B., R. et al v. United States of America

Filing 18

ORDER granting 6 Motion to Transfer by Defendant United States of America. This case is transferred to the U.S. District Court for the Southern District of California under 28 U.S.C. § 1404(a). Signed by District Judge James D. Peterson on 12/3/2019. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

R.T.B., a minor, by and through his parents and next
friends Richard D. Breault and Maya M. Breault,
RICHARD D. BREAULT, individually, and
MAYA M. BREAULT, individually,
OPINION and ORDER
Plaintiffs,
v.

19-cv-276-jdp

UNITED STATES OF AMERICA,
Defendant.
Plaintiffs Richard Dylan Breault (who goes by Dylan) and Maya Breault went to a
military hospital in California, Naval Hospital Camp Pendleton (NHCP), for the birth of their
child, R.T.B. Plaintiffs say that the doctors at NHCP were negligent in R.T.B.’s delivery and in
resuscitating R.T.B. after the birth. They allege that R.T.B. suffers from cerebral palsy and will
never live independently, and they assert claims under the Federal Tort Claims Act and
California state law.
The Breaults moved to Somerset, Wisconsin, after R.T.B.’s birth. They filed their case
here in the Western District of Wisconsin, where they now live. Venue here is proper under
28 U.S.C. § 1402(b), because plaintiffs reside in this district. But venue would also be proper
in the Southern District of California, where the relevant events occurred. The government has
moved to transfer the case to the Southern District of California, asserting that both
convenience to parties and witnesses and the interests of justice favor litigating the case in
California. The court agrees.

ANALYSIS
The federal venue statute provides that:
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 or to any
district or division to which all parties have consented.
28 U.S.C. § 1404(a). Section 1404(a) calls for a case-by-case consideration of convenience and
fairness, committed to the discretion of the district court. Research Automation, Inc. v. SchraderBridgeport Int'l, Inc., 626 F.3d 973, 978 (7th Cir. 2010). If the balance of convenience is close,
merely shifting inconvenience from one party to another does not justify transfer. Id. at 978–
79. The burden is on the government, as the party seeking transfer, to show that transfer is
warranted. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219–20 (7th Cir. 1986).
Following the statutory language, the court will begin with the convenience to parties
and witnesses, and then turn to the interests of justice.
A. Convenience of parties and witnesses
In assessing the relative convenience of one venue over another, courts typically
consider the availability of and access to witnesses, each party’s access to and distance from
resources in each forum, the location of material events, and the relative ease of access to
sources of proof. Research Automation, 626 F.3d at 978. Although plaintiffs’ choice to file in
their home forum is generally entitled to deference, see Piper Aircraft Co. v. Reyno, 454 U.S. 235,
255–56 (1981), that deference is reduced when the events at issue in the case did not occur in
that forum. See Williams v. Humphrey, No. 09-cv-202-bbc, 2009 WL 2424329, at *2 (W.D.
Wis. Aug. 5, 2009) (quoting Chi., R. I. & P. R. Co. v. Igoe, 220 F.2d 299, 304 (7th Cir. 1955)).
Here, although the convenience of the named parties weighs slightly against transferring the
case to California, the convenience of the witnesses weighs substantially in favor of transfer.

2

1. The parties
Plaintiffs contend that transfer would be inconvenient for them because traveling to
and from California could harm R.T.B.’s health. They also say that they have limited financial
means and could not afford to bring the equipment or support they would need to care for
R.T.B in California, nor could they afford to hire someone to care for R.T.B. at home while
Dylan and Maya litigate in California.
Courts have considered plaintiffs’ special medical difficulties in deciding motions for
transfer. See, e.g., Vassallo v. Niedermeyer, 495 F. Supp. 757, 760 (S.D.N.Y. 1980); see also
Mummert v. United States, No. 1:18-cv-00856-SHR, 2019 WL 144925, at *7 (M.D. Pa. Jan. 9,
2019) (“. . . a paraplegic needing constant care because of his inability to attend to his own
needs, would presumably have less physical impediments and expend fewer resources litigating
his claim closer to home.”). But defendants are right that given R.T.B.’s medical vulnerability,
and particularly his very young age, it is unlikely that he would appear at trial, regardless of
where it is held.
The court is sympathetic to the challenges that Dylan and Maya face in attending legal
proceedings while ensuring the health and well-being of their son. As defendants point out,
traveling with R.T.B. will be challenging for plaintiffs in either forum. But it’s clear that
litigating the case in Wisconsin would be more convenient for plaintiffs given R.T.B.’s
condition and plaintiffs’ relative lack of resources.
The government, by contrast, can appear in either forum without substantial hardship.
And because most of the documentary evidence in the case will consist of medical records
available electronically, the physical location of documentary evidence won’t pose a major
hurdle. On balance, considerations of party convenience weigh against transfer because

3

plaintiffs have greater access to resources in this forum, while the government has equal access
to resources in either forum.
2. The witnesses
But the convenience of witnesses weighs heavily in favor of transfer. Most witnesses,
including NHCP doctors, medical staff, and other relevant third parties, reside in the Southern
District of California. In their complaint, plaintiffs identify six doctors who they allege acted
negligently. Three of those doctors have since moved elsewhere, but the other three remain in
California. Plaintiffs’ complaint also identifies the Rady Children’s Hospital Emergency
Transport team, which assisted with R.T.B.’s resuscitation. That team is likewise based in the
Southern District of California. These individuals will likely be important fact witnesses at
trial.
Plaintiffs contend that the government has failed to carry its burden of specifying which
particular NHCP healthcare providers and medical staff will be called and establishing the
materiality of their testimony. But in a negligence case like this, the existence of such witnesses
and the materiality of their testimony is not at all speculative. This case concerns a medical
event that occurred in California, which involved and was witnessed by numerous medical
professionals in California.
Plaintiffs contend that this court would be more convenient for R.T.B.’s current treating
providers and special education teachers, who they say “have important information about
both damages and potentially causation.” Dkt. 9, at 8. They identify more than 20 individuals
based in Wisconsin and Minnesota with knowledge of the extent of R.T.B’s injuries. Dkt. 12,
¶ 9. The court is not persuaded that R.T.B’s current treating providers and teachers would be
likely to testify about the cause of R.T.B.’s injuries; that would be the province of expert

4

witnesses. It’s also unlikely that plaintiffs will need to, or be allowed to, call 20-plus damages
witnesses at trial.
The more difficult and significant issue at trial will be liability, and the witnesses
relevant to liability are concentrated in California. Damages evidence will not be needed at all
if liability is not established. Cf. In re Hudson, 710 F.3d 716, 719 (7th Cir. 2013) (upholding
transfer to Kansas despite most damages witnesses living in Illinois, because if trial in Kansas
were bifurcated “and the plaintiff lost the liability trial, his witnesses, whose testimony would
relate to the extent and persistence of his injuries rather than to the quality of the medical
treatment that he received in Kansas, would not testify anywhere”). The court is not persuaded
that plaintiffs’ potential damages witnesses shift the balance of convenience in favor of
litigating this case in Wisconsin.
Another consideration relevant to the § 1404 analysis is the limit on the subpoena
power of each forum. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511 (1947) (“Certainly to fix
the place of trial at a point where litigants cannot compel personal attendance and may be
forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or
most litigants.”). Plaintiffs have identified witnesses in Wisconsin (specifically Hudson, New
Richmond, and Somerset) and Minnesota (Minneapolis and Saint Paul). Dkt. 12, ¶ 9. Neither
this court nor the Southern District of California could compel these witnesses to attend trial
because they do not reside within 100 miles of either forum. See Fed. R. Civ. P. 45(c)(1)(A).
But the Southern District of California would have subpoena power over many of the fact
witnesses, including three of the doctors alleged to have provided negligent medical care,
NHCP medical staff, and members of the Rady transport team. This court could not compel
these witnesses to attend a trial in this district.

5

In sum, the convenience of the witnesses weighs in favor of transferring the case to the
Southern District of California. Most of the individuals who witnessed or were involved in the
care provided to R.T.B. and Maya are located there, and the presence of potential damages
witnesses in Minnesota and northwest Wisconsin does not outweigh this consideration.
B. Interests of justice factors
In the transfer analysis, the interests of justice concern “the efficient administration of
the court system.” Research Automation, Inc., 626 F.3d at 978. Courts typically consider docket
congestion and speed to trial in each forum, each court’s familiarity with the relevant law, the
desirability of resolving the controversy in each locale, and the relationship of each community
to the controversy. Id.
Here, docket congestion and speed to trial do not tip significantly either way. On
average, the Southern District of California reaches civil disposition more than a month faster
than this court does, although this court tends to get civil cases to trial faster. The Southern
District of California also has approximately 250 less cases pending per judgeship despite
having slightly more cases filed per judgeship than this court.
The Southern District of California’s familiarity with California law weighs in favor of
transfer. The parties agree that California law governs here, and the Southern District of
California regularly applies California law. Plaintiffs contend that California and Wisconsin
medical malpractice law is similar, and that federal judges routinely apply the law of foreign
states. That the case will be decided under California law would not be decisive on its own, but
it’s one more factor that favors the Southern District of California.
Communities in both Wisconsin and California have connections to this case.
Wisconsin’s connection derives from plaintiffs’ subsequent decision to relocate to Somerset,

6

where they have developed a substantial support system. Both Wisconsin and California have
an interest in providing relief to victims of medical malpractice, but California has the stronger
interest in the possibility that physicians at Naval Hospital Camp Pendleton provide substandard medical care. This factor, too, tips toward California.

ORDER
IT IS ORDERED that defendant’s motion to transfer this case, Dkt. 6, is GRANTED.
This case is transferred to the United States District Court for the Southern District of
California under 28 U.S.C. § 1404(a).
Entered December 3, 2019.

BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

7