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BERKELHAMMER v. WHITEHALL PHARMACAL CO.

July 9, 1956

Herman BERKELHAMMER, Plaintiff,
v.
WHITEHALL PHARMACAL COMPANY, Defendant



The opinion of the court was delivered by: LEVET

The plaintiff has moved to transfer the above-entitled action to the United States District Court for the District of Rhode Island pursuant to Section 1404(a) of Title 28 U.S.C.A.

The complaint in this action alleges that (1) plaintiff resides and is domiciled in the State of Rhode Island; (2) the defendant is a manufacturer of pharmaceutical products; and (3) a bottle of one of these products, to wit, Freezone, was sold to the plaintiff in a drugstore in Rhode Island. Neither the advertisements nor the instructions on the bottle, it is claimed, warned the plaintiff that the product would be dangerous to people suffering from diabetes, with which the plaintiff was afflicted. It is claimed that as a result of the use by plaintiff of such remedy, produced by the defendant, plaintiff was seriously affected and was forced to have both feet amputated.

The defendant was served within the Southern District of New York. Now the plaintiff wishes to transfer this action to the United States District Court for the District of Rhode Island.

 Section 1404(a) of Title 28 U.S.C.A. is as follows:

 '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.'

 The following factors appear to militate in favor of such transfer, provided that this action might have been brought in the United States District Court for the District of Rhode Island:

 (1) The defendant sold and distributed its products throughout the State of Rhode Island to retailers and wholesalers;

 (2) The sale of these products is said to be promoted through national advertising reaching Rhode Island;

 (3) Plaintiff is a resident of Rhode Island;

 (4) The sale took place in Rhode Island;

 (5) The claimed injuries allegedly took place in Rhode Island;

 (6) The witnesses for plaintiff, to wit, the plaintiff himself and five physicians, all reside in Rhode Island;

 (7) The hospital where plaintiff was confined as a result of the alleged effects is the New England Deaconess Hospital ...


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