Univ. of MD Med. System v. Kerrigan ( 2017 )

University of Maryland Medical System Corporation et al. v. Brandon Kerrigan, a minor et al.,
No. 3, September Term, 2017. Opinion by Greene, J.
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.
Circuit Court for Baltimore City IN THE COURT OF APPEALS
Case No. 24-C-15-002333
Argued: September 6, 2017 OF MARYLAND
No. 3
September Term, 2017
______________________________________
UNIVERSITY OF MARYLAND MEDICAL
SYSTEM CORPORATION et al.
v.
BRANDON KERRIGAN, a minor et al.
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Greene, J.
Barbera, C.J., Adkins and McDonald, JJ.,
dissent.
______________________________________
Filed: November 28, 2017
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
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 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.
2
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 conveniens 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.
3
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.
4
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 919 (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
1
The Petitioner presented the following questions to this Court:
1. 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?
5
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
2. Whether the Court of Special Appeals failed to review this case on its
individual merits by placing too much reliance upon Scott v. Hawit, 211 Md.
App. 620, 66 A.3d 60, cert. denied, 434 Md. 314, 75 A.3d 919 (2013), a
decision with much different facts and erroneous trial rulings that did not
occur in this case?
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)?
6
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
2
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.
7
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)
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,
8
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)
3
Rule 2-327(c) differs from the federal rule in the plain language insofar as the Md. Rule
includes “On motion of any party . . . .” The language of the two rules are otherwise
“virtually identical.” Urquhart, 339 Md. at 11, 660 A.2d at 417. The meaning of this
variation in language was litigated in Urquhart, in which we determined that “on motion
of any party” precludes the trial court from, sua sponte, transferring the case pursuant to
Rule 2-327(c) and requires the parties to raise the issue in a motion to transfer (unlike
federal trial courts which may decide, sua sponte, to transfer a case based on convenience).
Id. at 11–12, 660 A.2d at 417.
9
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 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).
10
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 plaintiff’s choice of forum has no meaningful ties
to the controversy and no particular interest in the parties or subject matter.” 6 Stidham,
4
That venue is appropriate in more than one Maryland trial court is a prerequisite to
pleading for transfer under Rule 2-327(c). See, e.g., Paul V. Niemeyer, Linda M. Schuett,
and Joyce E. Smithey, Maryland Rules Commentary 303 (4th ed. 2014) (“The transferee
court must be a court where the action could have been properly filed in the first instance.”).
5
See, e.g., MD. CODE ANN., CTS. & JUD. PROC., §§ 6-201–203 (1973, 2013 Repl. Vol.).
6
Stidham was not the first case in which Maryland appellate courts have used the
“meaningful ties” analysis. In Urquhart, for example, we suggested that when “the only
contact that Prince George’s County had to the instant case was that Mr. Simmons died at
. . . [a] [h]ospital . . . located in Prince George’s County and [a defendant] had an office
located in Prince George’s County,” the plaintiff’s choice of venue had no meaningful ties
to the controversy and no particular interest to the parties or subject matter. 339 Md. at
18–19, 660 A.2d at 420–21 (1995). In context, the hearing judge in the case at bar
considered that the controversy contained meaningful ties to health institutions in both
Talbot County and Baltimore City, and therefore did not alter the deference owed to the
Kerrigans’ choice of forum on that basis. See Pacific Car, 403 F.2d at 954 (“If the
operative facts have not occurred within the forum of original selection and that forum has
11
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 plaintiff’s 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 plaintiff’s choice of forum” exists. 454 U.S. at 255, 102
no particular interest in the parties or the subject matter, the plaintiff's choice is entitled
only to minimal consideration.”).
12
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 plaintiff’s 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 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 . . . .”).
7
The Dissenting Opinion mischaracterizes our reference to Piper Aircraft as a reliance on
that case. This Court has repeatedly and consistently referred to Piper Aircraft for its
general exposition of the law, not its facts. Here, we only cite to Piper Aircraft to show
the history and development of the principles of our law over time.
13
Our case law interpreting Rule 2-327(c) has acknowledged the significance of the
plaintiff’s residence when that residence is not the same place as the chosen forum. Leung
first explicitly incorporated the federal rule that a “‘plaintiff’s 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 1238–39. 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
8
The Dissenting Opinion relegates the section of Leung where we assessed the residence
of the plaintiffs and defendants to “dicta.” In doing so, the Dissenting Opinion abbreviates
the Court’s analysis to exclude how the convenience of the parties did not militate in favor
of transfer, a necessary determination for the Court to make based on the legal standard set
forth in Rule 2-327(c).
14
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 plaintiff’s choice of forum less deference when
the plaintiff does not reside in that forum. 161 Md. App. at 569, 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 plaintiff’s 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 569, 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 plaintiff’s choice “by the fact that she does not live
there.” 196 Md. App. 235, 254, 9 A.3d 112, 122 (2010).
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
15
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
16
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 plaintiffs’ choice of forum controls.” Id. at 229, 729 A.2d at 962. Notably, the
present case before us is different from Leung because the defendants in Leung sought to
transfer to a venue where neither the plaintiff nor the defendant resided. Here, unlike the
case of Leung, the defendants sought to transfer the case to a venue where the plaintiffs
reside.
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 Rule 2-327(c). Id. at 179–80, 968 A.2d at 1082–83. There, we held that no
reasonable trial judge could have set aside the deference owed to the plaintiff’s choice of
forum in light of the particular facts of the case, including that the plaintiff resided in the
forum selected for suit. Id. at 181, 968 A.2d at 1083–84. Without the benefit of the trial
court’s rationale for transfer, we reasoned that the evidence presented did not support the
conclusion to transfer the case from Calvert County to Anne Arundel County. Unlike in
Nodeen, the hearing judge here provided a basis for the conclusion that the balancing of
convenience and justice weighed strongly in favor of transfer.
17
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.
18
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 Rule 2-327(c),
the court may only transfer the case if the moving party demonstrates that the balance of
the convenience along with the interests of justice weighs strongly in favor of transfer.
Odenton, 320 Md. at 40, 575 A.2d at 1238 (citing Akers v. Norfolk and Western Railway
Company, 378 F.2d 78, 80 (4th Cir. 1967)); Paul V. Niemeyer, Linda M. Schuett, and Joyce
E. Smithey, Maryland Rules Commentary 303 (4th ed. 2014) (“The burden is on the
moving party to show that justice is best served by the transfer, and a transfer should occur
only when the balance weighs strongly in favor of the moving party.”). In both Urquhart
and Leung, we explained that we adopted that particular language — that the balance
weighs strongly in favor of transfer — in order to afford the appropriate deference to the
plaintiff’s desired forum. Leung, 354 Md. at 224, 729 A.2d at 959 (“Proper regard for the
plaintiff’s 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.’”) (citing Urquhart v. Simmons, 339 Md. 1, 18, 660 A.2d 412, 420 n.7
(1995)). The burden falls on the moving party to demonstrate that the balance strongly
points toward transfer.9 Id. When balancing the factors amounts to equipoise, or a tie, then
the plaintiff’s choice of forum should remain undisturbed. Leung, 354 Md. at 229, 729
9
That the moving party is most typically the defendant(s) does not preclude a plaintiff from
seeking transfer under Rule 2-327(c). See Paul V. Niemeyer, Linda M. Schuett, and Joyce
E. Smithey, Maryland Rules Commentary 303 (4th ed. 2014) (“Under section (c) of this
rule, any party to an action may file a motion to transfer the action to another court having
venue for the convenience of the parties and the witnesses.”).
19
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, 108 S. Ct. 2239, 2244, 101 L. Ed. 2d 22, 31 (1988)
(citing Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S. Ct. 805, 812, 11 L. Ed. 2d 945, 953
(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, 114 S. Ct. at 989, 127 L. Ed. 2d at 298. We
cannot, therefore, generalize Rule 2-327(c) transfer cases because one case’s facts do not
fit neatly into the next.
Given the fact-intensive nature of Rule 2-327(c) transfer inquiries, appellate courts
are limited in their review to the facts before them. Thus, appellate courts understandably
confront a puzzle when reviewing transfer cases. On the one hand, an appellate court must
give wide latitude to a trial court’s evaluation and, thus, to the balance of the various factors
it considered prior to making a final determination about whether to transfer the case. On
the other hand, appellate review calls for a reviewing court to determine if the trial court
20
abused its discretion when balancing convenience and the interests of justice. The
appellate court must do so without imposing on the province of the trial court. As a result,
appellate courts must resolve the tension between their own standard of review and the
moving party’s burden of persuasion at the trial level.
Judge Charles E. Moylan, Jr., in Payton-Henderson v. Evans, observed this tension,
and emphasized that the burden of persuasion “being a heavy one is a guideline for the trial
judge and not a standard of appellate review.” 180 Md. App. 267, 287, 949 A.2d 654, 665.
Appellate courts would do well to remember that just because they “may not have chosen
to transfer” the case does not mean that the trial court abused its discretion in doing so,
assuming the trial court had sufficient facts to support its order to transfer. Urquhart, 339
Md. at 19, 660 A.2d at 421 (holding that, although the Court may not have chosen to
transfer the case from Prince George’s County to Montgomery County, the trial court was
within its discretion to do so). The trial court must have acted unreasonably based on the
facts before it for an appellate court to reverse under an abuse of discretion standard. North
v. North, 102 Md. App. 1, 14, 648 A.2d 1025, 1032 (1994) (“The decision under
consideration has to be well removed from any center mark imagined by the reviewing
court and beyond the fringe of what that court deems minimally acceptable.”). Appellate
courts must, therefore, judiciously approach reviews of Rule 2-327(c) transfers so as not to
foist onto themselves the task designed for, and better left to, the trial courts.
21
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 Rule 2-327(c) seemingly
turn on the residence of the plaintiff, this Court has relied upon a number of factors that
hearing judges should consider when determining the convenience of the parties. Plaintiffs
received due deference from their choice of venue when they reside in the forum. Odenton,
320 Md. at 41, 575 A.2d at 1238–39; Urquhart, 339 Md. 1, 19, 660 A.2d 412, 421; Leung,
354 Md. at 228, 729 A.2d at 959–60; Nodeen, 408 Md. at 180–81, 968 A.2d 1075, 1083–
84. Defendants received due deference from their proposed choice of venue when
defendants resided in that forum. Urquhart, 339 Md. at 18–19, 660 A.2d at 420; Leung,
354 Md. at 228–29, 729 A.2d at 962; Nodeen, 408 Md. 167, 181, 968 A.2d 1075, 1083. A
trial court properly considered the location where the cause of action arose as a factor.
Odenton, 320 Md. at 41, 575 A.2d at 1238–39; Urquhart, 339 Md. at 18–19, 660 A.2d at
420–21. We have assessed the relative convenience of haling defendants or plaintiffs into
the others’ choice of venue based on residence or where they carry on business. Odenton,
320 Md. at 41, 575 A.2d at 1238–39; Urquhart, 339 Md. at 19, 660 A.2d at 420–21; Leung,
354 Md. at 228–29, 729 A.2d at 962; Nodeen, 408 Md. at 181, 968 A.2d at 1083. We
commented on the convenience of the witnesses as a factor for the trial court to consider.
Odenton, 320 Md. at 41, 575 A.2d at 1238–39; Leung, 354 Md. at 228, 729 A.2d at 962;
Nodeen, 408 Md. at 181, 968 A.2d at 1083. Lastly, we have considered the ease of access
to sources of proof. Nodeen, 408 Md. at 181, 968 A.2d at 1083. We have previously
commented about these factors and, although not intended as an exhaustive or exclusive
22
list of concerns for trial judges, these factors operate as a guide for judges when they engage
in a convenience analysis. Trial judges have the discretion to weigh the factors as they
deem appropriate in light of the circumstances of the cases before them.
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” and that it had to determine “whether the factors balance
heavily in favor of transfer to the suggested jurisdiction of Talbot County.” Next, when
considering the convenience factor, the hearing judge looked at the convenience of all
parties10 — in this case ten parties, the three plaintiffs and seven defendants — and
correctly found that the majority of the parties would be convenienced by the transfer. The
hearing court accurately determined that “seven of the ten named parties in the case,
plaintiff and defendants, are in Talbot County.” The hearing judge noted that he “was
struck by the fact . . . that [the] plaintiffs actually must pass the Circuit Court for Talbot
County on the way to the Circuit Court for Baltimore City.” At the end of the hearing
judge’s order to transfer, he reasoned that “[I] see many motions to transfer, noting that
[the] plaintiff is afforded deference with respect to choice of venue. And in many cases . .
. the factors would not weigh strongly . . . . But in this case, I see this as, far and away,
10
The Dissenting Opinion weighs the convenience of the parties without consideration of
the plaintiffs in the convenience analysis. We have not previously weighed the
convenience of the parties using the method the Dissenting Opinion suggests, nor have we
previously considered the factors the dissent prioritizes as legally significant. The
Dissenting Opinion’s reference to a footnote in Urquhart is simply a discussion of the
burden of persuasion, not an explanation of how to conduct a convenience analysis.
23
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. Rule 2-327(c) analysis calls for trial judges to weigh
the convenience of the parties. Moreover, we have previously adopted deference to the
plaintiff’s choice of venue as an additional factor to weigh, separate from the convenience
of the parties, in the overall balancing. See Urquhart, 339 Md. at 18, 660 A.2d at 420 n.7
11
The Dissenting Opinion argues that the Kerrigans have a “significant connection” to
Baltimore City and that the Kerrigans “made dozens of trips into Baltimore City,” findings
not made by the hearing judge. Additionally, the Dissenting Opinion characterizes these
connections as “far more tangible” than connections in Odenton or Urquhart, a distinction
without a difference given that how tangible a connection is has never before been
recognized by this Court as legally relevant.
24
(“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 still
considered in the convenience analysis); cf. Sousa v. TD Banknorth Ins. Agency, Inc., 429
F. Supp. 2d 454, 457 (D. NH. 2006) (acknowledging that although the plaintiff receives
deference for filing suit in his or her home forum, the geographical convenience of the
plaintiff is still balanced against the geographical convenience of the defendant).
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
25
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
12
An additional argument raised by the Kerrigans is that the hearing judge allowed the
defendants who work in Baltimore City to waive their inconvenience. This assertion is
baseless, given the judge’s findings that seven out of ten of the named parties lived in
Talbot County. Had the judge allowed the members of the transplant team to waive their
inconvenience, as the Kerrigans suggest, then the judge would have concluded that the
seven remaining named parties resided in Talbot County.
26
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 both parties’ filings and referenced on the
record by both sides during the hearing. The hearing judge determined that the burden was
heavier in Baltimore City as compared to Talbot County based on the number of trials
recorded as having taken place and the numbers submitted in the Statistical Abstract.
Lastly, as the public interest is an overarching concept regarding systemic integrity and
fairness, we determine that the hearing judge acted reasonably in considering the public’s
interest in the health care provided to its communities. When considering the facts before
him, the hearing judge found the arguments advanced by the University of Maryland and
the other defendants more persuasive. We cannot say that the hearing judge abused his
discretion in finding that both the convenience of the parties and witnesses as well as the
interests of justice weighed strongly in favor of transfer.13
13
The Dissenting Opinion repeatedly emphasizes that the balance does not weigh strongly
in favor of transfer, yet concedes that both the public interest and convenience of the parties
and witnesses weigh in favor of transfer. The Dissenting Opinion muddles the burden of
persuasion, that the evidence weighs strongly in favor of transfer, with the standard of
review, abuse of discretion, and in so doing, chooses to substitute its judgment for that of
the hearing judge and engages in precisely the process we have cautioned against. By
applying a de novo standard of review to the hearing judge’s decision, the Dissenting
Opinion sidesteps the abuse of discretion standard in order to reach its preferred outcome
for the case. The endpoint of the Dissenting Opinion’s rationale makes the Rule 2-327(c)
burden of persuasion an insurmountable hurdle for the moving party, and if adopted, would
reverse decades of jurisprudence by this Court and the Court of Special Appeals.
27
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.
28
Circuit Court for Baltimore City
Case No.: 24-C-15-002333
Argued: September 6, 2017
IN THE COURT OF APPEALS
OF MARYLAND
No. 3
September Term, 2017
UNIVERSITY OF MARYLAND MEDICAL
SYSTEM CORPORATION et al.
v.
BRANDON KERRIGAN, a minor et al.
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
Dissenting Opinion by Adkins, J., which
Barbera, C.J. and McDonald, J., join.
Filed: November 28, 2017
The Majority’s holding today has undermined the long-held recognition of a
plaintiff’s right to choose a venue. Maryland Rule 2-327(c) permits transfer of an action
from one circuit court to another if the transfer “is for the convenience of the parties and
witnesses and serves the interests of justice.” Cases from this Court considering the
propriety of a change in venue have required that convenience and justice must strongly
favor transfer. Leung v. Nunes, 354 Md. 217, 224 (1999). Most respectfully, I dissent
because I cannot conclude that the convenience of the parties and witnesses, or the interests
of justice strongly favor transfer of Kerrigan’s suit. I would affirm the Court of Special
Appeals’ holding that the trial court abused its discretion by transferring the case from
Baltimore City to Talbot County.
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
1
The Supreme Court used the term “foreign” to describe plaintiffs entirely outside
the United States. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255–56 (1981).
Commentators discussing federal law have analyzed Piper as if it applies only to actions
from plaintiffs outside the United States. See Charles Wright & Arthur Miller, Federal
Practice and Procedure § 3828.2 (4th ed. 2009). We should not apply Piper to a dispute
between parties merely from different subdivisions in the same state.
2
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 County and only one
defendant had a registered agent in Baltimore City, we reversed the transfer. Id. at 229.
The Court specifically rejected the defendants’ argument that Piper’s less deferential
standard should have permitted the transfer. Id. at 228.
Because we have not adopted a less deferential standard for “foreign” plaintiffs, we
should apply our normal Rule 2-327(c) standard: that the plaintiffs may choose their venue
unless the convenience of the parties and witnesses or the interests of justice strongly favor
transfer. Under this test, I would hold the trial judge abused his discretion by concluding
that both convenience and the interests of justice weighed strongly in favor of transfer.2
The Majority also notes that the Court of Special Appeals, in Stidham v. Morris,
2
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.
3
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
4
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 on convenience grounds because
“each of the individual defendants was a resident of Montgomery County. . . . [and] the
relevant medical care and treatment received by [the decedent] took place in Montgomery
County.” Id. at 18. In Urquhart, the Court never relied on or even mentioned Piper’s
principle that a plaintiff’s choice receives less deference when suing in a “foreign” venue.
Perhaps the Court recognized that the unique factual background of Piper rendered it
inapplicable when parties dispute merely which Maryland circuit court should hear a case.
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
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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
Maryland Rule 2-327(c) requires that both the convenience of the parties and
witnesses and the interest of justice favor transfer. Because I would find that a weighing
of the convenience of the parties and witnesses does not strongly favor transfer, I could
end my dissent. I continue to write separately because the trial court further erred by
concluding that the “interests of justice” strongly favored transfer.
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
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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 statute on other grounds, 28 U.S.C. § 1404 (2012) as
recognized in Johnson v. G.D. Searle & Co., 314 Md. 521, 526–27 (1989)).
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:
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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).
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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. Here, Kerrigan alleges multiple torts in both Baltimore and
Talbot County. Without more fact finding, the trial court’s conclusion that citizens of
Talbot County have a greater interest in this case than their fellow Marylanders in
Baltimore was not supported.
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.
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