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Motions To Transfer Venue In Pseudo-MDL Cases

Judge Tunheim of the U.S. District Court for the District of Minnesota denied the pain pump defendants’ motion to transfer one of eighteen pain pump cases (the Ivey case) before that court on Monday. The motions’ practice was among the best we have seen for motions to transfer venue. Kudos to Rob Jenner, Yvonne Flaherty, Irwin Levin, Greg Laker and Jeff Gibson, the attorneys handling Plaintiffs’ case.
Here are the key facts, as argued by the pain pump defendants:

  • Plaintiffs live in North Carolina (at the time of the negligence, injury, and currently)
  • Plaintiff’s pain pump surgery took place in North Carolina
  • Plaintiff’s medical team (for the surgery and follow-up treatment) all live in North Carolina
  • North Carolina has at least three other pain pump cases, pending before two separate judges
  • The case was filed in Minnesota because Defendants transact business there
  • Defendants are not incorporated in Minnesota; Defendants do not have principal places of business in Minnesota
  • North Carolina substantive law will apply to the case

For all those reasons, Defendants argued that transfer to North Carolina was warranted because of the (1) convenience of the parties; (2) the convenience of the likely witnesses; and (3) the interests of justice (including judicial economy, low priority to plaintiffs’ choice of forum, conflict of laws issues, and costs of litigating in each forum).
Plaintiffs argument is a particularly good model for those fighting similar motions in what I call “pseudo-MDL” cases. The pain pump cases are not part of MultiDistrict Litigation; but many judges across the nation, like Judge Tunheim, are choosing to coordinate cases in his courthouse. Tunheim has 18 pain pump cases (not all have the exact same defendants), each with similar allegations. The pseudo-MDL really put Plaintiffs’ arguments in good stead with the court. Here are the Court’s “money” quotes:
Convenience of the Parties

  • “All but one of the defendants has its principal place of business in a state that is significantly closer to Minnesota than to North Carolina. Defendants argue that “[t]he defendants’ respective states of residence are irrelevant . . . but courts routinely consider this factor in an effort to ascertain the convenience of the parties.”
  • “Defendants argue that litigating in the Eastern District of North Carolina will be more convenient for them because they are already defending three other pain pump cases there. The Court finds this argument unpersuasive. . . . First, the Eastern District of North Carolina has made no effort to coordinate the pain pump cases before it. The three cases are being heard by three different judges in two different cities. Here, by contrast, this Court is hearing 18 pain pump cases.”
  • “Convenience of the plaintiffs also weighs in favor of denying the motion. . . . As the Iveys note, however, “[t]he Iveys can and have assessed their own convenience, and have chosen this forum for the judicial economy that it offers. . . . including the fact that multiple, similar actions are pending here.”

Convenience of the Witnesses

  • “Defendants must clearly specify the essential witnesses to be called and must make a general statement of what their testimony will cover.”
  • “The Iveys, argue, however, ‘[m]any, perhaps most of the key witnesses are from the defendant medical device and pharmaceutical companies that are scattered across the country (and in some cases the globe).”
  • “Defendants have also failed to show that North Carolina-based witnesses will not be accessible at trial” (stating that many witnesses, even if unwilling to travel, frequently rely on videotaped depositions to provide testimony).
  • “Because it is not yet clear at this stage of the litigation whether the central dispute will focus on Ivey’s surgery in North Carolina or whether it will instead focus on defendants’ conduct in developing and marketing the pain pumps . . . it is not possible for the Court to conclude that transfer is warranted. . . .”

Interests of Justice

  • “Defendants’ must still overcome a presumption in favor of [the Iveys’] selection of Minnesota as a litigation forum.”
  • “Defendants have failed to show that litigating the Iveys’ claims in Minnesota would be noticeably more costly than litigating the claims in North Carolina (because witnesses are located across the country, and defendants are “national corporations with extensive resources and they should reasonably expect to face potential litigation in any forum in which they conduct business, including Minnesota.”
  • “This case does not present any important questions of North Carolina law that would best be resolved by a North Carolina court. . . . the general view is that courts can just as easily apply the law of another state as easily as their own.”

Essentially, Plaintiffs successfully argued that the creation of the pseudo-MDL provided great convenience to the Plaintiffs, especially in terms of reduced litigation costs and avoidance of duplicative discovery and other expenses. Furthermore, while Defendants focused on the few possible North Carolina witnesses (the surgeon and perhaps follow-up treaters), Plaintiff identified the extensive number of Defendant’s corporate employees who were deposed and who would likely be called to testify. These are all factors that should be used by plaintiffs facing motions to transfer venue.
The Ivey case is File No. 08-CV-6407-JRT/JJK, pending in the United States District Court for the District of Minnesota.

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