OPINION AND ORDER
Barbara Hutson brings this action against A.H. Robins Co. ("Robins")
for compensatory damages for personal injuries allegedly caused by her use of the Dalkon Shield intrauterine contraceptive device, manufactured by Robins. The matter is currently before the Court on plaintiff's motion to transfer venue pursuant to 28 U.S.C. § 1404(a).
Plaintiff commenced this action on July 1, 1985 in the Supreme Court of New York, New York County, at which time she was a resident of New York. Robins then filed a petition under Chapter 11 of the Bankruptcy Code in the United States District Court, Eastern District of Virginia. The Dalkon Shield Claimants Trust (the "Trust") succeeded to Robins' liabilities. Defendant Trust then removed the action in January 1993 from New York State Court to this Court pursuant to 28 U.S.C. § 1441(a). Plaintiff now wishes to have us transfer the action to the United States District Court, Central District of California, primarily because she moved from New York to California in November 1987. Plaintiff's motion is denied.
According to both a claim form submitted by plaintiff to the Trust and certain related medical records, the facts are as follows. Dr. Neil Sherman inserted a Dalkon Shield into plaintiff on March 15, 1973 in his offices in New York City. Dr. Sherman's records contain a consent form signed by plaintiff stating that the side effects of the device had been explained to her. Dr. Sherman thereafter continued to give plaintiff routine gynecological care and treated her for pelvic inflammatory disease in May 1981. Dr. Sherman, at the request of plaintiff, removed the Dalkon Shield on November 5, 1981. On May 12, 1984, Dr. Sharon Diamond began to treat plaintiff in New York, New York, for pelvic inflammatory disease and bleeding, and diagnosed plaintiff with non-surgical infertility. Plaintiff's husband also saw an infertility physician, Dr. Attila Toth, in New York City. Plaintiff moved her residence to California in 1987. Dr. Diamond continued to receive laboratory reports on plaintiff through the end of 1991.
The Trust's records are located in a document depository maintained in Richmond, Virginia and a catalog of those materials is located in Minneapolis, Minnesota pursuant to Amended Administrative Order No. 1 entered by the Bankruptcy court.
Pursuant to 28 U.S.C. § 1404(a), a district court, in its discretion, may transfer a civil action "to any other district or division where it might have been brought"
if the moving party bears its burden of showing that such transfer is "for the convenience of parties and witnesses, in the interest of justice." The following factors may guide the determination of whether or not a transfer is warranted: (1) the convenience of the parties; (2) the convenience of the witnesses; (3) the availability of process to compel unwilling witnesses to appear; (4) the cost of obtaining witnesses; (5) the ease of access to relevant sources of proof; (6) the location of the occurrence of the events at issue; (7) the forum for the most expeditious and inexpensive resolution of the action; and (8) the interest of justice. Kolko v. Holiday Inns, Inc., 672 F. Supp. 713, 715 (S.D.N.Y. 1987).
Plaintiff argues the action should be transferred from this Court to the Central District of California. She contends that her choice of forum, although originally New York but now California, should be given great weight. Kolko, 672 F. Supp. at 715. She also argues that only two treating physicians, Drs. Diamond and Toth, are located in New York, while her expert witness is located in California.
Moreover, she argues that because she has resettled in California, it is financially burdensome and inconvenient for her to continue to pursue the action in New York. Lastly, she contends it will not inconvenience defendant to pursue the action in California; the Trust is not a resident of New York, its relevant information and papers are located in Virginia and Minnesota, and the firm representing defendant has a large office in California which represents the Trust in other pending Dalkon Shield cases in the Central District of California.
Defendant argues, on the other hand, that transfer is inappropriate. It first contends that all of the relevant events occurred in New York,
and that as a result, the relevant medical records are located there as well. Defendant stresses that crucial witnesses, Drs. Diamond and Toth, are located in New York and that because all the events occurred there, other witnesses with first-hand knowledge of relevant facts who reside in New York may be discovered. Second, defendant argues that New York law will govern the action.
Third, defendant claims that transfer to California will increase the expense and difficulty of discovery because several witnesses who need to be deposed are located in New York, thereby necessitating retaining New York, as well as California, counsel to conduct discovery. Additionally, defendant asserts that the records and testimony of these physicians form the cornerstone not only of plaintiff's case but also of defendant's defense. Fourth, defendant argues that a trial of the action in California would be costly and unmanageable: plaintiff's physicians are beyond the subpoena jurisdiction of the California court; the expenses related to the appearance of numerous New York witnesses in California would be prohibitive; and since New York law would apply, defendant again would have to retain New York counsel. Lastly, defendant argues that trying the case in New York would not unduly burden plaintiff because she has named only one witness, an expert, who is located in California and because plaintiff could simply retain the same counsel she used for the Trust claim procedure in New York as her New York counsel.
While we are cognizant of the expense to which plaintiff may be put in having to pursue this action in New York, we believe the balance of the relevant considerations warrants denying plaintiff's motion to transfer the action to California. First, plaintiff commenced the action herself in New York. Second, most of the relevant events occurred in New York. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 91 L. Ed. 1055, 67 S. Ct. 839 (1947) (New York has an interest in, and there is a judicial preference for, "having localized controversies decided at home."); Kolko, 672 F. Supp. at 715 ("the absence of any contact by the forum state with the transactions underlying the cause of action reduces the weight to be given a plaintiff's choice of forum.") Third, discovery will be centered in New York. Fourth, the majority of the witnesses who are likely to appear at trial are located in New York, and if they do not wish to appear voluntarily, they would be subject to a subpoena in New York but beyond the subpoena power of the California court. Fed. R. Civ. P. 45(c)(3)(A)(2) and 45(e); See Anchor Savings Bank v. Transamerica Ins. Co., 634 F. Supp. 398 (S.D.N.Y. 1986). Fifth, plaintiff has identified only one witness who resides in California and is expected to testify at trial, an expert. Babbidge v. Apex Oil Co., 676 F. Supp. 517 (S.D.N.Y. 1987) (location of expert witness is entitled to little weight in deciding whether to transfer action). Sixth, it would be very expensive to transport and provide accommodations for the New York witnesses in connection with their trial testimony in California. Lastly, New York law likely governs the action. See Heyco, Inc. v. Heyman, 636 F. Supp. 1545, 1550 (S.D.N.Y. 1986) (one factor to consider in determining whether transfer is appropriate is which state's law is to apply; federal court is better able to apply the state law of the state in which is sits than that of a state encompassed by another district); Kreisner v. Hilton Hotel Corp., 468 F. Supp. 176, 179 (E.D.N.Y. 1979) ("Construction of state law is best left to courts most familiar with it.").
For the foregoing reasons, plaintiff's motion to transfer venue to the Central District of California pursuant to 28 U.S.C. § 1404 (a) is denied.
Dated: February 28, 1994
William C. Conner
United States District Judge