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King v. Novartis Pharmaceuticals Corporation

United States District Court, D. Arizona

June 16, 2014

John King, as personal representative of the estate of Patricia King, Plaintiff,
v.
Novartis Pharmaceuticals Corporation, Defendant.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff John King, the personal representative of the estate of Patricia King, has filed a motion to transfer this case to the Central District of California pursuant to 28 U.S.C. § 1404(a). Doc. 31. The motion is fully briefed and no party has requested oral argument. For the reasons that follow, the Court will grant the motion.

I. Background.

This case was filed in January 2007 and arose out of Defendant's manufacture of two drugs, Aredia and Zometa, which are classified as bisphosphonates. Doc. 31 at 1. These drugs can cause a condition known as "Bisphosphonate Related/Induced Osteonecrosis of the Jaws" ("BRONJ"). Id. Plaintiff alleges that injections of "Aredia and/or Zometa" caused his wife to develop BRONJ. Id. at 3-5. This case was transferred to the Middle District of Tennessee as part of a multidistrict litigation in March 2007. Doc. 9. The case was returned to this Court in January 2014. Doc. 10. Plaintiff now seeks to transfer the case to the Central District of California.

II. Legal Standard.

"For the convenience of the 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 district court may consider several factors, including the plaintiff's choice of forum, the extent of the parties' contacts with the forum, the contacts in the forum relating to the plaintiff's cause of action, the availability of non-party witnesses, and the accessibility of evidence. See Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). Courts may also consider the parties' contacts with the two forums, the contacts relating to Plaintiff's claims in the chosen forum, the location where relevant agreements were negotiated and signed, the availability of compulsory process to compel non-party witness attendance, the effect of transfer on the availability of witnesses and their live testimony at trial, the ease of access to sources of proof, the state that is most familiar with the governing law, and the differences in the costs of litigation in the two forums. Id. at 498-99.

III. Analysis.

A. Initial Considerations.

Defendant argues that Plaintiff must show a change in circumstances in order to transfer the case away from the original forum. Doc. 32 at 3. Defendant cites no binding authority for this proposition and instead presents a handful of unpublished district court cases, only one of which is from within the Ninth Circuit. The Court need not decide whether to apply this law, however, because a number of circumstances have changed since this action was filed. Most importantly, the original Plaintiff has passed away and a new Plaintiff has entered the case. In addition, seven years have elapsed, during which the case was transferred to the Middle District of Tennessee and substantial pretrial litigation has been completed. Circumstances in the case are clearly different than they were when the original plaintiff chose this forum.

The Court must also determine whether this action "might have been brought" in the Central District of California. 28 U.S.C. § 1404(a). Venue is proper in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred[.]" 28 U.S.C. § 1391(b). Plaintiff argues that Mrs. King received some 42 injections of Zometa between 2002 and 2005 from Dr. William Lawler in Fullerton, California. Doc. 31 at 3. Defendant does not dispute these facts. This is sufficient for the Court to conclude that venue would have been proper in California as required for a transfer under section 1404(a).

B. Convenience of the Parties and Witnesses.

Plaintiff argues that although he still lives in Arizona, he is "ready, willing, and able to conduct this trial in California[.]" Doc. 31 at 9. Defendant does not contend that litigating this case in California would be less convenient than Arizona.

Plaintiff further argues the majority of the witnesses that are relevant to this case live in California. Id. at 4. Plaintiff identifies eight doctors and dentists who treated Mrs. King, both before and after she began taking Zometa, and asserts that all but one, Dr. Wasserman, live and work in California. Id. Defendant argues that Dr. Wasserman, who allegedly continued administering injections of Zometa to Mrs. King after she moved to Arizona, is a key witness and notes that it would be unable to compel Dr. Wasserman's testimony if the case were transferred. Doc. 32 at 6-7. Although Defendant is correct, the opposite problem would exist with respect to seven doctors if the case remained here, and Plaintiff notes that Dr. Wasserman has been deposed in this action. Doc. 34 at 2.

Defendant argues that Plaintiff and Mrs. King's son are both potential witnesses who reside in Arizona. Doc. 32 at 7. Plaintiff has stated his willingness to litigate this case in California and has indicated that Mrs. ...


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