HEINEMAN et al v. AMERICAN HOME PRODUCTS CORPORATION et al

Filing 31

MEMORANDUM IN SUPPORT OF PRETRIAL ORDER NO. 9099 RE: MOTION TO TRANSFER VENUE IN C.A. 12-20002. SIGNED BY HONORABLE HARVEY BARTLE, III ON 6/26/2013; 6/27/2013 ENTERED AND COPIES MAILED AND E-MAILED TO LIAISON COUNSEL. (SEE PAPER # 110046 IN 11-MD-1203). (tjd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: DIET DRUGS
(PHENTERMINE/FENFLURAMINE/
DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION

MDL DOCKET No. 1203

JENNIFER HEINEMAN, et al.

CIVIL ACTION

v.
AMERICAN HOME PRODUCTS
CORPORATION, et al.

NO. 12-20002

MEMORANDUM IN SUPPORT OF PRETRIAL ORDER NO.

CJoqq
June ~6, 2013

Bartle, J.

Plaintiffs, Jennifer and Eric Heineman, have sued
defendants American Home Products Corporation, Wyeth-Ayerst
Pharmaceuticals Inc., and Wyeth-Ayerst International Inc.,
(hereinafter collectively "Wyeth").

Plaintiffs claim that Ms.

Heineman suffered pulmonary hypertension as a result of the
ingestion of Wyeth's diet drug "Fen-Phen."

The essence of the

suit stems from defendants• alleged failure to warn against the
specific risks associated with ingesting the drug.

The lawsuit

was originally filed in the Court of Common Pleas of Philadelphia
County and was timely removed to this court under 28 U.S.C.
§

1446 based on diversity of citizenship and the requisite amount

in controversy under 28 U.S.C.
remand was denied.

§

1332(a).

Plaintiffs• motion to

See PTO No. 8914.

Before the court is the motion of the defendants to
transfer this action pursuant to 28

u.s.c.

§

1404(a) from this

District to the District of Colorado now that pretrial
proceedings have been completed as part of MDL No. 1203.

u.s.c.

§

See 28

1447.
It is undisputed that plaintiffs are both residents of

Colorado.

The defendants are incorporated in either Delaware or

New York, with their principal places of business in either
Pennsylvania or New York.

Ms. Heineman was prescribed the diet

drug in issue in Colorado and developed her alleged pulmonary
hypertension there as a result of ingesting the drug.

She has

been treated by various Colorado physicians due to her medical
condition.
Title 28 U.S.C.

§

1404(a) provides:

For the convenience of parties and witnesses,
in the interest of justice, a district court
may transfer any civil action to another
district or division where it might have been
brought ...
The district court has broad discretion in deciding a
motion for transfer of venue.

White v. SmithKline Beecham Corp.,

No. 06-3025, 2007 WL 1237952, at *2 (E.D. Pa. Apr. 2, 2007).

A

case that has been removed from state court may be transferred to
a different district as long as venue is proper in both the
original and the transferee district.
Co., 55 F. 3d 873, 878 (3d Cir. 1995).

Jumara v. State Farm Ins.
There is no dispute that

venue is proper in the Eastern District of Pennsylvania.

u.s.c.

§

1391(b) (2).

28

In determining whether transfer is proper,

"for the convenience of parties and witnesses, in the interest of

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justice," our Court of Appeals has established a list of private
and public factors to consider.

The private factors include:

[1] plaintiff's forum preference as
manifested in the original choice, [2] the
defendant's preference, [3] whether the
claims arose elsewhere, [4] the convenience
of the parties as indicated by their
relative physical and financial condition,
[5] the convenience of the witnesses - but
only to the extent that the witnesses may
actually be unavailable for trial in one of
the fora, and [6] the location of the books
and records (similarly limited to the
extent that the files could not be produced
in the alternative forum) .
Jumara, 55 F. 3d at 879 (citations omitted).
Although plaintiffs' forum preference is given
substantial weight, it is afforded less weight when the plaintiff
selects a forum which is neither his or her home nor the place of
the significant events upon which the suit is predicated.

See In

re Link A Media Devices Corp., 662 F.3d 1221, 1223 (Fed. Cir.
2011); Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d
1153, 1167 (lOth Cir. 2010); Copley v. Wyeth, No. 09-722, 2009 WL
2160640 (E.D. Pa. July 17, 2009).

Here, the plaintiffs' forum

preference will not be given much weight as they are residents of
Colorado and the suit is based on Wyeth's failure to warn leading
to Ms. Heineman's harmful ingestion of the diet drug, all of
which took place in Colorado.

The defendants' forum preference

is, of course, Colorado.
The claim in issue clearly arose in Colorado.
Heineman was prescribed the diet drug there and allegedly

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Ms.

suffered her pulmonary hypertension there as a result of
ingesting the drug.
The transfer to the District of Colorado is more
convenient for the parties as indicated by their physical and
financial conditions.

The plaintiffs are physically present in

Colorado, and it will clearly be less expensive for them to have
this action tried near their home.

The defendants, as large

corporations, do not bear a meaningfully heavier financial burden
in one district versus another.

In any event, defendants seek a

transfer to Colorado.
As for the "convenience of witnesses," the defendants
have made clear that they plan on calling at least two of the
treating physicians as key witnesses who will testify about
causation and statute of limitation issues.

These witnesses are

located in Colorado and cannot be compelled to testify in this
District since they are well out of reach of this court's
subpoena power.

Fed. R. Civ. P. 45(b) (2).

Although both

parties' primary expert witnesses 1 are located in Philadelphia, no
one asserts that the experts will not appear in Colorado if the
case is transferred.

Courts generally do not consider the

convenience of experts as they are likely compensated for their
role in the litigation and are presumably willing to testify in
either forum.

See Howell v. Shaw Indus., No. 93-2068, 1993 WL

387901 (E.D. Pa. Oct. 1, 1993).

Additionally, defendants

1. Dr. Cheryl Blume is the expert for the plaintiff and Dr. Paul
Forfia fills that role for the defendants.
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maintain, and plaintiffs do not deny, that it is unlikely that
either party will call any Wyeth company witnesses to testify as
their videotaped depositions will be used.
To the extent it is still a relevant issue given modern
technological advances, the majority of the medical records are
located in Colorado.

Any necessary records Wyeth has outside of

that state can easily be made available there.

See Copley, 2009

WL 2160640, at *6.
In sum, the private factors which we must consider
under Jumara weigh in favor of transfer.
The public interest factors which we must take into
account under Jumara include:
[1] the enforceability of the judgment,
[2] practical considerations that could
make the trial easy, expeditious, or
inexpensive, [3] the relative
administrative difficulty in the two fora
resulting from court congestion, [4] the
local interest in deciding local
controversies at home, [5] the public
policies of the fora, and [6] the
familiarity of the trial judge with the
applicable state law in diversity cases.
55 F. 3d at 879-80 {citations omitted).
The judgment, of course, can be enforced regardless of
which district is the trial forum.

It is more practical to have

the trial in Colorado where both the plaintiffs and their
physicians are located.

It will be less expensive and easier

than having the trial on the opposite side of the country in
Pennsylvania.

The congestion of each court is not an issue.

This court has set a trial date in November 2013 if the lawsuit
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---------------------------------

remains here, and we have no reason to believe that a prompt
trial date will not be scheduled in the District of Colorado if
the case is moved to that district.

Colorado not only has a

strong interest in resolving the product liability claims of its
own citizens but also is the site where the injuries took place
as well as a majority of the relevant events or omissions.
Finally, Pennsylvania's choice of law rules will apply.
Dusen v. Barrack, 376 U.S. 612 (1964).

See Van

Regardless of what

'
substantive law will apply, there is no doubt that a federal
judge in Colorado is fully capable of applying it. 2

The public

factors favor transfer of venue to Colorado.
This court has previously granted transfer of venue in
product liability suits where the plaintiff developed
complications resulting from ingestion of a pharmaceutical.

See

Copley, 2009 WL 2160640; Sykes v. GlaxoSmithKline, 484 F. Supp. 2d
289 (E.D. Pa. Mar. 28, 2007); White v. SmithKline Beecham Corp.,
No. 06-3025, 2007 WL 1237952 (E.D. Pa. Apr. 26, 2007).

In Copley,

this District granted transfer to the Middle District of
Tennessee.

The court, among all the factors, focused on the

convenience of non-party witnesses and made clear that live
testimony is preferred over deposition testimony.
2160640 at *5.

Copley, 2009 WL

Further, the physicians, as key non-party

witnesses, were located outside of the 100 mile subpoena power of

2. We also note that plaintiffs' lead trial lawyer is from
Oklahoma, not Pennsylvania.
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the court, thus inhibiting the parties' ability to guarantee their
live testimony.

Id. at *6.

The current case is no different than Copley and the
public and private factors overwhelmingly weigh in favor of
transfer to the District of Colorado.

For the foregoing reasons,

the motion of defendant Wyeth for transfer of venue will be
granted.

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