Jordan v. Pfizer, Inc.
| Decision Date | 17 July 2007 |
| Docket Number | Index No. 119165-2006,Index No. 102562-2007,Index No. 119163-2006,Index No. 102561-2007,Index No. 119164-2006 |
| Citation | 2007 NY Slip Op 34495 (U) |
| Parties | ZACHARY B. JORDAN, Plaintiff, v. PFIZER, INC., Defendant. DAVID J. IRVINE and BARBARA F. IRVINE, h/w, Plaintiffs, v. PFIZER, INC., Defendant. RALPH A. KOHR, III and ARLENE S. KOHR, h/w, Plaintiffs, v. PFIZER, INC., Defendant. GARY P. SCHNEIDER and PATTI SCHNEIDER, h/w, Plaintiffs, v. PFIZER, INC., Defendant. MICHAEL G. JACKSON and CINDY T. JACKSON, h/w, Plaintiffs, v. PFIZER, INC., Defendant. |
| Court | New York Supreme Court |
MEMORANDUM DECISION1
Viagra: A controversial male virility enhancer and treatment of erectile dysfunction, has had a tumultuous existence since its inception to date. These five actions continue the controversy over one of its alleged side effects: ischemic optic neuropathy, a degenerative eye disease that leads to a loss of vision.
Each of the five male plaintiffs in the captions noted above reside in states outside of New York, and allege that he developed and was diagnosed with having a form of ischemic optic neuropathy as a result of taking Viagra. Defendant, Pfizer, Inc. ("defendant") now seeks to dismiss each of the complaints filed by the plaintiffs on the ground of forum non conveniens.
Defendant, Pfizer, Inc., ("defendant") is the manufacturer of Viagra. Viagra was developed in England, and pre-clinical testing of the drug occurred in both England and France. The clinical trials were conducted by the defendant's research facility in Connecticut, where proposed warnings and contraindications, as well the New Drug Application for Viagra were prepared. While defendant has offices and plants throughout the U.S. and the world, defendant's principal place of business is located in New York.
Zachary B. Jordan is a resident of Arizona where he was prescribed Viagra by Drs. Ryan Lawrence and Alfonso Ruggiero, both with practices in Arizona. Jordan continued use of the drug while on vacation in San Francisco. He sought treatment, consultation and an examination for his eye condition by Dr. Lawrence and Drs. Jeffery Gitt, Gary Mackman, J. Michael Powers, Anthony M. DeBeus, Michael Epstein, Pamela Williams, Daniel Lucas, and Dan Leber, all of whom practice in Arizona, with the exception of Dr. Leber who no longer has an office practice.
David Irvine is a resident of Vancouver, Washington, a "suburb" of Portland, Oregon. He was prescribed Viagra by Dr. Tom Harbison in Oregon and obtained the prescription from an Oregon pharmacy. He alleges that he took Viagra, usually at home, from approximately February 4, 2002 until June 1, 2005. He was treated for his eye condition by Drs. Steve Wagner and Lauer Andreas, both of Oregon.
Ralph A. Kohr, III, is a resident of Pennsylvania. He was provided clearance to use Viagra by Dr. Mazhar Khan and given samples and prescribed Viagra by Dr. Anne C. Kanter, both with practices located in Pennsylvania. He sought treatment for his eye condition by Drs. Jane Fortay, Spage M. Yee, Eric L. Sigman, and Francis Brescia, who each maintain practices in Pennsylvania.
Gary Schneider is a resident of Brillion, Wisconsin. He was prescribed Viagra by Dr. James R. Burns, located in Wisconsin and his prescription was filled by a Wisconsin pharmacy. He alleges that he took Viagra "[a]t home" from approximately January 29, 2003 until July 2005. He was treated for his eye condition by Drs. Wesley R. Meyer and John P. Rosculet, both of Wisconsin.
Michael G. Jackson is a resident of Muncie, Indiana. He was prescribed Viagra by Dr.Charles Dinwiddie, Jr. in Indiana, where his prescription was also filled. He alleges that he took Viagra "[u]sually at home and at times while on vacation" from approximately November 28, 2000 until June 22, 2005. His loss of vision began while on vacation in the Bahamas. He was treated for his eye condition by doctors at the Government Clinic in Abaco, Bahama, by Drs. Iley Neely and W. Scott Thompson, both of Florida, and by Drs. Ajit K. Tiwari and Jeffrey S. Rapkin, both of Indiana.
In support of its motion to dismiss, defendant contends that the circumstances of this case point to trial in plaintiffs' respective home states.
Defendant argues that private interests strongly support dismissal of these actions. All plaintiffs have at all relevant times been residents of their respective home states. They were each prescribed Viagra and filled their prescriptions in those states. Further, plaintiffs each ingested Viagra primarily in their respective home states, essentially where they received medical treatment for the injuries claimed.
Further, all the physicians who treated the plaintiffs are key witnesses in this case and are all located outside of New York, placing them outside the reach of New York's compulsory process. Defendant argues that because the testimony of these physicians will be necessary for deciding liability as well as damages, its ability to present its defenses will be prejudiced if these physicians cannot be required to testify at trial.
According to defendant, it is unlikely that out-of-state doctors would voluntarily come to New York to testify at trial; however, in the event that they did, the patients of such physicians would lose the services of their personal physicians during that time. Defendant also argues thatplaintiffs' home states are more convenient for plaintiffs themselves. Also, since the key events relating to the development of Viagra took place outside New York, many of defendant's witnesses would not be in the present forum even if the case were tried in New York. Finally, to avoid any prejudice to the plaintiffs in the event these cases are dismissed and re-filed in the plaintiffs' respective home states, the defendant will stipulate that (1) the defendant will make any New York employee who could have been subpoenaed reasonably available for trial and (2) the statute of limitations will be deemed to have been tolled during the time that this action was pending in New York.
Additionally, defendant argues that public interests strongly support dismissal. First, New York has no substantial interest in undertaking the public burdens of trying cases by out-of-state residents based on injuries sustained out-of-state. There is a presumption that personal injury actions such as these should be tried in a forum where the alleged injuries occurred. The underlying events in these cases occurred primarily in foreign jurisdictions. There is no reason why a New York court and jury should have to hear claims of out-of-state residents involving medical treatment and ingestion of a drug outside New York.
And, defendant argues that plaintiffs' home states have greater public interests in hearing plaintiffs' claims so that these localized controversies can be decided locally. These cases involve injuries to plaintiffs in their respective home states, which require the expenditure of resources in those locations. They also involve the prescription of Viagra by doctors in those jurisdictions. Those courts, respectively, have strong interests in evaluating the risks and benefits of Viagra under the facts of each case. Also, the availability of a suitable alternate forum is not an issue because the plaintiffs could assert the same claims in their respective home states thatthey assert here.
Finally, plaintiffs' claims will likely be governed by the laws of their respective home states. Defendant argues that the likelihood that non-New York law will apply is another public interest factor favoring dismissal.
In opposition, plaintiffs contend that the defendant's motion is premature and unsupported by evidence, and that discovery is needed in order to determine the merits of the motion.
Plaintiffs argue that defendant will not be prejudiced by having to litigate this case in New York and there is no prejudicial inconvenience resulting from the location of plaintiffs' treating physicians. Courts recognize videotaped depositions as a well-established method of presenting testimony from a treating physician. In any event, this factor does not override plaintiff's choice of forum, especially since defendant failed to provide any basis to support its assertion that plaintiffs' physicians would not testify in New York. Furthermore, plaintiffs also argue that their treating physicians are not key witnesses. This case will focus on the design, manufacture, and labeling of Viagra. Thus, the testimony of the treating physicians would likely be uncontested and is well suited for presentation by videotape deposition. In addition, since New York is the home to both the defendant and defendant's counsel, discovery of defendant's documents and the deposition of its witnesses are easily accommodated.
Plaintiffs further contend that New York courts will not be burdened, because one party is a citizen of New York and the claims are ordinary product liability claims that are routinely handled by New York courts. In addition, New York courts, which have sophisticated case management procedures for mass tort litigations, have previously adjudicated mass tort caseswhere the plaintiffs were out-of-state citizens.
Furthermore, defendant failed to demonstrate that no substantial nexus exists between New York and the claims in this case. Although the development and pre-clinical testing of Viagra occurred outside of New York, personnel at defendant's New York headquarters might have overseen the development process and made key decisions regarding that process, about which defendant's motion is silent.
Finally, New York courts are fully capable of applying foreign law.
In reply, defendant argues that plaintiffs' misstate the legal standard, which requires that the non-resident plaintiffs demonstrate special circumstances which warrant the retention of the action in New York.
Moreover, defendant...
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