Smith v. Johns Hopkins Community Physicians, Inc.

CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J. When more than one venue is legally proper for the trial of a ease, the possibility of transferring the case from a less convenient, albeit legally proper, forum to a more convenient forum has been a part of Maryland law since 1984. In that year the Court of Appeals promulgated Maryland Rule of Procedure 2-327(c), 1 which provides: (c) Convenience of the Parties and Witnesses.—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 mildly ponderous Latin tag of forum non conveniens which we place on this procedural phenomenon refers, of course, to the inconvenient or less convenient forum from which transfer is sought to a “forum more convenient” or, should the classicists insist, a forum conveniens.

Now before us, in a nutshell, is a case in which the plaintiffs filed their claim in Baltimore City; the defendant sought a transfer to Baltimore County on the ground of forum non conveniens; the trial judge granted the transfer; and the plaintiffs have appealed. The case is a perfect vehicle to examine, one-by-one, the elements of forum non conveniens law. ⁴¹⁰ The Present Case This medical malpractice and wrongful death action was filed in the Circuit Court for Baltimore City on April 18, 2012, by the appellants, Bernadine I. Smith as personal representative of the estate of William P. Smith, Jr.; by Bernadine I. Smith as the surviving spouse; and by the three surviving children of William P. Smith, Jr. The suit was brought against the appellee, the Johns Hopkins Community Physicians, Inc. On June 15, 2012, the appellee filed a Motion to Transfer the case from Baltimore City to Baltimore County on the ground of forum non conveniens. On July 16, 2012, Judge Evelyn Omega Cannon granted the Motion to Transfer. The appellants appeal that granting of the motion, claiming 1) that it was substantively erroneous on the merits of the transfer issue and 2) that, quite aside from the merits, it was procedurally erroneous because Judge Cannon failed to exercise her discretion.

An Expedited Appeal By agreement of all parties, this case comes to us as an expedited appeal pursuant to Maryland Rule of Procedure 8-207(b). Oral argument before this Court took place on January 11, 2013. Accordingly, our decision in this case should be rendered within 20 days of argument, to wit, no later than January 31, 2013. Immediate Appealability This case, of course, has not yet been tried.

That is, indeed, part of the reason why it is before us on an expedited schedule. The whole procedural phenomenon of transferring venue is an instance of pre-combat maneuvering for advantageous position. Good tacticians always carefully scrutinize the topography before battle is joined. Under the circumstances, the question naturally arises as to whether the case is, in its present posture, immediately appealable or whether the grant of the transfer is but a non-appealable interlocutory order. ⁴¹¹ The case law makes it clear in that regard that although a denial of a transfer of venue is not immediately appealable, the granting of such a motion is.

Judge Sharer dealt with appealability in Cobrand v. Adventist Healthcare, Inc., 149 Md.App. 431, 437-38 , 816 A.2d 117 (2003): We first review whether the grant of a motion to transfer is immediately appealable____The grant of a motion to transfer is an immediately appealable final judgment, whereas the denial of such a motion is not. ... Because appellants challenge the grant of appellee’s motion, this case is properly before us on appeal. (Emphasis supplied). In Payton-Henderson v. Evans, 180 Md.App. 267, 281 , 949 A.2d 654 (2008), this Court reaffirmed that earlier holding: Judge Russell’s decision to transfer the case to Baltimore County on the ground of forum non conveniens was a final order within the contemplation of Courts and Judicial Proceedings Article, §§ 12-101(f) and 12-301.

Although the denial of a motion to transfer a case would be only interlocutory and not immediately appealable, the affirmative order of transfer is susceptible to immediate appellate review. (Emphasis supplied). In Brewster v. Woodhaven Building and Development, Inc., 360 Md. 602, 615-16 , 759 A.2d 738 (2000), Judge Raker explained the rationale behind this transfer/nontransfer dichotomy: [A]n order putting an appellant out of a particular court is also a final judgment. It follows that an order transferring a case from one circuit court to another, for proper venue or for a more convenient forum, and thereby terminating the litigation in the transferring court, is a final judgment and thus immediately appealable.

At the same time, an order denying a motion to transfer is not an immediately appealable final judgment, because the litigation may continue in the court issuing the order. (Emphasis supplied). Smith v. State Farm Mutual Auto. Ins.

Co., 169 Md.App. 286, 293 , 900 A.2d 301 (2006); DiNapoli v. ⁴¹² Kent Island, LLC, 203 Md.App. 452, 470 , 38 A.3d 509 , cert. granted, 427 Md. 62 , 46 A.3d 404 (2012). In Payton-Henderson v. Evans, 180 Md.App. at 282 , 949 A.2d 654 , this Court went on to treat the converse: The flip side of the coin, the principle that the denial of a requested transfer of venue is not immediately appealable, is attested by Lennox v. Mull, 89 Md.App. at 559-64 [ 598 A.2d 847 ] (“[T]he order denying appellant’s petition for a change of venue is not immediately appealable.”). Thus, for appealability purposes, venue issues and forum non conveniens issues are treated the same way. In either legal context, the grant of a change of venue is immediately appealable; but the denial of a change is not.

(Emphasis supplied). The present case, wherein the transfer was granted, is, therefore, properly before us. The Allocation of the Burden of Persuasion To the moving party is allocated the burden of persuasion. In Odenton Dev.

Co. v. Lamy, 320 Md. 33, 40 , 575 A.2d 1235 (1990), Judge Chasanow made that allocation of the burden explicit: It is the moving party who has the burden of proving that the interests of justice would be best served by transferring the action. In Leung v. Nunes, 354 Md. 217, 229 , 729 A.2d 956 (1999), Judge Rodowsky explained why the proponent of the transfer of venue, bearing the burden of proof, thereby loses the evidentiary tie. [If] the balancing of factors produces an equipoise, ... the plaintiffs’ choice of forum controls. In Payton-Henderson v. Evans, 180 Md.App. at 284-85 , 949 A.2d 654 , this Court similarly observed: Judge Russell properly allocated the burden of persuasion to the defendants and properly described what that burden embraced: ⁴¹³ It is the moving party who has the burden of [showing that] the interest of justice would best be served by transferring this action. Smith v. State Farm Mutual, 169 Md.App. at 296-97 , 900 A.2d 301 .

In this case, the appellee bore the burden of justifying the transfer. The Merits of the Transfer The primary plaintiff, Bernadine I. Smith, lives in Baltimore County in the same home where she lived with her late husband during all of the nine years when he was being treated for a cardiac condition by the appellee. One of her children lives there with her. The other two plaintiffs live in Harford County and in Delaware.

The office of the appellee is, and for the entire nine years that the decedent was under its care was, in White Marsh in Baltimore County. Dr. Raymond H. Zollinger is an employee of the appellee and was the primary care physician for the decedent during the entire nine-year period of his treatment. Dr. Zollinger lives on Caves Road in Baltimore County. All of the treatment that the decedent received at the hands of Dr. Zollinger took place in Baltimore County.

The Abuse of Discretion Standard In our assessment of the propriety of Judge Cannon’s decision to transfer the case to Baltimore County on the basis of forum non conveniens, the controlling criterion is that of whether she abused her discretion. As the Court of Appeals noted in Odenton Dev. Co. v. Lamy, 320 Md. at 40 , 575 A.2d 1235 , “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.” “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 , cert. denied, 343 Md. 334 , 681 A.2d 69 (1996); “The forum non conveniens determination is committed to the sound discretion of the trial court ... [and] may be reversed only ⁴¹⁴ when there has been a clear abuse of discretion.” Urquhart v. Simmons, 339 Md. 1, 17 , 660 A.2d 412 (1995). We are loath to interfere.

Handling the Plaintiffs’ Choice of Forum We hold that Judge Cannon did not abuse her discretion in granting the transfer. A number of factors militated in favor of the transfer. The only factor arguably tilting against it is the prerogative routinely extended to a plaintiff, faced with the option of two or more permissible trial venues, to make the choice of his preferred venue. “[W]hen multiple venues are jurisdictionally appropriate, a plaintiff has the option to choose the forum.” Cobrand v. Adventist Healthcare, 149 Md.App. 431, 439 , 816 A.2d 117 (2003). “Due consideration must ... be given to the plaintiffs selection of forum.” P.V. Niemeyer and L.M. Schuett, Maryland Rules Commentary (2d ed.1992, pp. 215-16). Under certain circumstances, however, the impact of that anti-transfer factor is significantly diminished.

In Stidham v. Morris, 161 Md.App. 562, 569 , 870 A.2d 1285 (2005), Judge (now Chief Judge) Krauser pointed out the countervailing rationale that, where the plaintiff does not live in the forum he initially chooses, the plaintiffs choice of forum is entitled to “little deference and thus little weight”: 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. Offsetting whatever minimal weight is attributable to appellant’s choice, under the circumstances of this case, is the fact that, in addition to being appellant’s residence, Baltimore County is the place where the accident occurred. (Emphasis supplied). Murray v. TransCare Maryland, Inc., 203 Md.App. 172, 191 , 37 A.3d 987 (2012) (“[Ljess deference should be accorded to a plaintiffs choice when the plaintiff is ⁴¹⁵ not a resident of the forum.”); Thompson v. State Farm Mutual, 196 Md.App. 235, 252-53 , 9 A.3d 112 (2010); Smith v. State Farm Mutual, 169 Md.App. 286, 300 , 900 A.2d 301 (2006) (“Deference to the plaintiffs choice is even further discounted when the forum initially chosen by the plaintiff has no meaningful connection to the suit.”); Cobrand v. Adventist Healthcare, Inc., 149 Md.App. 431, 440 , 816 A.2d 117 (2003) (“The plaintiffs choice ... is not an absolute and uncontrolled privilege that is determinative under present forum nan conveniens law.”).

We also pointed out in Payton-Henderson v. Evans, 180 Md.App. at 287 , 949 A.2d 654 , moreover, that the plaintiffs entitlement to pick the forum has already been figured into the transfer calculus by virtue of 1) allocating the burden of proof to the party requesting the transfer and 2) putting on that party “a heavy burden of persuasion.” It is, therefore, unnecessary to place the plaintiffs choice of forum on the scale yet again as a factor in the ultimate balancing. It has already been given the weight that it deserves in the procedural scheme and should not be given double weight: Whenever the trial of a case is transferred from one venue to another on the ground of forum non conveniens, the self-evident effect is that other considerations have operated to override the plaintiffs choice of forum. That initial choice of forum by a plaintiff is an ever-present consideration in these transfer cases and is not lightly to be dismissed. As the Court of Appeals pointed out in Urquhart v. Simmons, however, the plaintiff’s choice of forum, need not be articulated and evaluated all over again as a “factor” in the weighing process for the reason that it has already been factored into the burden of persuasion itself, casting upon the defendants a heavy burden of persuasion.

Having thus already been figured into the weighing process, indeed actually configuring the weighing standard, it need not be counted a second and redundant time. (Emphasis supplied). The statements in the case law about the deference to be given to a plaintiffs choice of forum, moreover, are guide ⁴¹⁶ lines for the trial judge and not a standard of appellate review. As this Court explained in Payton-Henderson v. Evans, 180 Md.App. 267, 287 , 949 A.2d 654 (2008): A statement in the caselaw about the burden of persuasion’s being a heavy one is a guideline for the trial judge and not a standard of appellate review.

Once the trial judge enters into the balancing process, the discretion entrusted is extremely wide and the appellate deference owed is concomitantly wide. (Emphasis supplied). In the present case, none of the appellants were residents of Baltimore City, the forum initially selected by them. During the entire nine years of medical treatment in Baltimore County, both the decedent and his surviving widow lived continuously in Baltimore County, the venue ultimately selected.

The appellants’ reason for that initial choice of Baltimore City may well have been aptly characterized by Judge Krauser in Stidham v. Morris, 161 Md.App. at 565 , 870 A.2d 1285 : Although no rationale was offered by appellant for his choice of forum, his selection suggests that, while home may be where the heart is, it is not necessarily where the largest recovery lies. (Emphasis supplied). The only entity in this case with an address in Baltimore City is the law firm representing the appellants. That, of course, is not a legally cognizable consideration in the convenience equation.

The Convenience Factor In deciding whether to transfer a case on the grounds of forum non conveniens, the trial judge must consider the two factors of 1) the convenience of the parties and witnesses and 2) the interests of justice. In Murray v. TransCare Maryland, 203 Md.App. at 192, 37 A.3d 987 , Judge Watts discussed the convenience factor: The convenience factor consists of the convenience of the parties and witnesses. In Payton-Henderson , this Court’s review of the convenience of the parties and non-expert ⁴¹⁷ witnesses centered around where the parties and witnesses lived and worked in relation to the court. As to expert witnesses, however, this Court has given little weight to their convenience.

(Emphasis supplied). See also Stidham v. Morris, 161 Md. App. at 568 , 870 A.2d 1285 . The key appellant, Bernadine Smith, lives in Baltimore County. One child lives with her in Baltimore County.

Her other two children live north and east of Baltimore County, in Harford County and Delaware, respectively. The defendant-appellee, the Johns Hopkins Community Physicians, Inc., has its headquarters in White Marsh in Baltimore County. Not a single party lives in Baltimore City. Dr. Zollinger, the doctor charged with medical malpractice, lives in Baltimore County.

During the nine years of the decedent’s treatment, that treatment was all received at the hands of Dr. Zollinger in Baltimore County at the White Marsh office of the appellee. The case has no direct connection whatsoever with Baltimore City. The appellants claim, purely in the abstract, that yet unidentified expert witnesses, “probably traveling in from out of state,” will find Baltimore City a more convenient forum because of Baltimore’s airport and train station. (Is not Baltimore County served by the same transportation hubs?) In Payton-Henderson v. Evans, 180 Md.App. at 291-92 , 949 A.2d 654 , however, this Court discussed the slight weight given to the convenience of expert witnesses: This Court has touched on the subject in both Cobrand v. Adventist, 149 Md.App. at 433-36 [ 816 A.2d 117 ], and Smith v. State Farm, 169 Md.App. at 301-02 [ 900 A.2d 301 ].

In Cobrand , the appellants, objecting to a transfer of venue, “contended] that the circuit court erred by considering only the convenience of prospective lay witnesses and did not consider any other factors.” 149 Md.App. at 440 [ 816 A.2d 117 ]. In Smith v. State Farm, the appellant, challenging a transfer of venue, complained that the convenience of “his expert witness,” a Baltimore City doctor, had not