The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
In this case involving claims for negligence and product liability, among others, defendant Eli Lilly and Company ("Lilly") has moved to transfer the action to the United States District Court for the District of Massachusetts for the convenience of the parties and witnesses, in the interest of justice. Plaintiffs Suzanne and Joseph Robinson ("the Robinsons") oppose the transfer. Because Lilly has not demonstrated that the balance of private and public interests weighs in favor of transfer, the motion will be denied.
The complaint alleges that Suzanne Robinson ("Suzanne") was exposed to diethylstilbestrol ("DES") in utero, resulting in "uterine and cervical malformations, miscarriage, infertility, inability to carry a child to term, . . . medical expenses for care and treatment, . . . physical and mental pain," deprivation of "the family she desired" (Compl. ¶ 4), and loss of consortium for her husband, Joseph Robinson. Lilly, an Indiana corporation, allegedly failed to adequately "test" DES, failed "to heed and report adverse studies regarding the safety and efficacy of DES," failed to "warn" of its dangers, and "over-promot[ed]" the drug which was an unreasonably dangerous and defective drug when used for its advertised and intended purpose. (Id. ¶¶ 5, 7, 10.) According to the complaint, in order to obtain approval to market the drug, Lilly "met with and conspired with numerous pharmaceutical manufacturers" and "spear-headed industry-wide conferences . . . to seek approval of DES by Joint Submission, withholding from the Food and Drug Administration reports questioning the efficacy of DES and studies raising serious questions of safety. These meetings, conferences and agreements occurred in the District of Columbia." (Id. ¶ 2.)
Suzanne's mother lived in Massachusetts when she was pregnant with Suzanne. She purchased and ingested the DES in Massachusetts and still lives there. On pain of dismissal, the plaintiffs have guaranteed her availability at trial in the District of Columbia. The physician who prescribed DES to Suzanne's mother is deceased. Suzanne was born in Massachusetts and lived there a substantial part of her life. Two of Suzanne's former gynecologists, Doctors Kenler and Villanueva, also reside in Massachusetts, but these doctors treated her before she was aware of her alleged DES-related injuries.
The Robinsons now live in Connecticut. The two physicians who most recently have provided gynecological care and treatment to Suzanne and are most familiar with her injuries and symptoms, Doctors Sheets and Flaherty, reside in Connecticut. The Connecticut doctors may be within the subpoena power of the district court in Massachusetts,*fn1 but the plaintiffs have guaranteed that the doctors will appear at trial in the District of Columbia.
The likely expert witnesses for the parties are dispersed across several states along the eastern seaboard and in Kansas. Medical records for Suzanne and her mother, and documents relating to Lilly's conduct in lobbying, promoting and seeking FDA approval for DES are also dispersed in multiple locations around the country.
A court may transfer a case "for the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). The moving party has the burden of persuasion, and must show that transfer is "'justified by particular circumstances that render the transferor forum inappropriate by reference to the considerations specified in that statute.'" SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978) (quoting Starnes v. McGuire, 512 F.2d 918, 925 (1974)). A court has broad discretion to decide whether transfer from one jurisdiction to another is warranted for the convenience of the parties and witnesses. Id.
Any transfer under § 1404(a) is restricted to a venue where the action "might have been brought." See 28 U.S.C. § 1404(a). After determining that venue in the proposed transferee district would be proper, a court then "must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to [the] private concerns [of the parties], come under the heading of 'the interest of justice.'" Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 30 (1988). Because "it is perhaps impossible to develop any fixed general rules on when cases should be transferred[,] . . . the proper technique to be employed is a factually analytical, case-by-case determination of convenience and fairness." Savoy Indus., 587 F.2d at 1154 (internal quotation marks and citations omitted). Private interest factors to consider typically include things such as each party's choice of forum, where the claim arose, the convenience of the parties, the convenience of the witnesses, particularly if important witnesses may actually be unavailable to give live testimony in one of the trial districts, and the availability and ease of access to sources of proof. Montgomery v. STG Int'l, Inc., Civil Action No. 07-1240 (RWR), 2008 WL 25012, at *2 & n.5 (D.D.C. Jan. 30, 2008). Public interest factors may include the local interest in making local decisions about local controversies, the potential transferee court's familiarity with the applicable law, and the congestion of the transferee court compared to that of the transferor court. Akiachak Native Community v. Dep't of the Interior, 502 F. Supp. 2d 64, 67 (D.D.C. 2007).
I. VENUE IN MASSACHUSETTS
There is no dispute that this diversity jurisdiction action could have been brought in the District of Massachusetts. See 28 U.S.C. § 1391(a)(1) and (2) (venue may lie where the sole defendant resides, or where "a substantial part of the events or omissions giving rise to the claim occurred"); see also 28 U.S.C. 1391(c) (defining residency for purposes of venue).
A plaintiff's choice of forum, generally accorded substantial weight, is due less deference when it is not the plaintiff's home forum. Friends for All Children, Inc. v. Lockheed Aircraft Corp., 717 F.2d 602, 605 n.5 (D.C. Cir. 1983) (noting that deference to the plaintiff's choice is diminished when it is not the home forum) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981)). The District of ...