Opinion
109886/2005.
Decided June 19, 2008.
Kramer Dunleavy, LLP, Attorneys for Plaintiff.
Kaye Scholer LLP, Attorneys for Defendant.
Defendant, Pfizer, Inc. ("defendant") seeks to dismiss the complaint filed by the plaintiff on the ground of forum non conveniens. Defendant in this action is the manufacturer of FemHRT, a hormone replacement drug for use in the treatment of moderate to severe vasomotor symptoms associated with menopause, treatment of vulvar and vaginal atrophy, and prevention of osteoporosis. Defendant's marketing and safety divisions are headquartered in New York.
Plaintiff Natalia Marochnik ("plaintiff") is a resident of Columbia, Maryland. She was prescribed FemHRT by Dr. Jeri Shuster in Columbia, Maryland. Plaintiff took FemHRT from June 8, 2000 until November of 2001, and alleges that she suffered a stroke that was caused by her use of FemHRT.
The doctors who have treated the plaintiff both before and after she used FemHRT, Dr. Mark Bullock, Dr. Mark A. Cohen, Dr. Damanhuri Alkatis, Dr. Natalia Alexandrova, Dr. Marc Gerter, Dr. Fouadm Abbas, Dr. Michael Weiss, Dr. Richard Ringell, and Dr. Robert Witek, all practice in Maryland.
Plaintiff's fact witnesses are Natalia Marochnik ("plaintiff"), her husband, co-plaintiff Leonid Marochnik, Sergei Marochnik, M.D., and Boris and Olga Vayner. Plaintiff and her husband are Maryland residents, Sergei Marochnik, M.D. is a resident of Manassas, Virginia, and Boris and Olga Vayner are residents of Cleveland, Ohio.
In support of its motion to dismiss, defendant contends that the circumstances of this case make the plaintiff's home state of Maryland the most convenient forum for a trial.
Defendant argues that private interests support the dismissal of this claim from New York. Defendant identifies the location of witnesses as a key private interest factor. Defendant also identifies as private interest factors the concern for the availability of compulsory process for unwilling witnesses, and also the cost of obtaining attendance of willing witnesses. Defendant argues that because plaintiff's treating physicians are located in Maryland and are outside of New York's subpoena power, the matter would be more efficiently handled in Maryland.
Defendant also asserts that its ability to defend itself at trial will be prejudiced if the treating physicians do not testify in person. Additionally, even in the event that any or all of these physicians do choose to testify in person, this will inconvenience their other patients who will be made to go without treatment until the physicians are released from their trial duty.
Defendant also claims that a Maryland trial would be more convenient for the plaintiff. Defendant provides that in the event of a Maryland trial, it will make any of its employees who could have been subpoenaed in New York available for live testimony in Maryland. Defendant further agrees that if the action is re-filed in Maryland, it will deem the statute of limitations to have been tolled during the pendency of the action in New York state court.
Defendant argues that while it is a resident of New York, the fact that a party resides in the forum state is not a determinative factor in either staying or dismissing the action, particularly when the disputed actions or injuries occurred in another state where key medical witnesses are located.
Defendant also argues that public interests support dismissal. Defendant asserts that as the relevant events took place in a foreign jurisdiction, New York has no substantial interest in hearing this claim. They argue that whatever interest New York might have in hearing the plaintiff's claim is not sufficient to justify burdening its courts with a trial. Defendant argues that there is no reason that a New York Court and jury should have to try claims by out-of-state residents regarding medical treatments administered outside of New York relating to a drug that was also taken outside of New York.
Defendant then asserts that Maryland has a substantial interest in seeing this case handled at its place of origin. The injured party is a Maryland resident, and Maryland has a significant interest in protecting those residents who take prescription drugs. Defendant states that a dismissal from the New York court would not deny the plaintiff her day in court, as the Maryland court is a suitable alternative forum.
Defendant also identifies choice of law as a public interest factor, asserting that when the laws of a foreign state will likely apply, this factor supports dismissal. Defendant states that under First Department case law, Maryland law will govern the plaintiff's claims and the Maryland courts are therefore in the best position to handle these claims.
In opposition, plaintiff argues that defendant's motion is determinatively undermined by its previous requests that this claim be kept in New York and included in the coordinated Hormone Replacement Therapy ("HRT") litigation pending before this court. Plaintiff asserts that the defense of forum non conveniens is inapplicable when a defendant has actively attempted to keep the case in New York.
Plaintiff also argues that by waiting two years after the commencement of the action to file the dismissal motion, defendant has waived its right to do so. Plaintiff states that defendant undisputedly knew from the outset both that plaintiff was a Maryland resident and that plaintiff's treating physicians were also located in Maryland.
In addition, plaintiff contends that the public and private interest factors favor New York as the appropriate forum for this trial. Plaintiff notes that at the time the plaintiff took FemHRT, defendant's marketing and promotion and safety and adverse event reporting operations for FemHRT took place in New York. Plaintiff also notes that defendant's New York employees were highly involved with the product, and contends that while defendant offered to make its New York employees available for a Maryland trial, it would still be more convenient to retain the claim in New York.
Plaintiff furthermore argues that the defendant has erred in assuming that those witnesses located in Maryland could not be compelled to give videotaped testimony in this case. Plaintiff identifies that Maryland has adopted the Uniform Foreign Depositions Act, which provides in relevant part that those witnesses necessary to the fair and thorough adjudication of this matter could be compelled to provide testimony. Because such out-of-state witness testimony is available plaintiff asserts that the issue of witness availability does not militate in favor of dismissal from New York.
Regarding the residence of the parties, plaintiff argues that as the plaintiff has filed suit in New York, it cannot be claimed that she would be inconvenienced by a New York trial. Moreover, as the defendant is located in New York, it cannot reasonably claim to be inconvenienced by a New York trial.
Plaintiff also contends that there is no suitable alternative forum to New York. If plaintiff re-files in Maryland, there is a strong likelihood that the action would be removed to federal court and transferred to the coordinated HRT proceeding pending in Arkansas. In this event, pre-trial proceedings would occur in Arkansas Federal Court, and plaintiff would need to invoke the aid of an Arkansas judge for every discovery issue that arises, creating an undue burden.
Plaintiff also contends that the public interests favor keeping the case in New York. The plaintiff maintains that a New York trial will not unduly burden the New York court system. New York has, according to the plaintiff, established a highly efficient system for litigating HRT cases like this one. As there are already approximately 80 pending HRT cases in New York, plaintiff argues that adding one more case will not create an undue burden.
Plaintiff further argues that New York has a strong public interest in regulating a New York-based pharmaceutical company and in ensuring that companies within its borders do not sell dangerous products. Plaintiff notes that defendant's marketing and promotion of FemHRT occurs in New York, as well as its safety and adverse event reporting. Plaintiff argues that these ties to New York create a significant public interest in having the case tried in this forum.
Plaintiff also contests defendant's assertion that choice of law favors dismissal. Plaintiff argues that New York's substantial interest in this matter creates a significant possibility that New York law will apply. Additionally, plaintiff argues that even if Maryland law did apply, the defendant has not posited a substantial difference between Maryland and New York law to support its argument that the application of Maryland law would unduly burden a New York court.
In reply, defendant reiterates that plaintiff has no significant connection to New York. Defendant also asserts that there is controlling precedent that compels dismissal of plaintiff's claim from New York. Defendant notes that the First Department has held that it is an abuse of discretion to deny a motion to dismiss on the ground of forum non conveniens in a case brought by a non-resident plaintiff involving defendant's pharmaceutical products, even though defendant is headquartered in New York ( Nicholson v. Pfizer, Inc., 278 AD2d 143, 717 NYS2d 593 (1st Dept. 2000). In addition, defendant addresses certain facts that tend to limit defendant's connection to New York, namely that the development and production of FemHRT occurred in Michigan and New Jersey by a company that, although now affiliated with defendant's corporation, was not affiliated at the time plaintiff first took FemHRT.
Addressing plaintiff's argument that defendant has waived its right to a forum non conveniens dismissal, defendant states that there was nothing nefarious or untimely about the way in which the motion was filed. Defendant notes that although the action was commenced approximately two years earlier in July 2005, sufficient discovery on which to base a dismissal motion was not concluded until September 2007. Defendant notes that it filed its motion only two months after that, on October 31, 2007. Defendant admits that it suspected that there was potential to file the forum non conveniens motion, but claims that until formal discovery confirmed that none of plaintiff's medical treatment occurred in New York, the filing of a forum conveniens motion would have been premature.
As to plaintiff's claim that defendant has twice argued that this case should be part of the coordinated HRT litigation in New York, defendant states that it specifically reserved its right to raise forum non conveniens as a defense in opposition to plaintiff's prior motion to exclude this claim from other pending HRT claims.
Defendant also contends that no prejudice to the plaintiff would result from granting the dismissal. Defendant also refutes plaintiff's reliance on certain past cases in which the dismissal motion has been denied. Defendant notes that in these cases, the defendant had in some way agreed to arbitration in New York, a fact undercutting their argument for dismissal on forum non conveniens grounds. In this instance, defendant has not agreed to any such arbitration or adjudication in New York.
Regarding the issue of witness availability, defendant asserts that while out-of-state witnesses could be compelled to provide videotaped testimony, they still could not be compelled to appear live at trial. Defendant provides precedent suggesting that live testimony is preferable to videotaped testimony for determining witness credibility.
Defendant also contests plaintiff's argument that the addition of another HRT trial to the New York justice system would not burden the court. Defendant posits that a single trial demands a significant amount of resources and time, and that it is in the best interest of the New York court system to dismiss this claim.
Responding to plaintiff's assertion that there is no suitable alternative forum, defendant cites case law that indicates that the court will not accept the plaintiff's argument that a federal court is an insufficient alternative forum.
Defendant argues that the full scale choice of law analysis suggested by the plaintiff is not required on a forum non conveniens motion, as one of the reasons for the doctrine of forum non conveniens is to avoid the burden of conducting such demanding legal comparisons. Defendant also remarks that the plaintiff has not cited any authority justifying its claim that New York law will apply to a personal injury claim asserted by an out-of-state resident.
Analysis
The decision in Jordan v. Pfizer, Inc., 2007 NY Misc. LEXIS 6008 (Sup. Ct., NY Cty., Edmead, J.) dealt with comparable facts and arguments to those that comprise this motion. The Jordan court provided:
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, 467 NE2d 245, 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 defendant to demonstrate relevant private or public interest factors that militate against the selected forum ( Reid v. Ernst Young Global Ltd., 13 Misc 3d 1242[A], 831 NYS2d 362 [NY Sup., 2006] citing Bank Hapoalim (Switzerland) Ltd. v. Banca Intesa S.p.A. , 26 AD3d 286 , 810 NYS2d 172 [1st Dept. 2006] citing Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 478-479, 467 NE2d 245, 478 NYS2d 597, cert. denied 469 U.S. 1108, 105 S. Ct. 783, 83 L. Ed.2d 778). 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 alternative 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 ( Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 478-479, 467 NE2d 245, 478 NYS2d 597, supra; Bank Hapoalim (Switzerland) Ltd. v. Banca Intesa S.p.A. , 26 AD3d 286 , 810 NYS2d 172, supra; Grizzle v. Hertz Corp., 305 AD2d 311, 761 NYS2d 163, supra). No one factor is controlling ( Islamic Republic of Iran v. Pahlavi, supra).
Like the Jordan court, this court will analyze each of the six aforementioned factors. Addressing the burden placed on New York courts, 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 American Ins. Co., 29 NY2d 356, 361, 328 NYS2d 398). Additionally, CPLR 327 provides that: "The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action." In this case, while defendant is located in New York, plaintiff's injury occurred out of state, and the plaintiff is not a New York resident. There is thus a significant chance that a New York court would have to apply another state's law in the event of a New York trial. Although New York courts may be capable of applying foreign law, it would create an undue burden on a New York court to do so in this action.
Addressing the second factor, there is no dispute over the availability of an alternative forum. Defendant has agreed to produce its New York based witnesses for trial in the plaintiff's home jurisdiction, and it is clear that plaintiff's claim may be heard in plaintiff's home state. Plaintiff points out the requirement that pre-trial discovery be conducted in Arkansas Federal Court, arguing that this would create an undue burden. This potential inconvenience to the plaintiff does not, however, render the alternative forum unsuitable. The presence of an alternative forum in the plaintiff's home state militates in favor of dismissal of this action.
Third, the events leading to the plaintiff's claim all occurred in Maryland. Although defendant's marketing and promotion and safety and adverse event reporting for FemHRT took place in New York, plaintiff was prescribed and took FemHRT in Maryland. The key facts leading to the injury all occurred in Maryland. Additionally, plaintiff received all medical treatment in Maryland, and all medical witnesses are also located in Maryland. The situs of the disputed events supports a dismissal of this action.
Fourth, as to the issue of residency, although defendant's principal place of business is located in New York, the plaintiff does not reside in New York. Though not dispositive, the fact that the plaintiff's residence is located outside of the proposed forum militates against the retention of this claim in New York County ( Reid v. Ernst Young Global Ltd., 13 Misc 3d 1242[A], 831 NYS2d 362 (Sup. Ct., NY Cty, 2006) , supra, citing Waterways Ltd. v. Barclays Bank PLC, 174 AD2d 324, 327, 571 NYS2d 208 [1st Dept. 1991]).
Fifth, the majority of witnesses are located in Maryland, including the plaintiff and treating physicians. Although defendant is headquartered in New York, defendant has agreed to produce any New York based witnesses for trial in the plaintiff's home state.
Sixth, the defendant's claim of hardship, in large part, rests upon the limitations of videotaped depositions. As stated in Jordan, pursuant to CPLR § 3117, "a[t] trial or upon the hearing of a motion . . . the deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition . . . provided the court finds . . . that the witness is . . . out of state" (CPLR § 3117[a] [3] [ii]). "The only significant potential drawback of relying on 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. International Business Machines, 1996 U.S. Dist. LEXIS 18549, 15 [SDNY, December 12, 1996]; Kveten v. Employers Contract Services of Miami, 1996 U.S. Dist LEXIS 9298, 17 [SDNY, July 3, 1996]).
Neither party denies that all of the plaintiffs' treating physicians are located in Maryland, and are beyond the subpoena power of the New York court. Defendant's inability to present its defense by live examination of the plaintiff's doctors at trial cannot be disputed, and thus, while the chance for surprise testimony is perhaps "largely attenuated" ( Duncan at 15), "[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]). Considering this factor along with the other five factors discussed above, the circumstances of this motion militate in favor of dismissing the case on the grounds of forum non conveniens.
Finally, the defendant's forum non conveniens motion is neither time barred nor precluded by defendants' past attempts to retain the matter in New York. Plaintiff argues that by waiting approximately two years from the filing of the initial complaint, defendant has waived its right to file a forum non conveniens motion. Plaintiff further argues defendant has also waived its right to file a forum non conveniens motion because it has twice before attempted to keep the matter in New York.
While plaintiff cites case law to support its argument that defendant's pending motion is time-barred, the cases that plaintiff cites to support its argument are distinguishable from the claim at bar. In both of these cases, ACLI International Inc. v. E.D. F. Man (Coffee) Ltd., 76 AD2d 635, 640 643-44, 430 NYS2d 858, 862-864 (2d Dept. 1980) and Todtman, Young, Tunick, Nachamie, Handle, Spizz Drogin, P.C. v. Richardson, 231 AD2d 1, 660 NYS2d 410 (1st Dept. 2000), the defendants had previously submitted to an agreement to have their disputes arbitrated in New York. These prior submissions to New York arbitration created fatal deficiencies in the defendants' respective motions for dismissal on the grounds of forum non conveniens. In the present matter, however, defendant has not submitted to any arbitration agreement or any other agreement that would have such an undermining effect on its motion to dismiss on the grounds of forum non conveniens.
Furthermore, the delay was not in bad faith, as the record indicates that until September of 2007, two months before defendant filed its motion, defendant had not yet obtained sufficient discovery to provide the basis for a forum non conveniens motion. Before this time, it was not conclusively established that none of plaintiff's physicians were located in New York, a key fact for the defendant's dismissal motion. The delay in the filing of the defendant's forum non conveniens dismissal motion is thus not preclusive.
While it is not disputed that defendant opposed plaintiff's motion to exclude this action from the coordinated HRT litigation, such opposition was not an admission by the defendant that New York is an appropriate forum for plaintiff's claim. Further, defendant specifically reserved its rights to bring this motion. 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 Alan E. Rothman sworn to on October 31, 2007 that: it will make any New York employee who could have been subpoenaed reasonably available for trial of this action in Maryland; and the statute of limitations will be deemed to have been tolled during the time that this action was pending in New York state court; and it is further
ORDERED that the clerk is directed to enter a conditional judgment 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.