Microsoft word - mass torts & product liability #33 - 06-07 - court transfers pharmaceutical prod

A legal update from Dechert’s Mass Torts and Product Liability Group Court Transfers Pharmaceutical Product
Liability Cases to Plaintiffs’ States of Residence

In a notable series of opinions, United States move the cases from this “nerve center,” the District Court Judge Timothy Savage trans- plaintiffs argued, would be inconvenient and ferred seven pharmaceutical product liability cases that had been consolidated in the Eastern District of Pennsylvania for purposes of discov- The court was not persuaded by this reasoning. ery to the seven different districts in which the Judge Savage found that the defendant’s individual plaintiffs reside. See, e.g., Elwell v. documents easily could be authenticated at SmithKline Beecham Corp., 2007 WL 1234845 trials in the plaintiffs’ home states, and that the (E.D.Pa. Apr. 25, 2007); Fisher v. SmithKline defendant’s witnesses could be compelled, as Beecham Corp., 2007 WL 1234845 (E.D.Pa. party witnesses under the federal rules, to tes- Apr. 25, 2007); White v. SmithKline Beecham tify in the plaintiffs’ home states. White, 2007 Corp., 2007 WL 1237952 (E.D.Pa. Apr. 25, 2007) (collectively “the Paxil cases”). Second, the plaintiffs contended that consider- Remarkably, these decisions transferred cases able weight should be afforded to their choice from the plaintiffs’ preferred forum, which is of forum. Judge Savage acknowledged that a also where the defendant maintains its opera- plaintiff’s choice of forum traditionally receives tional headquarters. While the plaintiffs fer- “paramount consideration”; however, much less vently argued that keeping the cases in their deference is due when the plaintiff does not live consolidated format in the Eastern District was in the chosen forum and the operative facts proper because it is where the defendant has its “nerve center,” the court was persuaded that balancing the private and public interest factors In the Paxil cases, the court determined that the weighed most heavily in favor of transferring the plaintiffs had no real connection to the Eastern cases to the places where the plaintiffs resided. District of Pennsylvania, as they had purchased, This series of opinions helps defeat the pre- ingested, and were allegedly injured by Paxil in sumption that simply because a defendant has their respective home states. While admittedly a physical presence in a particular venue, it some of the operative facts—such as pediatric automatically is the most appropriate venue. clinical trials—occurred in Pennsylvania, the balance did not weigh in favor of granting the The Paxil cases concerned claims by the plain- traditional deference to the plaintiffs’ choice of tiffs that the defendant failed to warn the medi- forum when plaintiffs had such limited contact cal community of the increased risk of suicidal- with the forum. Thus, the court rejected the ity in pediatric patients taking Paxil® (“Paxil”). traditional “paramount consideration” approach Plaintiffs argued that the Eastern District of and granted the plaintiffs’ choice of forum only Pennsylvania was the most appropriate venue a “slight” preference. Id. at *4. for these cases on several grounds. First, they asserted the defendant’s location in Philadel- Third, the plaintiffs attempted to downplay the phia was the site of innumerable decisions re- importance of their activities in their home garding the labeling, promotion, and distribu- states by spotlighting Philadelphia as the place tion of Paxil, as well as home to many key wit- where decisions about labeling, promoting, and nesses and a Paxil document depository. To distributing Paxil occurred. Judge Savage declined to follow this rote approach. Instead, he fo- powerful weapon in winning a motion to transfer venue. cused on the place where plaintiffs’ Paxil was pre- Yet, because a position taken in one litigation may im- scribed, purchased, and consumed; where plaintiffs’ pact other similarly situated cases, this argument alleged injuries occurred; and where plaintiffs’ physi- should be made only after fully considering the potential These issues were of particular importance because The Paxil cases are useful precedent in assisting defen- they related to matters of how the parties could secure dants who seek to transfer venue away from their al- important documentary evidence, as well as obtain tes- leged “nerve center” to a venue that may be more ame- timony from key witnesses and command their presence nable to their litigation needs. Judge Savage’s analysis at trial. For example, the defendant would be prejudiced provides critical tools to help guide future courts if the cases remained in the Eastern District of Pennsyl- through the public and private interest factors, and vania because it would be unable to take advantage of helps to rebut many courts’ preconceived deference to a the court’s subpoena power to compel the attendance plaintiff’s choice of forum, even where that forum might of non-party witnesses located more than 100 miles encompass a defendant’s operational headquarters. beyond the Eastern District of Pennsylvania. The court was persuaded by the defendant’s evidence that nurses, physicians, family members, school officials, and others would provide essential live testimony, the absence of This update was authored by Allison M. Brown which would prejudice the defendant. Furthermore, the (+1 215 994 2184; [email protected]) documents attendant to these witnesses—including medical, prescription, employment, and education records—would be more easily accessible in the home states. The court also focused on the convenience of the parties and witnesses. Specifically, if the litigation remained in Philadelphia, parties from both sides would have to travel great distances for trial. If the cases were trans- ferred to the plaintiffs’ home states, then only the de- fendant would have to transport witnesses, which it would have to do regardless of where the cases were The Paxil cases offer defendants new hope and several lessons on ways in which to secure the most suitable venue for a litigation. One important lesson is that the decision to seek a transfer of venue likely will require considerable discovery. Strategic decisions should focus on questions of how documents can be secured, which witnesses a defendant can argue persuasively will be necessary to support its defense, and how all parties might be inconvenienced by a forum in practical terms (e.g., is the plaintiff’s home a mere 20 miles from the courthouse with all key witnesses living within close Other strategic decisions must focus on broader litiga- tion issues such as choice of law, personal jurisdiction, and even possible class certification, which were inextri- cably linked to Judge Savage’s decisions in the Paxil cases. Pointing out to a court that it would have to apply a foreign jurisdiction’s law if it opts not to transfer the case to the place where the plaintiff resides can be a Practice group contacts
Ronni E. Fuchs
Ezra D. Rosenberg
Sean P. Wajert
Editorial Board
S. Tessie Kenney
David C. Uitti
[email protected] [email protected] UK/Europe
2007 Dechert LLP. All rights reserved. Materials have been abridged from laws, court decisions, and admin-istrative rulings and should not be considered as legal opinions on specific facts or as a substitute for legal counsel. This publication, provided by Dechert LLP as a general informational service, may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.


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