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Petty v. Cancer Treatment Centers of America Professional Corporation of Oklahoma, Inc.

United States District Court, W.D. Arkansas, Fayetteville Division

September 21, 2017




         Currently before the Court is a Motion to Transfer Venue (Doc. 10) submitted by Defendants Cancer Treatment Centers of America Professional Corporation of Oklahoma, Inc. ("CTCA") and Southwestern Regional Medical Center, Inc. ("Southwestern"). Plaintiff Rachel R. Petty ("Petty") has filed a response in opposition (Doc. 11). The Court heard oral arguments during a case management conference held on August 24, 2017. For the reasons given below, Defendants' Motion to Transfer is GRANTED.

         I. BACKGROUND[1]

         Plaintiff, a resident of Springdale, Arkansas, was diagnosed with Non-Hodgkin's Lymphoma in 2008. After undergoing successful treatment and being in remission for approximately seven years, Petty learned that her cancer had returned. Her oncologist recommended that she undergo a stem cell transplant. Around that time, Petty saw a television commercial produced by Defendant CTCA advertising its cancer treatment facility in Tulsa, Oklahoma. After conducting research on the CTCA, speaking with CTCA employees on the telephone, receiving additional information from CTCA, and being notified of her insurance company's agreement to treat CTCA as an in-network provider, Petty decided to seek treatment from the CTCA in Tulsa.

         Petty's treatment at CTCA consisted of two distinct phases and repeated travel from Arkansas to Tulsa. In phase one, which occurred between April and June of 2015, she received treatment with "RICE"[2] to shrink a tumor in her neck. Upon successfully completing that phase, Petty returned to CTCA in Tulsa to begin the 'Autologous Transplant for Non-Hodgkin's Lymphoma', a separate six-step process.

         It was during phase two that Petty allegedly suffered the injuries central to her Complaint. In step one of phase two, Petty had a catheter surgically implanted. The following day, she reportedly developed itching, pain, and soreness in the location where the surgical dressing had been placed, problems that were allegedly due to the use of a latex-based dressing that Petty was allergic to. Two days after the catheter was placed, Petty was notified that an additional surgery was necessary because the catheter that had been used was of a different type than was required for bone marrow transplants. Petty underwent a second surgery on July 23, 2015, to remove the first catheter and replace it with the correct catheter. Petty alleges that Defendants surreptitiously billed for these procedures in order to maximize their charges. Following the completion of the corrective surgery, Petty received mobilization-based treatment with Cytoxan as part of step two of the transplant process.

         Following this treatment, Petty began step three, which involved the removal of stem cells using an apheresis machine. The first day of that process, which began on September 8, 2015, was without incident. However, the following day's continuation of the apheresis process had to be aborted when CTCA's machine failed. A day later, CTCA officials determined that they could continue the apheresis process by using personnel and equipment from the Oklahoma Blood Institute ("OBI").[3] After successfully removing Petty's harvested stem cells, OBI personnel bagged and labeled the cells and tendered them to CTCA's stem cell coordinator, Yana Zhang, for storage at the CTCA facility.

         Subsequently, the freezer at CTCA used to store Petty's stem cells malfunctioned. CTCA, again relying upon the OBI, requested a courier come to the CTCA facility in Tulsa, collect the two bags of stem cells, and transport them to the OBI facility in Oklahoma City for storage. Sometime that same day, when the courier arrived back at the OBI facility in Oklahoma City, the vessel that was supposed to be holding Petty's stem cells was opened and it was discovered that one of the bags had no information identifying either the contents of the bag or from whom the contents had been taken. Five days later, Petty's attending physician at CTCA called her to report this and, understandably upset, Petty allegedly told the physician that she would need time to think about her options. In the wake of these events, Petty decided to forego additional treatment at the CTCA and opted instead to finish her stem cell transplant procedure at the University of Kansas Medical facility in Kansas City, Kansas. Petty alleges that Defendants subsequently requested she pay, out-of-pocket, around $109, 000 for costs not covered by her insurance policy.

         On May 26, 2017, Petty filed her initial complaint in the Circuit Court of Benton County, Arkansas, asserting causes of action including gross medical negligence, fraud, violation of the Arkansas Deceptive Trade Practices Act, violation of Oklahoma's Consumer Protection Act, and outrage. Defendants removed the action to this Court (Doc. 1) and subsequently filed the present Motion to Transfer (Doc. 10).


         The change of venue statute, 28 U.S.C. § 1404(a), provides that "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district where it might have been brought." Although the statute provides three general categories of factors courts must consider when evaluating a motion to transfer, Terra Int'l v. Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir. 1997), the Eighth Circuit has declined to offer an exhaustive list, In re Apple, Inc., 602 F.3d 909, 912 (8th Cir. 2010). Rather, district courts have discretion under section 1404(a) "to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). Moreover, because "federal courts give considerable deference to a plaintiffs choice of forum ... the party seeking a transfer under section 1404(a) typically bears the burden of proving that a transfer is warranted." Terra Int'l, 119 F.3d at 695.

         Before considering the factors central to any 1404(a) analysis, this Court must first determine that the Northern District of Oklahoma, the requested transferee venue, is a district where the action could originally have been brought. 28 U.S.C. § 1404(a). Under the general venue statute, 28 U.S.C. § 1391(b), venue is proper in, among other places, a "judicial district where any defendant resides, if all defendants are residents of the State in which the district is located." 28 U.S.C. § 1391(b)(1). The two Defendants in the present case are both Oklahoma corporations and, under the venue statute, are considered residents of any judicial district in which they are subject to a court's personal jurisdiction. 28 U.S.C. § 1391(c)(2). Because both Southwestern and CTCA are Oklahoma corporations located in Tulsa, Oklahoma, which is within the boundaries of the Northern District of Oklahoma, they are each subject to personal jurisdiction in that District. As a result, this action could initially have been brought there.

         Since this threshold inquiry has been satisfied, the Court must next determine whether transfer is warranted "for the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). The Court will separate its analysis into a "convenience" section and an "interest of justice" section.

         A. Convenience Factors

         As noted above, courts have considered a host of relevant factors that directly bear upon the convenience of litigating in a particular court. These factors include: 1) the convenience of the parties, 2) the convenience of the witnesses-including the willingness of witnesses to appear, the ability to subpoena witnesses, and the adequacy of deposition testimony, 3) the accessibility to records and documents, 4) the location where the conduct complained of occurred, and 5) the applicability of each forum state's substantive law. Terra Int'l, 119 F.3d at 696. Of the convenience factors, many courts consider the convenience of witnesses to be the most important. See 15 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Fed. Practice and Procedure § 3851 n.1 (4th ed. 2017) (listing cases). The Court will consider each factor in turn.

         1. Convenience of the Parties

         Here, the convenience of the parties is neutral with respect to transfer. While it would, of course, be more convenient for the named Defendants to litigate this case in the Northern District of Oklahoma, as that is where they are located, it would likely be at least as-if not more-inconvenient for Petty to litigate in Oklahoma.[4] In considering this factor, courts must remember that "merely shifting the inconvenience from one side to the other... is not a permissible justification for a change of ...

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