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Cromar v. Johnson & Johnson

November 13, 2006

RE: CROMAR
v.
JOHNSON & JOHNSON ET AL.



The opinion of the court was delivered by: Ronald J. Hedges United States Magistrate Judge

CHAMBERS OF RONALD J. HEDGES UNITED STATES MAGISTRATE JUDGE

MARTIN LUTHER KING, JR. FEDERAL BUILDING AND COURTHOUSE 50 WALNUT STREET NEWARK, NJ 07101 973-645-3827

LETTER-OPINION AND ORDER

ORIGINAL FILED WITH CLERK OF THE COURT

INTRODUCTION

This matter comes before me on the motion of defendants Johnson & Johnson, Janssen Limited Partnership and Alza Corporation to transfer venue pursuant to 28 U.S.C. § 1404(a). Plaintiff opposes the motion. The motion was referred to me by Judge Martini. I have considered the papers submitted in support of and in opposition to the motion. There was no oral argument. Rule 78.

BACKGROUND

On April 20, 2006, plaintiff, on behalf of himself and as personal representative of the Estate of Mrs. Janice Cromar, filed this product liability, wrongful death action against the defendants. Plaintiff alleges that the decedent was treated with a Duragesic patch, a transdermal prescription pain medication, from 1999 through 2004, and that this drug caused her death on April 27, 2004. Plaintiff also alleges that defendants are liable for Duragesic's alleged side effects. Defendants have moved to transfer this action to the District of Utah.

The following jurisdictional facts relevant to the defendants' motion: Johnson & Johnson is the parent company of Janssen and Alza, and has not designed, manufactured, marketed, distributed or sold Duragesic patches. Alza designs and manufactures Duragesic patches. Alza is a Delaware corporation with a principal place of business in California. Janssen distributes and markets Duragesic patches. Janssen is a New Jersey limited partnership with a principal place of business in Titusville, New Jersey. Defendants' national coordinating counsel for Duragesic matters is located in Cleveland, Ohio. Defendants also have a depository in Cleveland, where they keep documents concerning Duragesic patches.

At the time decedent was using the Duragesic patch, she and plaintiff were residents of Utah. Further, decedent received all of her medical treatment in Utah and died in Utah. The decedent's post-mortem examination and autopsy report were done by the Medical Examiner and Assistant Medical Examiner for the State of Utah.

DISCUSSION

The sole issue at hand is whether this action should be transferred to the District of Utah. Defendants bear the burden of proving that transfer is warranted. Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970). According to 28 U.S.C. § 1404(a), an action may be transferred to any district where it might have been brought if the transfer is "[f]or the convenience of the parties and witnesses [and] in the interest of justice." "The purpose of Section 1404(a) is to avoid the waste of time, energy and money, and in addition, to safeguard litigants, witnesses and the public against avoidable inconvenience and expense." Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 518 (D.N.J. 1998).

In Gulf Oil v. Gilbert, 330 U.S. 501, 508-09 (1947), the Supreme Court announced the factors courts should consider in deciding motions to transfer. The factors fall into two categories: those relating to the private interests of the parties, including (i) plaintiff's choice of forum; (ii) relative ease of access to sources of proof; (iii) availability of compulsory process for attendance of unwilling witnesses; (iv) cost of obtaining willing witnesses' testimony; (v) possibility of viewing evidence and/or premises at issue; (vi) possibility of a jury view of the premises, if appropriate, and "all other practical problems that make trial of a case easy, expeditious and inexpensive." The other category consists of public interest factors, including (i) relative congestion of court dockets; (ii) in cases where the litigation is not closely tied to the chosen forum, the burden of imposing jury duty on residents of the forum; (iii) in cases where the litigation is closely tied to the chosen forum, the interests of the forum in the outcome of the litigation; and the "appropriateness . . . in having the trial of a diversity case in a forum that is at home with the state law that must govern the case." Gulf Oil, 330 U.S. at 508-09.

The private interest factors weigh against a transfer. First, "courts normally defer to a plaintiff's choice of forum. . . . 'the plaintiff's choice of venue should not be lightly disturbed.'" Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir. 1995). Since plaintiff has chosen to litigate this ...


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