Moody v. Lehigh Valley Hosp.-Cedar Crest

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2018 PA Super 6PAIGE MOODY AND KHALIL TOMLINSON, IN THE SUPERIOR COURT OF
CO-ADMINISTRATORS OF THE ESTATE PENNSYLVANIA
OF GIANNA TOMLINSON, DECEASED
Appellant
v.
LEHIGH VALLEY HOSPITAL-CEDAR
CREST, LEHIGH VALLEY HEALTH
NETWORK, LVPG-EMERGENCY
MEDICINE, TERESA M. ROMANO M.D.,
JULIE N. PHILLIPS M.D., KENNETH P.
RACHWAL PA-C, REGINA L. WYERS PA-C
VICTOR RODRIGUEZ, M.D., NATHAN C.
HIMES M.D. ALEXANDER M. KOWAL M.D.
AND MEDICAL IMAGING OF LEHIGH
VALLEY, P.C., CHILDREN’S HOSPITAL OF
PHILADELPHIA, SACRED HEART
HOSPITAL, SACRED HEART HEALTH
SYSTEMS, SACRED HEART PEDIATRICS
ASSOCIATES AND ANDREW UNGER,
M.D.
No. 3580 EDA 2016
Appeal from the Order October 5, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): May Term 2016 No. 0038
BEFORE: BOWES, LAZARUS AND PLATT,* JJ.
OPINION BY BOWES, J.: FILED JANUARY 18, 2018
This is a wrongful death and survival action sounding in medical
malpractice. Paige Moody and Khalil Tomlinson, co-administrators of the
Estate of Gianna Tomlinson, Deceased, (hereinafter “Administrators”),
* Retired Senior Judge specially assigned to the Superior Court.
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appeal from the five identical October 5, 2016 orders granting the Defendant
medical care providers’ petitions to transfer venue from Philadelphia County
to Lehigh County on forum non conveniens grounds.1 After thorough review,
we reverse and remand for further proceedings consistent with this opinion.
On September 7, 2015, seventeen-month-old Gianna presented to
Lehigh Valley Hospital with a history of vomiting and coughing. She came
under the care of defendant Kenneth Rachwal, PA-C, and she underwent a
chest x-ray, which was interpreted by defendant Doctors Himes and/or
Kowal. Gianna was diagnosed with a respiratory infection and discharged,
and her parents were directed to follow up with her pediatrician.
Three days later, Administrators followed up at defendant Sacred
Heart Pediatrics. Defendant Dr. Rodriguez diagnosed a respiratory infection.
When the symptoms persisted, Administrators returned to the pediatrician’s
office with Gianna on September 28, 2015, but no additional testing was
conducted. On October 1, 2016, Gianna was seen again at Lehigh Valley
Hospital where she was treated by defendant PA-C Wyers and/or defendant
Dr. Phillips for complaints of coughing and difficulty breathing. They
discharged the infant without conducting any further tests. On October 4,
2016, Gianna returned to Lehigh Valley Hospital with complaints of
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1An order changing venue in a civil action is interlocutory but appealable as
of right. Pa.R.A.P. 311(c).
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shortness of breath, worsening cough, and decreased intake. Another chest
x-ray was performed that, according to Administrators, was correctly
interpreted as depicting an enlarged heart. At that point, Lehigh Valley
Hospital contacted Children’s Hospital of Philadelphia to arrange for transfer
to that facility by helicopter. Physicians at the latter facility made specific
recommendations for testing and medication in anticipation of Gianna’s
transfer.
Gianna was admitted to the Cardiac ICU at Children’s Hospital,
intubated, and placed on ECMO support.2 On the second day of her
hospitalization, while undergoing a cardiac procedure, she was administered
an overdose of Versed, roughly ten times the proper dose. She died at
Children’s Hospital eight days later on October 12, 2015, and a full autopsy
was performed at that facility.
On June 6, 2016, Administrators filed a complaint in the Philadelphia
Court of Common Pleas against Lehigh Valley Hospital-Cedar Crest, Lehigh
Valley Health Network, LVPG-Emergency Medicine, Teresa Romano, M.D.,
Julie N. Phillips, M.D., Kenneth P. Rachwal, PA-C, and Regina Wyers, PA-C
(the “Lehigh Valley Hospital Defendants”); Medical Imaging of Lehigh Valley,
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2 ECMO stands for extracorporeal membrane oxygenation, which is a
technique involving the removal of the blood, extraction of carbon dioxide,
and oxygenation of the red blood cells. It is used to provide cardiac and
respiratory support to a patient whose heart and lungs are incapable of
sustaining life.
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P.C., Nathan Himes, M.D., Alexander M. Kowal, M.D. (the “Medical Imaging
Defendants”); Sacred Heart Hospital, Sacred Heart Healthcare System,
Sacred Heart Pediatric Associates, Andrew Unger, M.D., and Victor
Rodriguez, M.D. (the “Sacred Heart Defendants”); and the Children’s
Hospital of Philadelphia (“Children’s Hospital”). Administrators alleged that
the Lehigh County medical care providers and Children’s Hospital in
Philadelphia, collectively and individually, provided negligent medical
treatment to Gianna. The Lehigh Valley Hospital Defendants, the Medical
Imaging Defendants, and the Sacred Heart defendants (collectively the
“Lehigh County Defendants”) failed to recognize signs and symptoms of
Gianna’s cardiac abnormalities, even though they were depicted on the
original radiography, thereby increasing the risk of death. While in a serious
condition at Children’s Hospital, the Hospital’s agents administered an
overdose of sedatives to Gianna, which also was alleged to have contributed
to her death.
On July 19, 2016, Dr. Unger, Sacred Heart Hospital, and Sacred Heart
Health System petitioned for a transfer of venue to Lehigh County based on
forum non conveniens grounds. Dr. Unger and the Risk Manager of the
Sacred Heart entities, Michele Coleman, submitted affidavits purporting to
establish that a multiple week trial in Philadelphia would be oppressive. Dr.
Unger averred therein that as the current director of Pediatrics and only one
of two neonatologists on staff at Sacred Heart Hospital, his practice served
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Lehigh County and Northampton County. He was told to anticipate a trial
lasting multiple weeks. Based on “the immediacy required and
unpredictable nature of neonatology care and emergencies, 24/7 coverage is
required” by him and one other physician. Affidavit, Andrew Unger, M.D.,
7/11/16, at ¶9. Dr. Unger averred that if he was required to attend trial in
Philadelphia, “the impact on my ability to serve my patients and cover the
hospital with regard to neonatology care and emergencies would be
significant and oppressive.” Id. He represented that if the case was
transferred to Lehigh County, he could remain on call and respond to issues
at Sacred Heart Hospital. Id. As one of only three pediatricians on staff, his
prolonged absence would “significantly affect the operation of the pediatric
office and clinic and of the pediatric department of Sacred Heart Hospital.”
Id. at ¶10. He cited the burden of travel, time away from his clinical and
hospital duties, disruption to the Hospital, “and the difficulty of presenting
Lehigh County witnesses and proof at the time of trial and throughout
litigation will be significant and oppressive.” Id. at ¶11. Two days later, Dr.
Unger filed an affidavit of non-involvement in which he maintained that he
was not involved in Gianna’s care when the alleged negligence occurred, and
he sought dismissal from the action.
Risk Manager Michele Coleman also averred that a multiple week trial,
absences of “a large number of Sacred Heart staff and physician witnesses
and parties will be significantly oppressive to the operation of the Sacred
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Heart [corporate defendants] . . . which cannot easily manage absences and
extended absences of critical staff in the same way that a large hospital is
able to.” Affidavit, Michele Coleman, 7/6/16, at ¶9. She reiterated that Dr.
Unger’s attendance at trial in Philadelphia for several weeks would be
“significant and oppressive.” Id. at ¶10. In sum, “the impact of distance,
burden of travel, staff time away from hospital duties, disruption of the
operation of Sacred Heart Hospital and Sacred Heart Health Systems, and
difficulty obtaining witnesses and proof at the time of trial and throughout
litigation will be significant and oppressive.” Id. at ¶13.
On August 8, 2016, Administrators filed a response in opposition to the
Sacred Heart Defendants’ petition in which they argued that, due to the
extensive medical care received by Gianna at Children’s Hospital over a
period of eight days, many witnesses were located in Philadelphia. They
argued further that the sixty-mile distance from Allentown to Philadelphia
was not an oppressive commute, and Dr. Unger could provide neonatology
on-call coverage in the evenings upon his return. Administrators offered
proof of numerous other pediatricians who could provide coverage for Dr.
Unger. They also pointed out that Dr. Unger had a pending motion for
dismissal due to uninvolvement.
On August 10, 2016, upon consideration of the motion to transfer
venue filed by the Sacred Heart Defendants, and the responses thereto, the
court issued a rule to show cause why the motion should be granted,
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returnable at an argument and evidentiary proceeding on September 28,
2016. The order also advised the parties that the court would “accept
affidavits or deposition evidence and upon application for good cause shown,
live testimony, relevant to the question of forum non conveniens.” Order,
8/1/16, at 1.
Thereafter, Administrators served interrogatories related to the venue
issues upon the Sacred Heart defendants, and scheduled the deposition of
Dr. Unger, who did not appear. When, despite several requests, Dr. Unger
failed to supply dates when he was available for deposition, Administrators
served him with a notice to attend the hearing. Dr. Unger did not attend
due to other commitments.
On September 27, 2016, the day before the hearing, Defendant
Rodriguez, M.D., who was no longer associated with Sacred Heart, the
Medical Imaging Defendants, and Children’s Hospital moved to join the
petition to transfer venue. On the day of the hearing, the Lehigh Valley
Hospital Defendants filed a separate motion to transfer venue with
accompanying affidavits, and afterwards, the Medical Imaging Defendants
filed affidavits from the defendant physicians and the executive director. At
the close of the hearing, in response to counsel for Administrators’
statement that they might need twenty days to respond to the new motion
and yet unseen affidavits, the court granted them two days to respond.
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On October 5, 2016, the court granted all motions to transfer venue to
Lehigh County on forum non conveniens grounds. Administrators filed a
motion for reconsideration on October 18, 2016, and a notice of appeal on
November 2, 2016. Thereafter, on November 22, 2016, the court denied the
motion for reconsideration as moot.
Administrators timely appealed and they raise three issues for our
review:
1) Whether the trial court committed an abuse of discretion and
misapplied the law in transferring venue of this action to Lehigh
County on forum non conveniens grounds and disturbing
Plaintiffs’ appropriately chose venue of Philadelphia County
where Plaintiffs’ Complaint includes claims against a defendant
located in Philadelphia County and a substantial portion of the
medical care and factual circumstances at issue all occurred in
Philadelphia County, including the minor-decedent’s death such
that key evidence and witnesses critical to Plaintiffs’ proofs will
be located in Philadelphia County and further by placing a
burden on Plaintiffs to prove oppression to Philadelphia
witnesses that does not exist under Pennsylvania law?
2) Whether the trial court committed an abuse of discretion and
misapplied the law in ruling that Defendants met their heavy
burden for transfer of this action to Lehigh County on forum non
conveniens grounds and determining that Defendants sufficiently
demonstrated that litigating this action in Philadelphia County
would be oppressive and vexatious to the Defendants located in
Lehigh County based upon bald assertions set forth in Affidavits
that were refuted by the limited evidence provided as well as the
travel distance from Lehigh County to Philadelphia that is
insufficient to cause an excessive burden upon Defendants?
3) Whether the trial court abused its discretion in transferring
venue to Lehigh County despite Defendants’ refusal to engage in
discovery and produce witnesses for testimony as well as limiting
Plaintiffs’ time for response to newly filed Motions/Joinder
Motions seeking transfer of venue and affidavits in support
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thereof, such that it deprived Plaintiffs’ of a full and proper
opportunity to refute Defendants’ claims of oppressiveness and
vexatiousness in opposing Defendants’ various motions to
transfer venue?
Appellants’ brief at 5. We will treat the issues together as they all implicate
the propriety of the transfer on forum non conveniens grounds.
Venue in this wrongful death/survival action sounding in medical
negligence is governed by Pa.R.C.P. 1006, which provides in pertinent part
that, “[e]xcept as otherwise provided by subdivision (c), a medical
professional liability action may be brought against a health care provider for
a medical professional liability claim only in a county in which the cause of
action arose.” Pa.R.C.P. 1006(a.1). Where, as here, “the action to enforce
a joint or joint and several liability against two or more defendants includes
one or more medical professional liability claims, the action shall be brought
in any county in which the venue may be laid against any defendant under
subdivision (a.1).” Rule 1006(c)(2). Thus, venue is proper in this medical
malpractice case in both Lehigh and Philadelphia Counties, and only in those
counties.3
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3 The result is the same if we view this case as one for wrongful death and
survival. In Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384(Pa.Super. 2002), this Court held that the proper venue for wrongful death
and survival actions is the county where the tortious act occurred. Since the
tortious acts herein allegedly occurred in both Philadelphia and Lehigh
counties, venue lies in both counties.
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Administrators opted to bring the action in Philadelphia County where
defendant Children’s Hospital of Philadelphia is located, and that choice is
entitled to great deference. Cheeseman v. Lethal Exterminator, Inc.,
701 A.2d 156, 161 (Pa. 1997); Bratic v. Rubendall, 99 A.3d 1 (Pa. 2014).
"[A] plaintiff generally is given the choice of forum so long as the
requirements of personal and subject matter jurisdiction are satisfied."
Zappala v. Brandolini Prop. Mgmt., 909 A.2d 1272, 1281 (Pa. 2006)
(“Zappala I”).
However, that choice is not absolute. The Sacred Heart Defendants
availed themselves of the forum non conveniens provision of Rule
1006(d)(1), which permits “the court upon petition of any party” to “transfer
an action to the appropriate court of any other county where the action
could originally have been brought” “for the convenience of parties and
witnesses.” Pa.R.C.P. 1006(d)(1). Much later, the remaining Defendants
joined in the petition, or filed new petitions, and the trial court granted the
relief requested. The issue herein is whether the trial court abused its
discretion in transferring the case to Lehigh County from Philadelphia County
on forum non conveniens grounds.
The following principles govern a trial court’s ruling on a petition to
transfer venue for forum non conveniens. “The plaintiff's choice of forum is
to be given great weight, and the burden is on the party challenging the
choice to show it was improper.” Zappala v. James Lewis Group, 982
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A.2d 512, 518-519 (Pa.Super. 2009). The burden is a heavy one. As our
High Court reiterated in Bratic, supra at 8, “the convenience [of the
parties] or the lack thereof is not the test our case law has established: the
moving party must show the chosen forum is either vexatious or
oppressive.” “Vexatious” in this context requires a showing of facts on the
record that the plaintiff’s choice of forum was intended to harass the
defendant, even at some inconvenience to the plaintiff himself.
Cheeseman, supra at 162. Oppressiveness requires a detailed factual
showing by the defendant that the chosen forum is oppressive to him.
Evidence that trial in another county would provide easier access to
witnesses or other sources of proof, or to the ability to conduct a view of
premises involved in the dispute are two examples of such facts. Wood v.
E.I. duPont De Nemours and Co., 829 A.2d 707, 712 (Pa.Super. 2003)
(en banc). The plaintiff's choice of forum will prevail even if it is
inconvenient to the defendants. In Hoose v. Jefferson HomeHealth
Care, Inc., 754 A.2d 1, 4 (Pa.Super. 2000), a defendant’s claim that "no
significant aspect of a case involves the chosen forum, and that litigating in
another forum would be more convenient[,]" was not the type of record
evidence that proves litigating the case in the chosen forum is oppressive or
vexatious. We relied upon Cheeseman, supra at 162, in concluding that,
“There is a vast difference between inconvenience and oppressiveness in this
context.” Hooseman, supra at 5.
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Our standard of review of a trial court’s decision granting or denying a
transfer of venue is well-settled: it will not be disturbed absent an abuse of
discretion. Zappala I, supra at 1284; Wood, supra at 709. An abuse of
discretion occurs when the trial judge overrides or misapplies the law, or
exercises judgment in a manifestly unreasonable manner, or renders a
decision based on partiality, prejudice, bias, or ill-will. Bratic, supra at 3.
The trial court's failure to hold the defendants to the proper burden in
proving forum non conveniens constitutes an abuse of discretion. See
Catagnus v. Allstate Ins. Co., 864 A.2d 1259, 1264 (Pa.Super. 2004).
The trial court noted that fifteen of the sixteen defendants, the only
exception being Children’s Hospital of Philadelphia, were based in Lehigh
County. The Lehigh County Defendants submitted affidavits in support of
the petitions to transfer venue.4 In evaluating those affidavits, the trial
court referenced Bratic, supra at 9, where our High Court discussed the
specificity required to satisfy the requirement of a factual showing of
vexatiousness or oppressiveness:
The witnesses need not detail what clients or tasks will be
postponed or opportunities lost in order for the judge to exercise
common sense in evaluating their worth; indeed, no one can
foretell such detail. One hopes a judge may comprehend the
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4 Children’s Hospital of Philadelphia joined the petition filed by the Sacred
Heart defendants but did not submit any documentation in support of the
contention that venue in Philadelphia was vexatious or oppressive.
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existence of relevant general disruption from the allegations in
the affidavit, sufficiently to rule on the issue.
Trial Court Opinion, 2/15/17, at 6 (quoting Bratic, supra at 9).
The trial court examined the affidavits submitted by the Sacred Heart
defendants, the parties who initially petitioned for transfer. It focused on
the averments of Dr. Unger that coverage was required at all times, and that
as one of two neonatologists and one of three pediatricians on staff at
Sacred Heart, trial in Philadelphia would be oppressive as it would impact his
ability to treat patients and affect the operation of the hospital and affiliated
entities. Ms. Coleman’s affidavit, as well as the affidavit of Stephen A.
Lanshe, the Vice-President and General Counsel of Sacred Heart Health Care
System, expressed the same concerns about coverage for absent physicians.
Administrators provided the court with evidence that the Sacred Heart
website listed a third neonatologist and numerous pediatricians.5 In
addition, Administrators supplied documentary evidence, received in
response to discovery, that Dr. Unger recently had been absent from Sacred
Heart for a two-week vacation, and that he had taken additional time off,
often one week at a time, for personal and professional activities. They
offered the evidence to refute the Sacred Heart Defendants’ claim that Dr.
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5 Ms. Coleman submitted a supplemental affidavit in which she averred that
the website was in error regarding a third neonatologist. The numerous
pediatricians listed on the website had staff privileges to see their patients,
but did not provide coverage to the hospital.
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Unger’s absence would be oppressive because it would not be able to find
coverage for him, resulting in a negative impact on services. The trial court
expressly refused to consider such evidence, stating an unwillingness “to
impede upon a defendant’s personal life in such a manner.” Trial Court
Opinion, 2/15/17, at 17-18. The court found that “[e]vidence that Dr. Unger
goes on vacation, attends to other personal or professional obligations, or
travels comparable distances for reasons other than litigation expands the
analysis beyond the appropriate level of inquiry.” Id. at 18. Furthermore,
the court refused to consider Dr. Unger’s filing of an affidavit of non-
involvement in determining whether venue was oppressive in Philadelphia,
viewing it as speculation as to whether Dr. Unger would ultimately be
dismissed from the lawsuit or the path litigation would take. Id. at 18.
The remaining Lehigh County defendants filed last minute joinders to
Sacred Hearts’ petition or a new petition. The court considered a number of
affidavits they submitted right before the hearing or shortly thereafter. For
instance, Defendant Dr. Victor Rodriguez, who at the relevant time was a
pediatrician at Sacred Heart, had taken a new position as a staff pediatrician
at St. Luke’s Hospital in Phillipsburg, New Jersey, and as a school physician
for three school districts in New Jersey. He averred that the distance from
his new job in Phillipsburg to Philadelphia was approximately seventy-five to
eighty miles, versus twenty miles to the Lehigh County courthouse, and that
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trial conducted in Lehigh County would afford him the ability to see his
patients or respond to emergencies.
The Medical Imaging Defendants joined the petition filed by Sacred
Heart, and supplied affidavits from Executive Director Greg Palmieri,
Defendant Dr. Alexander Kowal, and Defendant Dr. Nathan Himes.
According to Mr. Palmieri, Dr. Kowal is one of two board-certified pediatric
radiologists, and one of four radiologists performing pediatric imaging for the
Lehigh Valley Hospital network. Dr. Himes is one of ten neuroradiologists on
staff, but only one of two neuroradiologists who work the 4:00 p.m. shift, for
which it is difficult to find coverage. He averred that trial in Philadelphia
would negatively impact services since other Medical Imaging physicians
would have to accommodate their absence. Dr. Koval also represented that
he would be unable to share evening caretaking responsibilities for his four
young children if he was in Philadelphia.6 Dr. Himes merely reiterated that
his absence would burden his fellow physicians who would have to cover.
Finally, the last minute motion filed by the Lehigh Valley Hospital
defendants included affidavits from Dr. Teresa Romano, Dr. Phillips, PA-C
Rachwal and PA-C Wyers. All alleged a similar theme: that travel to, or a
prolonged stay in, Philadelphia County would be burdensome personally and
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6 Dr. Kowal also acknowledged in his affidavit that he routinely travels to
other Medical Imaging locations in Luzerne and Monroe Counties that are as
distant, or more distant, than Philadelphia.
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present staffing challenges. Dr. Romano, one of five physicians specializing
in pediatric emergency medicine, stated that she works part-time to
accommodate her children, one of whom has special needs and requires
transportation to therapy several times each week. Affidavit, Teresa
Romano, M.D., 9/27/16, at ¶11. Dr. Julie Phillips, one of two full-time
pediatric emergency physicians, maintained that the time spent traveling to
and from Philadelphia would impact patient access to her specialty care.
PA-C Kenneth Rachwal and PA-C Regina Wyers represented that they
work night shift so that they are available to take care of their children
during the day, and that, at present, they do not have substitute childcare.
Both alluded to staffing challenges in covering that night shift if they were
required to travel to Philadelphia daily.
The trial court framed the question as whether Philadelphia was an
oppressive or vexatious forum, and concluded that, “[a]s a collective whole,
the affidavits created a clear record of oppressiveness of trial in
Philadelphia.” Trial Court Opinion, 2/15/17, at 15. The court declined to
compare the significance of claims against Children’s Hospital of Philadelphia
to claims against the Lehigh County defendants. However, it faulted
Administrators for not identifying “a single witness that resides in or near
Philadelphia which would find the transfer of this case to Lehigh County
oppressive[,]” and “baldly rely[ing]” on the child’s lengthy stay at Children’s
and the discovery from that defendant” “to assume the oppressive nature of
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trial in Lehigh County as it relates to potential witnesses not yet identified.”
Id. at 14. The court concluded that, “The Plaintiffs expect this level of
assumption to outweigh the record established by the Defendants” and
found the argument “speculative.” Id. The “overall weight” of the
defendants’ personal and professional hardships “compared to the bald
assertions by Plaintiff that possible, potential Philadelphia witnesses may find
Lehigh County oppressive, sufficiently established the basis to transfer the
matter to Lehigh County.” Id. at 15. In addition, the commuting distance
of sixty-four miles, while less than the 100 miles presumed to be oppressive,
when coupled with the disruption to the personal and professional lives of
the individual defendants, was oppressive. The trial court found Philadelphia
to be an “oppressive and vexatious forum.” Id. at 18.
Administrators contend first that the trial court misapplied the law and
abused its discretion by failing to give the proper deference to their chosen
forum. The court largely dismissed the fact that a defendant and numerous
witnesses, as well as documentary evidence, are located in Philadelphia.
Administrators point to their legally supported negligence claims against
Defendant Children’s Hospital where the decedent was hospitalized for eight
days, underwent cardiac studies and other testing, and where she was
negligently administered an overdose of a sedative that allegedly contributed
to her death, which ultimately occurred in that facility. Administrators
maintain that they will rely on evidence and key witnesses located in
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Philadelphia to prove negligence and causation against both Children’s
Hospital and the Lehigh County defendants. They posit that evidence
located in Philadelphia also will prove vital to the Lehigh County Defendants
in attempting to disprove their role in Gianna’s death. Administrators also
allege that the same level of inconvenience due to the commute results
when Philadelphia witnesses must travel to Lehigh County. They argue that
Children’s Hospital’s joinder in the petition to transfer “affirmatively
establishes the lack of any oppression resulting from the distance between
Lehigh County to Philadelphia as [Children’s Hospital] is obviously willing to
have many of its own employees/medical staff as well as counsel make the
approximately 60 mile commute without any claimed oppression.”
Appellants’ brief at 29 n.7.
According to Administrators, the trial court misapplied Fessler v.
Watchtower Bible and Tract Society of New York, 121 A.3d 44(Pa.Super. 2015), and erroneously placed the burden of proof upon them to
prove that witnesses in Philadelphia would find Lehigh County oppressive or
vexatious. In finding that they failed to adduce such proof, the trial court
stated that, “Plaintiffs have not identified a single witness that resides in or
near Philadelphia which would find the transfer of this case to Lehigh County
oppressive.” Trial Court Opinion, 2/15/17, at 14. In characterizing
Administrators’ claim of voluminous discovery and records emanating from
Philadelphia as mere “assumption” that could not “outweigh the record
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established by the Defendants,” id., Administrators contend the trial court
improperly balanced the relative convenience of Philadelphia and Lehigh
County.
Furthermore, Administrators question whether the affidavits provided
detailed information of oppressiveness rather than inconvenience by being
required to attend trial in Philadelphia. They characterize Dr. Unger’s
statement that a multiple week trial would impact his ability to provide
coverage at the Hospital and serve patients, which was largely parroted by
Risk Manager Michele Coleman, as speculation. The allegations by Sacred
Heart’s general counsel that it is a smaller hospital that cannot manage the
absence of critical staff is similarly deficient according to Administrators.
Administrators submitted proof obtained through discovery that Dr. Unger
was absent from the Hospital for a period of fourteen consecutive days in
late May to June 2016, and numerous other times when he was away for a
week at a time. They contend the trial court inexplicably refused to consider
such evidence although it tended to refute the notion that procuring
coverage for Dr. Unger would be oppressive.7 The court, while insisting that
such personal probing “expands the analysis beyond the appropriate level of
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7 Counsel for Administrators argued, in response to claims that Dr. Unger’s
absence was oppressive, that despite his two–week vacation and extended
professional obligations, “And last time I checked, Sacred Heart is still
operating and the NICU is still operating and they found coverage.” N.T.,
9/28/16, at 37.
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inquiry,” then turned around and placed great weight on the disruption to
the personal and professional lives of the Lehigh County individual
defendants due to the lack of substitute childcare and coverage. Trial Court
Opinion, 2/15/17, at 18. Administrators argue that, while it is inconvenient
to obtain coverage, it is not sufficient evidence of oppression to sustain the
Defendants’ burden to transfer. Additionally, the court ignored
Administrators’ argument that a trial date could be set well in advance on a
date-certain to minimize inconvenience and allow planning by the
defendants.
Administrators direct our attention to the numerous cases, ignored by
the trial court, where our courts have held it to be an abuse of discretion to
disturb a plaintiff’s choice of venue even where there were no Philadelphia
defendants or witnesses and no factual aspect of the case occurred there.
See Fessler, supra; Hoose, supra; Cooper v. Nationwide Mut. Ins.
Co., 761 A.2d 162 (Pa.Super. 2000); Walls v. The Phoenix Insurance
Co., 979 A.2d 847 (Pa.Super. 2009); Cheeseman, supra. Administrators
represent that “there has never been a precedential appellate ruling in this
Commonwealth where there was an active defendant residing in [the chosen
forum] . . . and where it was deemed appropriate to nonetheless transfer to
another venue on forum non conveniens grounds.” Appellants’ brief at 32.
Cf. Bratic (affirming transfer from Philadelphia to Dauphin County of action
for abuse of process and wrongful use of civil proceedings based on earlier
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tortious interference lawsuit in Dauphin County; all defendants were from
Dauphin County; all of defendants’ witnesses resided or worked more than
100 miles away; only connection to Philadelphia was the defendants’
attenuated business relations there). They point out that the instant case is
all the more remarkable as negligence giving rise to the cause of action,
considerable medical care, witnesses and evidence are located in
Philadelphia.
Finally, Administrators complain about the procedure herein. They
point out that the Sacred Heart Defendants evaded discovery and filed two
affidavits immediately prior to the hearing. The other Lehigh County
Defendants waited six weeks, until the eve of the evidentiary hearing
scheduled on the Sacred Heart Defendants’ petition, to file joinders or new
petitions. Some of the supporting affidavits were filed after the hearing.
Administrators did not have copies of many of the affidavits or an
opportunity to conduct discovery regarding the allegations contained therein
prior to the hearing, and a mere two days thereafter to refute them. The
Lehigh County Defendants counter that Administrators failed to object
below, and, hence, the issue is waived.
We start from the premise that the plaintiff’s choice of forum is
controlling and, only then, do considerations like forum non conveniens
come into play. As our High Court noted in Cheeseman, a "plaintiff's choice
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of forum should rarely be disturbed by the grant of a Rule 1006(d)(1)
petition." Cheeseman, supra at 162.
Forum non conveniens “is a necessary counterbalance to insure [sic]
fairness and practicality.” Bratic, supra at 7 (quoting Okkerse v. Howe,
556 A.2d 827, 832 (Pa. 1989)). However, the burden is on the defendant,
and it has been described as a heavy burden, to “demonstrate, with detailed
information on the record, that the plaintiff’s chosen forum is oppressive or
vexatious to the defendant.” Cheeseman, supra at 162.
Moreover, the term forum non conveniens is actually a misnomer
because inconvenience is not enough reason to transfer venue. The
plaintiff’s choice of venue must be either vexatious, i.e., intended to harass,
or so oppressive as to require transfer. Cheeseman, supra. In
Cheeseman, the Supreme Court held that claims in the defendant’s petition
“that no significant aspect of the case involves the chosen forum, and that
litigating in another forum would be more convenient . . . do not amount to
a showing that the chosen forum is oppressive or vexatious.” Id. at 162.
Preliminarily, we find no evidence in the record that would support a
finding that venue in Philadelphia County is vexatious, i.e., intended to
harass. Defendant Children’s Hospital is located in Philadelphia. The only
argument advanced by the Lehigh Defendants that even remotely implies
vexatiousness in the choice of forum is their contention that liability against
Children’s Hospital is thin or limited to one instance of negligence that did
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not cause Gianna’s death. We find any implication that liability against
Children’s Hospital was fabricated to achieve venue in Philadelphia to be
wholly without support for the following reasons.
We note that the petition to transfer was filed early in the proceedings
herein. The trial court has not yet ruled on preliminary objections filed by
the Lehigh Valley, Sacred Heart, and Medical Imaging Defendants, some of
which were in the nature of a demurrer.8 Nor has it considered Dr. Unger’s
affidavit of non-involvement. The parties have not conducted discovery on
the merits. Based on the record before us, which consists largely of
pleadings, Children’s Hospital of Philadelphia is a viable defendant.
Furthermore, the alleged liability of Children’s Hospital is not limited to
the single occasion where Gianna was given an overdose of sedative, as the
Lehigh County Defendants suggest. Administrators also averred that agents
of Children’s Hospital failed to appreciate the risk of cardiac decompensation
from medication errors, to recognize that Gianna’s symptoms and clinical
picture included myocarditis and potential cardiac failure, and to properly
treat and manage those conditions. Administrators pled that, together with
____________________________________________
8 Although the Lehigh County defendants argue that liability against
Children’s Hospital is thin, we note that Children’s Hospital is the only
defendant that did not file preliminary objections to the Complaint. In
contrast, many of the Lehigh Valley and Sacred Heart defendants have filed
preliminary objections in the nature of a demurrer. It is quite possible,
perhaps probable, that the number of defendants in Lehigh County will
shrink after demurrers are ruled upon and dispositive motions are decided.
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the negligence of the Lehigh County Defendants, the negligence of Children’s
Hospital caused or increased the risk of Gianna’s death.
In addition, Administrators contend that many of the tests
administered at that facility, as well as medical documentation of Gianna’s
condition upon her arrival there, is highly probative evidence in proving
negligence against both the Lehigh County Defendants and Children’s
Hospital. This is not a situation where Philadelphia County’s involvement is
incidental or tangential. See Bratic, supra (fact that defendant
occasionally did business in Philadelphia was only connection to
Philadelphia). Nothing in the record supports a finding that the filing of the
case in Philadelphia was vexatious.
We find merit in the Administrators’ contention that the trial court did
not apply the proper legal standard in ruling on the petition to transfer. In
faulting Administrators for not introducing specific evidence of individuals in
Philadelphia who would be oppressed by a trial in Lehigh County, the court
missed the mark. Administrators did not have the burden to prove that
Lehigh County was oppressive to certain individuals, and such evidence was
irrelevant to the inquiry herein.9 The trial court compounded its error by
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9
In Fessler v. Watchtower Bible, 131 A.3d 44 (Pa.Super. 2015), this
Court construed Bratic as requiring consideration of the totality of
circumstances. The distance between the two forums, the disruption to the
(Footnote Continued Next Page)
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concluding that any assumption that trial against Children’s Hospital of
Philadelphia would involve witnesses and evidence from Philadelphia did not
“outweigh the record established by the Defendants.” Trial Court Opinion,
2/15/17, at 14. In concluding that “the overall weight of [the Defendants’]
affidavits, compared to the bald assertion by Plaintiff that possible, potential
Philadelphia witnesses may find Lehigh County oppressive, sufficiently
established the basis to transfer the matter to Lehigh County[,]” id. at 15,
the court improperly engaged in a balancing test. We rejected that
approach in Cheeseman, Wood, and Catagnus, because it disregarded the
great weight accorded to the plaintiff’s initial choice of forum. Transfer on
forum non conveniens grounds is proper only if the defendant proves that
the chosen forum is oppressive to him.
In addition, despite the court’s insistence that it considered the totality
of the circumstances, the record refutes that representation. The court
expressly refused to consider Administrators’ evidence that Dr. Unger had
been away from Sacred Heart Hospital for extended periods on vacations
and professional commitments, professing that it was “unwilling to impede
upon a defendant’s personal life[,]”. . . “for purposes of establishing the
proper forum.” Id. at 18.
(Footnote Continued) _______________________
parties’ personal and professional lives, are part of the equation, but no one
factor is dispositive.
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We find the evidence that the Sacred Heart defendants apparently
found coverage when Dr. Unger was absent for relatively long periods for
personal and professional reasons relevant to the issue of whether his
attendance in Philadelphia for a multiple week trial would be oppressive. 10
The evidence was produced in response to discovery requests, and admitted
without objection. The trial court cited no authority in support of its
conclusion that the evidence was beyond the scope of the relevant inquiry,
and we know of none.
Despite its reluctance to consider evidence of the personal life of Dr.
Unger that tended to undermine the Sacred Heart defendants’ claim that the
chosen forum was oppressive, the trial court had no similar reservation
about relying upon individual defendants’ claims of personal hardship in
support of it decision transfer the case to Lehigh County. The trial court
placed great weight upon disruption to the personal and professional lives of
the individual defendants due to a present lack of substitute childcare, the
inability to share parenting responsibilities in the evening, the need to
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10 The affidavits filed by the Sacred Heart defendants assume that Dr.
Unger would be required to stay in Philadelphia for several weeks and be
unavailable for emergencies on a 24/7 basis. The majority of Lehigh County
defendants would be traveling approximately 128 miles each day, admittedly
far less than the 200 mile round-trip commute viewed as oppressive in
Bratic v. Rubendall, 99 A.3d 1 (Pa. 2014). There was no explanation
offered as to why Dr. Unger could not provide on call coverage in the
evenings or on weekends.
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transport a child to therapy several days per week, and coverage for hospital
shifts. The trial court also ignored the fact that trial is two years away, and
that it can be set for a date-certain that would allow the individual
defendants to make alternate arrangements for short-term personal and
professional commitments. In sum, we find such evidence of present
inconvenience to be a factor entitled to little weight in determining
oppressiveness in the future.
Finally, the trial court dismissed as speculation Administrators’
common sense observation that Children’s Hospital physicians, staff, and
administrators would face similar personal disruption in commuting and
arranging for childcare if trial was moved to Lehigh County. While we
recognize that the smaller size of the Lehigh County medical entities may
make it more difficult to procure coverage for physicians and staff attending
trial in Philadelphia, a trial in Lehigh County still would present coverage
challenges for Children’s Hospital’s agents and employees called to testify.
The trial court was too quick to dismiss and disregard the obvious disruption
to the operation of the Philadelphia defendant.
Finally, although we need not reach Administrators’ contention that the
procedure herein was unfair, we find merit in their complaints. The Sacred
Heart Defendants filed their petition on July 18, 2016, and on August 10,
2016, the court scheduled the evidentiary hearing to allow time for discovery
related to the forum non conveniens issue. Dr. Unger evaded being deposed
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prior to the hearing. He also did not comply with a notice to attend the
September 28, 2016 hearing where he could have been questioned. The
remaining Lehigh County Defendants waited more than six weeks, until the
eve of the evidentiary hearing, to seek leave to join the petition or file their
own petition and supporting affidavits. Several of the affidavits had not
been filed as of the hearing and Administrators had not seen them. Thus,
Administrators had no notice of the facts and circumstances forming the
basis for the latest claims that trial in Philadelphia would be oppressive, and
no opportunity to engage in discovery to probe the significance of the
averments contained in their affidavits.
The Lehigh County Defendants argue on appeal that since
Administrators did not object and seek additional time for discovery, they
waived any challenge to the procedure. The record reveals, however, that
when the court asked Plaintiffs’ counsel if he objected to the late-filed
affidavits, counsel protested that he had yet to see the affidavits, and thus,
he did not know whether he had an objection. Counsel advised the court
several times that he was unable to respond to several of the motions and
affidavits as they had not been filed or served upon him. Counsel suggested
that, since a new motion had been filed, Administrators might need the
twenty-day period conferred under the rules to respond. The court rejected
that notion, characterizing the filings as “joinders,” which was not entirely
correct, and ordering responses by Friday, two days hence.
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On these facts, we decline to find waiver. The Sacred Heart
Defendants’ evasion of discovery evidences a lack of good faith. The late
joinders and/or late filings of petitions to transfer, together with supporting
affidavits, was calculated to avoid discovery and ambush Administrators with
new claims of oppressiveness and no notice or opportunity to refute them.
The trial court played into Defendants’ hands by ignoring the untimeliness of
the joinders and petitions and the lack of reasonable notice to
Administrators, and denying counsel’s request for discovery and the
customary twenty days to respond. We do not countenance such tactics in
this Commonwealth.
In conclusion, since the trial court applied the wrong legal standard in
granting the petitions to transfer venue on the basis of forum non
conveniens, and abused its discretion in refusing to consider evidence
presented by Administrators tending to refute the oppressiveness of venue
in Philadelphia, we reverse and remand for further proceedings consistent
herewith.
Order reversed. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/18
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