Locklear v. Mylan Inc.

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

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

CIVIL ACTION NO. 1:10CV164

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

DATED: August 1, 2011.

(Judge Keeley)

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 thedistrict 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"), filed her complaint in this Court after the decedent's fatal, allegedly accidental, drug overdose, which occurred after he applied a Mylan Fentanyl Transdermal System ("MFTS") patch. The complaint alleges strict liability based on manufacturing defect, failure to warn, and design defect, negligence, negligent misrepresentation, breach of impliedwarranties 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., 8 37 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 theburden 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, hefound 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 andwork 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 to testify at trial includeindividuals 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. Incontrast, 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.

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...