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Clark v. Tap Pharmaceutical Products

September 19, 2003

ACIE C. CLARK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLEE,
v.
TAP PHARMACEUTICAL PRODUCTS, INC., TAP PHARMACEUTICALS, INC., AND ABBOTT LABORATORIES, INC., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Williamson County. No. 01-L-132 Honorable Phillip G. Palmer, Judge, presiding.

Justices: Honorable Terrence J. Hopkins, P.J. Honorable Thomas M. Welch, J., and Honorable Melissa A. Chapman, J., Concur

The opinion of the court was delivered by: Presiding Justice Hopkins

PUBLISHED

The defendants, TAP Pharmaceutical Products, Inc., Tap Pharmaceuticals, Inc., and Abbott Laboratories, Inc., appeal the circuit court's order denying the defendants' motion to transfer venue from Williamson County to Lake County on the grounds of forum non conveniens. We affirm the circuit court's decision.

FACTS

Plaintiff class representative Acie C. Clark filed a class action complaint in Williamson County alleging unjust enrichment and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2000)). Clark asserted that as a result of the defendants' fraudulent marketing and sales scheme, he, along with thousands of individuals and entities who had paid copayment or deductible amounts for beneficiaries under Medicare, overpaid for the prescription drug Lupron, which is used to treat prostate cancer.

Clark alleged that Medicare reimbursement has historically relied on the "average wholesale price" published in Redbook, a pharmaceutical publication. Medicare reimburses medical providers 80% of the allowable amount, and the Medicare beneficiary pays the remaining 20%, referred to as the copayment amount. Clark contends that the defendants wrongfully supplied Redbook with an inflated "average wholesale price," i.e., that the prices the defendants charged private-sector purchasers for Lupron were significantly less than the price published in Redbook and relied upon by Medicare. Clark asserts that the defendants' fraudulent scheme induced medical providers to purchase, prescribe, and administer Lupron at a low cost, bill Medicare at the inflated cost, and earn a profit from the difference. Clark asserts that as a result of the defendants' wrongful inflation scheme, Clark and those similarly situated substantially overpaid all or a part of their 20% copayments for Lupron.

On November 18, 2001, the defendants moved to transfer this case from Williamson County to Lake County on the ground of forum non conveniens. Barbara Tolbert, manager of customer services/trade relations with TAP Pharmaceuticals, Inc., in an attached affidavit, asserted that TAP Pharmaceutical Products, Inc., is a Delaware corporation with its principal place of business in Lake County, Illinois. Tolbert further asserted that TAP Pharmaceuticals, Inc., is a subsidiary of TAP Pharmaceutical Products, Inc.; it is a Delaware corporation; and it also has its principal place of business in Lake County, Illinois. Tolbert contended that, to the best of her knowledge, the potential witnesses and documents regarding the pricing of Lupron were located in Lake County, Illinois.

Also attached to the defendants' motion was a statistical summary of the Illinois courts, revealing that in 1999 the average time to a jury verdict in Williamson County was 33.5 months and the average time to a jury verdict in Lake County was 23 months. Administrative Office of the Illinois Courts, 1999 Annual Report of the Illinois Courts, Statistical Summary 53, 55. The defendants also attached a map indicating that between 1993 and 2001 approximately 73% of Illinois sales of Lupron occurred in northern Illinois, 20% in central Illinois, and 7% in southern Illinois, with less than 1% occurring in Williamson County.

Clark asserted that between 1999 and 2001, he received and paid for Lupron in Williamson County through Clark's Williamson County physician. Clark explained that no urologists were located in Pulaski County, Clark's county of residence. Clark alleged that the defendants sold Lupron directly to physicians, retailers, wholesalers, health care facilities, and government agencies throughout the nation; that the defendants' marketing agents personally met with doctors in northwest Iowa, Massachusetts, and Maine to perpetrate their scheme; and that the United States government had investigated the scheme nationwide. Clark attached his affidavit, asserting that he is 82, has health problems, and has limited financial means, which would make it difficult for him to attend a trial in Lake County, Illinois. In a deposition on December 27, 2001, Clark testified that he has visited his wife's children in Chicago two or three times a year, with each visit lasting one or two days.

On January 7, 2002, the circuit court denied the defendants' motion to transfer.

On February 6, 2002, the defendants timely filed their petition for leave to appeal pursuant to Supreme Court Rule 306(a) (166 Ill. 2d R. 306(a)). We dismissed the petition, but the Illinois Supreme Court reinstated it on October 2, 2002 (Clark v. TAP Pharmaceutical Products, Inc., 201 Ill. 2d 562, 776 N.E.2d 237 (2002)). Following the remand, we granted the defendants' petition on October 28, 2002.

ANALYSIS

Forum non conveniens is an equitable doctrine founded in considerations of fundamental fairness and sensible and effective judicial administration and allows a circuit court to decline jurisdiction in the exceptional case where a trial in another forum with proper jurisdiction and venue would better serve the ends of justice. First American Bank v. Guerine, 198 Ill. 2d 511, 515 (2002). "The trial court is vested with considerable discretion in its determination of whether transfer is warranted on the basis of forum non conveniens principles." Peile v. Skelgas, Inc., 163 Ill. 2d 323, 336 (1994). We will reverse the trial court's decision only if the court abused its discretion, i.e., if it acted ...


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