Shirley E. SHEFFER and Scott Sheffer, Plaintiffs, v. NOVARTIS PHARMACEUTICALS CORPORATION, Defendant.
Civil Action No. 08-0904 (JDB)
United States District Court, District of Columbia.
July 10, 2012.
873 F. Supp. 2d 371
JOHN D. BATES, District Judge.
Given that it is currently unknown whether any of the Upstream Project Components will ever go forward, Plaintiffs have not shown that delayed review would cause them “immediate and significant” hardship. See American Petroleum Inst., 683 F.3d at 389. There is no imminent threat of injury to Plaintiffs from the Upstream Project Components. Moreover, to the extent that Plaintiffs may claim hardship in being required to bring more than one legal challenge, “the Court has not considered this kind of litigation cost saving sufficient by itself to justify review in a case that would otherwise be unripe.” Ohio Forestry, 523 U.S. at 734-35 (rejecting Sierra Club‘s argument that it would be easier and cheaper to just mount one legal challenge now); see also American Petroleum Inst., 683 F.3d at 389 (“Considerations of hardship that might result from delaying review will rarely overcome the finality and fitness problems inherent in attempts to review tentative positions.“) (internal quotation marks and citations omitted).
Having considered the factors on prudential ripeness, and for the foregoing reasons, this Court finds that Plaintiffs’ claims as they relate to the Upstream Project Components are not prudentially ripe for adjudication. Defendants’ Partial Motion to Dismiss is, therefore, GRANTED. An Order accompanies this Memorandum.
John Julian Vecchione, Valad & Vecchione, PLLC, Fairfax, VA, for Plaintiffs.
Katharine R. Latimer, Hollingsworth LLP, Washington, DC, for Defendant.
JOHN D. BATES, District Judge.
Plaintiffs Shirley and Scott Sheffer bring this action against defendant Novartis Pharmaceuticals Corporation, alleging that Ms. Sheffer suffered injuries as a result of her treatment with drugs market
I. Background
The Sheffers are residents of Yorkshire, Ohio, located in the Southern District of Ohio. Compl. ¶ 2. All of the events leading up to this lawsuit occurred in Yorkshire and the surrounding area. Id.; Def.‘s Mot. to Change Venue at 1 (May 7, 2012) [Docket Entry 9]. Novartis is a multinational corporation that markets and distributes Aredia, a drug used to treat diseases that have metastasized to bone, throughout all fifty states and the District of Columbia. Compl. ¶¶ 5, 7.
Ms. Sheffer‘s physicians treated her for breast cancer by infusing her with Aredia. Id. ¶ 2. Plaintiffs claim that Aredia caused the bone tissue of Ms. Sheffer‘s jaw to die, a painful and disfiguring condition known as osteonecrosis. Id. ¶ 11. They further claim that defendant knew or should have known of this adverse effect, and nonetheless continued to market and distribute Aredia. Id. ¶¶ 12-16.
Invoking diversity jurisdiction, plaintiffs filed suit in this district on May 27, 2008. Id. ¶ 6. They seek compensatory and punitive damages under a number of different theories, including strict liability, failure to warn, and, in Mr. Sheffer‘s case, loss of consortium. Id. ¶¶ 22-54. On August 1, 2008, the Judicial Panel on Multidistrict Litigation transferred this case to the Middle District of Tennessee, where hundreds of similar lawsuits have been consolidated to litigate common factual questions more efficiently. See In re Aredia and Zometa Prods. Liab. Litig., No. 3:06-md-1760 (M.D.Tenn.) (“MDL-1760“); Letter from J.P.M.L. (Aug. 1, 2008) [Docket Entry 2]. The Panel having remanded the case back to this Court, defendant now moves to transfer venue. See Def‘s Mot.; Conditional Remand Order (Jan. 9, 2012) [Docket Entry 4].
II. Discussion
Novartis seeks to transfer this case to the Southern District of Ohio under
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
The threshold requirement of
In deciding whether the “convenience of parties and witnesses” and “the interest of justice” warrant transfer, courts have identified several relevant factors. Mirroring the statutory language, these factors fall under two broad headings, private-interest factors and public-interest factors. See Trout Unlimited, 944 F.Supp. at 16. “If the balance of private and public interests favors a transfer of venue, then a court may order a transfer.” Montgomery v. STG Int‘l, Inc., 532 F.Supp.2d 29, 32 (D.D.C.2008).
A. Private-interest Factors
In determining whether “the convenience of parties and witnesses” favors transfer, courts consider the following private-interest factors:
- the plaintiff‘s choice of forum;
- the defendant‘s choice of forum;
- whether the claim arose elsewhere;
- the convenience of the parties;
- the convenience of the witnesses, particularly if important witnesses may actually be unavailable to give live trial testimony in one of the districts; and
- the ease of access to sources of proof.
Id. at 32-33; see Trout Unlimited, 944 F.Supp. at 16. The occasional redundancy of these factors serves a noble goal: ensuring that each motion to transfer gets thorough consideration. The Court will consider each factor in turn. On the whole, all of the private-interest factors are either neutral or favor transfer, with the exception of the plaintiff‘s choice of forum, which weighs against transfer.
1. Plaintiff‘s Choice of Forum
The plaintiff‘s choice of forum is a “paramount consideration in any determination of a transfer request.” Thayer/Patricof Educ. Funding, LLC v. Pryor Res., 196 F.Supp.2d 21, 31 (D.D.C.2002) (internal quotation marks omitted). The plaintiff‘s considerable freedom to bring a lawsuit in an advantageous forum should not be compromised by a transfer that “merely shift[s] the inconvenience ... from one party to the other.” 15 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3848 (3d ed. 1998) (citing Van Dusen, 376 U.S. at 646). The “substantial deference”2
However, the deference owed the plaintiff‘s chosen forum is lessened when the forum has “no meaningful ties to the controversy,” and lessened further still when the forum to which transfer is sought has “substantial ties” to both the plaintiff and “the subject matter of the lawsuit.” Trout Unlimited, 944 F.Supp. at 17. Here, none of the events connected to the lawsuit occurred in the District of Columbia; everything happened in the Southern District of Ohio. The Sheffers reside in Ohio, Ms. Sheffer was treated with Aredia in Ohio, and any injuries suffered by the Sheffers were suffered in Ohio. See Def.‘s Mot. at 1-3. The only tie between this case and the District of Columbia appears to be this Court‘s in personam jurisdiction over Novartis, which may exist in most locations across the country, given the scope of Novartis‘s sales. Therefore, the deference usually given to the plaintiff‘s choice of forum is diminished, and this factor weighs only slightly against granting the motion to transfer.
2. Defendant‘s Choice of Forum
While the defendant‘s choice of forum is a consideration when deciding a
3. Where the Claim Arose
When the material events that form the factual predicate of the plaintiff‘s claim did not occur in the plaintiff‘s chosen forum, transfer is favored. Intrepid Potash-N.M., LLC v. U.S. Dep‘t of Interior, 669 F.Supp.2d 88, 95 (D.D.C.2009). A claim predicated on a manufacturer‘s liability for injuries caused by a prescription drug arises wherever the plaintiff took the drug, purchased the drug, and was prescribed the drug. Dean v. Eli Lilly & Co., 515 F.Supp.2d 18, 22 (D.D.C.2007). Ms.
4. Convenience of the Parties
The Sheffers argue that this district‘s proximity to defendant‘s New Jersey headquarters makes litigating here more convenient for Novartis. Pls.’ Mem. in Opp‘n at 4-5. Convenience, however, is not a handicap to be foisted upon an unwilling adversary. For their part, the Sheffers “made clear [their] willingness to forego the convenience of a geographically nearby forum” when they filed this lawsuit in the District of Columbia. Treppel v. Reason, 793 F.Supp.2d 429, 437 (D.D.C.2011) (internal quotation marks omitted). Novartis‘s motion to transfer can hardly be impeached by pointing out that travel from its New Jersey headquarters to this district is more convenient logistically than travel to the Southern District of Ohio. Indeed, the difference in travel time is inconsiderable in any event.
The Sheffers also claim that, because of Ms. Sheffer‘s cancer and other medical problems, they will be inconvenienced by the delay associated with transfer. Pls.’ Mem. in Opp‘n at 5, 7. While the Court is sympathetic to this concern, this inconvenience cannot be weighed against transfer under these circumstances. The only case decided by a court in this Circuit to find a litigant‘s medical problems to be a relevant factor in the
When the original plaintiff and defendant are the only parties to a lawsuit, and each has staked out a position on the transfer motion, unrelated to considerations of convenience, this factor offers little that is not encompassed by considering the parties’ choices of fora. Thus, “the convenience of the parties” merits little weight as an independent factor. Here, in any event, it is neutral on the question of transfer.
5. Convenience of Witnesses
The convenience of the witnesses has been described as “the most critical factor” to examine when deciding a motion to transfer. Pyrocap Int‘l Corp. v. Ford Motor Co., 259 F.Supp.2d 92, 97 (D.D.C.2003). Novartis contends that trying the case in this district could deprive it of subpoena power over witnesses who reside in the Southern District of Ohio, such as Ms. Sheffer‘s physicians. Def.‘s Reply at 3. The Sheffers argue that, in previous MDL-1760 cases, treating physicians were uniformly called by the plaintiffs bringing the lawsuit, not Novartis, and that Novartis can rely upon deposition testimony taken during MDL-1760 if any witnesses
To make a strong showing on this factor, the moving party must specify “what a nonresident witness will testify to, the importance of the testimony to the issues in the case, and whether that witness is willing to travel to a foreign jurisdiction.” Thayer/Patricof Educ., 196 F.Supp.2d at 33. Defendant specifies none of these details in support of its motion. Still, plaintiffs do not dispute that all of the nonexpert, nonparty witnesses are in the Southern District of Ohio, and that some of them may not be available for live testimony. See Pls.’ Mem. in Opp‘n at 4-7; Def.‘s Reply at 2-3. And plaintiffs’ attempt to extrapolate the insignificance of live testimony in this litigation from previous litigation against defendant is unavailing. Compulsory process over witnesses is often “essential” to getting a “full and true disclosure of the disputed facts.” FTC v. Brigadier Indus., 613 F.2d 1110, 1115 (D.C.Cir.1979) (internal quotation marks omitted). Therefore, despite defendant‘s lack of specificity, the availability of compulsory process for important witnesses in the transferee forum somewhat favors transfer.
6. Ease of Access to Sources of Proof
Modern technology allows most documentary evidence to be easily transferred. Thayer/Patricof Educ., 196 F.Supp.2d at 36. Hence, the location of documents is much less important to determining the convenience of the parties than it once was. Id. Here, the extensive discovery that took place while the case was in multidistrict litigation further decreases the importance of this factor. Still, if any additional discovery is needed, all of the relevant evidence, such as Ms. Sheffer‘s medical records, is located in the Southern District of Ohio. To the limited extent that “ease of access to sources of proof” is significant to the
7. Summary of Private-Interest Factors
As a whole, the balance of private-interest factors is far from conclusive, but it does marginally favor transfer. The only private-interest factor weighing against transfer is the plaintiff‘s choice of forum. However, while that factor is usually a central concern in the
B. Public-interest Factors
The multi-factor analysis of private-interest and public-interest factors is ultimately an exercise in statutory interpretation. So, although “the interest of justice” is an important consideration when deciding a
- the transferee‘s familiarity with the governing laws;
- the relative congestion of each court; and
- the local interest in deciding local controversies at home.
Montgomery, 532 F.Supp.2d at 34; see also Trout Unlimited, 944 F.Supp. at 16. In addition, limitations on jurisdiction and venue (under
1. Transferee‘s Familiarity with Governing Law
It is preferable to try a diversity case “in a forum that is at home with the state law that must govern the case.” Van Dusen, 376 U.S. at 644. Novartis argues that, because Ohio tort law governs this case, the transferee forum‘s expertise in applying that state‘s law favors transfer. Def.‘s Mot. at 3-4. The Sheffers concede that Ohio tort law governs, but argue that this Court‘s familiarity with federal regulatory law and D.C. choice of law, especially as it pertains to the applicable statute of limitations, is
All district courts are presumed to be equally adept at applying federal law, so the involvement of federal regulatory law is neither here nor there. See In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1175 (D.C.Cir.1987) (discussing transfer under
Under D.C. choice-of-law analysis, when one state‘s policies would be advanced by applying its substantive law in a tort case, and another state‘s policies would not, there is a false conflict, and the law of the interested state must apply. See, e.g., Herbert v. District of Columbia, 808 A.2d 776, 779 (D.C.2002). Applying Ohio tort law to an Ohio injury advances Ohio policies, but the same could not be said for D.C. tort law and policies; thus, there is a “false conflict,” and D.C. choice of law mandates application of Ohio substantive tort law. See id. On the other hand, under the “established rule” of D.C. choice of law, the statute of limitations is “procedural and is governed by the law of the forum.” Hodge v. S. Ry. Co., 415 A.2d 543, 544 (D.C.1980); see also A.I. Trade, 62 F.3d at 1458; May Dep‘t Stores, Inc. v. Devercelli, 314 A.2d 767, 773 (D.C.1973). Hence, the District of Columbia‘s statute of limitations applies to this lawsuit.
Familiarity with the governing law is more significant when the legal issues presented are complex or unsettled. Schmid Labs., Inc. v. Hartford Accident and Indem. Co., 654 F.Supp. 734, 737 n. 11 (D.D.C.1986) (citing Eli Lilly & Co. v. Home Ins. Co., 764 F.2d 876 (D.C.Cir.1985)). Although the application of D.C.‘s choice-of-law provisions leads to the somewhat counter-intuitive result of applying the D.C. statute of limitations to an Ohio tort claim,5 this is the result the law clearly mandates. When choice of law is dictated by unambiguous Supreme Court and D.C. Court of Appeals precedents, it can hardly be deemed complex or unsettled. In contrast, products-liability law “involves complex and continually evolving concepts.” Godoy ex rel. Gramling v. E.I. du Pont de Nemours and Co., 319 Wis.2d 91, 768 N.W.2d 674, 680 (2009). As is the norm in a products-liability lawsuit, the Sheffers assert liability under a number of distinct theories, see Compl. ¶¶ 22-54, each of which will require the application of a complex body of law to the vast universe of facts uncovered by the MDL-1760 process. The Southern District of Ohio‘s experience interpreting Ohio products-liability law will help ensure that this litigation is just and efficient. Hence, this factor strongly favors transfer.
2. Relative Congestion of Each Court
Neither party addresses the relative congestion of each court. Still, the Court may consider undisputed facts outside the pleadings when deciding a motion to transfer. Cooper v. Farmers New Century Ins., 593 F.Supp.2d 14, 18 (D.D.C.2008). This factor is examined by comparing the districts’ median times from filing to disposition or trial. Pueblo v. Nat‘l Indian Gaming Comm‘n, 731 F.Supp.2d 36, 40 n. 2 (D.D.C.2010). Median time from filing to disposition weighs slightly against transfer: 7.3 months in this district, compared to 10.3 months in the Southern District of Ohio.6 But from filing to trial, it favors transfer: 39.7 months in this district, compared to 26.4 months in the Southern District of Ohio.7 With indicators pointing in both directions, and a lack of certainty with regard to whether the case is headed for trial, comparing the relative congestion of the courts is not very helpful. In addition, Novartis has moved to transfer relatively early in this litigation. This Court has not yet thoroughly familiarized itself with the voluminous record, so any delay attributable to
3. Local Interest in Deciding Local Controversies at Home
Each state has “an interest in redressing the harms of its citizens.” MacMunn v. Eli Lilly Co., 559 F.Supp.2d 58, 63 (D.D.C.2008). In addition, when litigation is not “handled at its origin,” it often creates “administrative difficulties.” Ferens, 494 U.S. at 530 (quoting Gulf Oil Corp., 330 U.S. at 508-09). For example, “jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.” Id. And holding a trial within the view of the interested community is preferable to holding it “where they can learn of it by report only.” Id.
Plaintiffs argue that, because Aredia was marketed and dispensed throughout the nation, there is nothing uniquely local about this litigation. Pls.’ Mem. in Opp‘n at 4-5. Indeed, when national significance attaches to a controversy, local interest can sometimes be diminished. See Ingram, 251 F.Supp.2d at 6; Wilderness Soc. v. Babbitt, 104 F.Supp.2d 10, 13 (D.D.C.2000).
This case, however, presents none of the concerns that led courts to emphasize the national significance of the disputes in Ingram and Wilderness Society. In Ingram, the plaintiff was exposed to diethylstilbestrol (“DES“) in utero, when her mother lived in Washington. Thirty years later, her injuries became apparent. 251 F.Supp.2d at 2. When she filed suit against the manufacturer of DES, neither she nor her mother resided in Washington. Id. at 6. Therefore, when the defendant moved to transfer the case to Washington, the national scope of the DES litigation proved to be more important than Washington‘s diminished local interest in the dispute, and the court denied the defendant‘s motion for transfer. Id. In Wilderness Society, the plaintiffs filed suit over the environmental impact of oil and gas development in Alaska‘s National Petroleum Reserve. 104 F.Supp.2d at 11-12. The court denied the defendants’ motion to transfer the case to Alaska. Id. at 17. Because the Reserve is a national resource, and because the contested decisions were made by Department of Interior officials in the District of Columbia, the court found that the case‘s “national importance” was more significant than Alaska‘s localized interest in the dispute. Id.
In contrast, Ms. Sheffer‘s exposure to Aredia did not occur in the distant past or in a place where she no longer lives; it happened recently, in the state where she still resides, and to which defendant seeks to transfer. Compl. ¶¶ 2-5; Def.‘s Mot. at 1-3. And although the nation is understandably interested in litigation over a nationally-marketed drug, this case does not concern a national resource. Nor does it involve decisions made by government officials in the District of Columbia. Hence, “the fact that [this] litigation involves nationwide marketing practices does not upend [Ohio‘s] local interest.” MacMunn, 559 F.Supp.2d at 63. It is reasonable to allow an Ohio court to redress alleged harms to its citizens. And although not an especially important consideration, if the case goes to trial it would make little sense to burden District of Columbia residents with jury duty, or to hold the proceedings far away from interested Ohio residents. This factor therefore favors granting the motion to transfer.
Because the private-interest factors only marginally favor transfer, the public-interest factors gain some importance in deciding whether to grant defendant‘s motion to transfer. And here, the balance of public-interest factors unambiguously favors transfer. Because this is a complex products-liability lawsuit, familiarity with the governing laws will likely be important. The Southern District of Ohio‘s familiarity with Ohio tort law will help to ensure justice and efficiency in this litigation. And Ohio‘s interest in redressing the harm of its citizens in full view of the interested community is not mitigated by any purported national dimensions of litigation over these drugs, so the local interest in deciding local controversies at home favors transfer as well.
III. Conclusion
“[S]ound judicial administration” and “good common sense” dictate the result here. 15 Wright & Miller supra, § 3848. All of the private-interest and public-interest factors either favor granting Novartis‘s motion to transfer or are neutral, with the exception of the plaintiffs’ choice of forum. And the significance of the plaintiffs’ choice of forum is diminished because this forum has no ties to the case. When faced with similar motions, where the defendant seeks to transfer out of a forum with no ties to the case, and into a forum where all events giving rise to the dispute happened, courts have generally granted the motion to transfer. See, e.g., MacMunn, 559 F.Supp.2d at 63; Dean, 515 F.Supp.2d at 18; Sierra Club v. Flowers, 276 F.Supp.2d 62 (D.D.C.2003); Trout Unlimited, 944 F.Supp. at 16. See generally 15 Wright & Miller, supra, § 3848 n. 17 (collecting cases). The Court makes the same assessment here: defendant has met the requirements of
JOHN D. BATES
UNITED STATES DISTRICT JUDGE