Edwardsville Nat. Bank and Trust Co. v. Marion Laboratories, Inc.

• Decision Date: 08 January 1987
• Docket Number: No. 86-1779,86-1779
• Citation: 808 F.2d 648
• Parties: EDWARDSVILLE NATIONAL BANK AND TRUST COMPANY, Administrator of the Estate of Chadwick Slone, Plaintiff-Appellant, v. MARION LABORATORIES, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 648

808 F.2d 648

EDWARDSVILLE NATIONAL BANK AND TRUST COMPANY, Administrator of the Estate of Chadwick Slone, Plaintiff-Appellant, v. MARION LABORATORIES, INC., et al., Defendants-Appellees.

No. 86-1779.

United States Court of Appeals Seventh Circuit.

Argued Dec. 16, 1986.

Decided Jan. 8, 1987.

Brian K. Carroll, Johnson, Carroll & Griffith, P.C., Evansville, Ind., for plaintiff-appellant.

Stephen Hensleigh Thomas, Robert Thomas Bodkin, Statham, McCray, Thomas & Krohn, Evansville, Ind., for defendants-appellees.

Before BAUER, Chief Judge, and CUMMINGS and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Walker and Sheila Slone live in Galatia, Illinois. On March 2, 1983, they took their young son Chadwick, who had an ear infection, to Kishor Bhatt, a physician in Evansville, Indiana. Dr. Bhatt prescribed Bactrim, a medication with a sulfa base. The prescription was filled by a pharmacy in Harrisburg, Illinois. Chadwick developed a rash, and his parents returned to Indiana on March 14 to visit Douglas Palmenter, Dr. Bhatt's partner. By then Chadwick had severe blisters, and Dr. Palmenter admitted Chadwick to St. Mary's Medical Center in Evansville. Palmenter, Bhatt, and a third physician decided to administer Silvadene salve, another medication with a sulfa base. Chadwick's blistering accelerated, and his skin later sloughed off (this is called Stevens-Johnson syndrome). By March 23 Chadwick was dead.

The administrator of Chadwick Slone's estate filed this diversity action in Illinois against St. Mary's Medical Center, its parent corporation, the three physicians, and the manufacturers of the two drugs. All contended that the district court lacked personal jurisdiction over them. None is a resident of Illinois, and the acts in question occurred in Indiana. The defendants asked the district court to dismiss the action or transfer it under 28 U.S.C. Sec. 1404(a) to the Southern District of Indiana, which they asserted is a more convenient forum. Without acting on the motions to dismiss, the district court in Illinois transferred the case under Sec. 1404(a), which permits transfers "in the interest of justice" to any district in which the suit could have been filed.

The district court in Indiana then concluded that the case should have been transferred under 28 U.S.C. Sec. 1406(a), which allows a court to dismiss or transfer a case filed in the wrong venue. Section 1404(a) was the wrong statute, the Indiana court thought, because the court in Illinois lacked "subject matter jurisdiction over all the parties"--by which we assume the court must have meant personal jurisdiction. But see Cote v. Wadel, 796 F.2d 981, 984-85 (7th Cir.1986) (Sec. 1404(a) may be used to transfer a case even though the transferor court does not have personal jurisdiction over all defendants) (dictum). A transfer under Sec. 1404(a) changes venue but not law; the transferee court must apply the transferor's choice-of-law rules. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Coffey v. Van Dorn Iron Works, 796 F.2d 217 (7th Cir.1986). The district court in Indiana believed that a transfer under Sec. 1406(a) should be treated as the equivalent of a dismissal in the original forum, followed by a refiling in the transferee state. This meant that Indiana choice-of-law rules would be applied. (The parties apparently agree that a Sec. 1406(a) transfer would have this effect, and we therefore do not explore the matter.) Indiana follows the lex locus delicti approach in tort cases, see Snow v. Byrne, 449 N.E.2d 296 (Ind.App.1983); Maroon v. Department of Mental Health, 411 N.E.2d 404 (Ind.App.1980), bringing Indiana's substantive law into play. Indiana Code Sec. 34-1-1-8 requires that a wrongful death action be brought by a child's parents. See also Childs v. Rayburn, 169 Ind.App. 147, 346 N.E.2d 655, 660 (1976). Indiana Code Sec. 16-9.5-9-2 requires malpractice claims to be submitted to a medical review panel before filing suit. The court therefore dismissed the complaint without prejudice against the physicians and hospital, allowing the Slones to submit their claim to the review panel. It gave the administrator leave to amend the complaint to name the Slones as the parties in the products liability claim against the manufacturers of the drugs.

We have an interlocutory appeal from this order under 28 U.S.C. Sec. 1292(b). The district court certified the order for appeal under this section, and a motions panel of this court accepted the case. Plaintiff asserted that the case presents an important question about a transferee court's power to change the statutory ground on which a case has been transferred. According to Chadwick's administrator, the transferee court is forbidden by the law of the case to disagree with the transferor court's decision, a position that has some support. See In re Cragar Industries, Inc., 706 F.2d 503, 505 (5th Cir.1983); Hayman Cash Register Co. v. Sarokin, 669 F.2d 162 (3d Cir.1982). But see Christianson v. Colt Industries Operating Corp., 798 F.2d 1051 (7th Cir.1986) (when a transfer would require a court to decide a case over which it lacks jurisdiction, it may refuse to accept the case). If the transferee court must accept the stated ground of transfer, then Van Dusen compels the transferee court to apply the choice-of-law rules of the transferor forum. The district court in Indiana apparently believed that its power to choose a new ground of transfer presented a significant question. It quoted the language of Sec. 1292(b) and continued:

IT IS FURTHER ORDERED that the 1292(b) certification relates only to Van Dusen v. Bairack [sic], 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), and its relation to the issue at bar.

The question whether a transferee court may decide for itself on what ground the case should have been transferred is important only when the choice-of-law rules of the two forum states select different substantive laws. The defendants say that the question is not properly presented, because Illinois choice-of-law rules would select Indiana's substantive law. The outcome therefore is the same whether the transfer is under Sec. 1404(a) or Sec. 1406(a). The district court's attempt to limit the questions open on appeal does not prevent us from addressing this contention. The statute refers to certifying an "order" for interlocutory appeal. It is not a method of certifying questions. The question is the reason for the interlocutory appeal, but the thing under review is the order. See Nuclear Engineering Co. v. Scott, 660 F.2d 241, 246 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982); CAB v. Tour Travel Enterprises, Inc., 605 F.2d 998, 1003 n. 12 (7th Cir.1979). See also 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure Sec. 3929 at 144-45 (1977). Were things otherwise, there would be substantial risk of producing an advisory opinion. If nothing turns on the answer to the question, it ought not be answered; on the other hand, once the interlocutory appeal has been accepted and the case fully briefed, it may be possible to decide the validity of the order without regard to the question that prompted the appeal. This is such a case. Nothing turns on the answer to the question, which we therefore do not give. The order is correct for a different reason, one available as a basis of affirmance. See Massachusetts Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479, 96 S.Ct. 2158, 48 L.Ed.2d 784 (1976).

The district court selected Indiana law (and Sec. 1406(a)) on the basis of allegations in plaintiff's complaint. The complaint and other submissions by plaintiff--the basis of all facts in this opinion--demonstrate that Indiana's law applies. Every event of interest to this case happened in Indiana. Dr. Bhatt diagnosed Chadwick's ear infection and prescribed Bactrim there. Dr. Palmenter examined the rash and admitted Chadwick to a hospital in Indiana, where two Indiana physicians and one from Tennessee decided to administer Silvadene salve. Chadwick stayed in Indiana until his death. If the diagnosis and treatment were negligent, the wrongs occurred in Indiana. The filling of the prescription for Bactrim by an Illinois pharmacy was not significant, and the pharmacy is not a defendant. If the drugs were improperly designed, manufactured, or packaged, those errors also occurred outside Illinois. The only acts that touched Illinois are the phone calls between Chadwick's parents and the physicians in Indiana. (The...