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In re Consolidated Parlodel Litigation

April 21, 1998

IN RE CONSOLIDATED PARLODEL LITIGATION


The opinion of the court was delivered by: Stephen M. Orlofsky United States District Judge

HON. STEPHEN M. ORLOFSKY

OPINION

ORLOFSKY, District Judge:

These fourteen products liability actions were filed by sixteen women, and some of their husbands, against a New Jersey pharmaceutical company. The cases were consolidated for the limited purposes of discovery but, in an Opinion and Order filed on February 6, 1998, I denied Plaintiffs' motion to consolidate these cases for trial. I also denied Plaintiffs' motion to apply New Jersey law to each case. In the wake of those decisions, the defendant has moved to transfer each of these cases to the Plaintiff's "home" district where the Plaintiff resides, where the Plaintiff was injured, where the Plaintiff was treated and where the Plaintiff's treating physician is located. This Court's jurisdiction has been invoked pursuant to 28 U.S.C. § 1332. For the reasons set forth below, the defendant's motion to transfer venue will be granted.

I. BACKGROUND

Novartis Pharmaceuticals Corporation ("NPC"), formerly known as Sandoz Pharmaceuticals Corporation, manufactures the drug Parlodel. Five products liability actions were filed in the United States District Court for the District of New Jersey alleging that Parlodel caused injuries in women who took it to prevent post-partum lactation. See Civ. Action Nos. 95-1936, 95-1935, 95-6527, 95-4890, 95-2321. An additional nine actions were filed in the United States District Court for the Eastern District of New York. See Civ. Action Nos. 95-395, 95- 516, 95-1629, 95-2150, 95-4319, 96-1450, 96-2269, 96-2632, 96-4052.

In five of the New York actions, NPC filed motions to transfer venue to the Plaintiffs' home districts which were denied. See Klein v. Sandoz Pharmaceuticals Corp., 1996 WL 204495 (E.D.N.Y. Apr. 16, 1996); Plaintiffs' Ex. D. Pursuant to 28 U.S.C. § 1404(a), the Honorable Sterling Johnson, Jr., United States District Judge for the Eastern District of New York, instead transferred those cases to the District of New Jersey. See Klein, 1996 WL 204495; Plaintiffs' Ex. D. Thereafter, the four cases remaining in New York were transferred to the District of New Jersey by consent order. See Plaintiffs' Ex. E.

Once in New Jersey, all of the cases were consolidated before this Court for the limited purposes of discovery. See Order of Magistrate Judge Rosen (dated Apr. 22, 1996). These cases were divided into three "waves" for discovery and trial preparation. Although the parties vigorously dispute the status of all three waves of cases, it is undisputed that even Wave I is not ready for trial and that very little fact discovery has begun in Wave III cases. Compare Supplementary Declaration of Joe G. Hollingsworth, Esq., in Support of Motion to Transfer Venue ("Hollingsworth Supp. Decl.") at ¶¶ 46-63 and Third Supplementary Declaration of Joe G. Hollingsworth, Esq., in Support of Motion to Transfer Venue ("Hollingsworth 3d Supp. Decl.") at ¶¶ 2-4 with Certification of Ellen Relkin in Opposition to Points Raised in Supplemental Papers in Support of Defendant's Motion to Transfer Venue ("Relkin Cert.") at ¶¶ 14-19.

On September 11, 1997, Plaintiffs moved to consolidate these cases for trial and for choice of New Jersey law. I denied both of these motions. See Opinion and Order (dated Feb. 6, 1998) ("Consolidation Op."). NPC has now moved to transfer venue from the District of New Jersey to the respective districts where each Plaintiff resides.

II. DISCUSSION

NPC has moved to transfer venue pursuant to 28 U.S.C. §1404(a). That statute provides:

For the convenience of the 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. 28 U.S.C. § 1404(a).

The purpose of this provision is "to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quotations omitted).

The burden of proof on a motion to transfer venue lies with the moving party. See National Property Investors VIII v. Shell Oil Co., 917 F. Supp. 324, 326 (D.N.J. 1995); Ricoh Co., Ltd. v. Honeywell, Inc., 817 F. Supp. 473, 480 (D.N.J. 1993). The transfer analysis, however, "is flexible and must be made on the unique facts of each case." Ricoh, 817 F. Supp. at 479 (citing, e.g., Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29-30 (1988)).

The statute itself suggests one prerequisite for transfer, and three factors which should guide the court's discretion. See 28 U.S.C. § 1404(a); One World Botanicals Ltd. v. Gulf Coast Nutritionals, Inc., __ F. Supp. __, 1997 WL 764400, *7 (D.N.J. Dec. 10, 1997). The transferee forum is required to be one where the action could have been brought originally. See 28 U.S.C. § 1404(a); One World Botanicals, 1997 WL 764400 at *7; Ricoh, 817 F. Supp. at 479. In this case, it is undisputed that Plaintiffs could have brought these actions in their home districts. See 28 U.S.C. § 1391(a)(2) (venue proper in any district where "a substantial part of the events ... giving rise to the claim occurred"); see also 28 U.S.C. § 1391(a)(1) (venue is proper in any district where a defendant resides) and 28 U.S.C. § 1391(c) (a corporate defendant resides in any district where it is subject to personal jurisdiction).

The statute also refers to three other relevant factors: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interests of justice. See One World Botanicals, 1997 WL 764400 at *7; Ricoh, 817 F. Supp. at 479. Courts, however, have rarely limited their inquiries under § 1404(a) to those three factors. See Jumara v. State Farm Insurance Co., 55 F.3d 873, 879 (3d Cir. 1995) (Becker, J.); Optics Laboratories Corp. v. Nicholas, 947 F. Supp. 817, 825 (D.N.J. 1995). Instead, courts have divided relevant factors into two categories: the private interests of the parties and the public interest in the fair and efficient administration of justice. See Jumara, 55 F.3d at 879-880; accord Optics Laboratories, 947 F. Supp. at 825; Shell Oil, 917 F. Supp. at 326.

Judge Irenas has provided a succinct summary of the typical interests which influence a transfer decision:

These include private interests -- the parties' preferences, whether the claim arose elsewhere, the convenience of the parties, the convenience of the witnesses, and the location of the documents (to the extent that files could not be produced in the alternative forum) -- and public interests -- enforceability of the judgment, practical considerations that could make the trial easy, expeditious, or inexpensive, relative administrative difficulty in the two fora resulting from court congestion, the local interests in deciding local controversies at home, relevant public policies of the fora, and the familiarity of the trial judge with state law if applicable. Optics Laboratories, 947 F. Supp. at 825; see Jumara, 55 F.3d at 879-80; Shell Oil, 917 F. Supp. at 326.

Before I proceed to analyze the individual factors in the transfer calculus, I note that Judge Bassler has granted a transfer motion in a remarkably similar case. See Shell Oil, 917 F. Supp. 324. In that case, a North Carolina plaintiff filed a products liability action against a New Jersey company in this district based on its use of the allegedly defective product in North Carolina. As here, the plaintiff in Shell Oil had selected the New Jersey forum and the defendant corporation and its employees were based in New Jersey. Nevertheless, Judge Bassler granted the defendant's § 1404(a) motion because North Carolina was host to the plaintiff, many non-party witnesses and the locus of the injury. In addition, the North Carolina court's docket was less clogged, North Carolina law would apply and, because North Carolina had a greater interest in the dispute, it was fairer to burden the citizens of that state with jury duty. Thus, Judge Bassler found it appropriate to transfer the action from New Jersey. See id. at 331; see also In re Eastern District Repetitive Stress Injury Litigation ("In re EDRSIL"), 850 F. Supp. 188, 194 (E.D.N.Y. 1994) (transferring 75 products liability actions to the plaintiffs' home districts). This case presents obvious parallels to Shell Oil and, like Judge Bassler, I find that transfer is warranted under § 1404(a). I will now proceed to discuss the factors relevant to the transfer determination in this case.

A. Private Interests

1. Plaintiffs' Choice of Forum

Although a plaintiff's choice of forum is ordinarily afforded significant weight, that factor diminishes where the plaintiff chooses a foreign forum rather than his or her home forum. See Shell Oil, 917 F. Supp. at 327; Ricoh, 817 F. Supp. at 480-81; see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981). The plaintiff's interest decreases even further where "the central facts of a lawsuit occur outside the chosen forum." Shell Oil, 917 F. Supp. at 327; see Harris v. National Railroad Passenger Corp., 979 F. Supp. 1052, 1053 (E.D. Pa. 1997) ("It should be noted, however, that the plaintiff's choice of forum is entitled to less weight where the plaintiff chooses a forum which is neither his home nor the situs of the occurrence upon which the suit is based.").

In Shell Oil, Judge Bassler "accord[ed] little weight to Plaintiff's choice of New Jersey as the forum in which to litigate these [products liability] claims" because the product at issue was sold and used in North Carolina and the plaintiff had no presence in New Jersey. Shell Oil, 917 F. Supp. at 327. Moreover, Judge Bassler rejected the same argument put forth by Plaintiffs in these cases: that the defendant corporation is located in New ...


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