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Burks v. Abbott Laboratories: US District Court : CIVIL PROCEDURE - venue transfer to Louisiana denied

EVAN BURKS, by her parents and natural
guardians, Rockland Burks and Adrienne
Burks, and ROCKLAND BURKS and
ADRIENNE BURKS, individually,
Civil No. 08-3414 (JRT/JSM)
Richard H. Taylor, TAYLOR MARTINO & KUYKENDALL, 51 Saint
Joseph Street, Mobile, AL 36601; and Stephen C. Rathke, LOMMEN,
ABDO, COLE, KING & STAGEBERG, P.A., 80 South Eighth Street,
Suite 2000, Minneapolis, MN 55402, for plaintiffs.
Jeannine L. Lee, Robert Bennett, and Wendy M. Canaday, FLYNN
GASKINS & BENNETT, LLP, 333 South Seventh Street, Suite 2900,
Minneapolis, MN 55402; and June K. Ghezzi and Melissa B. Hirst, JONES
DAY, 77 West Wacker Drive, Suite 3500, Chicago, IL 60601, for
defendants Abbott Laboratories, Abbott Laboratories Ross Products
Division, and Abbott Laboratories, Inc.
Adam R. Moore, Matthew D. Keenan, and Sarah E. West, SHOOK
HARDY & BACON LLP, 2555 Grand Boulevard, Kansas City, MO
64108; and Joseph M. Price and Lucas J. Thompson, FAEGRE &
BENSON LLP, 90 South Seventh Street, Suite 2200, Minneapolis, MN
55402-3901, for defendants Bristol-Myers Squibb Company and Mead
Johnson & Co.
Plaintiffs, Evan Burks (a minor), Rockland Burks, and Adrienne Burks,
(collectively, the Burks), brought this action against defendants, Abbott Laboratories,
Abbott Laboratories Ross Products Division, Abbott Laboratories, Inc., Bristol-Myers
Squibb Co., and Mead Johnson & Co. (collectively, defendants), for negligence, strict
liability, and breach-of-warranty claims relating to Evans consumption of powdered
infant formula. Defendants filed the instant motions to transfer venue pursuant to 28
U.S.C. 1404(a), arguing that venue would be more appropriate in the Western District
of Louisiana.1 For the reasons discussed below, the Court denies the motions.
The Burks are residents of Monroe, Louisiana, and allege that they purchased and
were given powdered infant formula manufactured by defendants. Evan consumed the
formula while in Louisiana. Abbott Laboratories (of which Abbott Laboratories Ross
Products Division is a division) is incorporated in Illinois, while Abbott Laboratories,
Inc. is incorporated in Delaware. Defendants Bristol-Myers Squibb Company and Mead
Johnson & Co. are incorporated in Delaware. All defendants manufacture and sell a
variety of commercial products, including powdered infant formula, which is the subject
of the present litigation.
1 The Abbott defendants and the Bristol-Myers Squibb Company and Mead Johnson &
Co. defendants filed separate motions to transfer venue. (Docket Nos. 8, 13.) This Order
considers the merits of both motions.
After Evans birth in June 2006, plaintiffs allege that they fed Evan defendantmanufactured
powdered formula for the first thirty days of her life. On July 2, 2006,
Evan was diagnosed with neonatal meningitis, resulting in permanent, severe brain
damage. The Burks allege that Evans illness and brain damage were the result of
ingesting the defendant-manufactured powdered infant formula, which they claim was
contaminated by Enterobacter sakazakii bacteria.2 These allegations form the basis for
the Burks claims of strict liability, negligence, and breach of warranty.
This lawsuit was originally filed in a Minnesota state district court. Defendants
then removed the case to federal court under 28 U.S.C. 1446(b). Defendants have now
moved to transfer the case to the United States District Court for the Western District of
Louisiana, Monroe Division. See 28 U.S.C. 1404(a).
Transfer under 28 U.S.C. 1404(a) is intended to prevent the waste of time,
energy and money and to protect litigants, witnesses and the public against unnecessary
inconvenience and expense. Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal
2 Enterobacter sakazakii is a bacteria that can cause bloodstream and central nervous
system infections. E. sakazakii infections are found in premature infants, mature infants, other
children, or adults. Infant infections with E. sakazakii have been associated with contaminated
powdered formula products, but other environmental sources of contamination environment are
possible. Anna B. Bowen & Christopher R. Braden, Centers for Disease Control and
Prevention, Invasive Enterobacter sakazakii Disease in Infants, EMERG. INFECT. DIS., Aug. 2006,
available at http://www.cdc.gov/ncidod/EID/vol12no08/05-1509.htm.
quotation marks omitted). When deciding a motion to transfer, courts consider (1) the
convenience of the parties; (2) the convenience of the witnesses; and (3) the interest of
justice. Terra Intl, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir. 1997). The
moving party must show that the balance of these factors strongly favors transfer.
Brockman v. Sun Valley Resorts, Inc., 923 F. Supp. 1176, 1179 (D. Minn. 1996). Courts
are not limited, however, to consideration of those enumerated factors. Stewart Org., Inc.
v. Ricoh Corp., 487 U.S. 22, 29 (1988) (A motion to transfer under 1404(a) thus calls
on the district court to weigh in the balance a number of case-specific factors.).
Ultimately, the decision to transfer a case is committed to the discretion of the district
court. Terra Intl, 119 F.3d at 691.
A. The Convenience of the Parties and Witnesses
1. The convenience of the parties
In considering the convenience of the parties, 1404(a) permits transfer to a more
convenient forum, not to a forum likely to prove inconvenient or equally convenient. See
Nelson v. Soo Line R. Co., 58 F. Supp. 2d 1023, 1027 (D. Minn. 1999). There is a
general presumption in favor of a plaintiffs choice of forum, but courts afford the
plaintiffs forum choice significantly less deference when the plaintiff is not a resident of
the selected forum, or when the underlying events giving rise to the litigation did not
occur in the forum. See Nelson, 58 F. Supp. 2d at 1026. The mere fact that the case is
heard in a foreign state, however, is not by itself an adequate reason to transfer venue.
See Hughes v. Wheeler, 364 F.3d 920, 925 (8th Cir. 2005).
Defendants contend that the Burks choice of forum is entitled to significantly less
deference because the Burks are not residents of Minnesota and the underlying events
giving rise to this lawsuit did not occur in Minnesota. Although defendants are correct in
stating that the law does not require significant deference to the Burks choice of forum,
less deference does not mean no deference. Defendants must still overcome a
presumption in favor of the Burks selection of Minnesota as a litigation forum. See Voss
v. Johnson & Johnson, Civ. Nos. 06-3728, 07-1862, 07-1584, 07-2999, 07-1661, 2008
WL 697474, at *2 (D. Minn. March 12, 2008) (noting that, despite plaintiffs being
residents of foreign states and their alleged injuries occurring in other states, the Court
finds that defendants have not overcome the presumption in favor of plaintiffs choice of
forum by showing that it would be more convenient for the parties to litigate outside of
Defendants argue that transfer to Louisiana will be more convenient for all parties
to the case. Defendants first claim that Louisiana will be a more convenient forum to
litigate for the Burks because the Burks are residents of Louisiana. The Court is not
persuaded by this argument. The Burks chose Minnesota as the forum for their lawsuit,
and the Court is reticent to question plaintiffs choice merely because defendants believe
a different forum will be more convenient for the Burks.
Defendants also claim that Louisiana is a more convenient forum for them. In
particular, defendants argue that their ability to defend against the instant claims and
conduct discovery will be vastly improved with transfer. The situs of plaintiffs alleged
injury is in Louisiana, including the hospital where Evan was treated, the environment
where the child lives, and the stores where plaintiffs purchased powdered formula.
Defendants fail to note, however, that the parties will conduct a substantial part of
the discovery wherever defendants manufactured the powdered infant formula that is
alleged to have caused Evans injury. Those sites have not yet been identified, and the
parties have not suggested that they are in either Minnesota or Louisiana. Thus, the
parties will conduct significant discovery outside of either state related to marketing
materials, materials documenting the chemical composition of powdered infant formula,
and other corporate documents. In a products liability and negligence case, this type of
discovery could prove to be decisive. See Voss, 2008 WL 697474, at *3 (In particular,
to the extent plaintiffs claims concern alleged design defects and corporate practices
with respect to [the drug] Levaquin, much of the relevant evidence may come from
corporate employees and documents.); see also Klein v. Sandoz Pharms. Corp., No. 95
CV 2150, 1996 WL 204495, at *2 (E.D.N.Y. April 16, 1996). When the parties will
conduct significant discovery in a state other than Minnesota or Louisiana, venue in the
Western District of Louisiana cannot be found to be more convenient.
In sum, the Court finds that defendants failed to overcome the presumption
favoring the Burks choice of forum.
2. Convenience of the witnesses
When assessing the convenience of the witnesses, the Court should consider the
number of essential non-party witnesses, those witnesses locations, and the Courts
preference for live testimony over depositions. See Coast-to-Coast Stores, Inc. v.
Womack-Bowers, Inc., 594 F. Supp. 731, 734 (D. Minn. 1984). Although the location of
non-party witnesses plays a critical role in this determination, Coast-to-Coast, 594
F. Supp. at 735, [s]heer numbers of witnesses will not decide which way the
convenience factor tips. Terra Intl, 119 F.3d at 696 (quoting Terra Intl, Inc., v. Miss.
Chem. Corp., 922 F. Supp. 1334, 1360 (N.D. Iowa 1996)).
Defendants argue that the majority of potential third-party witnesses, who are
beyond Minnesota courts authority to subpoena to testify in person, are in Louisiana.
Defendants list possible witnesses as doctors, nurses, family, friends, visitors, and likely
neighbors. (Docket No. 20.) In assessing the impact of these witnesses on the transfer
determination, however, the court must examine the materiality and importance of
the[ir] anticipated testimony. Reid-Walen v. Hansen, 933 F.2d 1390, 1396 (8th Cir.
1991). Defendants claim that they have accurately described the roles that these
potential third-party witnesses played, but defendants have not specified which witnesses
will be called to testify, nor have defendants explained what testimony these witnesses
will provide. Without specifying which third-party witnesses defendants intend to call, it
is difficult for the Court to determine how material and important their testimony will be.
The Court also notes that treating physicians frequently rely on videotaped depositions to
provide testimony, even when they reside in a district in which a Court has subpoena
power to compel live testimony. In addition, the Court anticipates causation to be an
important issue, thus extenuating the importance of expert testimony as to causation.
Expert witnesses in the case are unlikely to be limited to the Western District of
Because this Court may subpoena party-witnesses, Fed. R. Civ. P. 45(a)(2), the
Court will still hear live, crucial testimony from plaintiffs and corporate defendants. See
Voss, 2008 WL 697474, at *3. While it may be more convenient for some of the
witnesses if the case is transferred to Louisiana, the fundamental concern in assessing the
convenience of the witnesses is the relative ease of access to sources of proof.
Hammann v. 1-800 Ideas.com, Inc., 455 F. Supp. 2d 942, 962 (D. Minn. 2006). The
Court does not see a compelling argument that, on balance, transfer will greatly increase
access to sources of proof through live testimony of undetermined third-party witnesses
and, as a consequence, the Court finds that the convenience of the witnesses does not
strongly favor transfer.
B. The Interest of Justice
The interest of justice factor is weighed very heavily when considering a motion
under 1404(a). Radisson Hotels Intl, Inc. v. Westin Hotel Co., 931 F. Supp. 638, 641
(D. Minn. 1996). In determining whether the interest of justice warrants transfer, courts
consider the relative familiarity of the two courts with the law to be applied, the relative
ability of parties to bear the costs of litigating in a distant forum, judicial economy, the
plaintiffs choice of forum, obstacles to a fair trial, and each partys ability to enforce a
judgment. Graff, 33 F. Supp. 2d. at 1122; see also Terra Intl, 119 F.3d at 696. As
noted above, although the Burks are not residents of Minnesota and the underlying events
giving rise to this litigation arose in Louisiana, defendants have not overcome the
presumption in favor of the Burks choice of forum.
In considering the costs of litigating in a distant forum, 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. See World-
Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297 (1980). Thus, at this stage, the
Court believes that defendants have adequate resources to address the discovery and
litigation issues that accompany these causes of action.
As to the law to be applied, defendants also claim that it is beyond doubt that
Louisiana substantive law under the Louisiana Products Liability Act (LPLA) will
apply to the case and that Louisiana has a substantial interest in applying that law. The
Burks counter that defendants core goal in seeking transfer to Louisiana is to take
advantage of Louisianas shorter statute of limitations for product liability actions. There
is a simple resolution, however, to the parties choice-of-law contentions: a transferee
court is bound to apply the same choice-of-law principles as the transferor court would
apply. Van Dusen v. Barrack, 376 U.S. 612, 639 (1964). In Burnett v. Wyeth Pharm.,
Inc., 2008 WL 732425, at *2 (D. Minn. March 17, 2008), the court held that
a change of venue under 1404(a) affects only the location of the
courthouse, not the law to be applied. The transferee court must apply the
state law that would have applied to the action had there been no transfer of
venue. . . . Therefore, the issue of which states statute of limitations will
apply to this action does not weigh against transferring this case, as the
issue can be properly decided by the transferee court.
Thus, a court in the Western District of Louisiana will apply the same substantive
law and statute of limitations as a court in the District of Minnesota. Consequently, the
issue of the applicable statute of limitations does not favor either party in the decision to
grant a motion to transfer venue.
Defendants assertion that Louisiana has an interest in adjudicating this claim and
that Louisiana courts are familiar with the LPLA is relevant to the evaluation of the
interest of justice, but it is not dispositive. The LPLA does not delineate a series of legal
principles that are foreign to this Court; it is merely the Louisiana-specific legal remedy
for products liability actions. Regardless, the District of Minnesota is very capable of
applying either Louisiana or Minnesota law. Nesladek v. Ford Motor Co., 876 F. Supp.
1061, 1069 (D. Minn. 1994) (Minnesota courts are fully qualified to apply the laws of
another forum.).
As a general rule, transfer under 1404(a) should not be freely granted, and this
Court has been particularly reluctant to transfer cases out of the District of Minnesota.
See In re of Monies on Deposit in Accounts at Stearns Bank Natl Assn, Civ. No. 06-542,
2006 WL 3841518, at *3 (D. Minn. Dec. 29, 2006). Based on the foregoing analysis, the
Court finds that defendants have not shown that the balance of all relevant factors
strongly favors transfer to the Western District of Louisiana. Accordingly, defendants
motion to transfer is denied.
Based on the foregoing, all the files, records, and proceedings herein, IT IS
1. Defendants Abbott Laboratories, Abbott Laboratories Ross Products
Division, and Abbott Laboratories, Inc.s Motion to Transfer Venue [Docket No. 8] is
2. Defendants Bristol-Meyers Squibb Company and Mead Johnson & Co.s
Motion to Transfer Venue [Docket No. 13] is DENIED.
DATED: November 5, 2008 ____s/ ____
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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