Locklear v. Mylan, Inc., et al

Filing 44

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO TRANSFER (DKT. 29) AND DENYING AS MOOT MOTION TO AMEND OR VACATE SCHEDULING ORDER (DKT. 42): ORDER denying as moot 42 Motion to Vacate and granting 29 Motion to Transfer Case to the Eastern District of North Carolina. It is further ordered that this case be removed from the active docket. (Copy ED of NC) Signed by District Judge Irene M. Keeley on 8/1/11. (mh) Modified on 8/1/2011 to add closing information. NEF regenerated (mh).[Transferred from West Virginia Northern on 8/1/2011.]

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CARLENE LOCKLEAR, Personal
Representative of the Estate
of Michael Locklear, Deceased,
Plaintiff,

v.

//

CIVIL ACTION NO. 1:10CV164
(Judge Keeley)

MYLAN INC.,
MYLAN PHARMACEUTICALS INC., and
MYLAN TECHNOLOGIES, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
TRANSFER (DKT. 29) AND DENYING AS MOOT MOTION TO
AMEND OR VACATE SCHEDULING ORDER (DKT. 42)
I. INTRODUCTION
This is one of seven cases filed in this Court against the
defendants, Mylan Pharmaceuticals Inc. (“MPI”), Mylan Technologies
Inc. (“MTI”), and Mylan Incorporated (“Mylan, Inc.”)(collectively
“Mylan”), each of which relates to an alleged wrongful death
resulting from the use of Mylan’s transdermal fentanyl patches.1 In
this and five of the six other cases, Mylan has filed motions to
transfer pursuant to 28 U.S.C. § 1404(a), seeking a transfer to the

1

skin.

A fentanyl patch delivers pain medication through a patient’s

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MEMORANDUM OPINION AND ORDER
district courts in the decedents’ home states – in this case, North
Carolina.2 For the reasons that follow, the Court GRANTS the
defendants’ motion to transfer this case to the Eastern District of
North Carolina. The analysis contained in this Memorandum Opinion
and Order also pertains to the motions to transfer pending in the
cases referenced, where the material facts are indistinguishable.
Mylan also filed a motion to vacate or amend the scheduling
order pending the resolution of its motion to transfer. Based on
the decision it reaches here, the Court DENIES that motion as MOOT.
II. PROCEDURAL HISTORY
The plaintiff in this case, Carlene Locklear (“Locklear”), as
the personal representative of the estate of Michael Locklear
(“decedent”),
decedent’s

filed

fatal,

her

complaint

allegedly

in

this

accidental,

drug

Court

after

overdose,

the
which

occurred after he applied a Mylan Fentanyl Transdermal System
(“MFTS”) patch. The complaint alleges strict liability based on
manufacturing
negligence,

defect,
negligent

failure

to

warn,

misrepresentation,

2

and

design

breach

of

defect,
implied

See also Civ. Action Nos. 1:10cv168, 1:10cv169, 1:10cv178,
1:10cv186, and 1:11cv12. The complaint in Civ. Action No. 1:11cv80
also asserts similar claims, but no motion to transfer has been
filed in that case as of yet.
2

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MEMORANDUM OPINION AND ORDER
warranties

of

fitness

and

merchantability,

breach

of

express

warranty, and wanton, willful, or reckless conduct.
III. LEGAL STANDARD
A.

Motion to Transfer Generally
“For 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.” 28
U.S.C. § 1404(a). The parties here do not dispute that this case
could have been brought in the Eastern District of North Carolina,
where the decedent resided until his death. When this initial
inquiry is satisfied, a court should analyze a transfer motion on
a case-by-case basis, and weigh the following factors to determine
convenience and fairness:
(1) ease of access to sources of proof; (2) the
convenience of parties and witnesses; (3) the cost of
obtaining
the attendance
of
witnesses;
(4)
the
availability of compulsory process; (5) the possibility
of a view; (6) the interest in having local controversies
decided at home; and (7) the interests of justice.
Alpha Welding and Fabricating, Inc. v. Heller, Inc., 837 F.Supp.
172, 175 (S.D.W. Va. 1993)(citing Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508–09 (1947); see also Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 29 (1988)(citing Van Dusen v. Barrack, 376 U.S.
612, 622 (1964)). The party seeking transfer is charged with the
3

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MEMORANDUM OPINION AND ORDER
burden of demonstrating that transfer to another forum is proper;
furthermore, a plaintiff’s choice of forum is given considerable
weight. Verosol B.V. v. Hunter Douglas, Inc., 806 F.Supp. 582, 592
(E.D.Va. 1992).
B.

Transfer of Similar Fentanyl Cases Filed in West Virginia
In the Southern District of West Virginia, Chief Judge Joseph

R. Goodwin analyzed the nature of these MFTS cases under Alpha
Welding and Gulf Oil and transferred several to the decedents’ home
states. See, e.g., Leonard v. Mylan Inc., 718 F.Supp.2d 741 (S.D.W.
Va. June 21, 2010).3 In deciding to do so, he reasoned that the
majority of likely non-party witnesses lived in the home states,
and

evidence

regarding

medical

history

and

circumstances

surrounding the deaths was located there. Id. at 745. Furthermore,
he found that the home states had an interest in having their
citizens’ rights vindicated and in protecting their other citizens.
Id. Other than the incorporation of two of the defendants here, he

3

See also Gardner v. Mylan Inc., Civ. Action No. 2:09cv1289,
2010 WL 2595114 (S.D.W. Va. June 24, 2010); Arnett v. Mylan Inc.,
Civ. Action No. 2:10cv114, 2010 WL 3220341 (S.D.W. Va. Aug. 13,
2010); Reed v. Mylan Inc., Civ. Action No. 2:10cv404 (S.D.W. Va.
Sep. 13, 2010); Sanner v. Mylan Inc., Civ. Action No. 2:10cv166,
2010 WL 3294370 (S.D.W. Va. Aug. 19, 2010); Urich v. Mylan Inc.,
Civ. Action No. 2:10cv330, 2010 WL 3359462 (S.D.W. Va. Aug. 23,
2010).
4

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MEMORANDUM OPINION AND ORDER
found there were no substantial West Virginia interests implicated.
Id.4
IV. DISCUSSION
A.

Statutory Authority to Transfer
In this case, Mylan seeks transfer to a district where the

case could have been brought originally, in the district where the
decedent resided at the time of his death and where Locklear
remains domiciled. Thus, the first condition of § 1404(a) is
satisfied and the Court must analyze the factors discussed in Alpha
Welding.
B.

Ease of Access to Sources of Proof
Mylan argues that transfer is warranted because most of the

sources of proof relating to Michael Locklear’s death are located
in North Carolina. It points to Locklear’s initial disclosures
pursuant to Fed.R.Civ.P. 26(a), which confirm that most of the fact
witnesses with knowledge of the decedent’s medical history and the
circumstances surrounding his death reside in North Carolina.
Additionally,

Mylan

contends

that

relatively

few

of

its

employees identified as relevant by Locklear actually reside and

4

Notably, Mylan maintains a manufacturing facility in the
Northern District of West Virginia, but has no corporate presence
in the Southern District.
5

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MEMORANDUM OPINION AND ORDER
work in West Virginia. Of these, only five live in West Virginia,
while eleven reside in other states. Mylan also asserts that
relevant records are located at its facilities in Vermont and
Pennsylvania, as well as in this District. Significantly, Mylan
agrees to make all of its employees with relevant information
available for depositions, wherever they may reside and regardless
of the venue.
Locklear, on the other hand, asserts that, for the most part,
access to relevant sources of proof can be found in West Virginia.
She contends that her causes of action arise in West Virginia
because her claims focus on the design, marketing, and testing of
the MFTS. She alleges that these activities occurred mainly in West
Virginia or at Mylan’s Pennsylvania facilities, both of which are
within

the

subpoena

power

of

this

Court,

and

that

relevant

documentation is likely to be located there. Locklear rejects
Mylan’s offer to make its employees with relevant information
available for deposition, pointing out that “relevant information”
is a subjective determination that Mylan should not be allowed to
make unilaterally.
Access to proof from non-parties, however, will be more
readily obtainable if this action is transferred to North Carolina.
The

non-party

witnesses

likely
6

to

testify

at

trial

include

LOCKLEAR v. MYLAN INC., ET AL.

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MEMORANDUM OPINION AND ORDER
individuals familiar with the decedent’s treatment, activities, and
death in that state. These witnesses have factual information
material to the decedent’s medical history and cause of death.
Presumably, relevant medical documents are in the possession of
either

Locklear,

her

attorneys,

or

the

decedent’s

treating

physicians and other healthcare professionals located in or near
North Carolina.
Locklear may obtain discovery regarding the design, marketing,
and testing of the MFTS products through documents and depositions
of

relevant

Mylan

employees.

Furthermore,

the

discoverable

documents in this case related to Mylan’s design, production and
marketing activities likely are identical to those that have
already been produced in other cases filed against Mylan in various
jurisdictions. Given that the same attorneys represent each of the
plaintiffs in these cases, the defendants may not need to produce
these documents more than once if the parties agree. Finally, there
is no evidence that Mylan would not honor its agreement to make
its employees with relevant information available for discovery.
C.

Convenience of Parties and Witnesses
Mylan argues that because the majority of the non-party

witnesses, and Locklear herself, are located in North Carolina it
will be more convenient for all involved to try the case there. In
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LOCKLEAR v. MYLAN INC., ET AL.

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MEMORANDUM OPINION AND ORDER
contrast, it notes that there are no identified non-party witnesses
residing in West Virginia.
Locklear, however, argues that, because almost all of Mylan’s
critical witnesses are located in the Northern District or nearby
in Pennsylvania, this Court is the most convenient forum for Mylan.
She also contends that, because she brought her action in this
forum and will appear here for trial, convenience is not an issue
for her. She notes that under the Rules of Civil Procedure either
party may issue subpoenas for videotaped depositions through the
district courts in North Carolina. Fed.R.Civ.P. 45(a). From that,
she reasons that West Virginia will actually be a more convenient
forum because non-party witnesses will only be compelled to testify
once, at a videotaped deposition for use at trial.
Because Mylan has agreed to make its witnesses available in
North Carolina, and Locklear is willing to travel to West Virginia,
the consideration of the burdens placed on non-party witnesses is
paramount. These individuals with no stake in this litigation
should not be asked to incur the inconvenience of traveling to West
Virginia, even if voluntarily. Because the Eastern District of
North Carolina is more convenient for such persons, this factor
weighs strongly in favor of transfer.

8

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MEMORANDUM OPINION AND ORDER
D.

Cost of Obtaining the Attendance of Witnesses
Mylan argues that the cost of obtaining the attendance of

witnesses will be greater in West Virginia than in North Carolina
because it would have to depose each non-party witness twice. In
Locklear’s view, Mylan’s argument ignores what has occurred in
other MFTS cases, where Mylan has used videotaped depositions of
non-party witnesses for both pretrial and trial purposes.
Because Mylan may videotape depositions for use at trial, and
seems comfortable doing so, it is unlikely that it will incur
significant additional costs by litigating in either West Virginia
or North Carolina. On the other hand, Locklear has not shown that
trial in her home state would cause her to incur any additional
expense. Thus, this factor does not weigh strongly either in favor
of or against transfer.
E.

Availability of Compulsory Process
Mylan contends that, if the case remains here, the parties

will suffer a substantial injustice because they will not be able
to compel witnesses residing in or near North Carolina to appear
and

testify

at

trial.

While

Locklear

concedes

there

is

no

compulsory process by which to force witnesses from the decedent’s
home

state

witnesses

to
may

appear
be

in

this

compelled

District,

to
9

provide

she

argues

videotaped

that

the

deposition

LOCKLEAR v. MYLAN INC., ET AL.

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MEMORANDUM OPINION AND ORDER
testimony. She notes that in at least one other MFTS case that has
proceeded to trial, Mylan did not call any non-party witnesses to
give live testimony. Richardson v. Mylan, Inc., Civ. Action No.
09cv1041 (S.D.Cal. 2011). Moreover, two of three non-expert Mylan
witnesses

who did

testify

at

trial

actually

resided

in

West

Virginia.
Finally, Locklear argues that transfer would deprive her of
the power to compel the attendance of Mylan’s witnesses at trial.
The Court is satisfied, however, that Mylan would not misrepresent
its willingness to voluntarily produce its corporate witnesses.
Consideration of this factor favors transfer because, as the
parties are aware, they will not have access to full compulsory
process for non-party witnesses even if the case proceeds in West
Virginia. Despite its use of videotaped testimony in other cases,
Mylan should not be limited to this tactic by an inability to
procure live testimony from those with first-hand knowledge of the
facts surrounding the decedent’s death.
F. Possibility of a View
The parties agree that the possibility of a jury view is not
likely in this case, and that this factor has no applicability in
the Court’s analysis.

10

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MEMORANDUM OPINION AND ORDER
G. Choice of law and local interest
Mylan argues that North Carolina has an interest in this case
because that was where Michael Locklear was prescribed the fentanyl
patch, used it, and died. On the other hand, Locklear argues that
West Virginia has a substantial interest in having the matter
decided in its courts because much of the culpable conduct occurred
here.

The

complaint’s

allegations

focus

on

the

design,

manufacturing, testing, marketing, and distribution of the patch,
which took place in West Virginia, Pennsylvania and Vermont.
Finally, acknowledging that West Virginia does not recognize the
learned intermediary doctrine, Locklear argues that the trial court
will

be

required

to

apply

this

aspect

of

West

Virginia

law

regardless of whether North Carolina’s laws generally govern the
case.
a.

Learned intermediary doctrine

In resolving a motion under § 1404(a), a court should consider
whether the law of the transferee state significantly differs from
that of the transferor state. Van Dusen v. Barrack, 376 U.S. 612,
622-25 (1964). On transfer, however, a party retains the benefits
of the laws of the forum she initially selected. Id. at 633. That
is, the case should remain as it was in all respects but location.
Id.
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MEMORANDUM OPINION AND ORDER
North

Carolina’s

courts

have

recognized

the

learned

intermediary doctrine, under which a prescription drug manufacturer
only has a duty to explain a drug’s risks to the patient’s doctor,
who acts as a “learned intermediary” between the patient and the
manufacturer.

Baraukas

v.

Danek

Med.,

Inc.,

Civ.

Action

No.

6:97cv613, 2000 U.S. Dist. LEXIS 5122 (M.D.N.C. Jan. 13, 2000). The
manufacturer owes no such duty to the patient himself, so long as
the warnings given by the manufacturer to the doctor are “adequate
or reasonable under the circumstances of the case." Hardy v.
Pharmacia Corp., Civ. Action No. 4:09cv119, 2011 U.S. Dist. LEXIS
57119 at *6-7 (M.D.Ga. May 27, 2011)(citing McCombs v. Synthes
(U.S.A.), 277 Ga. 252, 253 (2003)).
Recognizing that the West Virginia Supreme Court of Appeals
has declared that the learned intermediary doctrine violates the
state’s public policy, this Court has held that it cannot be
applied in a diversity case, even when another state’s substantive
law otherwise controls. See Vitatoe v. Mylan Pharms., Inc., 696
F.Supp.2d 599, 609 (N.D.W. Va. 2010)(citing Johnson & Johnson Corp.
v. Karl, 647 S.E.2d 899 (W. Va. 2007); and Woodcock v. Mylan, Inc.,
661 F.Supp.2d 602, 607-608 (S.D.W. Va. 2009)).5 The issue in

5

This year, the West Virginia Legislature enacted a statute
stating that “[i]t is public policy of this state that, in
12

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MEMORANDUM OPINION AND ORDER
Vitatoe, however, arose as a choice of law question, not on a
motion to transfer.
While the question of which state’s substantive law applies
may need to be resolved at some later point, the Court need not
answer that question to decide the motion to transfer. “[W]here the
defendants seek transfer, the transferee district court must be
obligated to apply the state law that would have been applied if
there had been no change of venue. A change of venue under §
1404(a) generally should be, with respect to state law, but a
change of courtrooms.” Van Dusen, 376 U.S. at 639.
The Court recognizes that the issues of governing law and the
applicability of the learned intermediary doctrine may greatly
affect

the

parties’

causes

of

action

and

defenses.

However,

transfer to the Eastern District of North Carolina will not affect
the analysis of these issues. Under Van Dusen, that analysis will
be the same regardless of venue. Locklear consequently will suffer
no prejudice flowing from any difference in applicable state law,

determining the law applicable to a product liability claim brought
by a nonresident of this state against the manufacturer or
distributor of a prescription drug for failure to warn, the duty to
warn shall be governed solely by the product liability law of the
place of injury (‘lex loci delicti’).” W. Va. Code § 55-8-16(a).
The code provision only applies, however, to suits filed on or
after July 1, 2011, and thus does not affect this action or the
others referenced in this opinion. Id. at § 16(b).
13

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MEMORANDUM OPINION AND ORDER
and this factor does not counsel against granting the motion to
transfer.
b.

States’ Interests Generally

Both West Virginia and North Carolina possess legitimate
public interests in having this case decided in their respective
courts. Because this litigation involves the death of a North
Carolina resident, the citizens of that state have a substantial
interest in having the case heard there. West Virginia, on the
other hand,

has an interest in having the claims decided where MPI

and MTI are both incorporated. MPI’s primary place of business is
located in West Virginia, and all three defendants (MPI, MTI, and
Mylan, Inc.)

conduct

business

in

here. The citizens

of

West

Virginia have an interest in regulating corporations that do
business within their state. See, e.g., Woodcock, 661 F.Supp.2d at
609-10 (Mylan, as a West Virginia company, can reasonably expect to
be subject to the tort laws of the state).
Nonetheless, as Chief Judge Goodwin recognized in Leonard, the
interest of the decedent’s home state is stronger:
[The decedent’s home state] has a strong interest in
having this case litigated locally. [That state’s]
interests include having one of its citizen's rights
vindicated, as well as protecting its other citizens from
potentially harmful pharmaceutical drugs. Conversely,
West Virginia's interests are few. Other than the

14

LOCKLEAR v. MYLAN INC., ET AL.

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MEMORANDUM OPINION AND ORDER
incorporation of two of the defendants in West Virginia,
there are no West Virginia interests in this case.
Leonard, 718 F.Supp.2d at 745.
Although Mylan’s facilities in West Virginia are located in
this District, the limited extent of this state’s interest is the
same as in Leonard. The interests of the state and its people in
resolving conflicts related to companies located here are the same
whether their facilities are located in Morgantown, Charleston or
elsewhere. While that interest is substantial in many cases,
companies such as Mylan that maintain offices, factories and
distribution

centers

in

several

states,

and

distribute

their

products nationwide, predictably will engage in litigation in many
jurisdictions. The citizens of this state, consequently, have less
of an interest in hearing a case involving the death of a North
Carolina resident than do the people of the state where the
decedent lived.
The decedent was prescribed the MFTS in North Carolina, used
the product there, and allegedly died there because of it. North
Carolina thus has a greater interest than does West Virginia in
having this action heard by the judiciary in its state.

15

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MEMORANDUM OPINION AND ORDER
7.

Interest of Justice Generally

Overall, the interest of justice requires that this case be
heard in a court with better access to relevant evidence and
witnesses, where non-party witnesses will be less inconvenienced,
and where the local citizens have a stronger interest in the case.
These considerations are substantial and overcome the presumptively
proper venue chosen by Locklear.
V. CONCLUSION
For the reasons discussed, the Court GRANTS the motion (dkt.
29)

to

transfer

Carolina,

and

this

DENIES

case

to

Mylan’s

the

Eastern

motion

to

District

vacate

or

of

North

amend

the

scheduling order (dkt. 42) on its merits, not only because it is
now moot, but also because Mylan has a continuing duty to engage in
discovery in good faith, regardless of the pendency of any motion.
It is so ORDERED.
The Court directs the Clerk to forward a copy of this Order to
counsel of record, and to the Clerk of the United States District
Court for the Eastern District of North Carolina, and to remove
this case from the active docket.
DATED: August 1, 2011.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
16