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We start this, our last post of 2022, by indulging in a few words about hope.  Jumping way back, the story begins when we were around 20 and moved to Nashville (from Philadelphia) for a couple of years, on a whim.  That’s the only way to describe it – there was no good reason, except that we thought it would be fun.  While we were in Nashville, we made some friends who were then big names in the country music industry.  They are still our friends, more than 40 years later.  And, though many have forgotten them, they still perform, but at coffeehouses and “small dates,” not in huge auditoriums.  Last week, one of our friends, who still lives in Nashville, did a “swing” of four such small dates in Pennsylvania and its environs.   She (and her guitarist) stayed with us all week.  On the last night, we held a house concert in our home.  As we sat in our living room, surrounded by friends and fellowship and oh-so-beautiful music, we felt magic, and we felt hope, both of which have eluded us amid the multi-faceted darkness that marked much of 2022.  Bottom line is that we don’t always have choice in the events that shape our lives.  But we can choose music, and we can find hope.  We hope your 2023 is filled with both.

The plaintiff in today’s case also was denied choice, this time her choice of the venue for her case.   In Yumei Li-Bachar v. Johnson & Johnson, et al., 2022 WL 17094600 (D. Minn. Nov. 21, 2022), the plaintiff, a Michigan resident at all times relevant to the lawsuit, was implanted with the defendant’s pelvic mesh device in Michigan.  Fourteen years later, she underwent revision surgery in Rochester, Minnesota.  She filed suit in the District of Minnesota, asserting the usual litany of product liability claims, and the defendant moved to transfer venue to the Western District of Michigan. 

The court explained that, under the “transfer statute,” 28 U.S.C. § 1404(a), it had broad discretion when considering a motion to transfer venue.   The court continued:

The decision to transfer under Section 1404(a) involves a two-step inquiry.  First, the district court must determine whether the action might have been brought in the proposed transferee district. Second, the district court must weigh three factors, which are whether transfer would be (1) convenient for the parties, (2) convenient for the witnesses, and (3) in the interests of justice.

Li-Bachar, 2022 WL 17094600 at *1 (internal punctuation and citations omitted.  With respect to the first prong, 28 U.S.C, § 1391(b) provides that a civil action may be brought in a judicial district where:  1) any defendant resides; 2) a substantial part of the events giving rise to the claim occurred; or 3) any judicial district in which any defendant is subject to the court’s personal jurisdiction, if no district satisfies 1) or 2).  The defendants argued that venue was proper in the Western District of Michigan because the plaintiff alleged that she was a Michigan resident at all relevant times, so she must have sustained her injuries in Michigan.  The plaintiff countered that the record was silent as to where the injuries were sustained.   Explaining that it was permitted to rely on matters outside the pleadings to determine proper venue, the court relied on the Plaintiff Profile Form the plaintiff submitted in the mesh MDL, in which she confirmed that she was living in Michigan when she suffered her injuries.  (This was a nice touch — the plaintiff’s own submission undercut her attempt to obfuscate the facts.) So, the court concluded, venue was proper in the Western District of Michigan.

Next, the court considered the three factors involved in the second step of the analysis.  With respect to the convenience of the parties, the plaintiff contended “that the Court should not second-guess her decision to bring this action in Minnesota because she chose Minnesota of her own accord and with the guidance of legal counsel.”   Id. at *2.  But, the court explained, while a plaintiff’s choice of forum is entitled to deference, courts afford significantly less deference if the plaintiff doesn’t live in the forum and/or if the events giving rise to the lawsuit did not occur in the forum.  The court concluded that a Michigan trial would be more convenient than a Minnesota trial for both the plaintiff and the defendants.

Turning to the second consideration, convenience of witnesses, the court concluded that Michigan was more convenient than Minnesota for most of the plaintiff’s treating physicians, who would compose the bulk of the non-party witness list.  Finally, the court considered the third factor, interests of justice.  This factor includes three sub-categories:  judicial economy, plaintiff’s choice of forum, and obstacles to a fair trial.  The court determined that all were neutral.  With respect to judicial economy, the advantage of having a local court apply local law is a consideration, but the court had not yet determined which state’s substantive law applied to the dispute.  The court had already addressed the issue of deference to the plaintiff’s choice of forum.  Finally, with respect to obstacles to a fair trial, the court found that either venue would be “fully capable” of addressing any legal issues that would arise in the case. 

The court concluded:

To warrant transfer, Defendants must show that the balance of factors strongly favors transfer and not merely that the factors are evenly balanced or weigh only slightly in favor of transfer.  Here, the convenience of the parties and the witnesses weighs in favor of transfer and the interests-of-justice factors are neutral. Because the convenience of the witnesses is the most important factor, Defendants have met their burden to establish that transfer is warranted in this case. The Court grants Defendants’ motion to transfer venue to the Western District of Michigan.

Id. at 4 (internal punctuation and citations omitted).  Li-Bachar is a tidy little decision that strikes a nice blow at the forum-shopping nonsense we see all the time.  (Here, Michigan applies a presumption of non-defectiveness – no wonder the plaintiff wanted to be somewhere else).  We’ll keep you posted on further developments in the case.   In the meantime, we wish you a safe and happy holiday and a 2023 filled with health, peace of mind, and hope.