Cobrand v. Adventist Healthcare, Inc.

SHARER, Judge. Appellants, Billy Jean Cobrand and Kenneth Neville Rocke, Jr., on behalf of their minor child, Kenneth Neville Rocke, III, have noted this appeal after the Circuit Court for Prince George’s County granted appellee’s (Adventist Healthcare, Inc.) motion to transfer venue to Montgomery County. After having previously looked “at everything else in the case,” the court focused on the convenience of eighteen poten ⁴³³ tial lay witnesses, and found Montgomery County to be the “more appropriate venue.” Appellants contend that the circuit court applied an incorrect legal standard by considering only the convenience of prospective lay witnesses (to the exclusion of other factors), and by applying a so-called preponderance of the evidence standard to the motion to transfer. Appellants have raised three questions for our review, which we have fused into one question, for simplicity and clarity: Did the circuit court err in granting the defendant’s motion to transfer venue?

We answer in the negative, and affirm the decision of the circuit court. FACTUAL and PROCEDURAL HISTORY Appellants, Billy Jean Cobrand and Kenneth Neville Rocke, Jr., are the parents of Kenneth Neville Rocke, III, who was born on April 29, 1996, at the Washington Adventist Hospital, which is located in Takoma Park, Montgomery County, Maryland. Washington Adventist Hospital is owned and operated by appellee, Adventist Healthcare, Inc., which maintains its principal place of business in Montgomery County. On April 19, 2001, the appellants filed a complaint in the Circuit Court for Prince George’s County against appellee, 1 alleging negligent post-natal care of their son at Washington Adventist Hospital.

The underlying facts of the alleged medical negligence, while presumably in dispute, are not at issue in this appeal. Nevertheless, in the context of appellee’s motion to transfer, several aspects of the underlying facts (i.e., the location of hospital, the residence of the parties, residence of witnesses, etc.) are of significance. On July 20, 2001, Adventist Healthcare filed a motion to transfer the case from Prince George’s County to Montgomery County on the “basis of forum non conveniens, pursuant to Maryland Rule 2-327(c).” Appellants answered, opposing the ⁴³⁴ motion to transfer, asserting that Adventist was attempting to defeat their right, as plaintiffs, to have their choice of forum. Following the filing of them opposition, the circuit court conducted a status conference on December 12, 2001.

The status conference was conducted by the Hon. William D. Missouri, in chambers. No record was made of the conference, but the parties agree that (1) all participating parties were heard at the conference; and (2) counsel for Adventist Healthcare was instructed by Judge Missouri to identify all staff members of Washington Adventist Hospital, excluding physicians, who had any involvement in the care of Kenneth Neville Rocke, III, and who were likely to be called as witnesses, and to provide the address and county of residence for such person(s) to the court. Judge Missouri excluded prospective expert witnesses from the exercise.

Counsel complied with the court’s directive and identified eighteen staff members of Washington Adventist Hospital, using the child’s medical records as the source. The name, address, and county of residence (where capable of determination) of each employee was submitted to the court as a supplement to Adventist’s motion for transfer. Of the eighteen prospective witnesses, eight had home addresses in Montgomery County, one in Prince George’s County, one in Howard County, one in Baltimore County (but who was later determined by appellants to live in Montgomery County), one in Charles County, one in Calvert County, one in Talbot County, and one in Fairfax County, Virginia. The residences of the other three were unable to be determined.

Appellants, concerned that looking only at the county of residence would create an incomplete picture on the question of convenience, filed a supplemental motion that detailed the driving distance and average driving time from each witness’s home to Rockville and Upper Marlboro, where the Montgomery and Prince George’s circuit courts, respectively, are located. 2 According to appellants’ supplemental information, the ⁴³⁵ cumulative mileage and driving time to Upper Marlboro for the fifteen known witnesses was 478.59 miles and 651 minutes respectively, whereas the distance and time to Rockville was 377.73 miles and 550 minutes respectively. Appellants take the position that the differences in time and distance are insignificant. On February 14, 2002, the court held a hearing on the transfer motion. During that hearing, appellants proffered the following: Billy Jean Cobrand and Kenneth Rocke, Jr., did not reside together; Kenneth, Jr., lived temporarily with his father in Prince George’s County; Billy Jean lived temporarily with her mother in Montgomery County; Kenneth, III, spent time at both addresses; and they “plan[ned] to buy a house in the Upper Marlboro area, in Prince George’s County in the near future,” because they “feel more comfortable there and [they] cannot afford a home in Montgomery County.” 3 After hearing argument from both sides, the court granted the motion to transfer by stating: Okay.

I—you’re absolutely right. When I had the meeting in chambers, I told counsel I had, I had looked at everything else in the case. I needed to know where the witnesses reside, and I told you to stay away from experts because I don’t consider experts as being disadvantaged, regardless of where they have to travel. They’re experts and they have chosen that as part of their profession, that testifying as experts in cases is something that is desirable and, obviously, is also necessary for the transaction of court business.

But the experts have made their decision as to what they are going to do. It’s the person who is not a “professional witness” that I am concerned about. ⁴³⁶ I’m concerned about the travel of those individuals who find themselves brought to court to testify as a part of the duties that they have in working wherever. And the issue of the—of Adventist system having other entities within the county in which they do business is really of no moment because the issue of jurisdiction is, is not one that’s really before the Court and the issue of venue is not before the Court insofar as it being an improper venue, because I think it is a proper venue. The issues are nonconvenience,[sic] whether it’s more convenient for these matters to be tried in the Circuit Court for Montgomery County than it is to be tried in this venue.

And looking at it, I consider whether a person living in Howard County to be equivalent to the Montgomery County folks. Looking at that, we have two people, excluding the Prince George’s County residue, [sic] that lives in a venue other than Montgomery or Howard County, you know, that’s up on that end of the state. And those folks who live in Owings and one who lives in Judge Bill Home’s county, Talbot County on the Eastern Shore. But other than that, the majority of the folks live in closer proximity to the courthouse in Montgomery County, except for the individual that lives on Good Luck Road.

And obviously, that person lives closer to Upper Marlboro than they do to 50 Judiciary Square in Rockville. ... Well, [APPELLANTS’ COUNSEL], you’re going to have an opportunity to tell that to the proper court. Sir, this matter is hereby transferred to the Circuit Court for Montgomery County pursuant to Venue Rules. I find it to be a more appropriate venue that [sic] Prince George’s County at this juncture.

As we have noted, appellants glean from Judge Missouri’s comments in granting the motion that he relied too heavily on the convenience consideration, and did not give adequate weight to other appropriate factors. ⁴³⁷ STANDARD of REVIEW We review a trial court’s decision to transfer a case to another venue, pursuant to Md. Rule 2-827(c), under an abuse of discretion standard. “When determining whether a transfer of the action for the convenience of the parties and witnesses is in the interest of justice, a court is vested with wide discretion.” Odenton Dev. Co. v. Lamy, 320 Md. 33, 40 , 575 A.2d 1235 (1990) (citations omitted) (emphasis added); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 , 102 S.Ct. 252 , 70 L.Ed.2d 419 (1981) (noting that “[t]he forum non conveniens determination is committed to the sound discretion of the trial court ... [and] may be reversed only when there has been a clear abuse of discretion ....”) (quoted in Urquhart v. Simmons, 339 Md. 1, 17 , 660 A.2d 412 (1995)). An abuse of discretion is said to occur “where no reasonable person would take the view adopted by the trial court, or when the court acts without reference to any guiding rules or principles.” In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 , 701 A.2d 110 (1997) (quoting North v. North, 102 Md.App. 1, 13 , 648 A.2d 1025 (1994)) (internal citations, alterations, and quotations omitted). Accordingly, when reviewing a motion to transfer, a “reviewing court should be reluctant to substitute its judgment for that of the trial court.” Wagner v. Wagner, 109 Md.App. 1, 52 , 674 A.2d 1 (1996), cert. denied, 343 Md. 334 , 681 A.2d 69 (1996).

DISCUSSION Did the circuit court err in granting the defendant’s motion to transfer venue? We first review whether the grant of a motion to transfer is immediately appealable, and also whether venue was appropriate in either Prince George’s or Montgomery counties. The grant of a motion to transfer is an immediately appealable final judgment, whereas the denial of such a motion is not. Brewster v. Woodhaven Bldg. & Dev., Inc., 360 Md. 602, 615-16 , 759 A.2d 738 (2000).

Because appellants chai ⁴³⁸ lenge the grant of appellee’s motion, this case is properly before us on appeal. The venue of a civil action is determined by §§ 6-201 to 6-203 of the Courts and Judicial Proceedings Article of the Maryland Code. Pursuant to § 6-201, “a civil action shall be brought in a county where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation.” Md.Code Ann., Cts. & Jud. Proc. § 6-201 (2002 Repl.Vol.) Here, it is undisputed that appellee “carries on a regular business,” in both Prince George’s County and Montgomery County.

Thus, even though Adventist Healthcare’s principal place of business is in Montgomery County, venue is proper in either county. 4 Even though venue may be proper in one jurisdiction, a court has the discretion to transfer actions to another competent jurisdiction pursuant to the forum non conveniens doctrine circumscribed in Md. Rule 2-327(c), which provides: 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. Thus, there are two basic factors to be considered by the court in ruling on a motion to transfer: convenience and the interests of justice, each with particularized sub-parts that have grown in the case law. 5 In three recent cases, the Court of Appeals has reviewed the discretion afforded trial court judges in motions to transfer under Rule 2-327(c). See Leung ⁴³⁹ v. Nunes, 354 Md. 217 , 729 A.2d 956 (1999); Urquhart, supra, 339 Md. 1 , 660 A.2d 412 ; Odenton, supra, 320 Md. 33 , 575 A.2d 1235 . In Odenton , the first of the three, the Court adopted a Supreme Court balancing test to determine whether transfer to a more convenient venue was warranted. 320 Md. at 40 , 575 A.2d 1235 . 6 Under this test, a court “must weigh in the balance the convenience of the witnesses [party and non-party] and those public-interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading of ‘the interest of justice.’ ” Id. at 40 , 575 A.2d 1235 (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 30 , 108 S.Ct. 2239 , 101 L.Ed.2d 22 (1988)).

To simply call it a balancing test and the “more convenient” forum is in some regards, however, misleading, because Odenton, Urquhart, and Leung, make it clear that “a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.” Odenton, supra, 320 Md. at 40 , 575 A.2d 1235 ; Urquhart, supra, 339 Md. at 18 n. 7, 660 A.2d 412 ; Leung, supra, 354 Md. at 224 , 729 A.2d 956 . The party seeking transfer must present evidence weighing strongly in its favor, because when multiple venues are jurisdictionally appropriate, a plaintiff has the option to choose the forum. Urquhart, supra, 339 Md. at 18 n. 7, 660 A.2d 412 ; see also Wilde v. Swanson, 314 Md. 80, 94 , 548 A.2d 837 (1988) (finding that when multiple venues are proper, the plaintiff possesses the option to choose). Judge Rodowsky addressed the point in Leung : Proper regard for the plaintiffs choice of forum is the reason why “a motion to transfer [from the forum chosen by the plaintiff] should be granted only when the balance weighs strongly in favor of the moving party.” Urquhart v. Simmons, 339 Md. 1 , 18 n. 7, 660 A.2d 412 , 420 n. 7 (1995) (citing Odenton, 320 Md. at 40 , 575 A.2d at 1238 ).

Com ⁴⁴⁰ mentators on Rule 2-327(c) have recognized that “due consideration must ... be given to the plaintiffs selection of forum, and this selection will not be altered solely because it is more convenient for the moving party to be in another forum.” P.V. Niemeyer & L.M. Schuett, Maryland, Rules Commentary 215-16 (2d ed. 1992) (Niemeyer & Schuett). This respect for the plaintiffs choice of forum is derived largely from federal law developed under Title 28 U.S.C. § 1404 (a).[ ] See Urquhart, 339 Md. at 10 , 660 A.2d at 416 ; Niemeyer & Schuett at 215. See also Doe v. Connors, 796 F.Supp. 214, 221 (W.D.Va.1992) (“[T]he plaintiff has the primary right to choose his forum and that selection is not be easily overthrown.”); M. Moore, Federal Practice § 111.13[l][c][i], at 111-67 (Mathew [sic] Bender 3d ed. 1997)(Moore)(“As a general rule, the plaintiffs choice of forum is given significant weight.... ”);