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Estate of Matthews v. Novartis Pharms. Corp.

United States District Court, D. Columbia.

November 26, 2014

Estate of MARY MATTHEWS AND JAMES MATTHEWS, Plaintiff
v.
NOVARTIS PHARMACEUTICALS CORPORATION, Defendant

For MARY MATTHEWS, JAMES MATTHEWS, Plaintiffs: John Julian Vecchione, LEAD ATTORNEY, VALAD & VECCHIONE, PLLC, Fairfax, VA.

For NOVARTIS PHARMACEUTICALS CORPORATION, Defendant: Katharine R. Latimer, LEAD ATTORNEY, HOLLINGSWORTH LLP, Washington, DC.

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MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

This suit alleging that Mary Matthews suffered injuries as a result of her treatment with the drug Zometa marketed and distributed by Novartis Pharmaceuticals Corporation, is before this Court on remand from Multi-District Litigation proceedings in the Middle District of Tennessee. Upon remand, the parties were directed to show cause why this case should not be transferred to the United States District Court in the district where Plaintiff resides. The parties agree that the case should be transferred out of the United States District Court for the District of Columbia, but disagree on the Court to which the case should be transferred: Plaintiff argues for the United States District Court for the Middle District of Florida, while Defendant argues for the United States District Court for the Southern District of Georgia. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record for purposes of this Motion, the Court finds that private and public interest considerations outweigh the deference given to Plaintiff's chosen forum. Accordingly, the Court GRANTS Defendant's Motion to Transfer to the United States District Court for the Southern District of Georgia and DENIES Plaintiff's request to transfer this case to the United States District Court for the Middle District of Florida.

I. BACKGROUND

A. Factual Background

The following facts are not disputed by the parties. Mary Matthews began treatment with Zometa while she was living in Florida, within the jurisdiction of the United States District Court for the Middle District of Florida. Def.'s Mot., Ex. 3 (Dr. Schreiber Depo.), at 6-7. On July 3, 2002, in Florida, Dr. Fred Schreiber first prescribed Zometa to Ms. Mathews. Id. at 7. Dr. Schreiber treated Ms. Matthews with Zometa through November 2003. Id. at 8. Approximately a year after beginning treatment with Zometa, Ms. Matthews and her husband moved to Axson, Georgia, within the jurisdiction of the United States District Court for the Southern District of Georgia. Id., Ex. 1 (Pl.'s Fact Sheet), at 5. While in Georgia, Ms. Matthews was treated by Drs. Marco Ayulo and Asit Jha with Zometa and a generic version of Aredia from November 2003 through May 2006. Id., Ex. 4 (Ayulo Depo.) at 7-10; id., Ex. 5 (Jha Depo.), at 7-10. Dr. Ayulo discontinued Ms. Matthews' use of Zometa in August 2005, but placed Ms. Matthews back on the drug during his last visit with her in May 2006. Id. at 9.

In June 2006, while still living in Georgia, Ms. Mathews was diagnosed by Dr. Fernando Alvarado with osteonecrosis of the jaw (" ONJ" ), or " bone death resulting from poor blood supply to an area of the

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bone." Compl. ¶ 1; Def.'s Mot., Ex. 6 (Alvarado Depo.), at 8-9. Dr. Alvarado treated Ms. Matthews for her ONJ from June 2006 to July 2007. Def.'s Mot., Ex. 6 (Alvarado Depo.), at 7-10. Ms. Matthews was also treated for her ONJ by Dr. Steve Wilkerson in Douglas, Georgia in June of 2006. Id., Ex. 7 (Wilkerson Depo.), at 10. In total, Ms. Matthews was treated with the drugs at issue for over four years. For more than three of those years, Ms. Matthews was receiving her treatment in Georgia. Ms. and Mr. Matthews, who lived in Georgia at the time they filed this suit in 2007, have since passed away. See Pl.'s Opp'n at 2. Plaintiffs' daughter, April McMullins, is executor of the estates of Ms. and Mr. Mathews and has been substituted as Plaintiff in this action. Id. Ms. McMullins lives in Minneola, Florida, which is located in the Middle District of Florida. Id.

B. Procedural Background

In February 2007, Ms. and Mr. Matthews filed suit in the District of Columbia against Defendant Novartis Pharmaceuticals Corporation for strict liability, negligent manufacture, failure to warn, breach of express warranty, breach of implied warranty, and (for Mr. Matthews) loss of consortium. Compl. ¶ 16-42. The Complaint alleges that Aredia and Zometa cause ONJ and that Ms. Matthews' ONJ was caused by her infusions of Zometa. Id. ¶ 1. Although the suit was brought in the District Court for the District of Columbia, the case was transferred in April 2007 to the Multi-District Litigation panel, which sent the case to the United States District Court for the Middle District of Tennessee to be considered along with other Aredia/Zometa cases. See Letter from MDL Panel, ECF No. [3].

In December 2013, the case was remanded to this Court. See Conditional Transfer Order, ECF No. [5]. After this Court issued a Show Cause Order requiring the parties to show why the case should not be transferred to the district where Plaintiff resides, the parties each responded that the case should be transferred out of the District Court for the District of Columbia, but disagreed as to the court to which the case should be transferred. Plaintiff advocates a transfer to the United States District Court for the Middle District of Florida, while Defendant advocates a transfer to the United States District Court for the Southern District of Georgia.

The Court reviewed the parties' responses to the Show Cause Order, but found that neither party presented sufficiently supported facts for the Court to determine the appropriate district to which this matter should be transferred. See Order (April 10, 2014), ECF No. [13], at 1-2. In its Order, the Court noted that " when evaluating motions to transfer, courts should only consider undisputed facts supported by affidavits, depositions, stipulations, or other relevant documents." Id. at 1-2 (citing Bederson v. United States, 756 F.Supp.2d 38, 50 n. 6 (D.D.C. 2010) (citing Midwest Precision Servs. Inc. v. PTM Indus. Corp., 574 F.Supp. 657, 659 (N.D.Ill. 1983))). Consequently, the Court ordered Defendant to file a Motion to Transfer with fully supported facts addressing, among other things, the location(s) where plaintiffs and their representatives live(d) at all relevant times, including presently; the location(s) where Ms. Matthews was treated with Aredia and Zometa and the length of time she received treatment at the location(s); the location(s) where Plaintiff was diagnosed and treated for jaw osteonecrosis and the length of time she received treatment at the location(s); the location and identity of witnesses in this case, particularly treating doctors; and the location of relevant documents in this case. Order (April 10, 2014), at 2. This Court further ordered

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Plaintiff to file a Response to Defendant's Motion, responding to Defendant's arguments and providing fully supported facts addressing, among other things, the factors outlined above as they pertain to Plaintiff's argument regarding the proper court to which this case should be transferred. Id. Defendant was permitted to file a Reply. Id. at 2-3. Having received all of the parties' briefing, the issue now ripe and before the Court is whether the " convenience of parties and witnesses, in the interest of justice" are in favor of transferring venue to the United States District Court for the Southern District of Georgia or the United States District Court for the Middle District of Florida. 28 U.S.C. § 1404(a).

II. LEGAL STANDARD

Both parties seek to have this Court transfer the venue of this case pursuant to 28 U.S.C. § 1404(a). Pursuant to 28 U.S.C. § 1404(a), a court may transfer a case to any other district where it might have been brought " [f]or the convenience of parties and witnesses, in the interests of justice." Determining whether transfer is appropriate pursuant to 28 U.S.C. § 1404(a) calls for a two-part inquiry. The Court must first ask whether the transferee forum is one where the action " might have been brought" originally. Id. 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. . . ...


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