pondimin less likely to cause PPH or otherwise safer. Rather, he argues first that Wyeth may be held liable because, at the time Pondimin was marketed, there were other, safer methods of weight loss available. This argument, however, misconstrues the focus of the reasonable alternative design inquiry, which requires the plaintiff to show that the product in question could have been more safely designed, not that a different product was somehow safer. See Evans, 990 N.E.2d at 1016, 1024 (noting
Tersigni also argues that Massachusetts courts would, on the basis of Restatement (Third) of Torts: Products Liability § 6(c) (1998) — which Massachusetts courts have not yet adopted — find that proof of a reasonable alternative design is not required where the product in question is a prescription drug. Thus, in effect, Tersigni asks us to assume, in the absence of any applicable precedent, that Massachusetts courts would recognize his negligent design claim, and that having done so, those same courts would grant a heretofore unrecognized exception to the general requirement of proof of a reasonable alternative design. This is a bridge too far, and we decline to cross it.
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. See Ryan v. Royal Ins. Co. of Am., 916 F.2d 731, 744 (1st Cir.1990). Here, we need not attempt to foretell whether Massachusetts courts will one day embrace a claim for the negligent design of a prescription drug. Rather, even assuming that they would, Tersigni's claim fails because he cannot offer proof of a reasonable alternative design, as Massachusetts law plainly requires. Thus, summary judgment properly entered in Wyeth's favor.
We turn next to Tersigni's claim that the district court erred by denying his motions in limine seeking to exclude evidence of his prior incarceration and cocaine use. Our review is for abuse of discretion. See Fryar v. Curtis, 485 F.3d 179, 182 (1st Cir.2007). We may affirm in spite of an erroneous evidentiary ruling if the error was harmless, meaning that "it is highly probable that the error did not affect the outcome of the case." McDonough v. City of Quincy, 452 F.3d 8, 19-20 (1st Cir.2006).
Tersigni moved to exclude reference to his past incarceration for non-payment of child support, evidence Wyeth argued was relevant to prove that Tersigni had undergone a stressful event which contributed to his cardiopulmonary symptoms. The district court denied Tersigni's motion, allowing testimony "limited to the fact of incarceration, the effect on [Tersigni's] blood pressure, and that the incarceration was based on a child support issue and not any crime of violence." During the ensuing eleven-day trial, the jury heard a total of four sporadic references to Tersigni's incarceration. Tersigni argues that this evidence should have been excluded because its prejudicial effect of undermining his character substantially outweighed
We need not decide whether the district court abused its discretion by admitting this evidence because any error — if indeed there was one at all — was harmless. The jury was given a verdict form in which it was first asked to determine whether Tersigni had established that Wyeth negligently failed to warn his doctor of the risks associated with Pondimin. The jury answered this question in the negative. Consequently, the jury did not reach the second question, which asked whether Tersigni had established that he developed PPH as a result of taking Pondimin, a causation issue to which Tersigni's incarceration was arguably relevant.
In our view, evidence of Tersigni's incarceration likely had no effect on the jury's consideration of whether Wyeth negligently failed to warn physicians of Pondimin's risks, the only issue on which the jury was required to pass. See McDonough, 452 F.3d at 19-20. The nature of this inquiry simply left no room for consideration of Tersigni's reliability as a witness or his overall character. Thus, if an error occurred, it was harmless.
Tersigni also sought to exclude evidence that, several decades earlier, he had occasionally used cocaine. Again, Wyeth claimed that this evidence was relevant to show alternative causes of Tersigni's symptoms. The district court denied Tersigni's motion, pending its "evaluation of expert testimony that the abuse of cocaine... is related to the issue of specific causation." The district court, however, was not required to conduct any such evaluation because Tersigni's counsel chose to raise the cocaine use herself, referencing it twice during her opening statement and again during direct examination of two of Tersigni's witnesses.
We have previously held that a party which seeks to "remove the sting" by preemptively introducing damaging evidence thereby waives the right to appeal the admission of that evidence. See Gill v. Thomas, 83 F.3d 537, 541 (1st Cir.1996); see also Ohler v. United States, 529 U.S. 753, 760, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000). Tersigni tries to circumvent our holding in Gill by noting that it predated the amendment, in 2000, of Federal Rule of Evidence 103, which governs the manner by which parties must preserve claims of evidentiary error. This attempt cannot succeed, however, because the Advisory Committee Notes accompanying that amendment provide that the amendments "do[] not purport to answer whether a party who objects to evidence that the court finds admissible in a definitive ruling, and who then offers the evidence to `remove the sting' of its anticipated prejudicial effect, thereby waives the right to appeal the trial court's ruling." Fed. R. Evid. 103 advisory committee's notes to 2000 amendment (citing, inter alia, Gill, 83 F.3d at 540). Thus, Gill remains good law and the admission of evidence of Tersigni's cocaine use does not merit reversal.
The judgment of the district court is AFFIRMED.