University of Maryland Medical System Corporation et al. v. Brandon Kerrigan, a minor et al.
No. 3
COURT OF APPEALS OF MARYLAND
November 28, 2017
September Term, 2017
Opinion by Greene, J. Barbera, C.J., Adkins and McDonald, JJ., dissent.
Circuit Court for Baltimore City Case No. 24-C-15-002333 Argued: September 6, 2017
CIVIL PROCEDURE—RULE 2-327(c) MOTION TO TRANSFER—PLAINTIFF‘S CHOICE OF VENUE
The Court of Appeals held that a Circuit Court judge‘s order to transfer the case from Baltimore City to Talbot County was not an abuse of discretion. The Court of Appeals applied the principle, recognized in Leung v. Nunes, 354 Md. 217, 729 A.2d 956 (1999), and properly applied in Stidham v. Morris, 161 Md. App. 562, 870 A.2d 1285 (2005), that held that although the plaintiff‘s choice of venue receives deference as the presumed convenient forum for the plaintiff, that deference is minimized when the plaintiff does not reside in that forum. The plaintiffs did not reside in Baltimore City, their chosen venue, but rather resided in Talbot County, the venue where the Circuit Court transferred the case. Based on the facts of the case, the convenience of the parties and witnesses and the interests of justice weighed strongly in favor of transfer.
OPINION
The fundamental inquiry before us in this case is the proper application of the standard of appellate review to a trial court‘s order to transfer a case pursuant to
I.
As a result of the procedural posture of this case, the facts are queued up by the parties’ pleadings. With the exception of limited factual findings by the Circuit Court related to the residency of the parties, the parties have not litigated the remaining allegations. We provide a summary of the allegations here for context only. Brandon Kerrigan and his parents, Kimberly and Michael Kerrigan, (“Respondents“), live in Bozman, a community located in Talbot County. Brandon, through his parents and with them in their individual capacities, filed a medical malpractice action in May 2015 against seven defendants: three medical systems, the University of Maryland Medical System Corporation, the University of Maryland Shore Regional Health, Inc. (“Shore Medical“), and Delmarva Radiology, PA, and four doctors in their individual capacities, Drs. David White, Dayanand Bagdure, Nicole Mallory, and Steven Sauter (“Petitioners“), in the Circuit Court for Baltimore City.
In August of 2013, Brandon, age fifteen, visited his Talbot County physician, Dr. Mark Langfitt, after experiencing shortness
Brandon‘s symptoms persisted. He was admitted to the emergency room at Shore Medical, where an examination revealed indicators of potential heart failure. Dr. David White directed that Brandon receive intravenous fluids while Brandon waited to receive further testing to confirm the condition of his heart. Dr. White consulted with Dr. Dayanard Bagdure, of the University of Maryland Medical System Corporation, who agreed to treat Brandon after an emergency transfer, by helicopter, to the University of Maryland in Baltimore City. Brandon received fluids until he completed them during the helicopter ride, where he coded on his way from Talbot County to Baltimore City.
Upon admission to the University of Maryland, Brandon‘s treating physicians changed his diagnosis from heart failure to septic shock. After arrival, Brandon received a second blood test, the results of which confirmed heart failure. At the University of Maryland, Brandon had received over four liters of IV fluids during a fourteen hour period before he received any diuretics. Four months after his admission, Brandon received a heart transplant.
After the Kerrigans filed suit in May 2015, the seven Petitioners jointly filed a motion to transfer venue from Baltimore City to Talbot County, pursuant to
And, obviously, this is not a claim that the forum is improper. It‘s not a motion to dismiss for an improper forum.
It‘s a motion under the forum non conveniens analysis as to whether the case as it is and whether the factors balance heavily in favor of transfer to the suggested jurisdiction of Talbot County.
I have weighed those factors, and I do find that those factors do weigh strongly in favor of transfer. There are a number of things that I considered.
The hearing judge explained that his first consideration in the balancing test was convenience to the parties and witnesses:
First, with respect to the balance of convenience of the parties and the witnesses, as counsel for the defendant has pointed out, seven of the ten named parties in the case, plaintiff and defendants, are in Talbot County.
I was struck by the fact and it was pointed out by defense counsel that plaintiffs actually must pass the Circuit Court for Talbot County on the way to the Circuit Court for Baltimore City.
I was unpersuaded by the exhibit and statistics presented by plaintiffs’ counsel as to the witnesses. I don‘t find the fact that the transplant team is in Baltimore City is of significance.
The primary and key witnesses that would be testifying in this case—obviously, everyone has noted that it‘s hard to say who will actually testify. But you‘re not going to have 500 and some care providers who may have touched the treatment at some point testify at trial. But it‘s clear that the significant balance is in favor of those who would be inconvenienced significantly coming from Talbot County to Baltimore City.
As to the statistical analysis with respect to the other prong, the public interest, I was not persuaded by the statistics as argued by plaintiffs’ counsel. The numbers don‘t bear out in what I reviewed in the annual statistical abstract as to the courts’ dockets.
Of course, I certainly am not saying that we‘re here in Baltimore City . . . looking to avoid having additional cases. We certainly can handle everything that comes at us, and we do. But the numbers do not support plaintiffs’ position. The numbers, in fact, would weigh in favor—strongly in favor of the transfer.
With respect to the burden on the public, again, both with respect to the jury duty issue, clearly there‘s a heavier burden here in the city than in Talbot County, based on just the numbers submitted and the number of trials that are recorded as having taken place. . . .
[T]he other component of the public interest that I was considering was the question with respect to the parties’ interest or the public‘s interest in the health care that‘s provided in the jurisdiction. I was persuaded by the defense argument noting that the sole institution in Talbot County providing medical care is a party defendant in the case. So compare that to Baltimore City where there are several large medical institutions. The Court does find that there is a significantly stronger interest in Talbot County in the handling of this matter, the outcome of this matter than in Baltimore City.
The hearing judge noted that he considered other factors as well. Ultimately, upon weighing the various considerations and allocating appropriate deference to the plaintiffs for their choice of venue, the hearing judge found that transfer to Talbot County was appropriate. He said:
Other factors that were mentioned in terms of location of documents, evidence, service of process, I don‘t find that those factors weigh in favor of either the plaintiff or—plaintiffs or defendants.
But at bottom, the Court sees many motions to transfer, noting that plaintiff is afforded deference with respect to choice of venue.
And in many cases, it comes down to, well, it would certainly be more convenient for it to be in, for example, Cecil County than in Baltimore City, but not strong—in terms of the factors, the factors would not weigh strongly in many cases.
But in this case, I see this as, far and away, one of the strongest in terms of weighing in favor of transfer to Talbot County. That the inconvenience of the parties and the witnesses would be tremendous if the matter were handled in Baltimore City. And that it serves the interest of justice to transfer the matter to Talbot County. So the motion to transfer is granted. . . .
It doesn‘t change my decision [that there will be, at a minimum, six physicians that will be called to trial from the University of Maryland and that there are two doctors down there and there are two doctors up here]. I find that the balance weighs strongly in favor . . . even given those arguments, in favor of transfer.
(Emphasis added).
II.
The Kerrigans noted an appeal to the Court of Special Appeals from the Circuit Court‘s order to transfer the case to Talbot
The University of Maryland Medical System Corporation, et al., filed a petition for certiorari, which we granted. Univ. of Md. Med. Sys. Corp. v. Kerrigan, 452 Md. 5, 155 A.3d 891 (2017). The certiorari petition contained three questions.1 We find the Court of
Special Appeals’ action in reframing the questions and condensing them into a single question for clarity more apropos. Accordingly, we adopt the following question to be resolved:
Did the Circuit Court abuse its discretion by granting the motion to transfer venue?
We answer no.
III.
When faced with the task of reviewing transfers granted pursuant to
presumed to have performed his [or her] duties properly.“) (internal citations omitted); Alexis v. State, 437 Md. 457, 478, 87 A.3d 1243, 1254 (2014) (citing North v. North, 102 Md. App. 1, 13–14, 648 A.2d 1025, 1031–32 (1994)); Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 436, 914 A.2d 113, 132 (2007) (“So long as the Circuit Court applies the proper legal standards and reaches a reasonable conclusion based on the facts before it, an appellate court should not reverse a decision vested in the trial court‘s discretion merely because the appellate court reaches a different conclusion.“); see also Kern v. TXO Production Corp., 738 F.2d 968, 971 (8th Cir. 1984) (“The very concept of a discretion presupposes a zone of choice within which the trial court may go either way.“).2
Parties’ Contentions
Respondents argue that the Circuit Court abused its discretion when transferring the case from Baltimore City to Talbot County. The Kerrigans note that the burden of persuasion resided with the Petitioners in the trial court and that, based on the record of this case, the Circuit Court could not reasonably find that the balance strongly weighed in favor of transferring the case from Baltimore City to Talbot County. The Kerrigans point to several alleged tortious acts that occurred in Baltimore City as well as the three
defendants and multiple treating physician-witnesses who would be inconvenienced by traveling from Baltimore City, where they work, to Talbot County. The Kerrigans further argue that the Circuit Court erred when it assessed the interests of justice by finding that Baltimore City‘s caseload was larger than Talbot County‘s, that Talbot County had a greater interest in the health care provided by Shore Medical than Baltimore City had in the care provided by the University of Maryland, and that the jury burden would be greater in Baltimore City than in Talbot County. According to the Kerrigans, the failure to properly weigh the arguments made by both sides warranted reversal by the Court of Special Appeals.
Petitioners, on the other hand, urge this Court to reverse the Court of Special Appeals, and point us to Odenton and Urquhart as holding that a trial court has discretion to make the determination to transfer the case. Petitioners suggest that in the present case, the hearing judge properly weighed the facts before him and that he, therefore, did not abuse his discretion in granting the motion to transfer. Petitioners invite us to clarify what they suggest was an incorrect reliance upon Scott v. Hawitt, 211 Md. App. 620, 66 A.3d 60 (2011), a case which they argue is factually different from the present case.
History of Rule 2-327(c)
On motion of any party, the court may transfer any action to any other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice.
The Maryland Rules Committee drafted
575 A.2d at 1238.
The federal statute,
than [courts] had to dismiss on grounds of forum non conveniens.” Id. at 253, 102 S. Ct. at 265, 70 L. Ed. at 434; M. Moore, Federal Practice § 111.53 (Matthew Bender & Company, Inc., 2017) (“Recognizing that the ‘broad venue provisions in federal [a]cts often resulted in inconvenient forums,’ Congress intended Section 1404(a) to remedy this situation by authorizing easy transfer of actions to a more convenient federal forum.“) (internal citations omitted). Congress sought to avoid the unnecessary and unjust consequences that could arise as a result of the application of the forum non conveniens doctrine by making transfers easier than dismissal on the same grounds. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75, S. Ct. 544, 546, 99 L. Ed. 789, 793 (1955) (“Congress, in writing § 1404(a), which was an entirely new section, was revising as well as codifying. The harshest result of the application of the old doctrine of forum non conveniens, dismissal of the action, was eliminated by the provision in § 1404 (a) for transfer. . . . [I]t can hardly be called mere codification.“). Greater discretion given to trial courts by Congress went hand-in-hand with “intend[ing] to permit courts to grant transfers upon a lesser showing of inconvenience.” Id. (“That is not to say that the relevant factors have changed or that the plaintiff‘s choice of forum is not to be considered, but only that the discretion to be exercised is broader.“). Congress‘s construction of
Application of Maryland Rule 2-327 to this Case
It is undisputed in this case that the Kerrigans could have brought suit in either Talbot County or Baltimore City.4 ”
161 Md. App. at 569, 870 A.2d at 1289–90 (citing Liban v. Churchey Group II, L.L.C., 305 F. Supp. 2d 136, 142 (D.D.C. 2004)). A trial court, however, has wide discretion to weigh the “convenience of the parties and witnesses” and “interests of justice” on the facts of the case before it when assessing whether to transfer the case. Odenton, 320 Md. at 40, 575 A.2d at 1238 (citing Stewart Organization Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S. Ct. 2239, 2244, 101 L. Ed. 2d 22, 31 (1988)); Leung, 354 Md. at 224, 729 A.2d at 959. Only if the trial court fails to exercise, or abuses, its discretion will a reviewing court reverse the trial court‘s order to transfer venue. Urquhart, 339 Md. at 19, 660 A.2d at 421.
A. THE TRIAL COURT MUST GIVE DUE DEFERENCE TO THE PLAINTIFF‘S CHOICE OF VENUE.
In relying on
S. Ct. at 265–66, 70 L. Ed. 2d at 435; Leung, 354 Md. at 224, 729 A.2d at 959–60. Piper Aircraft explained that “[w]hen the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is
B. THE PLAINTIFF‘S CHOICE OF VENUE IS NOT AN ABSOLUTE PRIVILEGE.
Although the plaintiff‘s chosen venue is the presumed convenient forum for the plaintiff, and, as such, is granted deference, that deference is by no means guaranteed as an absolute. Leung, 354 Md. at 225, 729 A.2d at 960 (“The plaintiff‘s choice, however, is not an absolute and uncontrolled privilege that is determinative under present forum non conveniens law.“); Pacific Car & Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968) (“Plaintiff‘s choice of forum, then, is not the final word.“). Not only is the privilege not absolute, but the deference owed to the plaintiff may face significant diminishment to the point of non-existence, depending on the circumstance. Iragorri v. United Techs. Corp., 274 F.3d 65, 71 (2nd Cir. 2001) (“[T]he degree of deference to be given to a plaintiff‘s choice of forum moves on a sliding scale . . . .“).
Our case law interpreting
Prior to Leung, we had implicitly acknowledged this principle of diminished deference when interpreting
18-19, 660 A.2d at 420–21. Furthermore, in that case, we commented that the only contact the plaintiffs had with the chosen forum was that the subject of the suit, Mr. Simmons, had died at a hospital in that venue. 339 Md. at 18–19, 660 A.2d at 420–21.
In addition to the plaintiff‘s residence as a factor to lessen the deference given to the plaintiff‘s choice of venue, the Stidham court applied the “meaningful ties” factor to further lessen the deference afforded to the plaintiff‘s choice of forum. In Stidham, the defendants struck the plaintiff‘s car in Baltimore County, the residence of the plaintiff. 161 Md. App. at 565–66, 870 A.2d at 1287–88. The plaintiff brought his action in Prince George‘s County, an undisputed appropriate venue in light of the fact that the defendants lived in Pennsylvania. Id. at 569, 870 A.2d at 1290. The Stidham court held that because meaningful ties to the controversy connected the action to Baltimore County as the situs of
the accident, the meaningful ties consideration militated in favor of transferring the action to Baltimore County instead of retaining the action in Prince George‘s County. Id. The Stidham court gave no sequential importance to evaluating whether the plaintiff lived in the forum in which the plaintiff sued or whether meaningful ties existed between the controversy and the chosen forum. Id. (“We therefore conclude that, because appellant is a resident of the transferee jurisdiction, Baltimore County, his choice of Prince George‘s County, which ‘has no meaningful ties to the controversy and no particular interest in the parties or subject matter,’ is entitled to little deference and thus little weight when the factors for and against transfer are weighed.“). We note that, when correctly applied, “meaningful ties” is a factor, like the plaintiff‘s residence in the chosen forum, which can minimize the deference afforded to the plaintiff‘s choice of forum.
Appellate courts in this state have reversed the trial court‘s decision to transfer the case to another forum in three relevant but factually different cases from the case at bar, Leung, Nodeen, and Scott. First, Leung involved a motor vehicle tort action in which neither the three plaintiffs nor the five defendants lived in Maryland. 354 Md. at 220, 729 A.2d at 957. The Leungs filed suit in Baltimore City, and one defendant filed a motion to transfer venue to Howard County. Id. The defendant supported her motion by attaching a copy of the motor vehicle accident report issued by a Maryland State Trooper, which indicated that the accident had occurred in Howard County. Id. at 220–21, 729 A.2d at 958. The trial court granted the motion to transfer without affording the parties a hearing. Id. at 221, 729 A.2d at 958. Upon review, we surmised that the only factor weighing in favor of transfer was the situs of the accident, Howard County, and therefore, the location where
the accident occurred alone was not a strong basis for transferring the case. Id. at 224, 729 A.2d at 959. We reversed, concluding that the Circuit Court abused its discretion by granting the transfer, because “at best, the balancing factors produce[d] an equipoise, so that the
In Nodeen, we reviewed a Circuit Court‘s order, which also granted the transfer without a hearing. 408 Md. at 174, 968 A.2d at 1079. Nodeen involved a motion to modify a custody order pending in the plaintiff‘s choice of forum, a different forum than where the custody order originated. Id. at 174, 968 A.2d at 1082–83. The defendants did not live in Maryland, and we determined that the Court of Special Appeals failed to properly analyze that either of two venues was appropriate, which is the critical step before analyzing the application of
Respondents rely upon the decision of the Court of Special Appeals in Scott v. Hawit, 211 Md. App. 620, 66 A.3d 60, to argue that the intermediate appellate court properly reversed the trial court in the present case. Scott involved a medical malpractice claim in which the plaintiffs alleged that a doctor in Calvert County, Dr. Raja I. Hawit, and a medical institution in Baltimore City, Johns Hopkins Hospital, were separately negligent in acts or omissions with regard to the post-delivery care rendered to the plaintiff‘s son. Id. at 623. Ms. Scott filed suit in Baltimore City, and, upon defendants’ motion, the Circuit Court transferred the case to Calvert County. Id. at 623–26, 66 A.3d at 62–64. When assessing the convenience of the parties in Scott, the Court of Special Appeals noted the atypical nature of the case insofar as the plaintiff alleged negligence “on the part of two defendants, who are independent of each other, based on their separate, allegedly negligent conduct, taking place at different times but causing a single harm.” Id. at 630, 66 A.3d at 66. The Court of Special Appeals reversed the trial court‘s grant of the motion to transfer to Calvert County, holding that the trial court improperly focused on irrelevant factors, such as the situs where the child‘s injuries originated as opposed to the location of the tortious conduct, the perceived apportionment of liability between the defendants, and for treating Johns Hopkins as a resident of Calvert County and not Baltimore City. Id. at 634, 66 A.3d at 69–71. Unlike in Scott, the hearing judge in the case at bar did not abuse his discretion by considering irrelevant factors.
C. THE DEFERENCE OWED TO THE PLAINTIFF‘S CHOICE OF FORUM IS CALIBRATED IN THE BURDEN OF PERSUASION.
When the trial court assesses whether to transfer a case pursuant to
A.2d at 962; Nodeen v. Sigurdsson, 408 Md. 167, 181, 968 A.2d 1075, 1083 (2009); see also Smith v. Johns Hopkins Cmty. Physicians, Inc., 209 Md. App. at 413, 59 A.3d at 1074 (“[T]he proponent of the transfer of venue, bearing the burden of proof, thereby loses the evidentiary tie.“).
Given the fact-laden nature of this balancing test, trial court decisions are necessarily “individualized” and made on a “case-by-case” basis. Stewart Organization Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (citing Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). As we stated in Leung, “The discretionary decision by a trial court on whether to transfer an action, and appellate review of that exercise of discretion, are predominantly fact driven. Very few generalizations can be made in this area of the law.” 354 Md. at 226, 729 A.2d at 961. We recognize that because trial courts have discretion to weigh the facts of each case, “uniformity and predictability of outcome” are “almost impossible.” American Dredging Co., 510 U.S. at 455. We cannot, therefore, generalize
Given the fact-intensive nature of
Judge Charles E. Moylan, Jr., in Payton-Henderson v. Evans, observed this tension, and emphasized that the burden
D. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT THE BALANCE OF THE CONVENIENCE OF THE PARTIES AND WITNESSES AND INTERESTS OF JUSTICE WEIGHED IN FAVOR OF TRANSFER.
Even though the few decisions in Maryland interpreting
Thus, we review the facts of the case before us. We determine that the hearing judge gave some weight to the plaintiffs’ venue choice by properly recognizing the moving party‘s burden of persuasion. The hearing judge stated that this was a “motion under the forum non conveniens analysis”
one of the strongest in terms of weighing in favor of transfer to Talbot County.” Accordingly, it is not our place as the reviewing court to second-guess the weighing of the evidence by the Circuit Court.11 See Smith, 209 Md. App. at 415, 59 A.3d at 1074; Payton-Henderson, 180 Md. App. at 287, 949 A.2d at 665.
We disagree with the Court of Special Appeals’ reasoning when the Court of Special Appeals conflated the deference owed to the Kerrigans with the balancing of the convenience of the parties. The intermediate appellate court concluded that the residency of the Kerrigans should not have factored into the overall convenience analysis if the hearing judge gave the Kerrigans due deference to their choice of venue. The Court of Special Appeals erred when it set aside consideration of the plaintiffs’ convenience (or inconvenience). Without providing any legal support, the intermediate appellate court calculated only the convenience to the seven defendants by weighing four defendants from Talbot County and three defendants from Baltimore City rather than all ten parties, which would have included the plaintiffs.
(“We note that the Court of Special Appeals adopted from federal case law the additional factor of ‘proper regard for the plaintiff‘s choice of forum . . . .‘“); see also Stidham, 161 Md. App. at 571, 870 A.2d at 1291 (weighing the geographical convenience of both the plaintiff and the defendants); cf. Scott, 211 Md. App. at 636–37, 66 A.3d at 70–71 (explaining that despite the plaintiff receiving deference, the plaintiff‘s residence is
When weighing the convenience of the witnesses, the hearing judge admitted that “it‘s hard to say who will actually testify,” but he acknowledged that he had considered a list of over five hundred potential witnesses offered by the Kerrigans. The hearing judge then determined that the “primary and key witnesses” who would be inconvenienced were located in Talbot County. Additionally, the hearing judge weighed the relative convenience of the doctors on the transplant team that had treated Brandon, all of whom worked in Baltimore City, against the convenience of Brandon‘s coaches and teammates who lived in Talbot County. We cannot say that the hearing judge‘s finding that “the significant balance is in favor of those who would be inconvenienced significantly coming from Talbot County to Baltimore City” was unreasonable.
The Kerrigans split hairs over the words used by the hearing judge in his convenience weighing. The Kerrigans argue that the judge placed no weight on the transplant team in considering the convenience of the witnesses. Even a cursory review of the record suggests otherwise. The hearing judge, in fact, stated: “I was unpersuaded by the exhibit and statistics presented by plaintiffs’ counsel as to the witnesses. I don‘t find the fact that the transplant team is in Baltimore City is of significance.” That the judge found the argument advanced by the Kerrigans regarding the transplant team less compelling than the argument advanced by the University of Maryland regarding the teammates and coaches of Brandon was not unreasonable.12
When a trial court considers the interests of justice, the court accounts for overall “systemic integrity and fairness” in transferring or retaining the case by assessing the public and private interests. Odenton, 320 Md. at 40, 575 A.2d at 1238; Johnson, 314 Md. at 526, 552 A.2d at 31. The private interests are not at issue in the case sub judice as the hearing judge held those factors did not tip toward one side or the other. The factors to which hearing judges look to determine the public interest include court congestion, the jury duty burden, and keeping localized concerns decided in their place of origin. Johnson, 314 Md. at 526, 552 A.2d at 31. Yet, these factors are not intended to be an exhaustive list. Id.
The hearing judge reasonably found that the public interest of justice weighed in favor of transfer. Based on the record of the motion hearing, we have insufficient facts to determine which side correctly determined the caseload and relative congestion. The Kerrigans claim that no data was submitted to the hearing judge to make the determination
that the jury burden weighed in favor of transfer. We disagree based on the hearing judge‘s reference to and use of the “Maryland Judiciary Annual Statistical Abstract for Fiscal Year 2014,” which was included as an exhibit in
V.
Upon our review of the Circuit Court‘s order to transfer the Kerrigan‘s case from Baltimore City to Talbot County, we determine that the hearing judge did not abuse his discretion in balancing the convenience of the parties and interests of justice and finding that the weight of the evidence strongly favored transfer. We recognize that less weight is given to the plaintiff‘s choice of venue when the plaintiff does not reside in that forum, and that choice, likewise, is given minimal weight when the forum has no meaningful ties to the controversy and no particular interest in the parties or subject matter. The facts of each case will dictate whether the plaintiff‘s choice of venue will control the choice of forum. The intermediate appellate court erred in reversing the hearing judge‘s order to transfer the case to Talbot County.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY. COSTS IN THIS COURT TO BE PAID BY RESPONDENTS.
UNIVERSITY OF MARYLAND MEDICAL SYSTEM CORPORATION et al. v. BRANDON KERRIGAN, a minor et al.
No. 3 September Term, 2017
IN THE COURT OF APPEALS OF MARYLAND
Filed: November 28, 2017
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.
Dissenting Opinion by Adkins, J., which Barbera, C.J. and McDonald, J., join.
The Majority‘s holding today has undermined the long-held recognition of a plaintiff‘s right to choose a venue.
Deference to a Plaintiff‘s Choice of Venue
I do not agree that a plaintiff‘s choice of venue deserves any less deference when plaintiffs choose to sue in a county where they do not live. The Majority cites Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255–56 (1981), for the proposition that, in a forum non conveniens analysis, a foreign plaintiff‘s choice of venue deserves less deference than a plaintiff suing in his or her home court. The facts of Piper, not included in the Majority‘s opinion, differ greatly from the facts in the present appeal. Piper involved a plane crash in Scotland. Id. at 238–39. Five passengers and the pilot perished in the crash. All of decedents were Scottish subjects as were their heirs and next of kin. The personal representative of the decedents’ collective estates, a California resident, sued Piper Aircraft and a propeller manufacturer in the United States. Id. at 239–40. On these facts, the Supreme Court determined that the district court properly dismissed on forum non conveniens grounds and concluded that the case should be tried in Scotland. Id. at 238.
Surely, Piper differs from this appeal. First, the Supreme Court held the action was properly dismissed. The Court concluded that the plaintiffs could not bring their case anywhere in the United States. Id. at 261. Here, the parties do not dispute whether Kerrigan can bring suit in Baltimore City. Furthermore, whereas all the Piper plaintiffs lived in Scotland and the suit had only minor ties to the United States, all the Baltimore defendants’ allegedly negligent conduct occurred in Baltimore and most, if not all, of Kerrigan‘s damages witnesses are in Baltimore. For these reasons, I cannot agree that Piper applies to Kerrigan‘s appeal.1
This Court in Leung, in dicta, noted Piper merely for the principle of attributing less deference to a foreign plaintiff‘s choice of venue. 354 Md. at 228–29. The Majority relies on Leung‘s citation to Piper to diminish Kerrigan‘s choice of venue. But in Leung, this Court reversed a trial court‘s transfer on forum non conveniens grounds and allowed the plaintiffs to choose a venue. Id. at 229. The plaintiffs in Leung were New Jersey residents passing through Maryland on Interstate 95. Id. at 220. While on a portion of I-95 in Howard County, the plaintiffs were injured in a crash. Several vehicles were involved in the wreck. The plaintiffs sued five defendants. Both of the individual defendants lived out
of state. Of the three corporate defendants, only two had registered agents in Maryland — one in Prince George‘s County and another in Baltimore. Id. The plaintiffs filed their suit in the Circuit Court for Baltimore City but the defendants moved to transfer venue to Howard County. Id. at 221. The trial court granted the motion and transferred the case to Howard County. Id. Even though the accident occurred in Howard
Because we have not adopted a less deferential standard for “foreign” plaintiffs, we should apply our normal
Convenience
A trial court‘s convenience analysis should focus on the convenience of both the witnesses and the parties. But mere added convenience cannot compel a transfer. Commentators have noted, and we have recognized, that trial courts must give due deference to a plaintiff‘s selection of venue and that selection should not be disturbed merely because it is more convenient for a moving party to be in another court. See Leung, 354 Md. at 225 (citing Paul V. Niemeyer, Linda M. Schuett & Joyce E. Smithey, Maryland Rules Commentary 303 (4th ed. 2014)).
I do not agree that the convenience of the parties and witnesses strongly favors transfer to Talbot County.
In Odenton Dev. Co. v. Lamy, 320 Md. 33, 41–42 (1990), this Court approved a transfer against the plaintiff‘s wishes due to limited connection with the chosen venue. The plaintiff, an Anne Arundel County resident, slipped and fell while traversing a snow-covered sidewalk outside of a grocery store in Anne Arundel County. Id. at 36. She brought suit in Baltimore City against the property owner, Odenton Development Co., which had a registered agent in Baltimore. Id. at 37. The Court concluded that the trial court properly transferred the case from Baltimore City to Anne Arundel County. Convenience strongly weighed in favor of transfer to Anne Arundel County because the accident occurred there and it was reasonable to assume that all of the witnesses either lived or worked in Anne Arundel County. Id. at 41.
In Urquhart v. Simmons, 339 Md. 1, 18–19 (1995), we rejected a plaintiff‘s choice of venue and approved a transfer on convenience grounds. The plaintiff sued in Prince George‘s County despite the suit‘s scant connections to that county. Id. at 3–5. Though the plaintiff‘s decedent died in Prince George‘s County and the defendants maintained offices there, all of the allegedly negligent conduct occurred in Montgomery County. Id. at 1–4. We approved the transfer to Montgomery County
Kerrigan has a significant connection with his chosen forum. Two of the allegedly negligent doctors work in Baltimore, Kerrigan‘s entire heart transplant team works in Baltimore, and several medical professionals treated him in Baltimore during his many months in recovery. During his treatment and recovery, Kerrigan and his family made dozens of trips into Baltimore City. These connections are far more tangible than either the Odenton plaintiff — who only sued in Baltimore City because a defendant‘s resident agent was present there — or the Urquhart plaintiff — who sued in Prince George‘s County despite the fact that the decedent never received any allegedly negligent medical treatment in that county.
Furthermore, the trial court did not properly weigh the convenience of the parties because it used Kerrigan‘s residence as a factor against his choice of venue. Relying on Odenton, we stated in Urquhart that the plaintiff‘s choice of forum is not a “factor” for consideration in a forum non conveniens analysis. Rather, the plaintiff‘s right to choose a forum is the reason why a trial court should transfer only when “the balance weighs strongly in favor of the moving party.” Urquhart, 339 Md. at 18 n.7 (quoting Odenton, 320 Md. at 40). When plaintiffs select a venue, they presumably make determinations of convenience for themselves. A trial court should not ignore the plaintiff‘s choice when weighing convenience. Three defendants in this case hail from Baltimore City. Yet the trial court took no issue with these same Baltimore defendants moving to transfer the case out of their home locale. We ought to look skeptically upon a trial court‘s decision to use a plaintiff‘s residence against him while not weighing the movant‘s desire to transfer in the same manner.
Interests of Justice
This Court has outlined relevant factors to consider in an “interest of justice” analysis. See Johnson v. G.D. Searle & Co., 314 Md. 521, 525–26 (1989). The interests of justice can be divided into private interests and public interests. Id. Private interest factors include:
The relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.
Stidham v. Morris, 161 Md. App. 562, 568 (2005) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947), superseded by
Here, the trial court concluded that the private interest factors did not weigh in favor of trial in either Baltimore City or Talbot County. I agree. Much of the evidence relevant to the alleged negligence exists both in Baltimore City and Talbot County. Many of the proffered witnesses also live or work in both places. Given that evidence and witnesses are in both locations, it seems very likely that trial in either venue would demand the same time and costs from the parties.
Our interest of justice inquiry also requires consideration of public interests. These interests include “among other things, considerations of court congestion, the burdens of jury duty, and local interest in the matter.” Id. at 569 (citing Johnson, 314 Md. at 526). Regarding court congestion and the burdens of jury duty in each venue, I agree with the Majority and cannot conclude that the trial court erred in determining that these factors favored transfer.
The Majority also approves of the trial court‘s conclusion that Talbot County has a greater local interest in Kerrigan‘s suit. The Majority explains only that the trial court found the defendants’ argument more persuasive on this point. Further inspection of the trial court‘s reasoning leads me to disagree. The trial court explained that:
I was persuaded by the defense argument noting that the sole institution in Talbot County providing medical care is a party defendant in the case. So compare that to Baltimore City where there are several large medical institutions. The Court does find that there is a significantly stronger interest in Talbot County in the handling of this matter, the outcome of this matter than in Baltimore City.
The trial court concluded that, merely because Talbot County has only one hospital, the citizens of Talbot County have a greater interest in deciding Kerrigan‘s case. The Majority determined that “the hearing judge acted reasonably in considering the public‘s interest in the health care provided to its communities.” Maj. Slip. Op. at 27. I struggle to find a line of reasoning to support this conclusion.
Maryland courts have only briefly discussed the “locality” factor of the public interests. Specifically, we have said “there is a local interest in having localized controversies decided at home.” Johnson, 314 Md. at 526 (quoting Gilbert, 330 U.S. at 508); see also Stidham, 161 Md. App. at 571–72. Although this Court in Johnson did not weigh the local interest factor, the Court of Special Appeals in Stidham did. There, the intermediate appellate court considered whether a plaintiff could bring suit in Prince George‘s County after a car accident in Baltimore County. Reasoning that the trial court properly transferred the action to Baltimore County, the Court explained “the people of Baltimore County have a direct interest in what occurs on Baltimore County roads; the people of Prince George‘s County do not.” Stidham, 161 Md. App. at 571–72; see also Bland v. Norfolk & Western Ry. Co., 506 N.E.2d 1291, 1297 (Ill. 1987) (analyzing the locality factor of forum non conveniens and holding that Macon County in Illinois had a local interest in an action since it was the situs of plaintiff‘s alleged injury).
We cannot yet say whether doctors in Talbot County or Baltimore City had a greater role, if any, in negligently treating the plaintiff. In Stidham, all of the torts allegedly occurred in the same county.
Additionally, the trial court noted the existence of several large hospitals in Baltimore while only one such hospital operates in Talbot County. Presumably though, healthcare is equally important no matter where one lives or how many hospitals exist in a given municipality. For this reason, to the extent that the trial court implied that the citizens of Talbot County have a greater interest than Baltimoreans in assuring access to safe healthcare, I do not agree.
The Majority today deals a heavy blow to our long-held recognition of a plaintiff‘s right to choose a venue. See e.g., Leung, 354 Md. at 224; Akers v. Norfolk & W. Ry. Co., 378 F.2d 78, 80 (4th Cir. 1967). This Court has never held, until today, that a plaintiff‘s choice of venue receives less deference when suing where he or she does not live.
Chief Judge Barbera and Judge McDonald have authorized me to state that they join this dissenting opinion.
Notes
- Whether the Court of Special Appeals substituted its judgment and failed to defer to the wide discretion owed to the lower court‘s reasons in support of transfer?
3. Whether the Court of Special Appeals erred by holding that the residence of foreign plaintiffs should not factor into the convenience of the parties’ analysis under Rule 2-327(c)? The amicus brief submitted by the Maryland Association for Justice suggests that the standard of review differs from how we have stated it here. The brief beckons this Court to ignore the words in its previous decisions and to read into the various decisions a raised level of review where the trial court receives less deference than what is afforded to it under an abuse of discretion standard. Never has this Court held that any other standard of review applies to Rule 2-327(c) motions to transfer. We see no good reason now to change the rule. The Majority also notes that the Court of Special Appeals, in Stidham v. Morris, 161 Md. App. 562 (2005), properly invoked the less deferential standard mentioned in Leung. But in Stidham too, the facts differed greatly from Kerrigan‘s appeal. Stidham involved a car accident in Baltimore County. Id. at 565–66. The plaintiff also lived in Baltimore County. The plaintiff sued out-of-state defendants in Prince George‘s County and the defendants moved to transfer the case to Baltimore County. Id. After noting that the plaintiff and the suit had “virtually no connection” to Prince George‘s County, the intermediate appellate court affirmed the trial court‘s transfer. Id. at 565, 569–70. Again, Kerrigan‘s suit has a much greater connection to his chosen venue given the extensive, and allegedly negligent, medical care he received in Baltimore City.