Although “forum shopping” is often criticized, it is important for an attorney to choose the right place for a case to be tried. A change in venue can stem from negative publicity so strong that an attorney asks that the case be tried in a different place because his client can not receive a fair trial in the original jurisdiction. In other instances, an attorney – when he has a choice of locations – will ask that the case be tried in the court system and jurisdiction most advantageous to his client.
“The whole procedural phenomenon of transferring venue is an instance of pre-combat maneuvering for advantageous position. Good tacticians always carefully scrutinize the topography before battle is joined,” Maryland’s Court of Special Appeals observed in a recent case dealing with transferring a case from Baltimore City to Baltimore County.
In Bernadine I. Smith v. Johns Hopkins Community Physicians, Inc., the plaintiffs filed their lawsuit in Baltimore City and the defendant sought a transfer to Baltimore County on the ground of “forum non conveniens.” The medical malpractice and wrongful death action was filed in the circuit court for Baltimore City in April 2012 by Bernadine I. Smith as personal representative of the estate of William P. Smith, Jr., by Bernadine I. Smith as the surviving spouse and by the three surviving children of William P. Smith, Jr. Johns Hopkins Community Physicians, Inc. was named as the defendant.
Hopkins filed a motion, asking the court to transfer the case to Baltimore County on the ground of “forum non conveniens.” 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 upon the request of either party. “Forum non conveniens” refers to a transfer from a less convenient forum to one that is more convenient — “forum conveniens.” The judge granted the motion. The family appealed.
The case came before Maryland’s Court of Special Appeals on expedited appeal because it had not yet been tried. The appeals court upheld the transfer.
A number of factors “militated” in favor of the transfer, the court observed. None of the plaintiffs were residents of Baltimore City. Bernadine Smith lives in Baltimore County where she lived with her late husband during the nine years he was being treated for a cardiac condition by Johns Hopkins, the court noted. One of her children lives with her. Of the other two plaintiffs, one lives in Harford County and the other lives in Delaware. The court pointed out that the two experts named in the case both live in Baltimore County. The court scoffed at the claim by the family that Baltimore City was more convenient for expert witnesses because of the city’s airport and train station. The court cited a case where the “slight weight given to the convenience of expert witnesses” was discussed “The convenience factor tilts decidedly in favor of Baltimore County,” the court declared.
In fact, the court speculated that Baltimore City might have been chosen because of the perception that the largest recovery was to be had in Charm City. The court also noted that the only participant in the lawsuit with a Baltimore City address was the law firm representing the family of the medical malpractice victim, which, the court pointed out, was not a “legally cognizable consideration.”
The court then examined the “interests of justice” requirement. Interest of justice includes considerations of court congestion, the burden of jury duty and local interest in the matter at hand, the court observed. After noting that the victim, the treating physician and the medical treatment all took place in Baltimore County, the court concluded that “there would appear to be no justification whatsoever for imposing the burden of adjudicating this case on the court system of Baltimore City or of imposing the burden of jury duty on the citizens of Baltimore City.” And, a protracted trial involving numerous witnesses is a burden properly assumed by the Baltimore county court system and not one that should be foisted upon the strained court system of Baltimore City, the court said.
The only factor tilting against a finding of abuse of discretion by the trial court was the prerogative routinely extended to a plaintiff — faced with the option of two or more permissible trial venues — to decide his preferred venue, the court said. However, under certain circumstances that can be “significantly diminished,” the court said, explaining that statements in case law about the deference to be given to a plaintiff’s choice of forum are guidelines for the trial judge and not a standard of appellate review.
There has to be a relationship between the court and the dispute. This law firm has sometimes had to use MapQuest mileage calculations in order to persuade a court that it is more convenient for the parties and witnesses than the court the defendant wants to use.
Baltimore, Maryland-based Belsky, Weinberg & Horowitz has been fighting for the victims of negligence for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.