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McClamrock v. Eli Lilly and Co.

June 4, 2003

BARRY MCCLAMROCK, PLAINTIFF,
v.
ELI LILLY AND COMPANY, DEFENDANT.



MEMORANDUM OPINION

Currently before the Court is defendant Eli Lilly and Company's ("Lilly") motion to transfer, which asserts that plaintiff's claims should be transferred to the Middle District of North Carolina pursuant to 28 U.S.C. § 1404(a) (2000). For the reasons set forth below, the Court will grant the defendant's motion and transfer this action to the Middle District of North Carolina.

I. Background

This product liability action, which was brought in this Court pursuant to the Court's diversity of citizenship jurisdiction, 28 U.S.C. § 1332 (2000), was filed by plaintiff Barry McClamrock, a citizen of North Carolina, against defendant Lilly, an Indiana corporation. Plaintiff alleges that he has suffered severe injuries as a result of his ingestion of Zyprexa, a pharmaceutical drug manufactured by Lilly, which was prescribed for plaintiff's use by his treating physician in North Carolina.

Defendant has filed a motion to transfer this action to the Middle District of North Carolina. Defendant argues that all of the witnesses reside and documentary evidence pertinent to plaintiff's claims is located in North Carolina, or alternatively Indiana, where defendant maintains its principal place of business. Defendant Eli Lilly and Company's Memorandum of Points and Authorities in Support of Its Motion Pursuant to 28 U.S.C. § 1404(a) to Transfer to the Middle District of North Carolina ("Def.'s Mem.") at 1-2. Plaintiff argues, in opposition, that his choice of forum should be accorded deference and that there are federal documents and witnesses located in the District of Columbia that warrant this action to remain in this district. Plaintiff's Opposition to Defendant Eli Lilly and Company's Motion Pursuant to 28 U.S.C. § 1404(a) to Transfer to the Middle District of North Carolina ("Pl.'s Opp'n") at 7. Furthermore, plaintiff argues that his counsel resides in this district and therefore, if this action were transferred to North Carolina, he would be left without legal representation. Id. at 6.

II. Discussion

28 U.S.C. § 1404(a) 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 substantial deference, this deference is"greatly diminished when the activities have little, if any, connection with the chosen forum." Armco Steel Co. v. CSX Corp., 790 F. Supp. 311, 323 (D.D.C. 1991) (citation omitted); Greater Yellowstone Coalition v. Bosworth, 180 F. Supp. 2d 124,128 (D.D.C. 2001) (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 North Carolina. 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... [or] a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought." (emphasis added). Because most, if not all, of the"events or omissions giving rise to the claim occurred" in North Carolina, this action could have properly been brought in that jurisdiction.

Second, the Court must determine whether the private interests of the parties favors transfer of this action to North Carolina. 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) (citations omitted). The private considerations that may be considered include:

(1) the plaintiff's choice of forum, unless the balance of convenience is strongly in favor of the defendants; (2) the defendants' choice of forum; (3) whether the claim arose elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses of the plaintiff and defendant, but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and (6) the ease of access to sources of proof.

Id. (citations and footnotes omitted).

As to the first factor of the these private interests factors, plaintiff appears to blindly assume that because he chose the District of Columbia to file this action,"[h]is choice of venue should not be disturbed." Pl.'s Opp'n at 4. However, as stated previously, plaintiff's choice of forum is not accorded substantial deference where"the plaintiff's[] choice of forum has'no meaningful ties to the controversy and no particular interest in the parties or the subject matter.'... Moreover, the defendant's[] burden in a motion to transfer decreases when the plaintiff's[] choice of forum has no meaningful nexus to the controversy and the parties." Greater Yellowstone Coalition, 180 F. Supp. 2d at 128 (citations omitted).

Regarding the second private interest factor, the defendant's choice of forum, North Carolina, would appear to be the more appropriate forum for the litigation of this action, as most of the remaining private factors all favor the transfer of this matter to that jurisdiction. It is the location where plaintiff's claims arose (the third factor), where plaintiff resides and where the defendant desires to have this matter transferred (the fourth factor), and in conjunction with Indiana, is presumably where some of the evidence is located (the sixth factor). There being no contention that the witnesses will not be available in this district, the fifth factor is really of no significance. Thus, aside from plaintiff's choice of this forum, and the convenience of the witnesses, the remaining private interest factors the Court may consider favor the transfer of this action to North Carolina.

However, in an attempt to convince the Court that this action should remain in this district, plaintiff makes several arguments pertaining to the private interest factors, which he argues supports maintaining this action in this district. For example, plaintiff argues that he may want to depose and call as witnesses individuals who are located in the District of Columbia, such as employees of the Federal Drug Administration ("FDA"). While it may be more convenient for witnesses who work in this district to have their depositions taken and their testimony presented here, an important factor in determining whether to transfer an action is also the"availability of compulsory process to compel the attendance of [witnesses]..." Chung v. Chrysler Corp., 903 F. Supp. 160, 164 (D.D.C. 1995). While potential witnesses who work in this district will be outside the compulsory reach of a North Carolina district court, plaintiff does not allege that the non-party witnesses who work in this district will refuse to appear for depositions and at the trial if this matter is transferred to North Carolina, or that their testimony can not be secured by other means. Shapiro, Lifschitz & Schram, P.C. v. R.E. Hazard, Jr., 24 F. Supp. 2d 66, 72-73 (D.D.C. 1998) (denying defendant's motion to transfer where there was no allegation that non-party witnesses would refuse to appear at trial or that the"third-parties' testimony could not be obtained by other means, such as written or videotaped depositions.") (citation omitted). More importantly however, as defendant notes, the nucleus of plaintiff's claims is not that the FDA acted improperly in approving Zyprexa for human consumption; the FDA has not been named as a defendant and plaintiff does not allege in the complaint that the FDA was somehow negligent or at fault for its approval of the drug. Rather, the gravamen of plaintiff's lawsuit is that Lilly was negligent in placing the drug on the market, and failed to disclose to plaintiff and his treating physician the adverse consequences that could result from the use of Zyprexa. Thus, plaintiff has not demonstrated how FDA officials will be vital, or even important, to the proof of his strict liability/failure to warn, negligence, breach of express and implied warranties, and fraud claims against Lilly. See Pyrocap Int'l Corp. v. Ford Motor Co., No. Civ.A. 02-346, 2003 WL 1623898, at *4 (D.D.C. Mar. 31, 2003) (granting defendant's motion to transfer action from District of Columbia to the Eastern District of Michigan, despite plaintiff's argument that the government agencies who tested the product at issue resided in the District of Columbia, because"the gravamen of th[e] case involve[d] defendants' alleged knowledge and conduct, with which agencies headquartered in the District [were] not alleged to have any involvement whatsoever."). Cf. Chung, 903 F. Supp. at 164 (transferring action from District of Columbia to the Western District of New York where the"two most important witnesses" resided in that jurisdiction).

Interestingly, although plaintiff indicates that he will need the testimony of FDA employees, he nonetheless posits that there are no treating physicians that would be'necessary' for trial in this case.... Warren Williams, M.D., was [p]laintiff's Zyprexa prescribing physician, but Lilly has failed to provide any reasons why Dr. William's testimony is imperative for ...


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