Dean v. Eli Lilly & Co., Civil Action No. 06-1375 (EGS).

• Decision Date: 01 June 2007
• Docket Number: Civil Action No. 06-1375 (EGS).
• Citation: Dean v. Eli Lilly & Co., 515 F.Supp.2d 18 (D. D.C. 2007)
• Parties: Lisa M. DEAN, et al., Plaintiffs, v. ELI LILLY & CO., Defendant.
• Court: U.S. District Court — District of Columbia

515 F.Supp.2d 18

Lisa M. DEAN, et al., Plaintiffs, v. ELI LILLY & CO., Defendant.

Civil Action No. 06-1375 (EGS).

United States District Court, District of Columbia.

June 1, 2007.

Aaron M. Levine, Brandon J. Levine, Renee Lynne Robinson-Meyer, Steven Jay Lewis, Aaron M. Levine & Associates, P.A., Washington, DC, for Plaintiffs.

Emily J. Laird, Michelle R. Mangrum, John Chadwick Coots, Shook Hardy & Bacon, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Plaintiffs Lisa & Jeffrey Dean and Lynn & James Backner bring this products liability action against defendant Eli Lilly and Company ("Eli Lilly"), seeking damages allegedly caused by Eli Lilly's product. Pending before the Court is defendant's Motion to Transfer Venue to the District of Massachusetts. Upon consideration of the defendant's motion, the plaintiffs' response, and the reply thereto, the Court GRANTS defendant's Motion to Transfer Venue. For the following reasons, this case shall be transferred to the United States District Court for the District of Massachusetts.

I. BACKGROUND

Lisa M. Dean and Lynn Alison Backner, sisters, filed this products liability action in the Superior Court for the District of Columbia, alleging injury stemming from their mother's consumption of DES, a prescription drug manufactured by Eli Lilly, during pregnancy with the sisters. The sisters' husbands joined as co-plaintiffs. The Deans currently reside in New Hampshire, and the Backners currently reside in Massachusetts. The sisters' mother received the prescription for DES from her physician in Massachusetts and then purchased and ingested the DES in Massachusetts during her pregnancies.

Eli Lilly, an Indiana corporation, removed the action to this Court on August 2, 2006, and the case was later referred to Magistrate Judge Kay for mediation. On December 19, 2006, Eli Lilly filed a motion to transfer the case to the United States District Court for the District of Massachusetts, arguing that this case has no connection to the District of Columbia.

II. LEGAL STANDARD FOR TRANSFER UNDER 28 U.S.C. § 1404(a)

The federal venue transfer statute states that [f]or the convenience of the 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." 28 U.S.C. § 1404(a). The moving party bears the burden of showing that transfer under this statute is proper. Shenandoah Assocs. Ltd. P'ship v. Tirana, 182 F.Supp.2d 14, 25 (D.D.C.2001). The statute provides for a flexible and individualized analysis that "place[s] discretion in the district court to adjudicate motions for transfer according to an `individualized, case-by-case consideration of convenience and fairness.'" Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)).

To show that transfer would be proper, the defendant must first establish that the plaintiff could have brought the action in the proposed transferee district. Lentz v. Eli Lilly & Co., 464 F.Supp.2d 35, 36 (D.D.C.2006) (citing DeLoach v. Philip Morris Co., 132 F.Supp.2d 22, 24 (D.D.C. 2000)). Next, the defendant must show that private — and public-interest factors weigh in favor of transfer. Lentz, 464 F.Supp.2d at 37.

III. THE CASE COULD HAVE BEEN BROUGHT IN THE DISTRICT OF MASSACHUSETTS

Before the Court can transfer a case to another venue, it must first determine that the action could have been brought in the proposed transferee district. Id. at 36 (citing DeLoach, 132 F.Supp.2d at 24). The defendant has shown — and the plaintiffs do not dispute — that this action could have originally been filed in the United States District Court for the District of Massachusetts because subject matter jurisdiction, personal jurisdiction, and venue would be proper in that forum. Subject matter jurisdiction is proper based on diversity of citizenship under 28 U.S.C. § 1332; the plaintiffs are domiciled in New Hampshire and Massachusetts, the defendant is domiciled in Indiana, and the amount in controversy exceeds $75,000. Personal jurisdiction would be proper based on Massachusetts' long-arm statute, which reaches defendants who cause tortious injury in Massachusetts. See Mass. Gen. Laws Ann. ch. 223A, § 3. Finally, venue would properly lie in the District of Massachusetts because a substantial part of the events giving rise to the claim (i.e., the prescription, purchase, ingestion, and exposure) occurred in that district. See 28 U.S.C. § 1391(a). As a result, because the plaintiffs could have properly brought their claim against Eli Lilly in the District of Massachusetts, Eli Lilly has met the threshold showing required for transfer under § 1404(a).

IV. THE BALANCE OF PRIVATE AND PUBLIC INTERESTS FAVORS TRANSFER

Once the Court has determined that the action could have properly been brought in the proposed transferee district, the Court then must weigh several private — and public-interest factors to determine if considerations of convenience and interests of justice support transfer. Lentz, 464 F.Supp.2d at 36-37. In the case at bar, these factors weigh in favor of transfer.

A. Private-Interest Factors

The Court considers several private-interest factors when deciding a motion to transfer, including: (1) the plaintiffs forum choice, (2) the defendant's forum choice, (3) where the claim arose, (4) the convenience of the parties, (5) the convenience of the witnesses to the extent that they may be unavailable for trial in one of the fora, and (6) the ease of access to sources of proof. Id. at 37.

While courts usually defer to a plaintiffs choice of forum with regard to the first factor, the court will afford "substantially less deference" to that choice when the plaintiff does not reside in the chosen forum or when the claim lacks a substantial connection to the chosen forum. Devaughn v. Inphonic, Inc., 403 F.Supp.2d 68, 72 (D.D.C.2005) (quoting DeLoach, 132 F.Supp.2d at 24). Deference to the plaintiffs forum choice diminishes further when the defendant seeks transfer to a forum where the plaintiff resides. Lentz, 464 F.Supp.2d at 38 (citing Citizen Advocates for Responsible Expansion, Inc. v. Dole, 561 F.Supp. 1238, 1239 (D.D.C.1983)).

In the case at bar, none of the plaintiffs reside in the District of Columbia, and this Court is not convinced that Eli Lilly's "original industry-wide promotion of DES" and "army of lobbyists and salespeople" in the District of Columbia, Pls.' Opp'n at 7, is sufficient to establish any nexus with the plaintiffs' claims. Other courts have previously rejected these same contacts as a sufficient basis to afford deference to the plaintiffs forum choice. See, e.g., Lentz, 464 F.Supp.2d at 37. Furthermore, the plaintiffs' contention that these contacts "will certainly be an issue" in the event of a trial, Pls.' Opp'n at 7, is conclusory and fails to show how Eli Lilly's lobbying, sales, and general promotion of DES within the District of Columbia are substantially connected to these plaintiffs' claims. While Eli Lilly's District of Columbia activities may be related to DES and the subject matter of the action generally, they are not related to the specific claims, defenses, or facts of this particular case and therefore lack the substantial connection required to afford deference to the plaintiffs' forum choice.

On the other hand, Eli Lilly's Massachusetts activities are substantially connected to the plaintiffs' specific claims because the issues of whether the plaintiffs were exposed to Eli Lilly's product, the extent of the plaintiffs' injuries, and causation all center around Eli Lilly's sale of DES in Massachusetts. Because Eli Lilly is seeking transfer from a district where no plaintiffs reside to a district where at least some plaintiffs reside and because there is no substantial connection between the plaintiffs' claims and the District of Columbia, the plaintiffs' forum choice warrants little deference.

The second factor that this Court considers is the defendant's forum choice. Eli Lilly seeks transfer to the District of Massachusetts because of the strong nexus between that district and the facts of this case. This Court finds the defendant's reason for seeking transfer to be legitimate since the operative facts in this case have a strong link to the District of Massachusetts and no substantial link to the District of Columbia.

Next, the Court considers where the claims arose. In this case, the plaintiffs' claims arose in Massachusetts because the alleged prescription, purchase, and exposure to DES occurred in that state. Additionally, the discovery of the plaintiffs' injuries, the diagnoses, and the treatments all presumably took place at least in part in Massachusetts since all of the treating physicians are either in Massachusetts or nearby in neighboring states. As a result, this Court finds that this factor weighs in favor of transfer.

As to the fourth factor, the convenience of the parties will be optimized by transferring the case to Massachusetts. While Eli Lilly's representatives presumably will have to fly from the company's headquarters in Indiana regardless of whether the case is transferred, the plaintiffs will have to drive only a short distance if the case is transferred to the District of Massachusetts. However, because the plaintiffs would rather litigate in the District of Columbia rather than in the District of Massachusetts, they appear willing to forego the convenience of a geographically nearby forum. Therefore, this factor is neutral at best or slightly favors transfer.¹

The Court next considers whether the convenience of the witnesses will be optimized by transferring the case to Massachusetts. This factor is "the most critical factor to examine" under a § 1404(a) motion to transfer. Chung v. Chrysler Corp., 903 F.Supp....