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July 8, 2004.

GERMAN AMERICAN STATE BANK, Special Administrator of the Estate of Patricia Cowan, Plaintiff,
U.S., Defendant.

The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge


Plaintiff, German American State Bank, Special Administrator of the Estate of Patricia Cowan, filed this Federal Tort Claims Act ("FTCA") law suit on May 6, 2004 in the Eastern Division of the Northern District of Illinois, located in Chicago, Illinois. Before the court is the defendant United States' motion, filed under 28 U.S.C. § 1404(a), to change venue to the Western Division of the Northern District of Illinois, located in Rockford, Illinois. For the reasons set forth below, the motion is granted.

Plaintiff's FTCA claim alleges medical malpractice by health care providers at Crusader Clinic, located in Rockford. The United States relies on 28 U.S.C. § 1404(a) in support of its motion to change venue. That statute provides, in relevant part, that "[f]or the convenience of the 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." The party seeking to transfer an action under § 1404(a) bears the burden of demonstrating (1) that venue is proper in both the transferor and transferee court; (2) that transfer is for the convenience of the parties and witnesses; and (3) that transfer is in the interest of justice. E.g., Cody v. DeKalb Sanitary Dist., No. 98 C 6832, 1999 WL 417368, at *1 (N.D. Ill. June 13, 1999).

  Neither party disputes factor (1) above. Pursuant to 28 U.S.C. § 1391(b)(2), venue is proper in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. . . ." In this case, the alleged medical malpractice took place in the Northern District of Illinois, so venue is appropriate in this district. Also, because venue is proper in the Northern District of Illinois, and "because the Northern District of Illinois has no local rule requiring divisional venue . . . [plaintiff] could have filed her complaint in either the Eastern Division or the Western Division." Cody, 1999 WL 417368, at *2.

  As for the remaining factors, in support of its argument, the United States points to the following facts: (1) the medical care at issue in this case occurred in Rockford; (2) most witnesses listed in plaintiff's administrative tort claim are located in Rockford, including most of the treating physicians, see Monaco v. G.D. Searle & Co., 506 F. Supp. 695, 696 (N.D. Ill. 1979) (noting as one factor in favor of change of venue was where the "prescribing and treating physicians reside"); (3) none of the listed witnesses are located in the Eastern Division; (4) plaintiff's choice of forum should not be afforded great weight because the plaintiff's beneficiaries live in Leaf River, Illinois, (a town west of Rockford) and in Michigan; and (5) no logistical or other reason exists to litigate this action in the Eastern Division.

  Plaintiff, in response, suggests that the United States' motion should be denied because (1) it has chosen a proper forum and that choice should be given deference, see Vandeveld v. Christoph, 877 F. Supp. 1160, 1167 (N.D. Ill. 1995) ("[A] plaintiff's choice of forum should rarely be disturbed unless the balance weighs strongly in the defendant's favor."); (2) the Eastern Division is more convenient for the beneficiary located in Michigan (based on access to airports) and is as convenient for the other beneficiary located in Leaf River; (3) plaintiff filed in the Eastern Division in part to cut costs because her expert has a teaching appointment and practice at the University of Chicago; (4) the United States has the resources to litigate this case anywhere in the country; (5) the inconvenience to any witness located in Rockford will be minimal and will occur only if this case goes to trial and only if those witnesses are called to testify at trial, which cannot be determined at this point; and (6) one of the physicians at issue has moved to Flagstaff, Arizona, and the Eastern Division's proximity to airports would be the most convenient forum for this "important player."

  First, the court agrees with the United States that because the Eastern Division is neither home to either of the plaintiff's beneficiaries or the situs of material events, no special deference will be afforded plaintiff's choice of forum. See, e.g., Doagle v. Board of Regents, 950 F. Supp. 258, 259 (N.D. Ill. 1997) ("[W]hen the plaintiff does not reside in the chosen forum, and the conduct and events giving rise to the cause of action did not take place in the selected forum, the plaintiff's preference has nominal value."). Instead, plaintiff's choice of forum will be but one factor warranting equal consideration with others.

  Concerning the convenience of the parties, weighing all of the above arguments, Chicago is a more convenient forum but only by a small margin. The court finds reasonable plaintiff's explanation that the Eastern Division is more convenient for plaintiff's beneficiary from Michigan, which weighs in favor of this forum. The court sees no persuasive value in plaintiff's suggestion that this forum is equally as convenient for the other beneficiary insofar as that beneficiary is from a town west of Rockford. This factor should, in fact, weigh in favor of transfer. However, given that this suit was filed in this division, the beneficiary from Leaf River must have been willing to deal with any such inconvenience and the court will simply consider this beneficiary's interest as neutral. As to the United States, the court can see no inconvenience wherever this action may be defended, as it is equally able to defend in each division. Thus, based predominantly on the beneficiary from Michigan, the convenience of the parties weighs slightly in favor of the Eastern Division.

  As for the convenience of the witnesses, the fact that 12 of the 13 physicians identified as witnesses in this case are located in Rockford is a factor strongly favoring transfer. The court finds plaintiff's arguments in response unpersuasive. While true that one physician now lives in Arizona, this factor does not negate that the other 12 physicians listed in plaintiff's administrative charge reside in Rockford. Also, while plaintiff suggests that the location of her expert witness is a relevant consideration, she cites no case that has taken this factor into account. Indeed, there are several cases in this district stating otherwise. See, e.g., Binz v. Iowa Interstate R.R., Ltd., No. 98 C 6381, 1999 WL 90642, at *3 (N.D. Ill. Feb. 10, 1999) (noting that "location of expert witnesses called at trial by plaintiffs" was "not a factor relevant to a Section 1404(a) determination."); Sipes v. American Home Prods. Corp., No. 96 C 7549, 1996 WL 734674, at *2 n. 3 (N.D. Ill. Dec. 19, 1996); Gothelf v. California Ivy, Inc., No. 90 C 6976, 1992 WL 33928, at *3 (N.D. Ill. Feb. 13, 1992); Genden v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 621 F. Supp. 780, 782 (N.D. Ill. 1985). Finally, plaintiff suggests that it is not clear how many of the 12 doctors listed in her administrative charge will testify at trial, but plaintiff does not, and likely cannot, dispute that the majority of the treating physicians that will be called at trial are located in Rockford. Lastly, as for the interest of justice, the court concludes that it would weigh to some extent in favor of the Western Division insofar as "the administration of justice is better served when the action is litigated in the forum that is closer to the action." Cody, 1999 WL 417368, at *3 (internal citations and quotations omitted).

  After closely weighing all the above factors, the court believes that the United States has met its burden of demonstrating that transfer in this case is warranted. While the court acknowledges plaintiff's arguments, considering that the Western Division is the situs of events where most of the physician witnesses are located, and considering that none of plaintiff's beneficiaries call the Eastern Division home, the court believes that transfer under § 1404(a) is warranted. As such, the court grants the United States' motion to transfer venue [#4] and orders this case transferred to the United States District Court for the Northern District of Illinois, Western Division.


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