Kelly v. Wright Medical Technology, Inc. et al

Filing 20

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 2/25/2016. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEPHEN KELLY,
Plaintiff,
v.
WRIGHT MEDICAL GROUP, INC., a
Delaware corporation; WRIGHT
MEDICAL TECHNOLOGY, INC., a
Delaware corporation, WRIGHT
MEDICAL EUROPE, S.A., a foreign
corporation; BIOMEDICAL
ASSOCIATES, INC., and JAMES
BLOOM, individually,
Defendants.

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No. 15-cv-6706
Judge Robert M. Dow, Jr.

MEMORANDUM ORDER AND OPINION
In this product liability lawsuit, Plaintiff Stephen Kelly (“Plaintiff”) brings suit against
Defendants Wright Medical Group, Inc., Wright Medical Technology, Inc. (“Wright Medical”),
Wright Medical Europe, S.A., Biomedical Associates, Inc., and James Bloom (collectively,
“Defendants”) for damages incurred in connection with an allegedly defective “PROFEMUR”
total hip replacement implant. Plaintiff originally filed suit in state court in Cook County,
Illinois [2-1].

Wright Medical removed the action to this Court on the basis of diversity

jurisdiction. [2]. Currently before the Court is Wright Medical’s motion [5] to transfer venue to
the Central District of Illinois pursuant to 28 U.S.C. § 1404(a). For the reasons explained below,
Wright Medical’s motion is granted. This matter will be transferred to the Central District of
Illinois for all further proceedings.

I.

Background1
The PROFEMUR is an artificial hip replacement system that was designed,

manufactured, marketed, sold, and distributed by Defendants Wright Medical, Wright Medical
Group, Inc. and Wright Medical Europe, S.A. (collectively, the “Wright Defendants”). Wright
Medical is a Delaware corporation that is registered and/or licensed to do business in Illinois and
regularly conducts business in Cook County, Illinois (within the Northern District). Wright
Medical Europe, S.A. is a foreign corporation with its principal place of business in France.
Wright Medical and Wright Medical Europe, S.A., are wholly-owned subsidiaries of Wright
Medical Group, Inc., a Delaware Corporation.
At all times relevant to the complaint, Defendant James Bloom (“Bloom”) was the
exclusive sales agent and distributor for PROFEMUR in Illinois. Bloom was the president of
Defendant Biomedical Associates, Inc. (“Biomedical Associates”). Biomedical Associates was
an Illinois corporation with its principal place of business in Lemont, Illinois (in the Northern
District of Illinois). Biomedical Associates was registered and/or licensed to do business in
Illinois and Biomedical Associates and Bloom regularly conducted business in Cook County,
Illinois (in the Northern District of Illinois). Typically, an agent or employee of Biomedical
Associates would deliver the PROFEMUR to the implanting surgeon in the hospital operating
room and would be present during the implanting procedure.
Plaintiff was a resident of Vermilion County (in the Central District of Illinois) at all
times relevant to this suit. Before January 26, 2006, Plaintiff began medical treatment for right
hip arthritis with Dr. Paul F. Plattner (“Dr. Plattner”). Dr. Plattner determined that Plaintiff met
the criteria for a total hip replacement on his right hip. On January 26, 2006, Dr. Plattner
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For purposes of the instant motion, the Court accepts as true the allegations set forth in Plaintiff’s
complaint. The Court takes additional facts from the parties’ briefs on the motion to transfer. See [6],
[17], [18].

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implanted a PROFEMUR into Plaintiff’s right hip. The PROFEMUR was sold and the surgery
was performed in Danville, Illinois (in the Central District of Illinois).
According to Plaintiff, the Wright Defendants, Biomedical Associates, and Bloom knew
at the time of Plaintiff’s surgery that the PROFEMUR was defective and harmful to consumers.
Prior to Plaintiff’s surgery, Defendants had regular and frequent contacts from surgeons who had
implanted the PROFEMUR (including Plaintiff’s surgeon) about failures and complications of
the PROFEMUR.
On April 5, 2013, Dr. Michael C. Moran (“Dr. Moran”) removed the PROFEMUR from
Plaintiff’s hip and replaced it with another hip prosthesis. The surgery was performed in Urbana,
Illinois (in the Central District of Illinois).
Plaintiff and the Wright Defendants entered into a tolling agreement beginning October
2, 2014 and ending June 17, 2015. On June 16, 2015, Plaintiff brought suit against the Wright
Defendants, Biomedical Associates, and Bloom in the Circuit Court of Cook County, Illinois
(which is situated in the Northern District).

See [2-1].

Plaintiff’s complaint contains the

following claims: (I) strict product liability against the Wright Defendants; (II) negligence
against the Wright Defendants; (III) breach of warranty against the Wright Defendants; (IV)
strict product liability against Biomedical Associates; and (V) strict product liability against
Bloom. On July 31, 2015, Wright Medical removed the lawsuit to this Court on the basis of
diversity jurisdiction.2

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Defendants Wright Medical Europe, S.A., Biomedical Associates, Inc., and James Bloom have not filed
answers or appearances in this action. The docket sheet shows that Alstom Power, Inc. filed a motion to
intervene in this action on September 8, 2015 [14]; however, the motion is not properly before this Court
before Alstom did not notice the motion for a hearing. Alstom is free to renew its motion in the Central
District.

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II.

Analysis
Wright Medical moves pursuant to 28 U.S.C. § 1404(a) to transfer this matter from the

Northern District of Illinois, Eastern Division (in Chicago), to the Central District of Illinois
(which has courthouses in Peoria, Rock Island, Springfield, and Urbana). 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 or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a).
Section 1404(a) authorizes the Court to transfer matters based on a “case-by-case
consideration of convenience and fairness.” Stewart Organization, Inc. v. Ricoh Corp., 487 U.S.
22, 29 (1988). Therefore, the Seventh Circuit “grant[s] a substantial degree of deference to the
district court in deciding whether transfer is appropriate.”

Research Automation, Inc. v.

Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 977-78 (7th Cir. 2010). The Court may transfer a
case under section 1404(a) when: “(1) venue is proper in the transferor district; (2) venue is
proper in the transferee district; (3) the transfer will serve the convenience of the parties and
witnesses; and (4) the transfer will serve the interests of justice.” Hanover Ins. Co. v. N. Bldg..
Co., 891 F. Supp. 2d 1019, 1025 (N.D. Ill. 2012). The Court will consider these factors in turn.
A.

Is venue proper in the transferor and transferee districts?

As to the first two factors, Plaintiff and Wright Medical agree that venue is proper both in
this district and in the Central District of Illinois, but do not discuss why. See [17] at 2.
The Court concludes that venue is proper in this District. Venue in an action removed
from state court to federal court is governed by 28 U.S.C. § 1441. Scherr v. W. Sky Fin., LLC,
77 F. Supp. 3d 770, 773 (N.D. Ill. 2015). Under section 1441, actions may be removed to “the
district court of the United States for the district and division embracing the place where such

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action is pending.” 28 U.S.C. § 1441(a). Because the instant action was removed from the
Circuit Court of Cook County, Illinois, the instant Court is the court for the district and division
where the action was pending. See Scherr, 77 F. Supp. 3d at 773.
The Court concludes that venue would be proper in the Central District, as well, because
it is a district “where [the action] might have been brought.” 28 U.S.C. § 1404(a). Pursuant to
28 U.S.C. § 1391(b), “[a] civil action may be brought in—(1) a judicial district in which any
defendant resides, if all defendants are residents of the State in which the district is located; (2) a
judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated; or (3) if
there is no district in which an action may otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to the court’s personal jurisdiction with respect
to such action.” Subsection (1) is inapplicable because none of the Wright Defendants are
residents of Illinois.

Therefore, the Court must examine under subsection (2) whether “a

substantial part of the events or omissions” giving rise to Plaintiff’s claim occurred in the Central
District. 28 U.S.C. § 1391(a). While the PROFEMUR was designed and manufactured outside
of Illinois (see [17] at 3), Plaintiff had the PROFEMUR implanted in the Central District and
incurred his injuries in the Central District. The surgery and resulting injury formed a substantial
part of the events giving rise to Plaintiff’s claim. Cf. Sellers v. Boehringer Ingelheim Pharm.,
Inc., 881 F. Supp. 2d 992 (S.D. Ill. 2012) (in diversity action against drug manufacturer for strict
products liability, negligence, breach of warranty, and related claims, venue was proper in the
Southern District of Illinois, where the plaintiff was prescribed and allegedly injured by
manufacturer’s drug); Kopfman v. Ensign Ribbon Burners, LLC, 803 F. Supp. 2d 914 (N.D. Ill.
2011) (in negligence action against manufacturer for damages allegedly sustained from oven

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explosion, venue was proper in the Northern District of Illinois, where the oven exploded).
Therefore, the Court concludes that venue would be proper in the Central District and is also
proper in this District.
B.

Will transfer serve the convenience of the parties and witnesses?

“In evaluating the convenience of the parties and witnesses, courts weigh the following
factors: (1) the plaintiff’s choice of forum; (2) the situs of the material events; (3) the relative
ease of access to sources of proof; (4) the convenience of the witnesses; and (5) the convenience
to the parties of litigating in the respective forums.” Hanover Ins. Co., 891 F. Supp. 2d at 1025
(citing Allied Van Lines, Inc. v. Aaron Transfer & Storage, Inc., 200 F.Supp.2d 941, 946 (N.D.
Ill. 2002)).

Wright Medical “has the burden of establishing, by reference to particular

circumstances, that the transferee forum is clearly more convenient.” Coffey v. Van Dorn Iron
Works, 796 F.2d 217, 219-20 (7th Cir. 1986). Considering the five factors together, the Court
concludes that Wright Medical has met its burden.
First, the “plaintiff’s choice of forum is generally given substantial weight, particularly
when it is the plaintiff’s home forum.” Aldridge v. Forest River, Inc., 436 F. Supp. 2d 959, 96061 (N.D. Ill. 2006). The plaintiff’s choice of forum is entitled to less deference, however, when
“another forum bears a stronger relationship to the dispute or the plaintiff’s choice of forum has
no connection to the material events in question.” Id. (citing Chicago, Rock Island & Pac. R.R.
Co. v. Igoe, 220 F.2d 299, 304 (7th Cir. 1955)). In this case, the Court gives some, but not
substantial, deference to Plaintiff’s choice of forum. The Central District of Illinois bears a
stronger relationship to the dispute than the Northern District of Illinois, because that is where
Plaintiff’s surgeries and medical treatment took place. By contrast, it is not clear that any of the
events giving rise to this lawsuit occurred within the Northern District.

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Second, the Central District was a situs of material events because it is where Plaintiff’s
surgery, medical treatments, and injury occurred. Neither party has identified any material
events that occurred within this District.
The parties do not specifically address the third factor, so the Court will skip to the fourth
factor, the convenience of the witnesses.

Plaintiff’s medical providers and witnesses with

knowledge about Plaintiff’s surgeries are all located in the Central District, within the Central
District’s subpoena power.

See [18-1] at 2 (list of potential witnesses with knowledge

concerning Plaintiff’s care, treatment, and damages). They are not within this Court’s subpoena
power. While Plaintiff contends that this is not a concern because he will “endeavor to make
these witnesses available to testify at trial” ([17] at 4-5), Plaintiff ultimately has no control over
the matter. The Court concludes that “the presence of third party witnesses outside the subpoena
power of this court is a factor which weighs heavily in favor of transferring.” Sky Valley Ltd.
P’ship v. ATX Sky Valley, Ltd., 776 F. Supp. 1271, 1277 (N.D. Ill. 1991).
Finally, the Court must consider the convenience of the parties. Plaintiff contends that
the Northern District is convenient for him, but does not discuss whether the Central District
(where he lives) would be convenient as well. Plaintiff also contends that the Northern District
would be more convenient for the Wright Defendants and their employees, because they are
located outside Illinois (mostly in Memphis, Tennessee, see [17-1] at 3-4), and would need to fly
through O’Hare Airport in Chicago to get to either the Northern District or the Middle District.
The Wright Defendants obviously disagree, since they seek to move the case to the Central
District. In any event, “the convenience of witnesses who are employed by the parties * * * is
not an important consideration, because their participation in the suit will be obtained as part of
their employment, rather than by their own willingness or the Court’s subpoena power, and their

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compensation and expenses will be paid by their employers.” Caterpillar, Inc. v. ESCO Corp.,
909 F. Supp. 2d 1026, 1031 (C.D. Ill. 2012). See also Qurio Holdings, Inc. v. Comcast Cable
Commc’ns, LLC, 2015 WL 535981, at *3 (N.D. Ill. Feb. 9, 2015) (“the overwhelmingly
predominant view among district courts in the [Seventh [Ci]ircuit is that because party witnesses
are likely to appear voluntarily, the convenience factor is less significant with regard to party
witnesses than non-party witnesses”).
Considering all five factors by reference to the particular circumstances of the case, the
Court concludes that the Central District of Illinois is clearly a more convenient forum than the
Northern District of Illinois. See Coffey, 796 F.2d at 219-20.
C.

Will transfer serve the interests of justice?

“In considering the interests of justice, courts weigh additional factors, including: (1) the
speed at which the case will proceed to trial; (2) the court’s familiarity with the applicable law;
(3) the desirability of resolving controversies in each locale; and (4) the relation of each
community to the occurrence at issue.” Hanover Ins. Co., 891 F. Supp. 2d at 1025.
Considering the factors in turn: First, the case may or may not proceed more quickly to
trial in the Central District. Plaintiff points out that the median average time from filing to trial
is 30.7 months in the Northern District versus 36.8 months in the Central District. [17] at 6.
However, the Northern District has more cases than the Central District that are over three years
old, as well as a higher number of filings and cases per judge. See [18] at 6. Second, this Court
and the Central District are equally familiar with applicable Illinois law. Third, given the
absence of any connection between this District and Plaintiff’s claim, the Court finds that it
would be more desirable for the parties’ controversy to be resolved in the Central District.
Fourth and finally, the Central District has a stronger relation to the occurrence at issue: Plaintiff

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resides in the Central District, was treated by doctors in the Central District, and suffered injuries
in the Central District.
For these reasons, the Court concludes that transfer would serve the ends of justice.
III.

Conclusion
The Court concludes that this matter should be transferred to the Central District of

Illinois because: (1) venue is proper in the Northern District of Illinois based on the removal
statute; (2) venue would also be proper in the Central District of Illinois, because that is where a
substantial portion of the events giving rise to Plaintiff’s claims occurred; (3) transfer will serve
the convenience of the parties and witnesses, especially the non-party medical witnesses who are
all located in the Central District beyond this Court’s subpoena power; and (4) transfer will serve
the interests of justice because Plaintiffs’ claims have a clear and strong connection to the
Central District and no apparent connection to the Northern District. Therefore, the Court grants
Wright Medical’s motion [5] to transfer venue. This matter will be transferred to the Central
District of Illinois for all further proceedings.

Dated: February 25, 2016

____________________________________
Robert M. Dow, Jr.
United States District Judge

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