Opinion
107932/06.
Decided June 13, 2008.
Mark J. Krum, Esq., Attorney for Plaintiff.
Skadden Arps Slate Meagher Flom LLP, By: Mark S. Cheffo, Esq.
Defendant, Pfizer, Inc. ("defendant"), moves to dismiss the complaint in this action on the grounds of forum non conveniens. Pfizer manufactures the cholesterol-lowering drug Lipitor.
Plaintiff, Charles M. Wilson ("plaintiff"), is a resident of Sandy Springs, Georgia, and was prescribed Lipitor in 2002 by Dr. David Dalrymple, who practices in Georgia. With the exception of times that plaintiff was outside of Georgia on vacation, plaintiff took Lipitor exclusively in Georgia. Plaintiff claims that he experienced symptoms of peripheral neuropathy, then memory loss, disorientation, impairment in executive functioning, and depression after he started taking Lipitor. Plaintiff stopped taking Lipitor at the advice of Dr. Leslie Kelman, a neurologist, in 2003. Dr. Kelman and other physicians who have treated the plaintiff are also located in Georgia. They include: Dr. Keith Sanders, a neurologist; Dr. Mark McBride, an orthopedic surgeon; Dr. Mario Ravry, plaintiff's current internist; and Dr. Thomas Dopson, an orthopedic surgeon. Two non-Georgia physicians also examined the plaintiff, in the states of Ohio and Texas. Plaintiff has also identified other witnesses, friends and members of his family, all of whom reside in Georgia.
Lipitor was invented and developed in Ann Arbor, Michigan. Pfizer's Ann Arbor office had the primary responsibility for preparing the Investigational New Drug Application and New Drug Application for Lipitor, including the proposed labeling and warnings, and for communicating with the FDA regarding the applications. While defendant has offices and plants throughout the world, defendant's principal place of business is located in New York.
In support of its motion to dismiss, defendant contends that plaintiff's home state of Georgia is a more appropriate forum than New York. While defendant's business headquarters are located in New York, defendant asserts that the events occurring in Georgia leading up to the action do not create a substantial nexus to New York. The plaintiff was prescribed Lipitor in Georgia and filled the prescription in Georgia. The plaintiff ingested Lipitor primarily in Georgia and received most of his medical treatment in Georgia for the injuries claimed to be caused by the Lipitor regimen.
The physicians who treated the plaintiff are key witnesses in this case and are located outside of New York, placing them outside of the reach of New York's subpoena power. Defendant argues that because these physicians' testimony is necessary for determining liability, its ability to present its defenses will be prejudiced if these physicians cannot be required to testify live at trial. Defendant contends it is unlikely that out-of-state doctors would voluntarily come to New York to testify at trial and, if they did, their patients would lose their services during that time. Defendant also argues that Georgia is a more convenient forum for the plaintiff himself, as plaintiff has testified that he experiences limited mobility and has difficulty getting around. In addition, to avoid any prejudice to the plaintiff, in the event that the case is dismissed and re-filed in the plaintiff's home state, the defendant consents to jurisdiction in Georgia and stipulates that Pfizer will make any New York employee who could have been subpoenaed in New York reasonably available for trial in Georgia, that all discovery taken to date in New York may be used in a Georgia action, and that the statute of limitations will be deemed to have been tolled during the time that the action was pending in New York (to the extent it had not already expired at the time this action was filed).
Defendant also cites public interests as supporting dismissal. Specifically, since the alleged injury occurred in Georgia, a New York court and jury should not be burdened with trying a case brought by an out-of-state resident for injuries sustained out-of-state.
Defendant also argues that Georgia has a greater public interest in hearing claims involving injuries alleged to have occurred in Georgia. Indeed, defendant notes that plaintiff originally sought to bring his action in Georgia, abandoning that plan only after determining that he had missed Georgia's statute of limitations. Finally, plaintiff's claims will likely be governed by Georgia substantive law rather than New York law.
In opposition, the plaintiff contends that defendant's motion is untimely, brought approximately 19 months after the action was filed in June of 2006, and after several status conferences relating to the case. In addition, all discovery to date has taken place in New York, accommodated without difficulty either at the New York City offices of defendant's counsel, or at Pfizer's headquarters, as all of defendant's documents are located in New York. Plaintiff's documents, as well as the documents of the other Lipitor plaintiffs coordinated before this court, have been delivered to the offices of defendant's counsel in New York.
Plaintiff argues that dismissal is unwarranted since defendant will not be prejudiced or inconvenienced by plaintiff's treating physicians being located in Georgia since courts recognize videotaped depositions as a well-established method of presenting such testimony. Further, plaintiff contends that the defendant failed to provide any basis to support its assertion that plaintiff's doctors would not testify in New York.
Plaintiff argues that New York courts will not be burdened because defendant is a New York resident and this court routinely handles such claims. Plaintiff points to this court's coordination of 36 identical Lipitor cases, arguing that retaining this case would be no additional burden to the court and would prevent duplication of effort.
Furthermore, plaintiff argues defendant's motion to dismiss should be denied because the claims in this case have a substantial nexus to New York. Although the development and testing of Lipitor occurred outside of New York, plaintiff asserts that the critical events related to his claims are that he was injured as the result of corporate decisions as to how Lipitor would be marketed and sold, and whether Pfizer should have amended the drug's labeling in light of evidence that came into existence after the drug came onto the market. Plaintiff claims that the case primarily concerns improper and misleading actions taken by defendant in New York which caused the plaintiff to suffer serious injuries because he did not receive appropriate warnings about Lipitor and its side effects.
Plaintiff also asserts that re-filing in a Georgia forum would impose an undue burden upon him, jeopardizing his ability to prosecute this case. Plaintiff claims that re-filing would require him to incur the expense of retaining Georgia counsel and paying filing fees. A Georgia judge would also have to become familiar with the case, a task which the New York courts have already done. Furthermore, plaintiff's counsel would have to continue reviewing discovery documents in New York while litigating the case in Georgia.
Finally, Plaintiff argues that issues may arise in the action where the interests of New York predominate, requiring the application of New York, as opposed to Georgia, substantive law. In addition, New York courts are fully capable of applying foreign law where it applies.
In reply, defendant argues that the motion is timely, having moved within a month of plaintiff's deposition, during which the plaintiff confirmed both that he could not articulate any nexus to New York and that numerous critical non-party medical and fact witnesses reside in Georgia. In his deposition, plaintiff establishes that: his decision to take Lipitor had nothing to do with any advertising by Pfizer or any other alleged activity by Pfizer in New York; he filed this action in New York only after he unsuccessfully attempted to file an action in Georgia; and he has no connection to New York other than this lawsuit.
Defendant further submits that plaintiff's home state has a substantial nexus with the action and a strong interest in deciding plaintiff's claims. Plaintiff's discovery and deposition testimony confirm that plaintiff's product liability and personal injury claims arise from the decision of his doctor to prescribe Lipitor to him, plaintiff's ingestion of Lipitor, and plaintiff's alleged injuries and medical treatment, all events that took place in Georgia which involved the decisions and actions of non-party medical witnesses there. Defendant also submits that plaintiff's allegations that "strategic decisions" and "blameworthy conduct" occurred in New York do not change the conclusion that the events which took place in Georgia warrant the forum non conveniens dismissal of this action. Relatedly, plaintiff was unable to substantiate his claim that Pfizer made fraudulent statements about Lipitor.
Finally, defendant asserts that the New York courts, as well as defendant, would be unfairly burdened by trying the case in New York, while the plaintiff would not be burdened by trying the case in his home state of Georgia. Plaintiff's position that this court would not be substantially burdened by retaining this case since it deals with comparable actions frequently, ignores New York's interest in managing its docket and focusing its resources on New York centered litigation. The plaintiff also relies on the erroneous assertion that the court is presiding over 36 Lipitor cases, when the court is only presiding over six Lipitor cases, brought by plaintiff's counsel, all of which involve non-New York plaintiffs. The defendant would also be unfairly burdened by having to defend the case in New York, by being forced to rely on the expensive and arduous commission process to obtain the deposition testimony of critical medical and other non-party witnesses in Georgia, and will likely be limited to the use of read or videotaped deposition, rather than the live testimony of these witnesses at trial. In contrast, using a Georgia forum to adjudicate his claims would not burden the plaintiff. A court near the plaintiff's home would be more accessible for plaintiff and his witnesses than a court in New York, and while plaintiff raises a concern over paying the expenses attendant to commencing a lawsuit in Georgia, such costs would be dwarfed by those that would be required for plaintiff and his witnesses to travel from Georgia to New York for a multi-day trial.
Analysis
The decision in Jordan v. Pfizer, Inc., 2007 NY Misc. LEXIS 6008 (Sup. Ct., NY Cty, Edmead, J.) is on point with the facts and arguments in the case at bar. As the court summarized in Jordan:
The common law doctrine of forum non conveniens, now codified in CPLR 327(a), "permits a court to stay or dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere" ( Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 478-479, 478 NYS2d 597; Grizzle v. Hertz Corp., 305 AD2d 311, 761 NYS2d 163 [1st Dept. 2003]); Sambee Corp. v. Moustafa, 216 AD2d 196, 198, 628 NYS2d 664, 665 [1st Dept 1995]). On a motion to dismiss based upon forum non conveniens, the burden is on the moving party to demonstrate relevant private or public interest factors that militate against the selected forum (citations omitted). Among the factors courts consider when deciding a motion to dismiss on the ground of forum non conveniens are: (1) the burden on New York courts; (2) the lack of an alternate forum; (3) the fact that the transaction giving rise to the action occurred in a foreign jurisdiction; (4) the residency of the parties; (5) the location of a majority of the witnesses; and (6) the potential hardship to the defendant (citations omitted). No one factor is controlling ( Islamic Republic of Iran v. Pahlavi, supra).
Like the court in Jordan, supra, this court will undertake a similar analysis of each of the foregoing six factors. With respect to the first factor, as stated in Jordan, New York courts "should not be under any compulsion to add to their heavy burdens by accepting jurisdiction of a cause of action having no substantial nexus with New York" ( Silver v. Great Amer. Ins. Co., 29 NY2d 356, 361, 328 NYS2d 398). This action has no substantial nexus to New York. Unlike New York, the plaintiff's home state of Georgia has an interest in determining whether pharmaceuticals which were prescribed, marketed, distributed, and ingested in the state were appropriately tested and labeled ( Bewers v. American Home Prods., 99 AD2d 949, 950, 472 NYS2d 637 [1st Dept. 1984]; Cheung v. General Slicing Inc., 209 AD2d 226, 226, 618 NYS2d 304 [1st Dept. 1994]). Further, such determinations should be made in accordance with the Georgia substantive laws by a Georgia court. Although New York courts can apply foreign law, it is an undue burden to this court to apply foreign law where all of the events leading up to the action took place out of state.
As to the second factor, there can be no dispute that an alternate forum is available to plaintiff. Upon re-filing in Georgia, defendant has agreed to make its New York witnesses reasonably available for trial in Georgia and to permit discovery taken to date in New York to used in a Georgia action. Accordingly, the ultimate resolution of this action will not be significantly delayed by recommencement in plaintiff's home state.
Third, the transactions giving rise to this action all occurred in Georgia. While Lipitor was invented and developed in Michigan, plaintiff was prescribed Lipitor in Georgia, obtained his prescription and primarily ingested the drug there and received almost all of his medical treatment in Georgia. See Kashyap v. Babcock Wilcox, 268 AD2d 348, 349, 702 NYS2d 267 (1st Dept. 2000); Dewey Ballantine LLP v. Philippine Nat'l Bank, 303 AD2d 178, 178, 757 NYS2d 4 (1st Dept. 2003); Dahl v. Gardiner, 49 AD2d 861, 862, 374 NYS2d 314 (1st Dept. 1975). All of the foregoing militate in favor of dismissal of this action. See Jordan, supra .
Fourth, as to residency considerations, although the defendant's principal place of business is located in New York, plaintiff does not reside in New York and admitted in his deposition that he has no connection to New York other than this lawsuit. Defendant's New York residence is no obstacle to dismissal of this action by a non-resident plaintiff based on his ingestion of a drug and alleged injuries and medical treatment in his home state ( Nicholson v. Pfizer, Inc., 278 AD2d 143, 717 NYS2d 593 [1st Dept, 2000]; Grant v. Pfizer, Inc., No. 122164/02, slip op. [Sup. Ct. NY County, Oct. 8, 2004]; Jordan v. Pfizer, Inc., supra). Though not dispositive, the fact that plaintiff's residence is outside New York militates against retention of New York as the forum. Jordan, supra, citing Reid v. Ernst Young Global Ltd., 13 Misc 3d 1242, 831 NYS2d 362 (Sup.Ct. NY County, November 15, 2006); Waterways Ltd. v. Barclay's Bank PLC, 174 AD2d 324, 327, 571 NYS2d 208 (1st Dept. 1991).
Fifth, the majority of witnesses are located in Georgia, including plaintiff himself, his treating physicians and friends and family who plaintiff specifically designated as trial witnesses. Again, although defendant's executive offices are in New York, defendant has agreed inter alia to produce witnesses that would have been available in New York for trial in Georgia.
Finally, defendant claims hardship based upon the limitations of videotaped depositions. CPLR 3117 provides in relevant part: "[a]t the trial or upon the hearing of a motion the deposition of any person may be used by any party for any purpose against the other party who was present or represented at the taking of the deposition provided the court finds that the witness is out of state." As noted in Jordan, the First Department has long admitted the use of videotaped deposition testimony of out-of-state witnesses at trial ( Tokarczyk v. St. Barnabas High School, 118 AD2d 519, 519, 500 NYS2d 126 [1st Dept. 1986]), and the use of videotaped evidence is becoming more commonplace in civil trials, especially those involving medical witnesses ( Kane v. Her-Pet Refrigeration, Inc., 181 AD2d 257, 265, 587 NYS2d 339 [2nd Dept. 1992]).
Nonetheless, "[t]o fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to the court, jury, or most litigants," ( Gulf Oil Corp. v Gilbert, 330 U.S. 501, 511; Avnet, Inc. v. Aetna Cas. Sur. Co., 160 AD2d 463, 464, 554 NYS2d 134 [1st Dept. 1990]). A significant drawback of videotaped testimony is that "counsel cannot revise their examination to take account of unexpected developments at trial, but given the breadth of civil pre-trial discovery, the danger of such surprise is largely attenuated" ( Duncan v. Int'l Bus. Machines, 1996 U.S. Dist. LEXIS 18549, [SDNY December 12th, 1996]).
Here, all of plaintiff's treating physicians are outside New York and thus beyond this court's subpoena power. Absent the use of videotaped depositions, defendant will be unable to present its defense by examining plaintiff's doctors at trial. However, notwithstanding the availability of videotaped depositions, the court finds that cumulatively, the remaining factors weigh in favor of dismissal. See Jordan, supra .
Accordingly, it is hereby
ORDERED that defendant's motion to dismiss the complaint is granted pursuant to CPLR 327(a) and the complaint is hereby dismissed on condition that defendant Pfizer, Inc. comply with the representations of Christopher L. Gaenzle sworn to on January 3, 2008 that: it will consent to jurisdiction in Georgia and make any New York employee who could have been subpoenaed in New York reasonably available for trial in Georgia; all discovery taken to date in New York may be used in a Georgia action; and the defense of the statute of limitations will be deemed to have been tolled during the time this action was pending in New York, to the extent that it had not already expired at the time this action was filed; and it is further
ORDERED that the Clerk is directed to enter conditional judgments of dismissal, without costs and disbursements, in favor of defendant.
The foregoing constitutes this Court's Decision and Order. Courtesy copies of this Decision and Order have been provided to counsel for the parties.