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We Are Losing Our Way in Applying Venue Laws in Maryland

Last week the Maryland Court of Special Appeals upheld a trial court’s ruling in Smith v. Johns Hopkins Community Physicians.

Before we get into the facts, let’s talk Maryland venue law. Here is the most important thing you would need to know in a just world:

    The moving party has the burden of proving that the interests of justice would be best served by transferring the action…and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.

(Admittedly, I’m being a little hyperbolic with the “just world” talk. But stay with me here.)

This comes from the Maryland Court of Appeals in Leung v. Nunes. It is still good case law except no one really seems interested in applying it as the law is written. Instead, far too often, trial judges go and make their decisions based on their world view of whether plaintiffs should be allowed to bring their claims in jurisdictions that are traditionally more favorable. Appellate courts are letting judges do this at their pleasure under the guise of the whole, “trial judge discretion” cure all that allow judges to basically rewrite the law to be whatever they want it to be.

I’m not saying that’s how it went down in this case. In fact, it probably didn’t. But it happens. It happens all of the time. Typically, it is not a liberal versus conservative decision. Some judges just don’t like plaintiffs picking their court when maybe the case has stronger ties somewhere else. It just rubs them the wrong way. Without strong, binding guidance from our appellate courts, they can do just that.

End rant. Let’s get back to this case. The surviving spouse and children of a man brought a wrongful death medical malpractice claim. Plaintiffs’ lawyers did what smart plaintiffs’ attorneys do: they filed in Baltimore City if venue is proper in Baltimore City and Baltimore County. You can call this forum shopping. I call it legal malpractice if you don’t file it in Baltimore City. The doctor filed a Motion to Transfer from Baltimore City to Baltimore County. The trial judge granted the defendant’s request on the grounds of forum non conveniens.

Just a quick summary in case you are confusing forum non conveniens with the question of whether venue is proper. Forum non conveniens is when a party asks the judge to transfer the case from one court to another because the first location is not convenient. Maryland law allows for the transfer of a case from a legally proper but inconvenient location to another legally proper but more convenient location when the transfer is for the convenience of the parties, witnesses, or in the interests of justice. But, again, the burden is supposed to be heavy to make the transfer.

But the Maryland Court of Special Appeals has crafted an exception to this rule. In Stidham v. Morris, the court issued an exception that if the plaintiff does not live in the forum he initially chooses, the plaintiff’s choice of forum is entitled to “little deference and thus little weight.”

Why make this exception? What is wrong with suing somewhere different from where you live? What is the point of having a choice if you only have the choice to pick one option?

Which is what this court hangs their hat on in this case. The plaintiff in this case did not live in Baltimore City. She lived in Baltimore County. The doctor’s office where the patient was seen was in the country. Let’s be honest, Baltimore County is a “more convenient” venue if you are viewing the issue in a very narrow sense.

The court takes it even further, citing law that I could not disagree with more:

    The statements in the case law about the deference to be given to a plaintiff’s choice
    of forum, moreover, are guidelines for the trial judge and not a standard of appellate review.

So the law should guide the trial court but they are not really bound by it? I just don’t get it. So the court can say, “Ah, I completely disagree but let trial judges make these calls.” (To be clear, that’s not what happened here. Judge Moylan is almost nominating the trial judge for Jurist of the Year in this case. Read the end of the opinion. But my scenario is more common than this one.)

Why is this so awful? Because let’s face it: venue matters. If the plaintiffs’ malpractice lawyer told you that the value of this malpractice case was twice as much in Baltimore City as Baltimore County, would that sound crazy to you? Of course not. If this is the case, should we allow justice to be so unevenly distributed based on the proclivities of the motions judge? Shouldn’t we create hard and fast guidelines and make them stick to it so the case does not largely rest on what judge you draw to hear the motion?

The opinion closes with Judge Moylan saying that a “forum conveniens is always to be preferred over a forum non conveniens. First, I think it is impossible to suggest that Baltimore is inconvenient in the vernacular: it is right next door. But I don’t think that is what the law really is or what is should be. If there is more than one proper forum, plaintiff should get the choice unless there are compelling reasons otherwise.

The real farce here, of course, is that we are talking about convenience as if that matters to anyone. Plaintiffs could not care less about convenience in this case. We would travel by foot in a blizzard to get to Baltimore City over Baltimore County in the vast majority of personal injury cases. I can admit that. But the defendants don’t care either. They are forum shopping, too, just like we are.

Ultimately, the law that gives plaintiff the preference on venue- and the right to an immediate appeal that the defendants don’t get – is there for a reason. If we keep chopping down that rule, we might as well stop pretending that giving deference to plaintiff’s choice is even a policy goal in deciding venue.

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  • Tim Fisher

    As I understand the opinion, there were no ties to Baltimore City whatsoever (absent the weak argument that yet unnamed experts might have to travel from out of state and Baltimore City is seemingly more convenient). I would like to know why the Defense did not file a Motion to Dismiss for Improper Venue, rather than one based on forum non conveniens. Perhaps they inadvertently waived that defense? Seems to me that the venue was simply improper altogether, rather than merely inconvenient.

  • Vern Dennis

    It strikes me that if a case is worth double in one venue than another, that at least one of the venues or perhaps both venues are consistantly perpetuating injustices
    Giving deference to Plaintiff’s preference should never be a policy goal – the policy goal should be about justice

  • Ron Miller

    Tim, I’m not sure. The opinion was unclear on that point. I noticed that too. My guess is that the practice was venued in Baltimore City, just not that office. But I don’t know.

    Vern, I mean this has been the case since the beginning of time. It is more of a problem in criminal cases. You liberty often depends on where the case is tried. There is not going to be any changing that. The community of that venue decides the standards.

    That IS the policy objective. We can argue about whether it should be or not. But it is the policy objective in Maryland. That was my point: we have a policy we are really not enforcing. Changing the policy is a different subject all together.

  • Rich Smith

    Hi, Ron. Hope all is well. Judge Moylan’s opinion raised a good point that I think gets overlooked in these venue debates (and, trust me, the same debates go on in state courts all over the country). He made the point that it’s unfair for the courts and jurors of Baltimore City to have to shoulder the burden of all these cases that for all intents and purposes bear no relationship to Baltimore City whatsoever. It’s certainly debatable as to how much weight that should be given, but I thought it was an interesting and valid point.