Mass. Federal Judge Rejects Plaintiff’s ‘Failure to Discontinue Marketing’ Theory in Diet Drug Case

BOSTON — A Massachusetts federal judge has rejected a plaintiff’s request to have his diet drug case tried against Wyeth on a theory of “failure to discontinue marketing,” noting that comment k of Restatement (Second) of Torts § 402A (1965) precludes such a claim.

In a June 25 order, Judge Richard G. Stearns of the U.S. District Court for the District of Massachusetts noted that pursuant to comment k, courts may review the way in which a drug was marketed to a user and may evaluate any alleged resulting harm, the question of whether it was unreasonable to market the …