Court Rebuffs Forum Shopping - But Shoppers Get Bargain Anyway?

A federal court recently ordered the transfer of an action involving an allegedly defective pain pump from Minnesota to plaintiffs' home state of North Carolina, in an apparent rebuff of attempted forum-shopping. Powell v. I-Flow Corp., No. 10-1984 (D. Minn. 7/14/10).

This case is one of thousands of product liability actions filed in recent years in the District of Minnesota by plaintiffs who have no connection to Minnesota against defendants who have no connection to Minnesota regarding events that did not occur in Minnesota and that had
no impact within Minnesota.  Here, defendants are  Delaware corporations with their principal places of business in California. Plaintiff underwent shoulder surgery in North Carolina in 2001, and he and his wife sued defendants for damage to his joint that allegedly resulted from the treatment of his post-surgical pain with a pain pump made by the defendants. In short, this case had no discernible connection to Minnesota.

Presumably the plaintiffs did not file this action in North Carolina — where they live,
where the pain pump was implanted, and where plaintiffs' alleged injuries occurred —
because it is too late to sue the defendants there.  Indeed, observed the court, the vast majority of these kinds of unconnected actions have been filed in this district because, if they were filed by the plaintiffs in their home states (or almost anywhere else), they would be dismissed under the applicable statutes of limitations. The Minnesota Legislature has, however, enacted unusually long statutes of limitations, and the state court has applied them to cases such as this.  See Fleeger v. Wyeth, 771 N.W.2d 524, 525 (Minn. 2009).

The federal court noted that such forum shopping imposes heavy burdens on the District Court and
diverts the court’s limited resources away from litigants and cases that have much stronger
connections to the District of Minnesota.

Defendants moved to transfer. Section 1404(a) provides: “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.” 28 U.S.C. § 1404(a). Deciding whether
to order a transfer under § 1404(a) requires a case-by-case evaluation of the particular
circumstances at hand and a consideration of all relevant factors. See Terra Int’l, Inc. v. Miss.
Chem. Corp.
, 119 F.3d 688, 691 (8th Cir. 1997). The relevant factors fall generally into three
categories: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the
interests of justice.

All these factors, said the court, overwhelmingly favor transfer. Because none of the parties is located in Minnesota, none of the relevant events occurred in Minnesota, none of the alleged injuries has been suffered in Minnesota, and none of the evidence is present in Minnesota, Minnesota does not appear to be convenient for anyone — including the Powells, who live in North Carolina.  In fact, any state with any connection to this lawsuit would be more convenient than Minnesota.  It is true that, as a general rule, courts afford some deference to a plaintiff’s
choice of forum; but this deference “is based on an assumption that the plaintiff’s choice of forum will be a convenient one.” In re Apple, Inc., 602 F.3d 909, 913 (8th Cir. 2010). When that assumption does not hold — when, as here, the plaintiff has chosen an inconvenient forum — the plaintiff’s choice of forum fades in importance.

The plaintiffs also argued that keeping all of the pain-pump cases like this one in Minnesota would further the interests of justice because the cases could be litigated more efficiently if they were all
litigated in the same district. But by this logic, plaintiffs’ lawyers could routinely force a “de facto” MDL on a district simply by filing enough similar cases in that district. This would allow plaintiffs’ lawyers to sidestep the MDL process — the very mechanism that federal courts have implemented for handling mass-tort actions.  In fact, the JPML has twice declined to consolidate pain-pump cases into an MDL. See In re Ambulatory Pain Pump-Chondrolysis Prods. Liab. Litig., MDL No. 2139, 2010 WL 1790214 (JPML May 5, 2010); In re Shoulder Pain Pump-Chondrolysis Prods. Liab. Litig., 571 F. Supp. 2d 1367 (JPML 2008).

One interesting tidbit, even though transferred, because the plaintiffs originally filed suit in Minnesota, the Minnesota statutes of limitations may travel with this case.  That is, if, under Minnesota’s choice-of-law rules, the Powells are entitled to the benefit of Minnesota’s statute of limitations, they may retain that benefit in the Eastern District of North Carolina. See Ferens v. John Deere Co., 494 U.S. 516, 523 (1990) ( § 1404(a) transfer does not change the law applicable in a diversity case); Eggleton v. Plasser & Theurer Export Von Bahnbaumaschinen Gesellschaft, MBH, 495 F.3d 582, 586 (8th Cir. 2007) (after a § 1404(a) transfer, “the transferee court applies the
choice-of-law rules of the state in which the transferor court sits”).  Thus, it may have been a rewarding shopping trip.