Opinion
00 Civ. 4215 (SWK)
June 4, 2001
MEMORANDUM OPINION AND ORDER
Defendant, Pfizer, Inc. ("Pfizer") moves for an order transferring this action to the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1404 (a). For the following reasons, the motion is denied.
BACKGROUND
In September 1998 Bernard Brozoski ("the deceased") was prescribed Viagra for the treatment of erectile dysfunction and on January 11, 1999, suffered a fatal heart attack. The deceased's wife, plaintiff Margaret Brozoski ("Brozoski") commenced this personal injury action on April 3, 2000 alleging that Viagra was the cause of her husband's heart attack. Though Brozoski is presently a resident of California, both she and the deceased previously resided in Pennsylvania.
Since Viagra has received approval from the Federal Food and Drug Administration it has been manufactured and marketed in the United States by Pfizer. Pfizer is incorporated in Delaware and maintains its principal place of business in New York.
On March 19, 2001, Pfizer moved to transfer this case to the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1404 (a).
DISCUSSION
I. Standard of Law
Section 1404(a) provides that "[f]or the convenience of 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 burden is on the moving party, here Pfizer, to make a clear and convincing showing that "transfer will serve the interests of convenience and fairness." NBA Properties, Inc. v. Salvino, Inc., No 99 Civ. 11799, 2000 WL 323257, at *3 (S.D.N.Y. March 17, 2000); see also Motown Record Corp. v. Mary Jane Girls Inc., 660 F. Supp. 174, 175 (S.D.N.Y. 1987) (holding where the equities roughly balance plaintiff's choice of forum should not be disturbed).
Before demonstrating that "transfer will serve the interest of convenience and fairness", a defendant must establish that an action "could have been brought" in the transferee forum in the first instance.See Student Advantage, Inc. v. International Student Exchange Cards, Inc., No. 00 Civ. 1911, 2000 WL 1290585, at *6 (S.D.N.Y. Sept. 13, 2000). An action "could have been brought" in another forum if defendants would have been amenable to personal jurisdiction in the transferee forum at the time the action was commenced and venue properly lies there. See Bionx Implants, Inc. v. Biomet, Inc., No. 99 Civ. 740, 1999 WL 342306, at *2 (S.D.N Y May 27, 1999); Viacom Int'l, Inc. v. Melvin Simon Productions, Inc., 774 F. Supp. 858, 868 (S.D.N.Y. 1991). Here, it is undisputed that the action "could have been brought" in the Middle District of Pennsylvania. Therefore, the key inquiry in the instant action is whether defendants have demonstrated that "transfer will serve the interests of convenience and fairness." See Orb Factory, Ltd. v. Design Science Toys, Ltd., 6 F. Supp.2d 203, 208 (S.D.N.Y. 1998) (holding that where parties do not dispute that transferee forum "is a district where the action might have originally been brought" then "it is only the second inquiry that requires examination").
To determine whether a transfer will serve the interests of convenience and fairness, courts consider the following factors: (1) the convenience of witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the operative facts; (5) the availability of process to compel attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded the plaintiff's choice of forum; and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. See Constitution Reinsurance Corp. v. Stonewall Ins. Co., 872 F. Supp. 1247, 1250 (S.D.N.Y. 1995). There is no rigid formula for balancing the above factors and no single factor is determinative. See S S Machinery Corp. v. General Motors Corp., No. 93 Civ. 3237, 1994 WL 529867, at *7 (S.D.N.Y. Sept. 28, 1994). Instead, weighing the balance of the factors "is essentially an equitable task" left to the court's discretion. See First City National Bank v. Simmons, 878 F.2d 76, 80 (2d Cir. 1989)
II. Analysis
A. The Convenience of the Witnesses
The factor to be given the most weight when deciding whether to transfer a case is the convenience of the material witnesses. See Klien v. Sandoz Phamaceuticals Corp., No 95 Civ. 2150, 1996 WL 204495, at *2 (E.D.N.Y. April 16, 1996). Pfizer argues that their key witnesses include the doctors who treated the deceased in Pennsylvania. See Def.'s Memo of Law at 7. Specifically, Pfizer claims that the testimony of Dr. Hutson, the physician who prescribed the Viagra, is relevant because she will testify as to why she "considered Viagra to be an appropriate medication for Mr. Brozoski; the sources of information on which she relied in giving advice to Mr. Brozoski; the extent to which Mr. Brozoski was examined prior to being prescribed the drug; advice given to Mr. Brozoski regarding the use of the drug (including dosage instruction and the cardiac risks of sexual activity); the physician's own observations about Mr. Brozoski's experience with Viagra; and her opinion about the safety of the drug based on her experience with other patients." Affirmation of Maris Veidemanis, Esq. ("Veidemanis Aff.") at 2. Pfizer also lists several other Pennsylvania doctors and claims that their testimony about the deceased's "prior medical condition, other risk factors for heart attack or sudden death, and the fact and amount of damages" is crucial to causation and damages. See Defendant's Memorandum of Law ("Def.'s Memo.") at 8.
Brozoski, however, argues that the Pennsylvania doctors would not be key witnesses and claims, inter alia, that their testimony would be cumulative, that experts could be used to testify in detail concerning past medical history, and that pre-existing medical conditions could be identified though medical records. See Plaintiff's Memorandum of Law ("Pl.'s Memo") at 2, 7.
Brozoski also argues that "transfer of this action to Pennsylvania will result in great inconvenience to truly crucial witnesses, namely, plaintiff's exerts, Dr. George Mallis and Dr. Roger Grimson, both of whom live and work in New York." Pl.'s Memo. at 5. While it is undisputed that it would be more convenient for Brozoski's experts to testify in New York, "[i]t has been repeatedly held by courts that the convenience of expert witnesses is of little or no significance on a motion to transfer." Clesi v. Zinc Corp., No. 00 Civ. 6786, 2001 WL 225241, at *2 (S.D.N.Y. March 6, 2001) (holding the location of expert witnesses is irrelevant to a transfer decision).
The balance of convenience to non-party witnesses therefore weighs in favor of Pfizer, who has at least one material witness residing in the proposed transferee venue. Accordingly, this factor weighs in favor of transfer.
B. The Convenience and of the Parties
Neither party has established that it would be more convenient to litigate this case in Pennsylvania rather than New York. Accordingly, this factor is neutral.
C. The Locus of Operative Facts and Access to Sources of Proof
Pfizer claims that New York has only an attenuated link to the underlying events in this case because the most significant events regarding this litigation occurred in Pennsylvania as the deceased "obtained and ingested Viagra in Pennsylvania . . . and received all relevant medical treatment in Pennsylvania." Def.'s Memo at 10. Brozoski responds that "voluminous" documents relating to the New Drug Application and post-marketing adverse event reports are warehoused in Pfizer's New York headquarters. See Pl.'s Memo. at 8.
When determining the locus of operative facts for the purpose of deciding a motion to transfer, the site of the accident or injury is not necessarily dispositive as courts must also consider where the principal evidence is most easily obtained. See Klein v. Sandoz Pharmaceuticals Corp., 1996 WL 204495 at *2 (holding that the most relevant events and evidence in a personal injury action against a drug company were located not where the drug was ingested but where the drug was manufactured, distributed and marketed). Accordingly, because relevant events and evidence are located in both venues, this factor weighs against transfer.
D. The Forum's Familiarity with the Governing Law
Pfizer argues, and Brozoski does not dispute, that Pennsylvania law will apply, whether the matter remains in New York or is transferred to Pennsylvania. See Def.'s Memo. at 12. Assuming that Pfizer is correct, "[t]he fact that the law of another jurisdiction governs the outcome of the case is a factor accorded little weight on a motion to transfer."Vassallo v. Niedermeyer, 495 F. Supp. 757, 760 (S.D.N.Y. 1980). This is especially true where — as here — there are no complex questions of foreign law involved. See id. Accordingly, this factor weighs only slightly in favor of transfer.
E. The Weight Accorded the Plaintiff's Choice of Forum
"A plaintiff's choice of forum is generally entitled to considerable weight and should not be disturbed unless the balance of the factors is strongly in favor of the defendant." Berman v. Informix Corp., 30 F. Supp.2d 653, 659 (S.D.N.Y. 1998). However, a plaintiff's selection is "given less weight where . . . the plaintiff is not a resident of the forum and the cause of action is minimally connected with the forum."Eichenholtz v. Brennan, 677 F. Supp. 198, 201 (S.D.N.Y. 1988) (internal citations omitted)
Though Brozoski is not a resident of New York, there are at least minimal connections with this forum because, as discussed above, numerous important documents are located in Pfizer's New York headquarters. Accordingly, while Brozoski's choice of forum may not be entitled to "considerable weight", this factor still weighs against transfer.
F. Relative Means of the Parties
Where an apparent disparity exists between the parties, such as when an individual sues a large corporation, the court should consider the relative means of the parties. See Pall Corp. v. PTI Techs., Inc., 992 F. Supp. 196, 200 (E.D.N.Y. 1998). In this case, however, the argument against transfer is mitigated by the fact that Brozoski, a resident of California, would incur some inconvenience and cost whether the trial is held in this district or in Pennsylvania. Accordingly, this factor weighs either neutrally, or only slightly against transfer.
G. The Interest of Justice and Trial Efficiency
Pfizer argues that New York's interest in the case is negligible whereas Pennsylvania has a substantial "local interest" because this matter involves a drug prescribed by a Pennsylvania physician for a Pennsylvania resident. See Def.'s Memo at 19. Pfizer also claims that because the Middle District of Pennsylvania has a significantly less congested docket than the Southern District of New York, it would be more likely resolve the action quickly. See Def.'s Memo. at 12.
While community interest is a consideration in determining the proper forum, see Klein v. Sandoz, 1996 WL 204495, at *3, in this case, there exists no singular local interest that could not be found throughout the country because Viagra was marketed and prescribed nationally. In addition, Pfizer's assertion that the case would proceed more rapidly in a Pennsylvania court is too speculative to be controlling. See id. Accordingly, this factor is neutral.
H. Availability of Process to Compel Attendance of Unwilling Witnesses.
Pfizer argues that "it appears that all non-party witnesses are located in Pennsylvania, beyond this Court's subpoena power." Pl.'s Memo. at 8. Pfizer, however, fails to adduce any evidence that any of these persons is unwilling to testify on Pfizer's behalf at a trial of this action in New York. See Soto v. Bey Transportation Co., No. 95 Civ. 9329, 1997 WL 407247 (S.D.N.Y. July 21, 1997) (holding that when nothing has been presented to suggest that any of the non-party witnesses would be unwilling to testify a court's subpoena power should not enter a court's analysis). Further, even if witnesses declined to testify in New York, deposition testimony is a viable alternative. See Orb Factory, Ltd v. Design Science Toys, 6 F. Supp.2d 203, 209 (S.D.N Y 1998) (holding that transfer is unwarranted where deposition testimony is an available alternative to live testimony) Accordingly, this factor weighs only slightly in favor of transfer.
I. Outcome of Balancing Test
Having carefully balanced the material circumstances of the case, the Court finds an absence of powerful grounds favoring Pfizer's transfer motion. Accordingly, the Court finds that Pfizer has failed to carry its burden of demonstrating that transfer to the Middle District of Pennsylvania would be in the interests of convenience and fairness.
CONCLUSION
For the reasons set forth above, the motion to transfer venue from the Southern District of New York to the Middle District of Pennsylvania is denied.
SO ORDERED.