Mink v. Wyeth, Inc.

William R. Mink, Plaintiff, v. Wyeth, Inc., Wyeth Pharmaceuticals, Inc., Defendants.

Civil No. 07-cv-4958 (DWF/SER)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

October 14, 2014

REPORT & RECOMMENDATION

Robert T. Dassow, Esq., Hovde Dassow & Deets, LLC, 10585 North Meridian Street, Suite 205, Indianapolis, IN 46290, for Plaintiff.

W. Mark Lanier, Richard D. Meadow, Esqs., The Lanier Law Firm PLLC, 126 East 56th Street, 6th Floor, New York, NY 10022, for Plaintiff.

Yvonne M. Flaherty, Robert K. Shelquist, Esqs., Lockridge Grindal Nauen PLLP, 100 Washington Avenue South, Suite 2200, Minneapolis, MN 55401, for Plaintiff.

Edward F. Fox, Carrie L. Hund, Esqs., Bassford Remele, PA, 33 South 6th Street, Suite 3800, Minneapolis, MN 55402, for Defendants.

STEVEN E. RAU, United States Magistrate Judge

The above-captioned matter comes before the undersigned following an Order to Show Cause directing the parties to address whether transfer of venue would be proper pursuant to 28 U.S.C. § 1404(a). (Order to Show Cause Dated May 15, 2014 "Order to Show Cause") [Doc. No. 15]. The parties were further ordered to address which jurisdiction should hear this matter if transfer of venue was appropriate. (Id. at 2). This matter has been referred for the resolution of pretrial matters pursuant to 28 U.S.C. § 636 (b)(1)(B)-(C) and District of Minnesota Local Rule 72.1. For the reasons set forth below, the Court recommends this case be transferred to theUnited States District Court for the Southern District of Indiana.

I. BACKGROUND

A. Procedural Background

This matter is one of many product liability actions filed in the District of Minnesota relating to injuries allegedly caused by the use of hormone replacement therapy ("HRT"). Plaintiff William R. Mink ("Mink"), individually and as trustee for the estate of Rita D. Mink, ("Rita Mink"), initiated this action on December 28, 2007, against Wyeth LLC ("Wyeth") and Wyeth Pharmaceuticals Inc. ("Wyeth Pharmaceuticals") (collectively "Defendants").¹ See (Compl.) [Doc. No. 1]. Two months later, the Judicial Panel on Multidistrict Litigation ("JPML") transferred this action to the Eastern District of Arkansas to coordinate and consolidate pretrial proceedings as provided under 28 U.S.C. § 1407. (Conditional Transfer Order) [Doc. No. 4]. More than six years later, this action was remanded back to the District of Minnesota. (Conditional Remand Order) [Doc. No. 6]. On April 4, 2014, Mink filed a Motion for Leave to Amend Complaint to Add a Claim for Punitive Damages ("Motion to Amend") [Doc. No. 8]. A hearing on Mink's Motion to Amend was cancelled pending a decision on the question of venue. (Notice Dated May 29, 2014) [Doc. No. 25].

B. Factual Background

Mink is a citizen and resident of the State of Indiana. (Compl. ¶ 14); (Pl.'s Opp'n to 28 U.S.C. § 1401(A) Transfer, "Pl.'s Opp'n to Transfer") [Doc. No. 20 at 5]. Rita Mink was a citizen and resident of Indiana as well. (Compl. ¶ 12). Wyeth is a Delaware corporation headquartered and with its principal place of business in Pennsylvania. (Compl. ¶ 18). WyethPharmaceuticals is a New York corporation with its principal place of business in Pennsylvania.² (Id. ¶ 17). The Complaint alleges that Defendants tested, manufactured, labeled, marketed, distributed, promoted, and sold HRT pharmaceuticals including Premarin, Prempro, Premphase, and Medroxyprogesterone Acetate in Minnesota. (Id. ¶¶ 17, 18). Rita Mink was prescribed Prempro in 1998 and was later diagnosed with cancer. (Id. ¶ 13). Mink now alleges that Rita Mink died in 2006 because of the prescribed HRT pharmaceuticals. (Id. ¶ 15).

Because the face of the Complaint revealed that none of the parties reside in Minnesota, the Defendants are not incorporated nor do they maintain their principal places of business in Minnesota, and no act or injury giving rise to the action occurred in Minnesota, the Court ordered the parties to show cause for or against transfer. See (Order to Show Cause). Mink opposes, and Defendants request, the transfer. (Pl.'s Opp'n to Transfer at 1, 18); (Defs.' Resp. at 1, 2, 9-10). Both parties agree that if transfer of venue is proper, the matter should be transferred to the United States District Court for the Southern District of Indiana. (Pl.'s Opp'n to Transfer at 18); (Defs.' Resp. at 1, 2, 9-10).

II. DISCUSSION

A. Transfer of Venue

1. Legal Standard

Section 1404(a) provides that "[f]or 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). A court must balance the following three factors: "(1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice." Terra Int'l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir. 1997).A court should consider the enumerated factors, but is also required to conduct a "case-by-case evaluation of the particular circumstances involved." Graff v. Qwest Commc'ns Corp., 33 F. Supp. 2d 1117, 1121 (D. Minn. 1999) (DSD/AJB) (citing Terra Int'l, Inc., 119 F.3d at 691). A party "seeking transfer bears the burden of proof to show that the balance of factors strongly favors" transfer. Id. (internal quotation marks omitted).

2. Proper Venue of Transferee Court

A civil action may be brought in any "judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." 28 U.S.C. § 1391(b)(2). An action may only be transferred to a venue where it might have been brought initially. 28 U.S.C. § 1404(a). The parties do not dispute that a substantial part of events giving rise to Plaintiff's claims occurred in Indiana. Rita Mink lived, was prescribed Prempro, and was diagnosed with and succumbed to cancer in Indiana. (Compl. ¶¶ 12-14); (Defs.' Resp. at 3); (Pl.'s Opp'n to Transfer at 5). The Court concludes that this action might have been brought in the Southern District of Indiana.

3. Convenience of the Parties

The Court also concludes that a transfer of venue would better serve the convenience of the parties. Neither party "is located in Minnesota, no relevant event occurred in Minnesota, [and] no alleged injury was suffered in Minnesota." Caraballo v. Novartis Pharm. Corp., 907 F. Supp. 2d 996, 997 (D. Minn. 2012) (DSD/JJG). To the contrary, "Plaintiff is, and always has been, a citizen and resident of Indiana." (Pl.'s Opp'n to Transfer at 5). As noted in similar cases, "Minnesota does not appear to be convenient for anyone." Powell v. I-Flow Corp., 711 F. Supp. 2d 1012, 1015 (D. Minn. 2010) (PJS/FLN); see also Fisher v. Wyeth, Civil No. 04-3107(DSD/SER), 2011 WL 797449, at *1 (D. Minn. Feb. 28, 2011).³ Because any state with a connection to the parties in this matter would be more appropriate, this factor favors transferring this matter.⁴

4. Convenience of the Witnesses

The accessibility and convenience of a venue for potential witnesses must also be considered. Terra Int'l, Inc., 119 F.3d at 691. The case filings show that the doctors who treated Rita Mink reside and practice in Indiana. (Pl.'s Opp'n to Transfer at 16); see also (Defs.' Resp. at 6). There is also evidence that in-patient and out-patient facilities relevant to this action are located in Indiana. See (Pl.'s Fact Sheet, Ex. 1, Attached to the Decl. of Carrie L. Hund) [Doc. No. 18 at 6-7]. Mink notes that at least one medical witness has moved to a different state since this matter was initiated. (Pl.'s Opp'n to Transfer at 16). But there is no evidence that any witness in this case resides in Minnesota. (Defs.' Resp. at 6). For the potential witnesses residing in Indiana, the Southern District of Indiana is a more convenient forum. Alternatively, even if some witnesses no longer reside in Indiana, a transfer would not cause more inconvenience to those witnesses than the inconvenience caused by litigating this case in Minnesota. Thesewitnesses would be required to travel regardless of which forum handles this case, making Indiana just as convenient a forum as Minnesota. In addition, it seems likely that other important witnesses will include company witnesses. Defendants' principal places of business are located on the East Coast, making Indiana a slightly more convenient forum than Minnesota for these witnesses. Cf. Holt v. Wyeth, 05-263 (DWF/JSM), 2012 WL 1901290, at *2 (D. Minn. May 25, 2012). On balance, this factor favors transferring this matter.

5. Interests of Justice

The Court must also consider which venue will best serve the interests of justice. Graff, 33 F. Supp. 2d at 1122. This factor is "weighed very heavily." Id. In weighing the interests of justice, courts consider: "(1) judicial economy, (2) the plaintiff's choice of forum, (3) the comparative costs to the parties of litigating in each forum, (4) each party's ability to enforce a judgment, (5) obstacles to a fair trial, (6) conflict of law issues, and (7) the advantages of having a local court determine questions of local law." Terra Int'l, Inc., 119 F.3d at 696. Defendants focus their arguments on the diminished deference to Mink's choice of forum, the fact that transfer will not upset Minnesota's statute of limitations as applied to this action, and the interest that Indiana has in determining questions of local law. (Defs.' Resp. at 6-7). Mink focuses his arguments on the judicial economy served by maintaining the case here, the presumption in favor of a plaintiff's choice of forum, and states that this case can "be suitably addressed by the District of Minnesota." (Pl.'s Opp'n to Transfer at 7-8). The Court understands this to mean that factors one, two, six, and seven are at issue.

a. Judicial Economy

Mink relies heavily on the arguments against transfer advanced by the defendants in Foster v. Wyeth, because the defendants in Foster and the Defendants in this matter are one andthe same. Mink argues that it would be contrary to the notions of judicial efficiency to...