Urquhart v. Simmons

RAKER, Judge, dissenting: I agree with the holding of the Court that a trial judge may not raise the issue of forum non conveniens on its own initiative. As the Court concludes today, Maryland Rule 2-327(c) requires a motion by a party prior to the transfer of a case on grounds of forum non conveniens. I disagree with the majority’s resolution of this case, however, because I believe that there was no motion before the court for transfer of the cause on grounds of forum non conveniens and that there is no sound basis in the record for finding that the trial court treated the motion before it as a motion under Rule 2-327(c). To the extent that the Court attempts to supply such a reason, I part ways with the majority opinion.

Under the circumstances of this case, there are three conceivable grounds for the transfer of the action to Montgomery County. The first ground, which was raised by the defendant in the Circuit Court for Prince George’s County, would be venue. It is undisputed at this point, however, that venue in Prince George’s County was proper; consequently, any transfer on the basis of venue was error. ²² The second conceivable ground would be for the trial court to overrule the defendant’s venue motion but raise the issue of forum non conveniens on its own initiative. As the Court has held today, however, the impetus for transfer for reasons of forum non conveniens must come from a party, not the court.

Finally, the trial court could interpret the defense’s motion to dismiss or transfer for improper venue as a motion to transfer on the basis of forum non conveniens. In this case, when the trial court expressly asked defense counsel whether he intended to make a forum non conveniens argument, counsel did not say yes, but rather that one “could probably draw that analogy.” It appears to me that counsel’s answer represented a disavowal of any reliance on forum non conveniens. Nonetheless, I am willing to assume, as the majority does, that defense counsel’s response was a plausible basis for construing the defendant’s motion as an effort to invoke the court’s discretion to transfer on the basis of forum non conveniens. There are two problems with this resolution of the case, however.

The first problem was noted by the plaintiffs attorney, who told the court during oral argument on the venue motion, “Your honor tries to get the—to find out if the defendant is trying to argue something like forum non conveniens, but they have not raised that doctrine. I have not briefed it____” The plaintiff argued, and I agree, that a motion based on improper venue and one based on forum non conveniens are procedurally distinct, and thus require different supporting arguments. Consequently, because the defendant’s motion was expressly based on venue and the trial court never indicated that it was deciding the case based on forum non conveniens, the plaintiff never had a fair opportunity to brief and argue this issue. The second problem with construing the defendant’s venue motion as a forum non conveniens motion is that the trial court did not follow this path.

That the court decided this case on venue grounds is evident from the oral ruling at the conclusion of the argument: ²³ The Court has reviewed 6-201 and 6-202 [venue provisions in the Courts and Judicial Proceedings Article] as well as heard the arguments of counsel and read the memorandums and as well as the exhibits and the Court feels that the motion for—obviously Pm not going to dismiss the case, but I do believe it should be transferred to Montgomery County and I will sign an order to that effect. Consequently, at the trial level, there were no findings of fact or balancing by the court of the factors bearing on whether the court should transfer the case based on the doctrine of forum non conveniens. In Odenton Development v. Lamy, 320 Md. 33 , 575 A.2d 1235 (1990), Judge Chasanow, writing for the Court, explained that the pertinent factors include “ ‘the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading of “the interests of justice.” ’ ” Id. at 40 , 575 A.2d at 1238 (quoting Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 30 , 108 S.Ct. 2239, 2244 , 101 L.Ed.2d 22 (1988)). The court may then order the case transferred only if these considerations weigh heavily in favor of the moving party.

Id., 575 A.2d at 1238 . The decision to transfer should be reversed, because venue in Prince George’s County was proper and a motion for transfer on the grounds of forum non conveniens was lacking. Since the choice of the forum belongs to the plaintiff, that choice should not be disturbed lightly. Restatement (Second) of Conflict of Laws § 84 cmt. c (1971), quoted in Johnson v. Searle, 314 Md. 521, 530 , 552 A.2d 29, 33 (1989); see also 20 Am.Jur.2d Courts § 176 (1965) (“The doctrine of forum non conveniens should be applied with caution, exceptionally, and only for good reasons.” (footnote omitted)).

Accordingly, I would affirm the mandate, though not the reasoning, of the Court of Special Appeals and order a new trial of this cause in the Circuit Court for Prince George’s County. Judge Bell has authorized me to state that he joins in the views expressed herein. CHASANOW, Judge. We are called upon in this case to determine the scope of a trial court’s authority to transfer a case based on the doctrine of forum non conveniens as codified in Maryland Rule 2-327(c).

For the reasons discussed below, we hold that a trial court may not sua sponte transfer a case on the grounds of forum non conveniens. Nevertheless, because the defendants in the instant case adequately raised that issue by filing their motion to dismiss or to transfer, we hold that the trial judge did not abuse his discretion in transferring this case to Montgomery County. I. This appeal arises out of a tort action filed by Angela Simmons, and her children, Sharon, David, and Mark Simmons, in the Circuit Court for Prince George’s County against Joann Urquhart, M.D., William Tullner, M.D., 1 and Maryland ⁴ Cardiology Associates, P.A. (MCA) for wrongful death and survival arising out of the death of Anthony Simmons, the husband and father of the plaintiffs.

Mr. Simmons visited MCA’s office on February 25, 1987 complaining of chest pains. 2 On March 4, 1987, Mr. Simmons was admitted to Washington Adventist Hospital in Montgomery County for a cardiac catheterization to determine the cause of his chest pains. Dr. Tullner performed the cardiac catheterization on March 5, 1987 and the results of the test showed that there were no significant arterial blockages. While Mr. Simmons was still in the hospital, Dr. Tullner left town to attend a medical convention and Dr. Urquhart took over the care of Mr. Simmons. Dr. Urquhart discharged Mr. Simmons from the hospital on the evening of March 9, 1987.

Prior to discharging Mr. Simmons, Dr. Urquhart examined his chart, examined his heart and lungs, provided him with routine discharge instructions, and prescribed several medications. Dr. Urquhart did not specifically inform Mr. Simmons of the potential complications from the cardiac catheterization, such as pain and fever, which are associated with a potentially fatal condition known as pulmonary embolization. Dr. Urquhart did, however, advise Mr. Simmons to call her if he experienced any problems. On March 13, 1987, Mr. Simmons died of a pulmonary embolism at Greater Laurel Belts-ville Hospital in Prince George’s County.

Subsequently, plaintiffs filed a wrongful death and survival action with the Health Claims Arbitration Office. Prior to proceeding with the claim, the parties waived arbitration and filed a complaint for wrongful death and survival in the Circuit Court for Prince George’s County. Soon after the lawsuit was filed, the defendants filed a Motion to Dismiss, or, in the Alternative, Motion to Transfer to the Circuit Court for ⁵ Montgomery County, requesting that the case be dismissed or in the alternative transferred to Montgomery County. The defendants cited Maryland Code (1974, 1995 Repl.Vol.), Courts and Judicial Proceedings Article, §§ 6-201 and 6-202 in support of their motion. 3 Plaintiffs filed an answer to the motion in opposition to defendants’ request to dismiss or to transfer the case.

A hearing was held before Judge Steven I. Platt on defendants’ motion to dismiss or to transfer. Defendants claimed that any “contacts” arising in this case occurred in Montgomery County and that viewing the “totality of the circumstances” the case should be transferred to Montgomery County for trial. Defendants’ counsel noted that all three physicians associated with MCA resided in Montgomery County; 4 the complaint listed all three physicians with business addresses in Montgomery County; the cardiac catheterization took place at Washington Adventist Hospital in Montgomery County; and relevant telephone conversations between Mr. Simmons and Dr. Urquhart took place through her Montgomery County office. In opposition to defendants’ motion, plaintiffs’ counsel argued that although there were many contacts with Montgomery County, Prince George’s County was a proper venue because MCA earned on a regular business in its Laurel office in Prince George’s County and because Mr. Simmons died at Greater Laurel Beltsville Hospital in Prince George’s County. ⁶ At the hearing on defendants’ motion, Judge Platt asked defense counsel if his “response to ... [plaintiffs’ counsel’s] argument that he’s entitled to proceed in Prince George’s County ... is essentially & forum non conveniens argument.” Defense counsel responded that “I think you could probably draw that analogy.

I think there has to be some discretion on your part in evaluating the venue in this case.... ” At the close of the hearing on the motion to dismiss or to transfer, the judge transferred the case to the Circuit Court for Montgomery County. In so doing, the court stated: “The Court has reviewed 6-201 and 6-202 [Md.Code (1974, 1995 Repl.Vol.), Courts and Judicial Proceedings Article] as well as heard the arguments of counsel and read the memorandums and as well as the exhibits and the Court feels that the motion for—obviously I’m not going to dismiss the case, but I do believe it should be transferred to Montgomery County and I will sign an order to that effect.” The case was transferred to the Circuit Court for Montgomery County and the trial was held before Judge J. James McKenna. At trial, the respective parties recited contradictory versions of the events leading up to the death of Mr. Simmons. According to the testimony of Mrs. Simmons, Mr. Simmons repeatedly called MCA’s office in an attempt to reach Dr. Urquhart.

Notes taken by Sharon Siegler, MCA’s Bethesda office manager, on March 10, 1987 state that Mr. Simmons telephoned the MCA office and told her that he was experiencing some pain in the left side of his stomach and had a fever. After another telephone call from Mr. Simmons, Ms. Siegler wrote another note which stated “hematoma from cath.” and “fever” and “pain.” Plaintiffs claim that despite these repeated attempts to reach Dr. Urquhart, she never returned Mr. Simmons’s calls until March 12, 1987. To further support plaintiffs’ claim that Mr. Simmons could not reach Dr. Urquhart, Dr. Wayman W. Cheetham, M.D., Mr. Simmons’s diabetes physician, testified that Mr. Simmons called him about the symptoms he was experiencing following ⁷ the cardiac catheterization and informed Dr. Cheetham that he was unable to reach his cardiologist. According to Dr. Cheetham, he told Mr. Simmons that he should continue to try and reach his cardiologist.

Dr. Cheetham also testified that Mr. Simmons called him at least one more time after that conversation and told him that he was still unable to reach his cardiologist. Dr. Cheetham told Mr. Simmons that if he could not reach his cardiologist he needed to “be seen by someone” and that he should go to the emergency room because his symptoms may indicate a potential life threatening complication. Mr. Simmons never went to the emergency room despite the warning from Dr. Cheetham that his life could be in danger. According to the testimony of Ms. Siegler and Dr. Urquhart they repeatedly urged Mr. Simmons to seek medical attention and he refused.

Dr. Urquhart testified that she spoke with Mr. Simmons on the telephone on the evenings of March 11 and March 12, 1987. Dr. Urquhart testified then when she called Mr. Simmons from her home on the evening of March 11 he described his symptoms and she asked him to feel for his femoral artery. Mr. Simmons informed her that it hurt him when he felt it. She stated that she told Mr. Simmons that he may have a hematoma and that “he must go to the emergency room at Washington Adventist Hospital.” Mr. Simmons refused to go to the emergency room despite Dr. Urquhart’s warning that he had “a life-threatening problem.” Dr. Urquhart told Mr. Simmons that if he did not go to the emergency room then he “must come for [his] visit tomorrow” at the Bethesda office.

According to Dr. Urquhart, Mr. Simmons agreed to come to MCA’s Bethesda office but when he did not arrive for his appointment on the morning of March 12, an office staff member called him and he said “he didn’t come because he felt better.” The respective parties also had contradictory versions of a telephone conversation that took place between Mr. Simmons and Dr. Urquhart on March 12, 1987, the evening before Mr. Simmons’s death. According to Mrs. Simmons’s testimony, she listened to that conversation on an extension phone. She ⁸ testified that after Mr. Simmons told Dr. Urquhart that his legs hurt, that he was limping and sore, and that his “groin was very swollen and hot to the touch,” Dr. Urquhart responded, “it is normal to have discomfort after a procedure like you had ... [t]he reason you didn’t feel any pain in the hospital is because we had you so heavily sedated to keep your blood pressure under control.” Mrs. Simmons further testified that after Mr. Simmons told Dr. Urquhart that Dr. Cheetham told him it could be a blood clot or blood poisoning, Dr. Urquhart told Mr. Simmons that “it wasn’t a blood clot or blood poisoning because if [you] had a blood clot or blood poisoning, they wouldn’t have let [you] leave the hospital.” At that point Mrs. Simmons testified that she interrupted the conversation and said “[w]hat about the pain in your leg and your knee?” Mr. Simmons then responded, “[t]hat’s all right ... I’ll just wait till Monday and see Dr. Tullner.” Mrs. Simmons stated that she hung up the phone and Mr. Simmons went to bed after the phone call.

According to Dr. Urquhart, however, Mr. Simmons informed her that his femoral artery “hurt when he pressed” it and she told him that he “must go to the emergency room at Washington Adventist” Hospital. Dr. Urquhart further testified that after Mr. Simmons refused to go to the emergency room, she told Mr. Simmons that “he must see Dr. Tullner the first thing in the morning in his Laurel office” and Mr. Simmons agreed. Mr. Simmons never came to this appoint^ ment, as his death occurred early the next morning. After the evidence was presented at trial, the plaintiffs submitted a jury instruction regarding the doctrine of last clear chance, arguing that if Dr. Urquhart had advised Mr. Simmons on March 12, 1987 that his symptoms were life-threatening, it would have been a new opportunity to avoid her original negligence.

Thus, plaintiffs argued that because Dr. Urquhart had a last clear chance to avoid her negligence but did not do so, the jury should be instructed that even if it found Mr. Simmons contributorily negligent, if it found that Dr. Urquhart had the last clear chance to avoid her negligence ⁹ and did not do so, the jury could still find her liable. The trial court denied plaintiffs’ request stating that: “[Tjhere is a good deal of evidence that shows that the deceased, had he gone to the hospital, ... that he still could have avoided this and he still would have lived, but he didn’t. He did not go to the hospital despite the fact that his wife told him to do it.... Dr. Cheetham told him to go to the hospital....

But, he didn’t do anything---- So, in my view, last clear chance simply would not apply.” The jury returned a verdict of negligence on the part of Dr. Urquhart and contributory negligence on the part of Mr. Simmons and judgment was entered in favor of defendants. Plaintiffs appealed to the Court of Special Appeals which reversed the judgment of the circuit court and held that “the Circuit Court for Prince George’s County abused its discretion in transferring the action” to Montgomery County. Simmons v. Urquhart, 101 Md.App. 85, 107 , 643 A.2d 487, 498 (1994). The court ordered that the case be transferred to Prince George’s County for a new trial.

Simmons, 101 Md.App. at 113 , 643 A.2d at 500 . Although the Court of Special Appeals did not decide whether it was error for the trial court to refuse to instruct the jury on last clear chance, it noted that the trial court’s reasoning for refusing to grant the instruction was inappropriate. See Simmons, 101 Md.App. at 111-12 , 643 A.2d at 500 . We granted a writ of certiorari to determine whether this case was improperly transferred to Montgomery County.

II

In holding that the trial court abused its discretion in transferring the instant action to Montgomery County, the Court of Special Appeals first determined that a trial court possesses the authority to sua sponte transfer an action under Md.Rule 2-327(c). The Court of Special Appeals held that although defendants filed a motion to dismiss or to transfer ¹⁰ this action, they relied solely on the improper venue statute contained in §§ 6-201 and 6-202, and not upon the doctrine of forum non conveniens contained in Md.Rule 2-327(c). 5 Thus, the court determined that the defendants “did not raise sufficiently the issue of forum non conveniens as a grounds for transfer.” Simmons, 101 Md.App. at 100 , 643 A.2d at 494 . The court noted, however, that the trial court sua sponte transferred the instant case on the grounds of forum non conveniens and held that a trial court has the authority to do so. Id.

We disagree and hold that a trial court may not transfer a case on the grounds of forum non conveniens unless a party has first made a motion requesting that the case be transferred. Maryland Rule 2-327(c) permits a trial court to transfer an action on the grounds of forum non conveniens upon motion of any party when it appears that it would be more convenient for the parties and witnesses to have the case heard in another appropriate venue and the interests of justice would be served. See Md.Rule 2-327(c). This rule permits an action to be transferred to another appropriate venue even though a plaintiffs choice of venue is proper.

Md.Rule 2-327(c) 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.” In reaching its determination that a trial court has the authority to sua sponte transfer an action on the grounds of forum non conveniens, the Court of Special Appeals relied on several sources. One of those sources was 28 U.S.C. § 1404 (a) (1982), from which Md.Rule 2-327(c) is derived. See Md.Rule ¹¹ 2-327(c); see also Paul V. Niemeyer and Linda M. Schuett, Maryland Rules Commentary, at 215 (2d ed. 1992) (noting that “[Md.Rule § 2-327(c) ] is derived from 28 U.S.C. § 1404 (a)”). 28 U.S.C. § 1404 (a) provides: “For 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.” It has been held that federal courts have wide discretion in transferring an action under 28 U.S.C. § 1404 (a) on their own initiative. See, e.g., Wash.

Pub. Util. Group v. U.S. Dist. Court, 843 F.2d 319 , 326 (9th Cir.1987) (noting in dicta that “section 1404(a) does not expressly require that a formal motion be made before the court can decide that a change of venue is appropriate”); Clisham Management v. American Steel Bldg.

Co., 792 F.Supp. 150, 157 (D.Conn.1992) (noting that “[a] transfer of venue for the convenience of the parties and in the interest of justice may be made upon motion by either of the parties or by the court sua sponte ”) (emphasis in original); Kirby v. Mercury Sav. and Loan Ass’n, 755 F.Supp. 445, 448 (D.D.C.1990) (holding that a federal court “has authority to act sua sponte to transfer a case to another federal district court pursuant to 1404(a)”). The Court of Special Appeals emphasized the fact that because federal courts are permitted to act sua sponte in transferring an action under 28 U.S.C. § 1404 (a) and because Md.Rule 2-327(c) was derived from that statute, it follows that a Maryland trial court should have the authority to transfer an action on the grounds of forum non conveniens on its own initiative. Notwithstanding the fact that Md.Rule 2-327(c) was derived from 28 U.S.C. § 1404 (a), an examination of the language of the two statutes reveals a significant difference between 28 U.S.C. § 1404 (a) and Md.Rule 2-327(c). While 28 U.S.C. § 1404 (a) contains no language requiring a party to make a motion to transfer prior to the action being transferred to another forum, Md.Rule 2-327(c) conspicuously added the language “[o]n motion of any party,” while adopting a virtually identical version of 28 U.S.C. § 1404 (a) in all other ¹² respects.

Compare 28 U.S.C. § 1404 (a) with Md.Rule 2- 327(c). Thus, the federal cases relying on the broad language of 28 U.S.C. § 1404 (a) in concluding that a federal court may