University of Maryland Medical System Corp. v. Kerrigan

Opinion by Greene, J. 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 Maryland Rule 2-327(c). Although the underlying facts of this case involve alleged medical malpractice, it is before us because of the Circuit Court for Baltimore City’s grant of the Defendants’ motion to transfer the case to Talbot County. The Court of Special Appeals reversed the hearing judge’s grant of the motion to transfer, holding that the moving party failed to meet its burden of demonstrating that the convenience of the parties and the interests of justice supported transfer of the case from Baltimore City to Talbot County. Because we determine that the Circuit Court did not abuse its discretion when it concluded that the case should be transferred to Talbot County, we shall reverse the judgment of the Court of Special Appeals.

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 Boz-man, a community located in Talbot County.

Brandon, through his parents and with them in their individual capacities, fíled 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 of breath and a prolonged period of dry coughing. Dr. Langfitt referred Brandon to Delmarva Radiology to receive a chest X-ray for further examination.

Dr. Steven Sauter reviewed the X-ray results at Delmarva Radiology and diagnosed Brandon with atypical pneumonia. Thereafter, Dr, Langfitt prescribed Brandon five days of antibiotics. 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 Rule 2-327(c), and requested a hearing.

After a lengthy hearing, the Circuit Court granted the motion to transfer and delivered an eight-minute oral decision from the bench. The hearing judge clarified that he had considered the motion on forum non conve-niens grounds: 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. Next, the hearing judge explained that consideration of public interest, including the burden on the public, weighed in favor of transfer to Talbot County: 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 County. The Court of Special Appeals reversed the Circuit Court in an unreported opinion, holding that, like in Scott v. Hawit, 211 Md.App. 620 , 66 A.3d 60 , cert. denied, 434 Md. 314 , 75 A.3d 319 (2013), the balance of the factors did not weigh strongly in favor of transfer but rather weighed in “near equipoise.” 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 Rule 2-327(c), this Court has resolutely applied an abuse of discretion standard. Odenton Dev. Co. v. Lamy, 320 Md. 33, 40 , 575 A.2d 1235, 1238 (1990). Although appellate courts do not rubberstamp the rulings of trial court judges, appellate courts “should ... be reticent” to substitute their own judgment for that of the trial court unless they can identify “clear abuse” of the wide latitude given to trial courts when ruling on Rule 2-327(c) motions.

Urquhart v. Simmons, 339 Md. 1, 17-19 , 660 A.2d 412, 420-21 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 , 102 S.Ct. 252, 266 , 70 L.Ed.2d 419, 436 (1981)); see Lapides v. Lapides, 50 Md.App. 248, 252 , 437 A.2d 251, 254 (1981) (“The exercise of a judge’s discretion is presumed to be correct, he [or she] is presumed to know the law, and is 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 IV. 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. Hawit, 211 Md.App. 620 , 66 A.3d 60 (2013), a case which they argue is factually different from the present case. History of Rule 2-327(c) Rule 2-327(c), 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. The Maryland Rules Committee drafted Rule 2-327(c) in 1984 for our adoption, and, in doing so, relied on the language found in 28 U.S.C. § 1404 (a). Odenton, 320 Md. at 40 , 575 A.2d at 1238 .

Section 1404(a) of Title 28 of the United States Code states that “[f]or the convenience of 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 or to any district or division to which all parties have consented.” 3 In light of the near-replication of the federal language, we held in Odenton that “federal law construing § 1404(a) is highly persuasive in our analysis.” 320 Md. at 40 , 575 A.2d at 1238 ; Paul V. Niemeyer, Linda M. Schuett, and Joyce E. Smithey, Maryland Rules Commentary 303 (4th ed. 2014) (“This section is derived from 28 U.S.C. § 1404 (a) and is intended to incorporate the body of law construing that statute.”); see Stidham v. Morris, 161 Md.App. 562, 568 , 870 A.2d 1285, 1289 (2005) (“In fact, federal and Maryland law, on this point, can almost be viewed as one body of law.”). The federal statute, 28 U.S.C. § 1404 (a), has its origins in the federal common law doctrine of forum non conveniens. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 , 102 S.Ct. 252, 264 , 70 L.Ed.2d 419, 434 (1981). In Piper Aircraft, the United States Supreme Court acknowledged the intent of Congress to create a legislative analogue to the common law doctrine.

Congress did not simply enshrine pre-existing common law into statutory form but rather revised the doctrine to “giv[e] more discretion to transfer under § 1404(a) than [courts] had to dismiss on grounds of forum non conveniens.” Id. at 253, 102 S.Ct. at 265 , 70 L.Ed.2d 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 “intending] 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 plaintiffs choice of forum is not to be considered, but only that the discretion to be exercised is broader.”). Congress’s construction of 28 U.S.C. § 1404 (a) relegated the common law doctrine to a limited set of circumstances involving a foreign forum. American Dredging Co. v. Miller, 510 U.S. 443, 449 , 114 S.Ct. 981, 986 , 127 L.Ed.2d 285 , 294 n.2 (1994).

In Johnson v. G.D. Searle & Co., we first recognized the distinction between the federal common law and the federal statutory provision. 314 Md. 521, 526-27 , 552 A.2d 29, 31-32 (1989). 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 “Rule 2-327(c) does not deal with a transfer for want of venue; it confers on a circuit court the discretionary power to transfer even if the transferring court is a proper venue.” Leung, 354 Md. at 222, 729 A.2d at 959. The plaintiff chooses where to bring suit within the parameters set out by the Courts and Judicial Proceedings Article, 5 and the trial court must regard that choice with deference. Id. at 224, 729 A.2d at 959 (citing Urquhart v. Simmons, 339 Md. 1, 18 , 660 A.2d 412 , 420 n.7 (1995)).

That deference shrinks, however, when the plaintiff does not reside in the forum where the plaintiff has chosen to file suit. Leung, 354 Md. at 228-29, 729 A.2d at 962. That deference diminishes further “if a plaintiffs choice of forum has no meaningful ties to the controversy and no particular interest in the parties or subject matter.” 6 Stidham, 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 28 U.S.C. § 1404 (a) as a model for Rule 2-327(c), we adopted the general rule that plaintiffs receive the privilege of deference to their choice of forum. Leung, 354 Md. at 224, 729 A.2d at 960. The Rules Committee explicitly commented on the right of plaintiffs to choose the venue for their suit as well as the deference owed to that choice by trial courts. Paul V. Niemeyer, Linda M. Schuett, and Joyce E. Smithey, Maryland Rules Commentary 303 (4th ed. 2014) (“[D]ue 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.”).

Piper Aircraft, a landmark decision in federal law on 28 U.S.C. § 1404 (a), stated the proposition that “ordinarily a strong presumption in favor of the plaintiffs choice of forum” exists. 454 U.S. at 255 , 102 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 convenient, a foreign plaintiffs choice deserves less deference.” 7 454 U.S. at 255-56 , 102 S.Ct. at 266 , 70 L.Ed.2d at 436 ; Sinochem Int’l Co. v. Malay.

Int’l Shipping Corp., 549 U.S. 422, 430 , 127 S.Ct. 1184, 1191 , 167 L.Ed.2d 15, 25 (2007). B. The plaintiff’s choice of venue is not an absolute peivi-LEGE. Although the plaintiffs 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 plaintiffs choice, however, is not an absolute and uncontrolled privilege that is determinative under present forum non con-veniens law.”); Pacific Car & Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968) (“Plaintiffs 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 plaintiffs choice of forum moves on a sliding scale .... ”). Our case law interpreting Rule 2-327(c) has acknowledged the significance of the plaintiffs residence when that residence is not the same place as the chosen forum.

Leung first explicitly incorporated the federal rule that a “ ‘plaintiffs choice of venue ... has minimal value ... where the plaintiff is not a resident of the judicial district in which he [or she] has instituted suit.’ ” Id. at 228, 729 A.2d at 962 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 , 102 S.Ct. 252, 266 , 70 L.Ed.2d 419, 436 (1981)). In Leung, we noted that the fact that the plaintiff failed to reside in the forum in which suit was brought “los[t] its force [because] not only were the plaintiffs not residents of the venue of their choice, but the defendants’ choice of venue was not the venue in which they resided. Nor is the plaintiff a resident of the venue sought by the defendants ....” 8 Id. at 229, 729 A.2d at 962. As we explained there, the deference owed to the plaintiff was not meant to be fixed but varied depending on the facts before the trial court.

Id. Prior to Leung, we had implicitly acknowledged this principle of diminished deference when interpreting Rule 2-327(c). For example, in Odenton, we affirmed the trial court’s transfer of the case to Anne Arundel County, where the plaintiff resided. 320 Md. at 41 , 575 A.2d 1235 -39. Similarly, in Urquhart, without expressly recognizing the principle of diminished deference, we affirmed the trial court’s exercise of its discretion in considering that the plaintiffs did not live in the venue where they filed suit. 339 Md. at 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 Stidham, the Court of Special Appeals cited to Leung as standing for the proposition that the trial court accords the plaintiffs choice of forum less deference when the plaintiff does not reside in that forum. 161 Md.App. at 669 , 870 A.2d at 1289 . According to the intermediate appellate court in Stidham, not only did the trial court properly transfer the case, the trial court properly weighed the plaintiffs choice of venue in light of the fact that the plaintiff did not reside in that forum and additionally, that the plaintiff resided in the forum in which the defendants sought transfer. Id. at 669 , 870 A.2d at 1290 .

In Thompson v. State Farm Mut. Auto Ins. Co., the Court of Special Appeals affirmed the trial court’s transfer of forum, and held that the trial court properly “discounted” the deference owed to the plaintiffs choice “by the fact that she does not live there.” 196 Md.App. 235, 264 , 9 A.3d 112, 122 (2010). In addition to the plaintiffs residence as a factor to lessen the deference given to the plaintiffs choice of venue, the Stidham court applied the “meaningful ties” factor to further lessen the deference afforded to the plaintiffs choice of forum.

In Stidham, the defendants struck the plaintiffs 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 plaintiffs residence in the chosen forum, which can minimize the deference afforded to the plaintiffs 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