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January 29, 2003


The opinion of the court was delivered by: Walton, District Judge.


This is a product liability lawsuit brought by the plaintiff against several defendants for injuries she alleges she sustained as a result of her mother's ingestion of diethylstilbestrol ("DES"), a drug sold and promoted to plaintiff's mother while she was residing in Seattle, Washington in 1967 and 1968. Currently before the Court is the defendants' motion to transfer this action to the Western District of Washington. For the reasons set forth below, defendants' motion is denied.

I. Arguments of the Parties

Defendants argue that "[t]he Western District of Washington is the most convenient forum for the parties and witnesses to this action." Defendants' Memorandum of Points and Authorities in Support of Defendants' Motion to Transfer ("Defs.' Mem.") at 1. First, defendants note that the plaintiff's exposure to DES occurred in Seattle, Washington, the place where her mother ingested the DES, and thus the witnesses and evidence needed in this case are most likely located there as well. Id. at 1, 4.*fn1 Second, defendants argue that transfer is proper because the substantive law of Washington will govern this action because the alleged exposure occurred in that jurisdiction. Id. Third, defendants argue that plaintiff could have originally brought this action in the Western District of Washington because the court there, as does this court, has subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (2000) because there is complete diversity of the parties. Id. at 2. In addition, defendants note that venue is proper in Washington pursuant to 28 U.S.C. ¶ 1391(a) (2000), which provides that "[a] civil action wherein jurisdiction is founded only on diversity of citizenship may be brought . . . in . . . (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." Id. at 3.

Defendants also argue that the public interest factors that the Court must consider when deciding whether to transfer an action, which include the local interest in having localized controversies decided in that jurisdiction; holding a trial in the state whose law will govern the case; not imposing jury duty on citizens of a jurisdiction that has no relation to the controversy; and the administrative difficulties that are derived from court congestion, that defendants argue also favors the transfer of this action. Regarding the first factor, defendants argue that Washington has a "strong interest in seeing that product liability claims that arose in Washington are tried fairly and efficiently." Id. at 6. Next, defendants argue that the Western District of Washington has more experience than this court in interpreting and applying Washington state tort law. Id. Finally, defendants note that in a September 2001 survey, the District of Columbia ranked 61 out of 94 federal district courts for the average length of time it takes for a civil case to move from the filing of a complaint to trial, while the Western District of Washington ranked 13th.

In opposition, plaintiff offers several arguments regarding why this Court should not transfer this action to the Western District of Washington. First, plaintiff argues that forum selection is a proper litigation strategy and notes that defendant Eli Lilly made a similar argument when it sued its insurers in this jurisdiction and the insurers sought to remove the case from the District of Columbia.*fn2 Pl.'s Opp'n at 3. Second, plaintiff contends that the District of Columbia does have ties to this action because it is a location where the manufacturers of DES promoted its use and has been the situs of a "substantial amount of litigation" on the issue of liability regarding DES use in the past. Id. at 5. Third, plaintiff submits that the convenience of the witnesses do not favor Washington over the District of Columbia.

On this point, plaintiff's counsel notes that defendants "have not ever been required to subpoena a single fact witness in any of the hundreds of DES cases . . ." that have been filed against them. Id. at 4. In addition, plaintiff points out that the prescribing obstetrician is currently located in California; plaintiff's mother is now located in Oklahoma; plaintiff's experts reside in Texas, Arkansas, Pennsylvania and Alabama; and the experts the defendants customarily use reside in Birmingham, Alabama; Baltimore, Maryland; New Jersey; Boston, Massachusetts; and Pennsylvania. Id. Both plaintiff's and defendants' counsel have offices in the District of Columbia and plaintiff's counsel also states that he will voluntarily produce plaintiff, her family and all the medical witnesses for depositions and will produce the records and documents, without any need for subpoenas, at the defendants' request. Id. at 4-5. Plaintiff also states that other judges of this court have consistently denied defendants' motions to transfer these types of cases.*fn3 Id. at 6. Finally, plaintiff indicates that there has been a twenty-year history of DES litigation in this Court, without a single case being decided through a jury's verdict, and notes that Magistrate Judge Alan Kay has routinely mediated these kinds of cases and thus keeping the case here would ensure that the case is resolved expeditiously, as plaintiff is willing to refer the case to early mediation before Magistrate Judge Kay. Id. at 5-6.

II. Analysis

28 U.S.C. § 1404(a) (2000) provides that "[f]or 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." As the moving party, defendant bears the burden of establishing that the transfer of this action to another federal district is proper. Shenandoah Associates Ltd. Partnership v. Tirana, 182 F. Supp.2d 14, 25 (D.D.C. 2001). Although the plaintiff's choice of forum is given deference, this deference is "greatly diminished when the activities have little, if any, connection with the chosen forum." Armo Steel Co. v. CSX Corp., 790 F. Supp. 311, 323 (D.D.C. 1991) (citation omitted).

The first question the Court must decide in assessing whether this case should be transferred is whether this action could have been brought in Washington. Pursuant to 28 U.S.C. § 1391(a) (2000), venue is proper in a "judicial district where any defendant resides . . . [or] in which a substantial part of the events or omissions giving rise to the claim occurred . . ." Neither party disputes that this action could have been brought in Washington because that is the location where plaintiff's mother received and ingested the DES at issue in this case.

Although convenience of the parties, convenience of the witnesses, and the interests of justice are the three principle factors to consider in determining whether to transfer a case, courts have also considered various other factors, including the private interests of the parties and the public interests of the court, as additional considerations "protected by the language of Section 1404(a)." Trout Unlimited v. United States Dep't of Agriculture, 944 F. Supp. 13, 16 (D.D.C. 1996). The private considerations that may be considered include:

Id. (citations and footnotes omitted).

In this case, these factors weigh against transfer. Plaintiff has chosen this forum, presumably because of a favorable statute of limitations and the fact that plaintiff's counsel has successfully settled prior cases of this sort before Judge Kay. Defendants prefer Washington because, they argue, there will be fact witnesses in that jurisdiction, however, it appears that the witnesses most vital to this action will come from other jurisdictions. The claim arose in the State of Washington, however, none of the defendants argue that this forum would be inconvenient for them and based on plaintiff's representations, it does not appear that the witnesses most vital to this action would be any more inconvenienced by having to travel to the District of Columbia, as compared to the State of Washington. Most importantly, there is no allegation that any witness would be unavailable at a trial in this district. Finally, regarding the ease of ...

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