SUSAN WEINER and PETER WEINER, Plaintiffs, v. NOVARTIS PHARMACEUTICALS CORPORATION, Defendant.
Civil Action No. 07-2108 (JDB)
United States District Court, District of Columbia.
November 20, 2013
981 F. Supp. 2d 217
JOHN D. BATES, United States District Judge
Thus, the defendants have met their burden under
B. This Decision Is Not A De Facto Merits Ruling
The plaintiff contends that “ruling that ‘maintenance of placement’ applies necessarily presumes that [the plaintiff] is obligated to provide [the defendants’ child] an educational placement, and would amount to a decision on Plaintiff‘s appeal.” Pl.‘s Opp‘n at 5. This argument is unavailing. Today‘s ruling expresses no opinion as to the validity of the underlying HOD. Rather, it is carrying out the express Congressional policy embodied by the stay-put provision that “all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved.” Susquenita Sch. Dist. v. Raelee S. by and through Heidi S., 96 F.3d 78, 83 (3d Cir.1996); see also Vinyard, 901 F.Supp.2d at 88 (noting that the plaintiff‘s “compliance with a stay-put order bears no preclusive effect as to its appeal of the [HOD‘s] reimbursement award . . . or of the [HOD‘s] findings regarding [the child‘s] entitlement to a new IEP.“). Therefore, today‘s ruling should not be viewed as having any bearing on the ultimate success or failure of the plaintiff‘s underlying administrative appeal.
IV. CONCLUSION
For the foregoing reasons, the defendants’ Motion for a Preliminary Injunction, ECF No. 26, is granted. An appropriate Order accompanies this Memorandum Opinion.
John Julian Vecchione, Valad & Vecchione, PLLC, Fairfax, VA, for Plaintiffs.
MEMORANDUM OPINION
JOHN D. BATES, United States District Judge
Plaintiffs Susan and Peter Weiner bring this action against defendant Novartis Pharmaceuticals Corporation, alleging that Susan Weiner suffered injuries as a result of her treatment with drugs marketed and distributed by Novartis. Before the Court
BACKGROUND
The Weiners are residents of New York, New York, in the Southern District of New York. Pls.’ Compl. [ECF No. 1] (“Compl.“) ¶¶ 2-3. The events leading up to this lawsuit occurred in New York and the surrounding area. Pls.’ Renewed Mot. to Transfer [ECF No. 7] (“Pls.’ Mot.“) 1. Novartis is a multinational corporation that markets and distributes Zometa, a drug used to treat diseases that have metastasized to bone, throughout all fifty states and the District of Columbia. Compl. ¶¶ 1, 5, 7. Mrs. Weiner was prescribed, purchased, and was infused with Zometa. Id. ¶ 2. Plaintiffs claim that Zometa caused the bone tissue of Mrs. Weiner‘s jaw to die, a painful and disfiguring condition known as osteonecrosis. Id. They further claim that Novartis knew or should have known of this adverse effect, and that it nonetheless continued to market and distribute Zometa. Id. ¶¶ 10-21. Invoking diversity jurisdiction, plaintiffs filed suit in this district on November 21, 2007. Id. ¶ 6. They seek compensatory and punitive damages under a number of different theories, including strict liability, failure to warn, and, in Mr. Weiner‘s case, loss of consortium. Id. ¶¶ 22-43. On January 8, 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.2006) (“MDL-1760“); Letter from J.P.M.L. [ECF No. 2]. Now that the Panel has remanded the case back to this Court, plaintiffs seek to transfer venue to the Southern District of New York, and Novartis consents to transfer. Conditional Remand Order from J.P.M.L. [ECF No. 4]; Pls.’ Mot.; Def.‘s Notice of Consent [ECF No. 9].
STANDARD OF REVIEW
District courts have discretion to transfer a case “[f]or the convenience of parties and witnesses, in the interest of justice . . . to any other district or division where it might have been brought.”
The threshold requirement of section 1404(a) is met here: the transferee forum is a district “where [the action] might have been brought.”
A. Private-interest Factors
In determining whether “the convenience of parties and witnesses” favors transfer, courts consider the following private-interest factors: (1) the plaintiff‘s choice of forum; (2) the defendant‘s choice of forum; (3) whether the claim arose elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses, particularly if important witnesses may actually be unavailable to give live trial testimony in one of the districts; and (6) the ease of access to sources of proof. Id. at 32-33; see Trout Unlimited, 944 F.Supp. at 16. The Court will consider each factor in turn.
1. Plaintiffs’ forum choice favors transfer
The plaintiff‘s choice of forum is a “paramount consideration in any determination of a transfer request.” Thayer/Patricof, 196 F.Supp.2d at 31 (internal quotation marks omitted). Here, although plaintiffs initially chose to file their action in this district, they now wish to press their claims in the Southern District of New York. Moreover, none of the events connected to the lawsuit occurred in the District of Columbia; everything happened in the Southern District of New York. The Weiners reside in New York, Mrs. Weiner appears to have been treated with Zometa in New York, and any injuries suffered by the Weiners appear to have been suffered in New York. 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 districts across the country, given the scope of Novartis‘s sales. Hence, plaintiffs’ choice of forum weighs in favor of transfer.
2. Defendant‘s forum choice favors transfer
Although the defendant‘s choice of forum is a consideration when deciding a section 1404(a) motion, it is not ordinarily entitled to deference. See Mahoney v. Eli Lilly & Co., 545 F.Supp.2d 123, 127 (D.D.C.2008). Here, Novartis consents to transfer. Thus, it need not establish that the added convenience and justice of litigating in its chosen forum overcomes the deference ordinarily given to the plaintiffs’ choice. See In re Vitamins Antitrust Litig., 263 F.Supp.2d 67, 69 (D.D.C.2003) (finding that defendant has burden to establish appropriateness of transfer despite lessened deference given to plaintiff‘s choice). In addition, Novartis, a multinational corporation, readily able to defend this lawsuit in either district, has no real stake in having the case heard in either forum. Compl. ¶¶ 4-5; see Veney v. Starbucks Corp., 559 F.Supp.2d 79, 84 (D.D.C.2008) (giving little weight to multinational corporation‘s choice of forum). Accordingly, this factor weighs in favor of transfer.
3. Where the claim arose favors transfer
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). Mrs. Weiner does not claim to have taken or purchased Zometa in the District of Columbia. See Compl. ¶¶ 1-2, 23. Nor was she prescribed Zometa here. See id. In addition, plaintiffs do not allege that their injuries were discovered or diagnosed here. See id.; Dean, 515 F.Supp.2d at 22. Plaintiffs do not specifically allege that their claims arose in New York, either—that Mrs. Weiner was prescribed, purchased, or took Zometa in New York or that Mr. Weiner suffered loss of consortium there—but because they have continued to reside in New York since before the suit was filed and because both parties consent to transfer, the Court is able to infer that the claim arose in New York.2 Hence, this factor favors transfer.
4. Convenience of the parties favors transfer
The plaintiffs reside in the Southern District of New York, and Novartis‘s headquarters is located in New Jersey, relatively close to the transferee district. Compl. ¶¶ 2-4. The Court infers from the consent of all parties that this factor weighs in favor of transfer.
5. Convenience of witnesses favors transfer
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) (quoting Chung v. Chrysler Corp., 903 F.Supp. 160, 164 (D.D.C.1995)). Discovery in this case was largely completed in the MDL proceedings. Pls.’ Mot. 3. Most of the depositions of plaintiffs’ witnesses took place in the Southern District of New York, and all took place in the State of New York. Id. Novartis‘s witnesses were largely deposed in New Jersey. Id. Plaintiffs contend, and the Court infers from defendant‘s consent its agreement with plaintiffs’ contention, that trying this case in New York would be convenient because the witnesses’ proximity to the Southern District of New York would minimize problems with establishing subpoena power over potential witnesses. Id. 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). Hence, the likely availability of compulsory process for important witnesses in the transferee forum weighs in favor of transfer.
6. Ease of access to sources of proof favors transfer
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.
The Court finds that each of the private-interest factors in this case weighs in favor of transfer.
B. Public-interest Factors
To determine whether “the interest of justice” favors transfer, courts consider the following public-interest factors: (1) the transferee‘s familiarity with the governing laws; (2) the relative congestion of each court; and (3) 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 court‘s familiarity with governing law favors transfer
When a case is transferred under section 1404(a), the transferee court is “obligated to apply the state law that would have been applied if there had been no change of venue.” Van Dusen, 376 U.S. at 639. This principle requires D.C. choice of law, as it pertains to the governing substantive law, to apply in this case. See
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)). 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 often the case in a products-liability lawsuit, the Weiners assert liability under a number of distinct theories, see Compl. ¶¶ 22-43, 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 New York‘s experience interpreting New York products-liability law will help ensure that this litigation is conducted in a just and efficient manner. Hence, this factor also favors transfer.
2. Relative congestion of each court favors transfer
Plaintiffs do not address 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 weighed 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 in favor of transfer: 9.0 months in this district, compared to 8.3 months in the Southern
3. Local interest in deciding local controversies at home favors transfer
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. v. Gilbert, 330 U.S. 501, 508-09 (1947)). 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.”
Just as with the private-interest factors, the Court finds that each of the public-interest factors here favors transfer.
CONCLUSION
In sum, the Court concludes that considerations of convenience, the interest of justice, and the parties’ consent all weigh in favor of transfer to the Southern District of New York. The Court thus will grant plaintiffs’ motion to transfer venue to the Southern District of New York. A separate order has issued on this date.
AARP, Plaintiff,
v.
Michael SYCLE, Defendant.
Civil Action No. 13-0608 (CKK)
United States District Court, District of Columbia.
November 27, 2013