Boksenbaum et al v. Abbott Laboratories et al
MEMORANDUM & ORDER denying Defendant Karen Anne Kiefer's (77) Motion to Change Venue in case 1:09-cv-05425-ENV-JMA; and, denying Robin Deborah Lane's (72) Motion to Change Venue in case 1:10-cv-04247-ENV-JMA. Ordered by Judge Eric N. Vitaliano on 11/21/2012. (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NANCY MELFA BOKSENBAUM, KAREN ANN
KIEFER, and ILANIT MILLHOUSE
MEMORANDUM AND ORDER
09-CV -5425 (ENV) (JMA)
-againstTHE ABBOTT LAB ORATORIES, et al.,
ROBIN DEBORAH LANE, KIRSTEN HAIM, and
WENDY KAREN SUMMERS,
10-CV-4247 (ENV) (JMA)
-againstTHE ABBOTT LABORATORIES, et al.,
VIT ALIANO, D.J.
On December 11, 2009, plaintiff Karen Anne Kiefer filed this products liability
action against various pharmaceuticals companies including Abbott Laboratories. (Compl., No.
09-CV-5425 (E.D.N.Y.).) Plaintiff Robin Deborah Lane followed suit on September 17, 2010.
(Compl., No. 10-CV-4247 (E.D.N.Y.).) Although Lane and Kiefer have negotiated and settled
with numerous defendants over the past two and three years respectively, 1 they now move to
transfer venue oftheir actions to the District of Massachusetts. In that court, 53 unrelated
plaintiffs are litigating similar, but not identical, claims against like defendants. These actions
have been assigned for coordinated handling to United States Magistrate Judge Marianne
Bowler. For the reasons set forth below, the transfer motions are denied.
Plaintiffs, both New York residents, commenced separate actions in this judicial
district asserting that the defendant drug companies are liable for injuries plaintiffs sustained as
the result of in utero exposure to the prescription medication diethylstilbestrol ("DES"), which
each ofthe defendants formerly manufactured and marketed. (See generally Compl., No. 09-CV5425; Compl., No. 10-CV-4247.) Plaintiffs have suffered various maladies and abnormal health
conditions including, but not limited to, breast cancer. (See Letter (Apr. 12, 2012), Singer v.
Abbott Labs., No. 05-CV-3386 (E.D.N.Y.) Each plaintiffs healthcare providers are located in
New York State, as were the healthcare providers who prescribed and the pharmacies that
provided DES to their mothers. 2 (Def.'s Resp. at 2-3.) In other words, not only did most of the
"critical events" take place in New York, but numerous necessary fact witnesses are located in
Defendants remaining in these actions and opposing transfer include: Eli Lilly and Company;
Burroughs Wellcome Co. (Lane case), Camick Laboratories Inc. (Lane case), Dart Industries,
f/k/a Rexall Drug Company, Inc., Lannett Co., Inc. (Lane case), Mallinckrodt LLC (sued as
Mallinckrodt, Inc.), GlaxoSmithKline LLC, f/k/a SmithKline Beecham Corp. (sued herein
incorrectly as GlaxoSmithKline f/k/a S.E. Massengill), Merrell Dow Pharmaceuticals, Inc.
(Lane case), Premo Pharmaceutical Laboratories, Inc., f/k/a Lemmon Co. of N.J., Inc., BristolMyers Squibb f/k/a E.R. Squibb & Sons, Inc., and Pharmacia & Upjohn Company, f/k/a The
Upjohn Company (Kiefer case).
Plaintiffs note that their mothers' prescribing physicians are deceased, the pharmacies from
which they acquired DES are no longer in business, and no medical or pharmacy records exist.
(Shainwald Affirmation (June 21, 2012) at~ 10.) Even if true, the past history highlights
Massachusetts' lack of contact with the subject matter of the two cases.
New York, beyond the subpoena power of the District ofMassachusetts. 3 (Def.'s Opp. at 9.)
Discovery is well underway in the cases brought by movants. Each has
participated in extensive settlement talks with some success. Lane has settled with nine
defendants; Kiefer has settled with five. Like the other 11 plaintiffs with DES cases pending in
this district, plaintiffs' cases have been assigned to Magistrate Judge Joan M. Azrack.
Magistrate Judge Azrack has handled DES litigation for over seven years, managing the cases of
over 15 DES plaintiffs. (See No. 05-CV-3386.) She builds on judicial expertise developed over
the past two decades, during which the Eastern District ofNew York has handled numerous DES
cases. It is unquestioned that Judge Azrack is a very able and thoroughly experienced judge with
extensive expertise in managing DES litigation.
After choosing initially to file their suits in this district, and benefiting from its
extensive experience in the management of DES cases, plaintiffs now seek to transfer their cases
to the District ofMassachusetts. 4 They aim to join Fecho v. Eli Lilly & Co., 11-cv-10152 (D.
Mass.), a consolidated suit brought by 53 plaintiffs, who filed initially as a class in the District of
Columbia. Id. The Fecho plaintiffs allege that they developed breast cancer as a result of in
utero exposure to DES. The Massachusetts plaintiffs have already retained experts ("Fecho
experts") to opine on the issue of causation. (Pl.'s Br. at 2.) In January 2012, a Daubert hearing
on the admissibility of the plaintiffs' experts' testimony was held. Fecho v. Eli Lilly & Co.,
2012 WL 194419 (D. Mass. 20 12). In addition to ruling the opinion admissible, the court
ordered the parties to mediate their dispute. Id. Mediation has since failed, and the case is now
Plaintiffs note that one fact witness, Kiefer's sister, lives in Massachusetts, and a second,
Lane's mother, lives in Florida and finds New York and Massachusetts equally convenient.
(Pl.'s Reply at 5.) Additionally, two ofthe expert witnesses proposed by plaintiffs work in
Massachusetts. (Pl.'s Br. at 5.)
For whatever significance, plaintiffs note that federal courts in Massachusetts decided several
DES cases in 1985. (Pl.'s Br. at 8.)
scheduled for trial before Magistrate Judge Bowler in January 2013. (Pl.'s Br. at 2.)
Critical to an understanding of the posture of the Massachusetts litigation is the
consent of all parties there to trial by a magistrate judge. (De f.'s Opp. at 1, 4-5). Defendants
here, however, have opposed such a reference. The Court cannot assume their strategy will
change. With Fecho ready for trial in January 2013, any economy of judicial resources that
would arguably attach to transfer and consolidation evaporates. Indeed, the nonalignment of the
litigations might actually slow disposition of the cases currently pending before that Court.
Plaintiffs claim nonetheless that a transfer would promote judicial economy by funneling a
second Daubert hearing to Magistrate Judge Bowler. (Pl.'s Reply at 3.) Defendants argue that
plaintiffs overstate the benefit of transferring the case. First, defendants note that different
evidence may come before the court, because plaintiffs have not retained the Fecho experts, nor
have the Fecho experts agreed to testify in the instant actions. (Def. 's Opp. at 2, 6, 8.) Second,
defendants argue that New York law would govern the case irrespective of venue, negating any
notion that a second Daubert hearing would be duplicative. Id. at 2, 5-6. In that regard,
defendants contend that the public interest favors keeping the cases in New York, because New
York courts have greater familiarity with local law. Id. at 11. Plaintiffs reply that they will put
forward substantially similar expert testimony and play down the substantive differences
between the law controlling Daubert analysis in the First and Second Circuits. (Pl.'s Reply at 35.)
The argument for transfer rests largely on the assertion that litigating two more actions in
a venue where multiple similar actions are pending will serve the interest of justice and conserve
judicial resources, particularly through avoiding duplicate hearings on these virtually identical
I. Legal Standard
Transfer of venue is controlled by 28 U.S.C. § 1404(a), which provides that, "[f]or 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." "[M]otions
for transfer lie within the broad discretion of the district court and are determined upon notions
of convenience and fairness on a case-by-case basis." Solar v. Annetts, 08-CV-5747, 2010 U.S.
Dist. LEXIS 30386, at *10-*11 (S.D.N.Y. Mar. 16, 2010) (quoting In re Cuyahoga Equip. Corp.,
980 F.2d 110, 117 (2d Cir. 1992)); see Red Bull Assocs. v. Best Western Int'l, Inc., 862 F.2d
963, 967 (2d Cir. 1988) (discussing the "considerable discretion in the district court to adjudicate
motions for transfer"). The burden generally falls on the moving party to make "a clear and
convincing showing that a matter should be transferred." McHale v. Citibank, N.A., 09-CV6064, 2009 U.S. Dist. LEXIS 74943, at *16 (S.D.N.Y. Aug, 24, 2009) (internal quotation marks
The parties do not dispute that plaintiffs could have brought the current actions in the
District of Massachusetts. Therefore, the Court must decide whether transfer would promote
convenience and fairness. In doing so, the Court may examine a number of factors, including:
(1) the initial choice of forum by plaintiffs; (2) the convenience of witnesses; (3) the location of
relevant documents and other physical evidence; (4) the convenience of parties; (5) the locus of
operative facts; (6) the availability of process to compel the attendance of unwilling witnesses;
(7) the relative means of the parties; (8) the forum's familiarity with governing law; and (9)
judicial economy and the interests of justice. See D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d
95, 106-07 (2d Cir. 2006) (internal quotation marks and citation omitted); Scherillo v. Dun &
Bradstreet, Inc., 684 F. Supp. 2d 313,318 (E.D.N.Y. 2010); McHale, 2009 U.S. Dist. LEXIS
74943, at* 17. "There is no strict formula for the application of these factors, and no single
factor is determinative." Scherillo, 684 F. Supp. 2d at 318-19.
II. Transfer To The District of Massachusetts Is Not Appropriate
A. Plaintiffs Choice of A New Forum is Entitled to Little Deference
Although a plaintiffs choice of forum is generally afforded considerable weight,
Wald v. Bank of America Corp., 856 F. Supp. 2d 545, 549 (E.D.N.Y. 2012), when the "chosen
forum has no connection to the events which gave rise to the claim for relief, plaintiffs choice of
forum is a less weighty consideration." In re E. Dist. Repetitive Stress Injury Litig., 850 F.
Supp.188, 194 (E.D.N.Y. 1994) (quotation omitted); see also Cagle v. Cooper Cos., 1996 WL
345771, *2 (S.D.N.Y 1996) ("[Plaintiffs choice offorum] is given little or no weight ifthere is
little or no material connection between the chosen forum and the facts or issues in the case."
(quotation omitted). Moreover, a plaintiffs choice of forum is entitled to less deference if the
plaintiff chooses a forum other than her place of residence. Cagle v. Cooper Cos., 1996 WL
345771 at *2. Both factors cut against plaintiffs in the instant case. Obviously, if the roles were
reversed, that is, if defendants were seeking transfer away from the district where plaintiffs
reside and the pertinent conduct occurred, and plaintiffs were resisting, the same case law would
give each plaintiffs initial choice of forum considerable, if not insurmountable, weight.
Convenience Factors Do Not Support a Transfer
As plaintiffs acknowledge in their reply papers, "[t]here is not much dispute
concerning the applicable law concerning the convenience of witnesses." (Pl.'s Reply at 5). All
parties accept that the emphasis placed on accommodating fact witnesses, 15 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 3851 (3d ed. 1998), does not
extend to expert witnesses, Balaban v. Pettigrew Auction Co., 1997 WL 470373, *4 (E.D.N.Y.
1997). (Def.'s Opp. at 7; Pl.'s Reply at 5). Without the two potential Massachusetts-based
Fecho experts, plaintiffs reference only one witness-Kiefer's sister-who resides in the District
of Massachusetts. In contrast, all of plaintiffs' treating doctors are located in New York,
potentially beyond the subpoena power of the proposed transferee district. 5 (De f.'s Opp. at 3.)
The limit on a court's power to compel attendance "is a significant factor in the Court's
consideration of a transfer motion." Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 990
(E.D.N.Y. 1991). Without the pull of a large number ofMassachusetts-based fact witnesses,
plaintiffs cannot overcome the preference for adjudicating the subject cases in this district, which
presumably has the power to summon the necessary witnesses. 6
C. Neither Judicial Economy nor the Interests of Justice Support Transfer
"There is a general policy supporting the litigation of related claims in the same
forum, because of the efficiency of conducting both discovery and pretrial and trial proceedings
in one forum rather than two." New York City Health and Hosps. Corp. v. Cityside Archives
Ltd., 1998 WL 196198, *2 (S.D.N. Y. 1998). However, where, as here, discovery is near
complete, (Pl.'s Reply at 3 ), significant time has been spent by a defense team designed to meet
claims in the forum initially designated by the plaintiff, and considerable effort has been made to
apply the law of the forum in the context of motion practice and settlement discussions, transfer
is not generally appropriate. See Haber v. ASN 50th St., LLC, 2011 WL 1226282 (S.D.N.Y.
2011); Royal & Sun Appliance Insur. PLC v. UPS Supply Chain Solutions, Inc., 2010 WL
4967984 (S.D.N.Y. 2010). In fact, it is especially inappropriate when the transfer motion is
advanced by the very same plaintiffs who selected the initial venue and who have had a change
of heart about their forum selection. Worse, here, the transferor court will be saved little because
Plaintiffs observe correctly in their reply that Rule 32(a)(4)(B) and (D) of the Federal Rules of
Civil Procedure permits parties to substitute depositions for live testimony. However, the plain
language of the rule undermines their reliance on this procedural device by noting explicitly "the
importance oflive testimony in open court." Fed. R. Civ. P. 32(a)(4)(D).
Plaintiffs have not argued that the relevant witnesses are beyond the reach of this Court.
of the other eminently similar cases that remain notwithstanding the transfer sought by plaintiffs.
Finally, as plaintiffs acknowledge, barring a change of strategy on the part of defendants
(objection to magistrate judge trial), transfer would not result in one rather than two trials, even
in the transferee court. (Pl.'s Reply at 3.) Absent such a single trial, there are no economies of
judicial resources in any court. The instant actions are consolidated before Magistrate Judge
Azrack for pretrial handling already. More than that, as alluded to above, Judge Azrack has
other active DES cases assigned to her that she would continue to manage even if the Lane and
Kiefer cases were transferred to Massachusetts. Far more likely, a transfer would tax judicial
and party resources even more. Almost certainly, the transferee judge or judges would need to
be brought up to speed on the specifics of these two cases, probably by a new set of counsel
applying a different set of circuit precedents. Under the totality of circumstances, transfer is
For the foregoing reasons, plaintiffs' motion to transfer venue of these actions to the
District of Massachusetts is denied.
Dated: Brooklyn, New York
November 21, 2012
s/Eric N. Vitaliano
United States District Judge
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