Michael et al v. Wyeth Pharmaceuticals, Inc. et al

Filing 203

MEMORANDUM OPINION AND ORDER denying defendant's 187 MOTION to transfer this action to the United States District Court for the Northern District of West Virginia and request for a hearing on the motion. Signed by Judge John T. Copenhaver, Jr. on 5/11/2011. (cc: attys) (lca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CAROLYN MICHAEL,
Plaintiff,
v.

Civil Action No. 2:04-0435

WYETH, LLC and PFIZER, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER

Pending is defendants’ motion to transfer this action
to the United States District Court for the Northern District of
West Virginia (“Northern District”) and request for a hearing on
the motion,1 filed April 21, 2011.

(Doc. No. 187).

Plaintiff

responded in opposition to the motion on May 2, 2011, to which
defendants replied on May 6, 2011.

I.

Background

Plaintiff Carolyn Michael alleges that she developed
breast cancer as a result of ingesting hormone replacement
therapy drugs manufactured by defendants.

She instituted this

action on May 6, 2004, invoking the court’s diversity

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Inasmuch as the court concludes that the parties’
briefings adequately present the legal and factual issues
discussed herein, it is ORDERED that defendants’ request for a
hearing be, and it hereby is, denied.

jurisdiction.

The case was transferred to multidistrict

litigation (“MDL”) in the United States District Court for the
Eastern District of Arkansas on July 26, 2004.

Six years later,

on April 13, 2010, the case was remanded to this court for the
completion of discovery, pretrial activity, and trial.

Plaintiff and her husband are residents of Berkeley
Springs, Berkeley County, West Virginia.

Her treating physicians

are located in or around Martinsburg, West Virginia.

One of

plaintiff’s sisters, who was deposed in this action, lives in
Martinsburg.

And a defense witness, who is one of defendants’

former sales representatives, lives in Gore, Virginia, roughly 35
miles from Martinsburg.

According to defendants, the only case-

specific fact witness deposed in this case not local to
Martinsburg is plaintiff’s sister, Susie Barker, who resides in
Florida.

Defendants move to transfer this action to the Northern
District, pursuant to 28 U.S.C. § 1404(a), asserting that the
material evidence and case-specific fact witnesses are located
primarily in the Martinsburg area and that a venue transfer will
best serve the interests of justice.

(Defs.’ Mot. at 1).

In

opposition to the motion to transfer, plaintiff contends that
this district remains a proper forum and that defendants’ “last
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minute request” should be denied inasmuch as substantial progress
has already been made in this court.

II.

A.

(Pl.’s Opp. at 1-2).

Motion to Transfer

Governing Standard

Section 1404(a) governs defendants’ transfer request.
It provides pertinently as follows:
For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any
civil action to any other district . . . where it might
have been brought.
28 U.S.C. § 1404(a).

A § 1404(a) transfer is dependent upon the

“weigh[ing] . . . [of] a number of case-specific factors.”
Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988).

Factors commonly considered include “(1) the ease of

access to the sources of proof; (2) the convenience of the
parties and witnesses; (3) the cost of obtaining the attendance
of the witnesses; (4) the availability of compulsory process; (5)
the possibility of a view by the jury; (6) the interest in having
local controversies decided at home; and (7) the interests of
justice.”

Landers v. Dawson Const. Plant, Ltd., 201 F.3d 426

(4th Cir. 1999) (table) (quoting Alpha Welding & Fabricating,
Inc. v. Heller, 837 F. Supp. 172, 175 (S.D. W. Va. 1993)).

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The party requesting transfer shoulders a significant
burden.

Indeed, “unless the balance is strongly in favor of the

defendant, the plaintiff’s choice of forum should rarely be
disturbed.”

B.

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).

Transfer Analysis

As an initial matter, the court notes that this action
could have originally been filed in the Northern District because
a “substantial part of the events or omissions giving rise to the
claim” occurred there.

See 28 U.S.C. § 1391(a).

The court thus

proceeds to balance the § 1404(a) factors.

The first factor, ease of access to sources of proof,
is largely neutral.

Inasmuch as discovery is closed and the

parties have already obtained most, if not all, of the
documentary evidence they intend to use at trial, this factor
does not weigh for or against transfer.

See Samsung Elec. Co,

Ltd., v. Rambus, Inc., 386 F. Supp. 2d 708, 716 n.11 (E.D. Va.
2008) (Payne, J.) (noting that “[t]he ease of access to sources
of proof refers principally to the discovery component of
litigation”).

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The second factor, convenience of parties and
witnesses, entails two distinct considerations which the court
discusses separately.

Regarding convenience of the parties,

defendants’ representatives are out of state and will have to
travel to West Virginia regardless of the venue chosen.

And

although it may have been more convenient for plaintiff, a
resident of Berkeley County, to pursue this action in the
Northern District, the fact that she filed suit in the Southern
District and opposes the motion to transfer indicates that she
finds this venue convenient.

Thus, convenience of the parties is

neutral.

Regarding convenience of non-party witnesses, district
courts in this circuit have recognized that “‘[t]he party
asserting witness inconvenience has the burden to proffer, by
affidavit or otherwise, sufficient details respecting the
witnesses and their potential testimony to enable the court to
assess the materiality of evidence and the degree of
inconvenience.’”

United Bankshares, Inc. v. St. Paul Mercury

Ins. Co., No. 6:10-188, 2010 WL 4630212, at *11 (S.D. W. Va. Nov.
4, 2010) (Goodwin, C.J.) (quoting Samsung, 386 F. Supp. 2d at
718).

In addition, “‘the moving party must demonstrate whether

that witness is willing to travel to a foreign jurisdiction.’”

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Id.

Here, defendants place great emphasis on the fact that most

of plaintiff’s family and all of her physicians reside in
Martinsburg.

But defendants do not provide the court with any

indication as to the materiality of these witness’ testimony,
their willingness to travel to the Southern District, the
inconvenience that may result therefrom, or even which witnesses
they plan on calling to testify at trial.

The court thus finds

that defendants have not carried their burden of showing that the
inconvenience to non-party witnesses warrants transfer to the
Northern District.

The third factor, the cost of obtaining the attendance
of witnesses, weighs in favor of transfer to the Northern
District.

Given that many potential fact witnesses live in the

Martinsburg area, which is approximately 300 miles away from
Charleston, there will likely be greater travel costs for those
witnesses if the trial is held in the Southern rather than
Northern District.

The fourth factor, the availability of compulsory
process, is neutral.

As this court has previously recognized,

“reading the federal and West Virginia versions of Rule 45(b)(2)
in pari materia, nonparty subpoenas may be served at any place
within this state.”

Williams v. PNC Bank, No. 2:09–953, 2010 WL

417424, at *4 (S.D. W. Va. Jan. 29, 2010) (Copenhaver, J.); see
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also Fed. R. Civ. P. 45(b)(2)(C); W. Va. R. Civ. P. 45(b)(2).2

The sixth factor, the interest in having local
controversies decided at home, is also neutral.

Whether

transferred or not, this action will be tried in plaintiff’s home
state of West Virginia, wherein defendants are neither
headquartered nor shown to maintain a principal business site.

The seventh and final factor, the interests of justice,
appears to weigh in favor of retaining this action in the
Southern District.

First, substantial progress has been made in

this court since the case was remanded from MDL a year ago in
April 2010: discovery is completed, several dispositive motions
have been fully briefed and are under consideration for decision,
and trial is scheduled for July 12, 2011.

In view of the

substantial progress made thus far as well as the court’s
familiarity with this action’s extensive factual and procedural
background, transferring the case at this stage may create
scheduling delays and result unnecessarily in a greater drain on
judicial resources for the transferee court.

Second, because

plaintiff’s local counsel is located in Charleston, plaintiff
notes that she may incur greater legal costs if this action is
tried in the Northern District.

Although defendants point out

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The fifth factor, the possibility of a view, is
relevant in cases where the jury may need to view a certain
location in person. It is not applicable here.
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that plaintiff’s lead counsel is located in Washington, D.C. and
will have to travel to West Virginia regardless of the venue,
plaintiff’s motion indicates that local counsel plans on
attending trial as well and costs will certainly be higher if
local counsel has to travel to the Northern District.
Furthermore, trying this case in the Southern District would
allow plaintiff’s out-of-state counsel to operate out of local
counsel’s office and utilize his support staff in Charleston,
which is also likely to reduce legal costs for plaintiff.

III.

Conclusion

Given the weight of the seventh factor and plaintiff’s
choice of forum, and considering that only the third factor
weighs in defendants’ favor, the court concludes that transfer
sought at this late stage of the case is not warranted.

It is

accordingly ORDERED, in the interests of justice, that
defendants’ motion to transfer be, and it hereby is, denied.

The Clerk is directed to forward copies of this written
opinion and order to all counsel of record.

DATED: May 11, 2011
John T. Copenhaver, Jr.
United States District Judge

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