Devos v Bristol-Myers Squibb Co.

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Devos v Bristol-Myers Squibb Co. 2018 NY Slip Op 30121(U) January 23, 2018 Supreme Court, New York County Docket Number: 154694/2017 Judge: Erika M. Edwards Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 01/23/2018 12:17 PM 1] NYSCEF DOC. NO. 44 INDEX NO. 154694/2017 RECEIVED NYSCEF: 01/23/2018 SUPREME COURT OF THE STA·TE OF NEW YORK COUNTY OF NEW YORK JAMES A. DEVOS, Index No.: 154694/2017 Plaintiff, DECISION/ORDER -against- Motion Seq. 001 BRISTOL-MYERS SQUIBB CO. and PFIZER, INC., Defendants . . Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: ·~ Papers Notice of Motion and Affidavits/Affirmations/ Memos of Law annexed i Opposition Affidavits/Affirmations and Memos of Law annexed Reply Affidavits/ Affirmations/Memos of Law annexed Numbered 2 3 ERIKA M. EDWARDS, J.: Indiana resident Plaintiff James A. Devos ("Plaintiff') brought this pharmaceutical product liability action against New York-based Defendants Bristol-Myers Squibb Co. ("BristolMyers") and Pfizer, Inc. ("Pfizer") (collectively "Defendants") to recover damages for alleged severe gastrointestinal bleeding allegedly caused by taking the prescription drug Eliquis. Eliquis, or apixaban, is an oral anticoagulant that thins the blood arid is meant to prevent blood clots and reduce the risk of stroke in patients with atrial fibrillation. Defendants market Eliquis as a more attractive alternative to Coumadin, or warfarin, because Eliquis does not require a patient to undergo frequent blood tests to monitor medication levels, it does not limit a patient's diet because of adverse interactions with certain foods and medications, there is one standard dose for 2 of 7 [*FILED: NEW YORK COUNTY CLERK 01/23/2018 12:17 PM 2] NYSCEF DOC. NO. 44 INDEX NO. 154694/2017 RECEIVED NYSCEF: 01/23/2018 all patients which does not need to be individually tailored.to the needs of each patient and it reduces the risk of cerebral hemorrhaging. Defendants move to dismiss Plaintiff's complaint, as well as four other similar .... complaints, pursuant to CPLR 327(a), based on forum non conveniens as there is little to no nexus to New York. For the reasons set forth herein, the court grants Defendants' motion to. dismiss to the extent set forth herein. The court dismisses Plaintiff's complaint against Defendants with leave for Plaintiff to re-file in his home state jurisdiction or as part of the federal .r court's multidistrict litigation (MDL) on the condition that Defendants stipulate to accept service in Plaintiff's home forum, waive the defense of lack of personal jurisdiction, and deem any new action regarding this matter that is r.e-filed within 120 days of the date of this Order to have been filed as of the date of the original action for statute of limitations purposes. Plaintiff alleges that Defendants designed, researched, manufactured, tested, advertised, promoted, marketed, sold, distributed and dealt with the government regulatory bodies for Eliquis. Plaintiff's allegations are based on product liabilit:,1 for design defect and failure to warn, negligence, fraudulent misrepresentations and breach of express and implied warranty. Plaintiff further alleges in substance that Defendants are liable for Plaintiffs injuries because they failed ... to adequately disclose the risks of the drug, including that there was no antidote or reversal agent available in case of excessive bleeding or that such risk could have life-threatening and fatal consequences; negligently and fraudulently represented to medical and healthcare personnel that the drug was safe and effective for its indicated use; conducted faulty clinical trials and studies in China; concealed a death and the drug's defects; falsified i:ecords; and conducted a pattern of inadequate supervision. 2 3 of 7 [*FILED: NEW YORK COUNTY CLERK 01/23/2018 12:17 PM 3] NYSCEF DOC. NO. 44 INDEX NO. 154694/2017 RECEIVED NYSCEF: 01/23/2018 Numerous actions were previously filed in various federal court districts and the federal court MDL panel assigned the actiQ_ns to the Southern District of New York where one judge coordinated all of the pre-trial proceedings, including discovery and motions. The MDL judge has the authority to compel depositions and act on behalf as the home district judge for pre-trial purposes. Once the pre-trial matters are complete and if a case is not resolved, the court will remand the action to its home district for trial. Here, the MDL judge issued two rulings and determined that the plaintiffs' warning and design defect claims were preempted by federal law, that the warnings on the Eliquis label were .... adequate as a matter of law, that the risk of excessive bleeding and the lack of an antidote were clearly disclosed to the Food & Drl:'g Administration (FDA) when it approved Eliquis and that such risks were prominently disclosed on the FDA-approved label ( Utts v Bristol-Myers Squibb Co., 226 F Supp 3d 166 [SONY 2016] and Utts v Bristol-Myers Squibb Co., 251FSupp3d 644, 651 [SONY 2017]. Therefore, the court directed all other MDL plaintiffs to serve an amended complaint and that all current and future complaints include a memorandum stating why the complaints should not be dismissed ..based on the court's rulings .. Plaintiff argues in substance that since Defendants chose the Southern District of New York as the most convenient district for the MDL actions, they should be bound by their arguments and essentially precluded from challenging jurisdiction based on forum non conveniens. Defendants argue in substance that the purpos~s and considerations for choosing an MDL forum differ greatly from those in this matter because the MDL is only meant to coordinate pre-trial proceedings and the cases are remanded to the Plaintiffs home district for trial. Defendants also argue that based on the MDL rulings, Plaintiffs chose to file actions in New York and other states to attempt to avoid being bound by the adverse MDL rulings. 3 4 of 7 [*FILED: NEW YORK COUNTY CLERK 01/23/2018 12:17 PM 4] NYSCEF DOC. NO. 44 INDEX NO. 154694/2017 RECEIVED NYSCEF: 01/23/2018 CPLR 327(a) codifies the doctrine of forum non coriveniens and grants the court the discretion to stay or dismiss an action in whole or in part on any conditions that may be just on the motion of any party when the court finds that in the interest of substantial justice the action should be heard in another forum (CPLR 327[a]). It is warranted when there are no significant New York contacts. The defendant challenging the forum ltas the burden of demonstrating relevant private or public interest factors which militate against accepting the litigation (Islamic Republic of Iran v Pahlavi, 62 NYi°d 474, 4_79 [I 984]; Bader & Bader v Ford, 66 AD2d 642, 647 [1st Dept 1979]). The court, after considering and balancing the competing factors, must determine in the exercise of its sound discretion whether to retain jurisdiction or not (62 NY2d at 4 79). The relevant factors include 1) the burden on New York's courts; 2) the potential hardship to the defendant; 3) the unavailability of an alternate forum in which the plaintiff may bring suit; 4) the residency of the parties; 5) where .... transaction out of which the cause of action arose primarily the occurred; and 6) the location of the majority of the witnesses; (id.; Bank Hapoalim (Switzerland) Ltd. v Banca Intesa Sp.A., 26 AD3d 286, 287 [1st Dept 2006]). The need to apply foreign law is also an appropriate factor for the court to consider (Fox v Fusco, 4 AD3d 313, 3 I 3 [I st Dept 2004 ]). No one factor is controlling since the great advant'1ge of the doctrine of forum non conveniens is its flexibility based on the facts and circumstances of each case (26 AD3d at 287). In the instant matter it is undisputed that Indiana is the location where Plaintiff resides; where he was prescribed Eliquis; ~here he purchased Eliquis; where he ingested Eliquis; where his injuries occurred; where he was treated; where his prescribing physician, treating physicians and most of his fact witnesses are located; and where his medical records are located. New York is the location of Defendants' headquarters, where most of the defense witnesses are located and 4 5 of 7 [*FILED: NEW YORK COUNTY CLERK 01/23/2018 12:17 PM 5] . ·~· NYSCEF DOC. NO. 44 INDEX NO. 154694/2017 RECEIVED NYSCEF: 01/23/2018 it is where most of the relevant defense records regarding the design, testing, manufacturing, regulatory approval and marketing of Eliquis are located. When considering the relevant factors, the court is persuaded by the majority of the cases cited by Defendants and agrees that in the interest of substantial justice this action should be heard in Indiana state court or as p~rt of the federal court's MDL should Plaintiff choose to re- file in federal court. The significant events giving rise to this law suit primarily arose in Indiana since Plaintiff was prescribed Eliquis in Indiana, he took it in Indiana, he sustained his injuries in Indiana and he was treated in Indiana. As such, Defendants would suffer a hardship if this matter were to be tried in New York because Plaintiffs prescribing and treat.ing physicians are located in Indiana and are beyond New York's subpoena power. Even though there are discovery mechanisms in place to obtain the deposition of non-party out-of-state residents and video-taped testimony is an option, such alternatives are not ideal or viable alternatives. Particularly here, when comparing the significance of the Indiana physicians and other fact witnesses versus New York executives and record custodians who have no knowledge of Plaintiffs injuries and treatment. Additionally, the parties agree that Indiana substantive law applies in this action and such law may be different than New York law. Therefore, this court also considers that an Indiana judge may be in a better position to.'1pply Indiana substantive law than a New York judge. As such, the court finds that in the interest of substantial justice the state or federal court in Plaintiffs home jurisdiction is an available and much better alternative forum than New York with leave for Plaintiff to re-file.on the conditions set forth herein. 5 6 of 7 [*FILED: NEW YORK COUNTY CLERK 01/23/2018 12:17 PM 6] NYSCEF DOC. NO. 44 INDEX NO. 154694/2017 RECEIVED NYSCEF: 01/23/2018 Accordingly, it is hereby ORDERED that the court grants Defendants Bristol-Myers Squibb Co.'s and Pfizer, Inc.' s motion to dismiss Plaintiff Ja!lles A. Devos' complaint based on forum non conveniens; the court dismisses Plaintiffs complaint in this jurisdiction and grants leave for Plaintiff to refile in his home state jurisdiction or as part of the federal court's multidistrict litigation (MDL) on the condition that Defendants stipulate to accept service in Plaintiffs home forum, waive the defense of lack of personal jurisdiction and deem any new action regarding this matter that is refiled within 120 days of the date of this Order to have been timely filed as of the date of the original action for statute of limitations purposes; and the court directs the Clerk to enter ... · judgment accordingly in favor of Defendants without costs. Date: January 23, 2018 I 6 7 of 7 HON. ERIKA M. EDWARDS

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