books and records favors neither transfer nor denial of transfer.
Convenience of Parties
Transfer will, on balance, be more convenient for all parties. Transfer will minimize travel for testifying plaintiffs, who work and/or reside in the transferee districts. While some moving defendants are incorporated in New York or have their principal place of business in this district, employees with knowledge relevant to a plaintiff's claims likely reside near where the plaintiff works.
Interest of Justice
Access to the Courts. Plaintiffs argue that transfer will deprive them of their day in court because they have limited resources and transfer would destroy the "economies of scale" which they now enjoy by litigating together in the Eastern District of New York.
While plaintiffs clearly lack the resources of defendants, they overstate the benefits of litigating in this district.
First, in light of the Second Circuit's decision reversing consolidation, each case is now a separate case. As the litigation progresses, some type of subgrouping for discovery purposes may become appropriate should--as noted by the Second Circuit--a "party seeking aggregation [so move, showing] . . . common factual or legal issues warranting it." 11 F.3d at 374. However, at this juncture, there are no discernable "economies of scale" to be realized from retaining cases which have minimal contact with this district, and any future benefits that might result from retention are speculative, would be limited in scope, and would be more than outweighed by the factors favoring transfer.
Second, were plaintiffs' claims litigated in this district, defendants would still be entitled to discovery in the districts where plaintiffs' claims arose. Thus, denying transfer would not relieve plaintiffs' counsel of the need to retain local counsel or bear the expense of travelling to distant locales.
Third, litigation in this district will proceed whether or not this court grants defendants' motions. Relevant information obtained here by plaintiffs' counsel may be used in the transferee courts, thus reducing the costs of preparing those cases.
In sum, the court rejects the argument that meritorious RSI claims from distant locales will not be pursued absent access to the Eastern District of New York.
Judicial Economy. Plaintiffs argue that the economies derived from having a few judges in this district develop expertise in RSI cases will be lost if cases are transferred to districts around the nation.
Plaintiffs again overstate the benefits to be derived from denying transfer.
They err, first, by supposing that this court's decision to retain jurisdiction would relieve other courts of the burden of becoming familiar with RSI cases. Assuming plaintiffs' claims have merit, other plaintiffs, represented by other attorneys, will likely file suit in other districts. At the present time, actions are already pending or have been litigated to judgment in a number of districts.
Plaintiffs also overstate the expertise required to deal with RSI cases. This court has developed some familiarity with the science of soft tissue injuries. In essence, however, RSI cases are products liability cases, a class of cases with which every district in the country has considerable familiarity.
Local Adjudication of Local Controversies. The public interest in the local adjudication of local controversies also supports transfer. A lawsuit is not purely a matter of private concern. When an action involves injuries sustained in a particular locale, the public interest supports adjudication of the controversy in that locale, where it may be a matter of local attention, rather than in a remote location where it will be learned of only by report. Gulf Oil, 330 U.S. at 509; see also Kolko v. Holiday Inns, Inc., 672 F. Supp. 713, 716 (S.D.N.Y. 1987) (interest in local resolution of dispute supported view that personal injury action should be tried where tort allegedly occurred).
Forum Court's Familiarity with the Governing Law. Federal courts have generally favored adjudication of a controversy by the court which sits in the state whose law will provide the rules of decision. Hernandez, 761 F. Supp. at 991; see also Gulf Oil, 330 U.S. at 509 ("There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case"). Under the New York choice of law rules governing these diversity actions, the law of the states in which the transferee courts sit will generally provide the rules of decision in these actions. See Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 737, 237 N.E.2d 877 (1968). In that regard, the law of products liability varies significantly among jurisdictions. See Henderson & Twerski, A Proposed Revision of Section 402A of the Restatement (Second) of Torts, 77 Cornell L. Rev. 1512 (1992). Under such circumstances, the federal court for the district where the alleged wrong occurred is clearly the more appropriate forum. This factor therefore supports transfer.
Docket Congestion. The congestion of this court's docket also dictates transfer. Justice delayed is justice denied, and transfer to districts elsewhere in the United States will help secure the parties the prompt trials to which they are entitled. See A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 445 (2d Cir. 1966) (docket congestion a factor); see also Hernandez, 761 F. Supp. at 991.
In the cases at bar, virtually all transferee districts are less congested than the Eastern District of New York, both in terms of total cases per judge and in terms of time from joinder of issue to trial.
Cases Located in the Northeast
Finally, plaintiffs argue that transfer is particularly inappropriate for cases to be transferred to other districts in the Northeast because of their close proximity to this courthouse. While the inconvenience to witnesses and parties may be somewhat diminished by close proximity, most parts of the Northeast lie outside the range of this court's subpoena power. Fed. R. Civ. P. 45(b)(2). Further, this court finds no basis for subjecting witnesses and parties in other districts to the requirement that they appear in this district when federal courthouses much closer at hand are available. Some courts have refused to transfer on the basis of convenience when two courts were close to each other. E.g., De Moraes v. American Export Isbrandtsen Lines, Inc., 289 F. Supp. 861 (E.D. Pa. 1968) (transfer from Philadelphia to New York City denied); Wellington Computer Graphics, Inc. v. Modell, 315 F. Supp. 24, 28 (S.D.N.Y. 1970) (transfer from Newark to New York denied). None of the cases cited by plaintiffs, however, involved facts which argued as strongly for transfer as the facts of the cases at bar.
Some cases in which defendants move to transfer involve multiple plaintiffs who live and work in different districts. While a court may not transfer less than an entire case under 28 U.S.C. § 1404(a), the Second Circuit has approved the practice of severing a party's claims pursuant to Fed. R. Civ. P. 21 to permit transfer. Wyndham Assocs. v. Bintliff, 398 F.2d 614, 618 (2d Cir.), cert. denied, 393 U.S. 977 (1968). In light of this court's determination that transfer is proper and the administration of justice would be materially advanced thereby, severance will be ordered as necessary to effect transfer.
Defendants' motions for severance and transfer are granted in 75 cases and denied in three cases, as provided in the orders rendered this date in each individual case.
Dated: April 20, 1994
Hauppauge, New York
Denis R. Hurley, U.S.D.J.