Why The Baltimore City Circuit Court May Transfer More Tort Cases in 2018
By Derek Stikeleather
A recent Court of Appeals opinion has shaken one of the main pillars that plaintiffs have rested on when resisting transfers to a more convenient forum—deference to the plaintiff’s chosen venue. Univ. of Maryland Med. Sys. Corp. v. Kerrigan, — A.3d —-, 2017 WL 5711857 (Md. Nov. 28, 2017). By expressly holding that trial judges owe little deference to a plaintiff’s chosen venue when no plaintiff resides there, the Kerrigan opinion significantly weakens plaintiffs’ ability to secure the most plaintiff-friendly venues in any case that involves multiple venues.
Why Venue Matters
When valuing a case, a key consideration for all parties is venue. Because plaintiffs file complaints, they ordinarily choose the venue, and courts generally show deference to a plaintiff’s venue choice, if it complies with the venue statute, Md. Code, Cts. & Jud. Proc. §§ 6-201 to 6-203. For Maryland tort plaintiffs, one of the first orders of business when building a case is identifying the most plaintiff-friendly venue among their statutory options. This can not only shape a plaintiff’s ultimate theory of liability but also influence whom the plaintiff names as defendants. Some plaintiffs, too eager to get before the most plaintiff-friendly jurors, will even file suit in a statutorily improper venue and hope it sticks. Such maneuvering forces defendants to prevail in trial-court motions practice to have the case moved to a proper venue (with no interlocutory appellate review if the motion is denied).
No venue is more popular with Maryland tort plaintiffs than the Circuit Court for Baltimore City. State court records show that, in Fiscal Year 2016, the Circuit Court for Baltimore City opened 1,861 “other tort” (i.e., not “motor tort”) claims—a number that almost matches the combined total of such claims in the four largest Maryland counties: Montgomery (634), Prince George’s (512), Anne Arundel (281), and Baltimore County (478). Maryland Judiciary Annual Statistical Abstract, Fiscal Year 2016, p. 24, Table CC-2.4. Not surprisingly, Baltimore City judges must decide an inordinate number of motions to transfer venue.
How Venue Is Challenged
Venue challenges come in two varieties: improper venue and forum non conveniens (sometimes both, argued in the alternative). Statutory venue challenges are much easier to resolve; they present a clean legal question for both trial and appellate courts—the plaintiff’s chosen venue is either proper under the venue statute or it is not, and review is de novo. Motions to transfer venue for forum non conveniens present a much more difficult analysis. The request presumes that the plaintiff’s chosen venue is a proper, at least under the venue statute—and worthy of some level of deference—but nonetheless merits transfer for the convenience of the parties, witnesses, and the court. The trial court is given discretion to transfer venue, under Maryland Rule 2-327(c), if the convenience factors weigh strongly in favor of transfer. An appellate court reviewing an order transferring a case under forum non conveniens must decide whether the trial court abused its discretion when finding that the case-specific circumstances “strongly” favor transfer. Such multi-factored analysis invites confusion, which the Kerrigan decision tries to clarify.
The Kerrigan Decisions at Trial and on Appeal
In 2015, Brandon Kerrigan and his parents, all residents of Talbot County, filed a medical malpractice action in Baltimore City against seven defendants regarding Brendan’s medical care in both Talbot County and Baltimore City. 2017 WL 5711857, at *1. Two years earlier, at age fifteen, Brendan had gone to his local doctor with a persistent cough and breathing problems, which were initially diagnosed as atypical pneumonia. Despite treatment, his condition worsened. While being transferred by helicopter from an ER in Talbot County to Baltimore, his heart failed. In Baltimore, more defendants treated him, but Brendan ultimately needed a heart transplant. His lawsuit named his healthcare providers in Talbot County and Baltimore. Id. at *1-2.
In their venue challenge, the defendants did not argue that Baltimore was a statutorily improper venue, but they moved to transfer to Talbot County for forum non conveniens. The Baltimore City trial judge granted the motion, explaining in a lengthy oral ruling why he believed that the factors weighed strongly in favor of transfer. Id. at *2-3. First, the convenience of the parties and witnesses favored Talbot County; seven of ten parties were in Talbot County, and the trial judge “was struck by the fact . . . that plaintiffs actually must pass the Circuit Court for Talbot County on the way to the Circuit Court for Baltimore City.” Second, he found that the burden on the public favored transfer to Talbot County, noting that Baltimore City jurors and courts face a heavier burden. Third, he found that the public interest favored trial in Talbot County because it dealt with care provided at Talbot County’s only healthcare institution. Thus, despite recognizing some level of deference to plaintiff’s chosen venue, the trial court found that convenience and the interests of justice strongly favored transfer to Talbot County.
The subsequent case history highlights the difficulty of forum non conveniens analysis. The Court of Special Appeals reversed the trial court, finding the transfer was an abuse of discretion. Id. at *3. The Court of Appeals, in a 4-3 decision, reversed again and reinstated the transfer order as within the trial judge’s discretion.
Writing for the majority, Judge Greene addressed what level of deference is due to a plaintiff’s chosen venue, when the plaintiff does not reside there. The majority readily conceded that a plaintiff’s venue choice among statutorily proper venues is due some deference, but elaborated that that “deference shrinks, however, when the plaintiff does not reside in the forum where the plaintiff has chosen to file suit.” Id. at *6. It continued that the “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.” (omitting internal quotation marks). It explained that “[n]ot only is the privilege [of selecting a proper venue] not absolute, but the deference owed to the plaintiff may face significant diminishment to the point of non-existence, depending on the circumstance.” Id. at *7.
The majority held that Maryland courts had already “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. (omitting internal quotation marks). Consistent with its warning not to treat deference to the plaintiff’s chosen forum as an absolute right, it cautioned trial courts not to double-count its deference when deciding whether to transfer a case. It explained that the Court of Appeals had already “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.” Id. at *9.
It further cautioned appellate courts to remember that that the abuse-of-discretion standard does not require them to independently find that the factors strongly favor transfer or reverse a transfer ruling if they do not believe that transfer is strongly favored. It explained that “appellate courts must resolve the tension between their own standard of review and the moving party’s burden of persuasion at the trial level.” A “trial court must have acted unreasonably based on the facts before it for an appellate court to reverse under an abuse of discretion standard.” Id.
The majority concluded by “recogniz[ing] 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.” It emphasized, instead, that the “facts of each case will dictate whether the plaintiff’s choice of venue will control the choice of forum.” Id. at *12.
The decision provoked a strong dissent from Judge Adkins, joined by Chief Judge Barbera and Judge McDonald, who faulted the majority for “undermin[ing] the long-held recognition of a plaintiff’s right to choose a venue.” Id. at *12. The dissent did “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.” It rejected the majority’s analogy to federal forum non conveniens case law and federal transfer statutes as inapt, before concluding that the majority opinion “deals a heavy blow to our long-held recognition of a plaintiff’s right to choose a venue.” Id. at *16. Among its many criticisms of the majority and trial court’s reasoning, it noted that the Court had never previously held “that a plaintiff’s choice of venue receives less deference when suing where he or she does not live.” Id.
The Kerrigan opinion seems unlikely to bring about a sea-change in Maryland forum non conveniens decisions, but it should make Baltimore City judges more willing to transfer cases brought by non-residents. It puts reasonable limits on plaintiffs’ ability to bring cases in Baltimore City when they live far from the city and most of the underlying events occurred where they reside. But the analysis remains case-specific. Kerrigan did not create any bright-line rule that bars plaintiffs from filing suit in venues where they do not live. It merely reinforces the discretion that trial judges have to transfer cases out of Baltimore to the venues that have a much stronger relationship to the lawsuit.