J.B. et al v. Abbott Laboratories, Inc.

Filing 74

MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 2/6/2013. Mailed notice(vcf, ) [Transferred from Illinois Northern on 2/7/2013.]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
J.B., a minor, by
MONIQUE BENJAMIN, individually,
and as parent and next friend of J.B., et
al.,
Plaintiffs,
v.
ABBOTT LABORATORIES INC.,
Defendants.

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Case No. 12-cv-385
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Plaintiffs brought suit against Defendant, Abbott Laboratories Inc., in multiple
state-court actions (collectively, “Depakote Cases”), alleging personal injuries on behalf
of children who developed birth defects in utero as a result of their mothers’ ingestion of
the drug Depakote, a drug sold by Abbott. Five Depakote Cases, involving 69 Plaintiffs,
were removed to the Northern District of Illinois from the Circuit Court of Cook County,
Illinois, pursuant to 28 U.S.C. §§ 1332(d), 1446.1 Eleven Depakote Cases, involving 232
Plaintiffs2, were removed from the Circuit Courts of Madison and St. Clair Counties to
the Southern District of Illinois. Plaintiffs opposed the removal of those actions to
federal court.
Plaintiffs’ motion for remand to state court was denied on May 9, 2012, in this

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Four Depakote Cases were removed from the Circuit Court of Cook County and
docketed under this case number, 12-cv-385, in the Northern District. A related case,
Clay v. Abbott Laboratories Inc., Case No. 12-cv-3824, was removed to the Northern
District on May 17, 2012.
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Cases involving 17 Plaintiffs were also filed directly in the Southern District, for
a total of 249 cases.

District. The Southern District granted the remand sought by those plaintiffs. The
Seventh Circuit affirmed the Northern District Court’s decision to deny remand and
reversed the Southern District, holding that the removal of the Depakote Cases in both
the Northern District of Illinois and the Southern District of Illinois was proper. See
In re Abbott Laboratories, Inc., 698 F.3d 568, 570 (7th Cir. 2012).
Now, Plaintiffs move to transfer venue from the Northern District of Illinois to
the Southern District of Illinois, pursuant to 28 U.S.C. § 1404(a). Abbott opposes this
motion and separately moved, in the Southern District of Illinois, to transfer those cases
to the Northern District; that motion is also pending. (Pls.’ Mot. at 2 n.3.) Plaintiffs’
Motion to Transfer has been fully briefed and is ripe for ruling.

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LEGAL STANDARD
“For the convenience of the 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 district court must consider a variety of
statutory factors in light of all the circumstances on a case-by-case basis. See Coffey v.
Van Dorn Works, 796 F.2d 217, 219 (7th Cir. 1986) (Coffey). The movant bears the
burden of establishing that the transferee forum is clearly more convenient; the decision
lies in the sound discretion of the trial judge. Id. The court may consider facts presented
by way of “affidavit, deposition, stipulation, or other relevant documents.”
Allstate Ins. Co. v. Mathison, No. 02 C 418, 2002 WL 1396951, at *5 (N.D. Ill.
June 26, 2002) (quoting Midwest Precision Servs., Inc. v. PTM Indus. Corp., 574
F. Supp. 657, 659 (N.D. Ill. 1983)).
ANALYSIS
A party seeking transfer must show the following: (1) that venue is proper in
both the transferor and the transferee courts; (2) that transfer is for the convenience of the
parties and witnesses; and (3) that transfer is in the interest of justice. 28 U.S.C.
§ 1404(a); Coffey, 796 F.2d at 219.
Venue in the Transferor and Transferee Courts
This first requirement is in dispute. Plaintiffs allege venue is proper in both the
Northern and Southern Districts. (Pls.’ Mot. at 2.) However, Abbott contends that if
Plaintiffs sued Abbott in the Southern District, venue would have been improper.3
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Abbott previously challenged venue in the St. Clair County court; that state
court determined Abbott was a resident of St. Clair County and found that venue was
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(Def.’s Resp. at 1-3.) Therefore, Abbott reasons, the Motion to Transfer should be
denied, as Plaintiffs cannot show that venue is proper in the Southern District, as
Plaintiffs could not have brought their actions there. (Id.)
Venue is proper in a district in which a defendant resides. 28 U.S.C.
§ 1391(b)(1). For purposes of venue, a defendant corporation resides “in any judicial
district in which such defendant is subject to the court’s personal jurisdiction . . . .”
28 U.S.C. § 1391(c)(2). To establish personal jurisdiction, defendant must have
sufficient minimum contacts with the forum. The contacts may or may not be related to
the underlying facts of the action. Central States, Southeast and Southwest Areas
Pension Fund v. Phencorp Reinsurance Co., Inc., 440 F.3d 870, 875 (7th Cir. 2006)
(quoting Int'l Med. Group, Inc. v. Am. Arbitration Ass'n, Inc., 312 F.3d 833, 846 (7th Cir.
2002)). “Contacts related to the subject matter of the lawsuit may give rise to specific
personal jurisdiction, that is, jurisdiction over the person for a case arising from those
contacts.” Id. (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
414 (1984) (Helicopteros)). “When the contacts with the forum state are unrelated to the
subject matter of the lawsuit, general personal jurisdiction may be established if the
defendant's contacts are so continuous and systematic that the defendant could reasonably
foresee being haled into court in that state for any matter.” Id. (citing Helicopteros, 466
U.S. at 414-15). “[T]he threshold for general jurisdiction is quite high because ‘the
contacts must be sufficiently extensive and pervasive to approximate physical presence.’”
Felland v. Clifton, 682 F.3d 665, 673 (7th Cir. 2012) (quoting Tamburo v. Dworkin, 601

proper. (Pls.’ Mot. at 4 n.5.)
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F.3d 693, 701 (7th Cir. 2010)).
General Personal Jurisdiction
Abbott argues that it could not have been sued by Plaintiffs in the Southern
District because neither specific nor general personal jurisdiction could be established
there.4 In their Reply, Plaintiffs counter that Abbott is subject to general personal
jurisdiction in the Southern District; that is, that Abbott could reasonably anticipate being
haled into court in the Southern District. (Pls.’ Reply at 2.) As the Seventh Circuit
recently explained, “[g]eneral jurisdiction over a defendant, which means that the
defendant can be required to answer any claim that arose anywhere in the world, requires
that the defendant be ‘essentially at home’ in the forum.” Abelesz v. OTP Bank, 692 F.3d
638, 651 (7th Cir. 2012) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131
S. Ct. 2846, 2851 (2011) (Goodyear)).
Abbott contends the United States Supreme Court’s decision in Goodyear created
a “new standard to govern the exercise of general jurisdiction over a corporation,” that
general jurisdiction exists “only in a forum where the corporation is ‘essentially at
home.’” (Def.’s Resp. at 7) (emphasis added). This narrow reading of the Goodyear
opinion ignores the Supreme Court’s reiteration of the “continuous and systematic”
connections requirement, established in the International Shoe decision. Goodyear, 131
S. Ct. at 2851 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 317 (1945)).

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In Abbott’s Motion to Transfer filed in the Southern District, Abbott states it
does not challenge venue, because the cases were removed from the Circuit Courts of
St. Clair and Madison Counties. (Pls.’ Mot. Ex. A at 8.)
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Abbott’s reliance on Goodyear also ignores readily operative facts in that case
clearly distinguishable from those present here. The Goodyear suit arose from a tire
malfunction, causing personal injury in France. Goodyear, 131 S. Ct. at 2851. The tire
manufacturers named as defendants included Goodyear Luxembourg Tires, SA;
Goodyear Lastikleri T.A.S. (Goodyear Turkey); and Goodyear Dunlop Tires France, SA
(Goodyear France). Id. at 2851-52. Those three defendants are indirect subsidiaries of
Goodyear USA, an Ohio corporation also named as a defendant in the suit, and those
subsidiaries primarily produce tires for the European and Asian markets. Id. The
Goodyear decision determined that a foreign subsidiary of a U.S. corporation lacked an
adequate connection to the forum at issue, North Carolina, for the exercise of general
jurisdiction. Goodyear, 131 S. Ct. at 2850-51. There, the Supreme Court noted that the
foreign subsidiaries “have no place of business, employees, or bank accounts in North
Carolina [the venue at issue]. They do not design, manufacture, or advertise their
products in North Carolina. And they do not solicit business in North Carolina . . .” or
sell or ship products to customers there. Id. at 2852. A small fraction of the foreign
subsidiaries’ tires were distributed in the United States, but those tires were distributed
by other Goodyear USA affiliates. Id. The foreign subsidiaries’ connections to the
forum state of North Carolina were so attenuated in Goodyear, the Supreme Court found
they fell “far short of the ‘continuous or systematic general business contacts’ necessary
to empower North Carolina to entertain suit against them on claims unrelated to anything
that connects them to the State.” Id. at 2857 (quoting Helicopteros, 466 U.S. at 416).
While the Supreme Court indicated general jurisdiction exists where contacts with a

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forum are so continuous and systematic to “render [a corporation] essentially at home in
the forum State,” the Supreme Court did not replace or redefine the well-established
standard for establishing general jurisdiction. Goodyear, 131 S. Ct. at 2851.
In contrast to the foreign subsidiaries in Goodyear, Abbott has 46 employees who
sell and market Abbott’s products directly in the Southern District. (Def.’s Resp. Ex. 3 ¶
8.) Abbott also sells pharmaceutical and medical products directly to customers in the
Southern District. (Id.) There is no suggestion the product was not intended primarily
for sale outside of the Southern District. Rather, Abbott’s products, including the
product at issue, Depakote, have been prescribed for use in the Southern District. (Pls.’
Reply, Ex. A ¶¶ 10-11.) Moreover, Abbott’s sales representatives provide information
regarding pharmaceuticals and medical products to health care practitioners in the
Southern District. (Pls.’ Reply, Ex. B Interrogatory No. 8.) By these facts, it is apparent
Abbott maintained regular, continuous business contacts in the Southern District. By
soliciting business, selling and marketing products, and employing a sales team in the
Southern District, Abbott could reasonably anticipate being haled into the District.
Therefore, Abbott is subject to general personal jurisdiction in the Southern District of
Illinois, and venue would have been proper in both the Southern and Northern Districts
of Illinois.

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Convenience of the Parties and Witnesses
In evaluating the convenience of the parties and witnesses, courts in this district
consider five factors: (1) the plaintiff’s initial choice of forum; (2) the situs of material
events; (3) the relative ease of access to sources of proof; (4) the convenience of the
parties litigating in the respective forums; and (5) the convenience of the witnesses.
Amoco Oil Co. v. Mobil Oil Corp., 90 F. Supp. 2d 958, 960 (N.D. Ill. 2000).
A plaintiff’s choice of forum is generally given substantial weight, particularly
when the chosen forum is the plaintiff’s home forum. Moore v. Motor Coach Indus.,
Inc., 487 F. Supp. 2d 1003, 1007 (N.D. Ill. 2007). That choice is entitled to less
deference, however, “when another forum has a stronger relationship to the dispute,
when the forum of plaintiff’s choice has no significant connection to the site of material
events, or in the context of nationwide class actions.” Gueorguiev v. Max Rave, LLC,
526 F. Supp. 2d 853, 857 (N.D. Ill. 2007) (citations omitted). In a mass action like this,
the factor of the choice of forum is discounted, though not disregarded. Id. at 857.
However, as noted above, of the 318 Plaintiff Sets (a set is comprised of an injured child
and corresponding parent or guardian), a significant majority, 232 Plaintiff Sets, were
filed in county courts within the Southern District. (Pls.’ Mot. at 6.) This factor weighs
in favor of the transfer.
Plaintiffs also emphasize in their motion that the first Depakote Cases were filed
in counties in the Southern District. The Seventh Circuit has declined to establish a rigid
rule regarding cases which are first-to-file, stating, “[w]here a case is filed first should
weigh no more heavily in the district court's analysis than the plaintiff's choice of forum

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in a section 1404(a) calculation.” Research Automation Inc. v. Schrader-Bridgeport
International, Inc., 626 F.3d 973, 982 (7th Cir. 2010). Therefore, this factor is
considered in Plaintiffs’ motion, but in no way dispositive. It simply tips the balance
slightly in favor of the Southern District.
Plaintiffs point out that beyond the choice of forum and the first-filed cases, the
convenience factors are neutral with respect to the transfer. As the events at issue,
including the prescriptions and alleged injuries and damages, occurred in areas
throughout the United States, one district is not more appropriate than the other in terms
of the situs of material events. The locations of proof is another neutral factor, as most
evidence will be digital and, therefore, easily transferred between districts.
“[D]ocumentary evidence is readily transferable and transporting it generally does not
pose a high burden upon either party.” Continental Cas. Co. v. Staffing Concepts, Inc.,
No. 06 C 5473, 2009 WL 3055374, at *5 (N.D. Ill. Sept. 18, 2009) (citations omitted).
The fourth factor to consider is the convenience of the witnesses, which is
generally considered to be of primary importance. See Tingstol Co. v. Rainbow Sales,
Inc., 18 F. Supp. 2d 930, 933 (N.D. Ill. 1998). Plaintiffs also state this factor is neutral to
the issue of transfer. (Pls.’ Mot. at 9.) The convenience of the party witnesses, including
experts, treating physicians, and Abbott’s employees, is not critical to this analysis. See
Bullard v. Burlington N. Santa Fe Ry., No. 07 C 6883, 2008 WL 4104355, at *4 (N.D. Ill.
2008) (“Courts are less concerned about the burden that appearing at trial might impose
on witnesses who are either employees of parties or paid experts; it is presumed that such
witnesses will appear voluntarily.”). This factor is neutral to the issue of the transfer.

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The final factor considered is the relative convenience of the parties. This factor
weighs against the transfer. Abbott is headquartered in the Northern District, and it
would be easier and more convenient for Abbott to try the case in this District. However,
since the majority of the Depakote Case plaintiffs have been identified to have filed in
courts in the Southern District, this factor weighs only slightly against the transfer to the
Southern District.
Considered in whole, the private interest factors weighs slightly in favor of the
transfer to the Southern District.
Interest of Justice
In analyzing the interest of justice, the appropriate analysis focuses upon
traditional notions of judicial economy, the speed at which cases proceed to trial, and the
courts’ familiarity with applicable law and desire to resolve controversies in their locales.
TIGS Ins., Co. v. Brightly Galvanized Prods., Inc., 911 F. Supp. 344, 346 (N.D. Ill.
1996).
When analyzing the speed at which cases proceed to trial, courts consider the
median number of months from filing to disposition, as well as the median number of
months from filing to trial. Schwarz v. Nat’l Van Lines, Inc., 317 F. Supp. 2d 829, 837
(N.D. Ill. 2004). The median time from filing to disposition of a civil case is 6.5 months
in the Northern District and 10.5 months in the Southern District. See Comparison of
Districts Within the Seventh Circuit – 12 Month Period Ending September 30, 2012, at
http://www.uscourts.gov/viewer.aspx?doc=/uscourts/Statistics/FederalCourtManagement
Statistics/2012/comparison-districts-within-circuit-september-2012.pdf&page=7. The

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median time from filing a civil case to trial is 31.2 months in the Northern District and
23.7 months in the Southern District. Id. These numbers are not entirely dispositive, as
it appears that disposition of a case is, on average, slightly faster in the Northern District;
but, the median time from filing to trying a civil case is slightly better in the Southern
District. It should be noted, however, that significantly more cases are filed in the
Northern District than the Southern District. This information, coupled with Plaintiffs’
assertion that discovery is “significantly more advanced in the Southern District,” favors
transfer to the Southern District. (Pls.’ Mot. at 11.)
Whether transfer of venue is proper also depends in part on a court’s familiarity
with applicable law. Plaintiffs do not address this factor, likely because it is neutral as to
the issue of the transfer, as any issues of underlying Illinois state law and federal law
could be competently addressed by the Court in either District.
Finally, the desire of a court to resolve issues in its own locale also cuts both
ways. The Northern District has an interest in resolving issues of its residents, the
Plaintiffs who filed here. The Southern District also has a similar interest. This factor
weighs neither for nor against transfer.
Considering the provisions of Section 1404(a) regarding transfer discussed above,
although both venues would be proper, the transfer to the Southern District is
appropriate. Therefore, Plaintiffs’ Motion to Transfer to the Southern District of Illinois
is granted.

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CONCLUSION
In the interest of justice and fairness, as well as the sake of convenience,
Plaintiffs’ Motion to Transfer Venue [64] to the Southern District of Illinois is granted.
This same rationale applies to Clay v. Abbott Laboratories Inc., Case No. 12-cv-3824;
and Plaintiffs’ Transfer Motion [15] in that case is also granted.

Date: February 6, 2013

___________________
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JOHN W. DARRAH
United States District Court Judge

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