Virginia: Medical Malpractice – a Lawyer’s Venue (April 11, 2016)

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Medical malpractice Defendants often seek transfer to more conservative defense-friendly juror venues, claiming forum non convenieus. “Defendants’ Motion and affidavits to the contrary notwithstanding, I suspect that the possible composition of the jury is the primary motivation.” Morris v. City of Harrisonburg, 42 Va. Cir. 492, 493 (Augusta Jul. 18, 1997)(emphasis added)(courts 25 miles apart is only “minor inconvenience” and venue transfer is denied).


Va. Code §8.01-261 provides “Category A or preferred venue”. Where there is no preferred venue, hornbook law holds that the presumptively correct venue is Plaintiff’s chosen Category B “permissible venue,” such as under Va. Code §8.01-262.


Va. Code §8.01-262(3) specifies permissible venue “provided there exists any practical nexus to the forum including, but not limited to, the location of fact witnesses, plaintiffs, or other evidence to the action, wherein the defendant regularly conducts substantial business activity”. Hence, as a matter of law and fact, Plaintiff’s chosen venue remains permissible venue under §8.01-262(3) in the matter sub judice.


Significantly, 2013 amendment of §8.01-262(3) engrafted the “any practical nexus” requirement to the traditional “regularly conduct substantial business activity” venue option. Therefore, it is baseless and misleading for Defendants repeatedly to mischaracterize Plaintiff predicating venue on §8.01-262(3) as only “technical” formality and supposedly not “practical” connection with Plaintiff’s venue.


Misleadingly, Defendants rely chiefly on the 1990 decision in Norfolk & W. Ry. Co. v. Williams, 239 Va. 390 (1990). In truth, the 1999 Virginia Supreme Court case of VEPCO v Dungee, 258 Va. 235, 244-47 (1999)(witnesses “traveling thirty miles imposed minimal convenience”) (emphasis added) governs and is dispositive of the matter sub judice: (1) VEPCO explained, limited, and distinguished Williams; and (2) VEPCO, not Williams, factually is much closer to the matter sub judice.


Moreover, nineteen (19) post-Williams Virginia Circuit Court decisions – including Newport News in 2013 and 2016 and York in 2010, all in medical malpractice cases – have denied transfer of venue where Defendants have failed to bear their burden of proving “good cause,” including for supposed “substantial inconvenience” in even arguably more compelling witness circumstances. E.g., Rauchfuss v. Peninsula Radiological Assocs., Ltd., No. CL1302754V-04, 4/6/16 Hr’g Order (Newport News Apr. 6, 2016)(Pugh, J.)(medical malpractice)(contiguous venues); LaClair v. Conmed, Inc., No. CL12-02485F-15, Letter Op. (Newport News Feb. 22, 2013)(Fisher, J.)(medical malpractice)(Newport News and Virginia Beach); Osage, Inc. v. Spruill, 81 Va. Cir. 174, 175 (Roanoke September 9, 2010)(161-mile difference between court locations in Roanoke and Henrico); Marshall v. Moniz, 2010 Va. Cir. LEXIS 328, 2010 WL 11243307 (York Mar. 4, 2010)(medical malpractice)(contiguous venues); In re Chinese Drywall Cases, 80 Va. Cir. 69, 71-73 Norfolk January 22, 2010)(place of business of only 2 defunct defendants instead of places in which causes arose; and James City, York, Newport News, Virginia Beach, and even Richmond are “easy commuting distances from Norfolk”); Birdsall v. Federated Dept. Stores, Inc., 70 Va. Cir. 290, 292-93 (Fairfax Mar. 14, 2006)(New York was location of tort and plaintiff’s prior residence); Biess v. Frenkel, No. L02-1139 (Norfolk May 8, 2003);  Kollman v. Jordan, 60 Va. Cir. 293, 294-95 (Chesterfield Oct. 29, 2002)(contiguous venues); Instrumentation Services Inc. v. Town of Victoria, 60 Va. Cir. 92, 93-94 (Shenandoah June 19, 2002)(175-180 mile difference between court locations in Shenandoah and Victoria); Bradley v. Kellum,  55 Va. Cir. 397, 399 (Charlottesville Jul. 18, 2001)(medical malpractice)(witnesses speculative and unspecified but most 70 miles away);  Champigny v. Bagly, 55 Va. Cir. 381, 382-86 (Norfolk Jul. 2, 2001)(contiguous venues); Sponaugle v. Rutledge, 58 Va. Cir. 3, 5-6 (Fairfax May 30, 2001)(single re-publication 125 miles away from multiple primary defamations and defendant’s residence in James City County); Holte v. Norfolk and Western Ry. Co, 47 Va. Cir. 403, 404 (Richmond Nov. 24, 1998)(movant failed to bear burden without evidence of doing business or inconvenience); Morris v. City of Harrisonburg, 42 Va. Cir. 492, 493 (Augusta Jul. 18, 1997)(court locations 25 miles apart, despite “increased difficulty of a [site] view”); Peaks v. Environmental Labs, Inc., 34 Va. Cir. 484, 485 (Richmond Sep. 27, 1994)(continguous localities); Commonwealth v. Keel, 29 Va. Cir. 276, 278-79 (Richmond Nov. 3, 1992)(Richmond not sufficiently inconvenient for Portsmouth defendant); Wray v. Floyd & Beasley Transfer Co., 29 Va. Cir. 126, 127-30 (Richmond Sep. 17, 1992)(9 witnesses 80 miles away); Lee v. Richmond, Fredericksburg and Potomac Railroad Co., 23 Va. Cir. 357, 359-62 (Richmond Apr. 9, 1991)(court locations 50 miles apart and tort in Spotsylvania); and Huneycutt v. So. Ry. Co., 21 Va. Cir. 427, 427-430 (Richmond Oct. 25, 1990)(Richmond)(160-mile difference in court locations). Again, the legal touchstone for forum non conveniens is “substantial inconvenience,” not some inconvenience.


As the Virginia Supreme Court recounted in Dungee: in Williams, plaintiff’s employer was based in Roanoke, plaintiff was injured in Roanoke, “all the witnesses were from Roanoke,” and there was “no practical nexus” to Portsmouth, the forum court.  258 Va. at 245-46.  Dungee observed that failing to transfer to Roanoke in Williams was an abuse of discretion because: (1) there was “no practical nexus” to Portsmouth; and especially because (2) there was “‘substantial inconvenience to the parties and witnesses’ and other factors” [with Portsmouth 236+ miles away].  Id. at 246 (emphasis added).


Conversely, despite there again being “no practical nexus” in Dungee (as in Williams), the Virginia Supreme Court in Dungee upheld the Circuit Court not transferring venue upon concluding that there was “no showing of substantial inconvenience to the parties or witnesses”; that traveling thirty miles to Charles City County from Richmond imposed minimal cost and inconvenience on those parties and witnesses who lived in Richmond, and that holding the trial in Charles City County would not impose any material inconvenience on witnesses coming from other areas of the country because the Richmond airport is located midway between Richmond and Charles City County”.  Id. at 245 (emphasis added).  Therefore, the facts that passed judicial muster in Dungee are more extreme those in the matter sub judice.


Moreover, Dungee specifically rejected defendant’s contention that declining to transfer venue to a “more convenient forum with a strong nexus” constitutes an abuse of discretion.  Id. at 245. Dungee declared that “degree of the ‘nexus’ does not alone provide the good cause required for transfer under the statue [Va. Code §8.01-265]”.  Id. at 246 (emphasis added).


Consistent with Dungee, in Marshall in 2010, the medical malpractice defendant  likewise unsuccessfully sought to transfer venue.  Plaintiff in Marshall initially filed suit in Williamsburg, filed a second suit in York, and nonsuited in Williamsburg. But the Judge in York rejected transfer to Williamsburg, despite the overwhelming majority of witnesses living in and/or working closer to the Williamsburg Courthouse.  “Although on balance venue may be more convenient in Williamsburg, Yorktown does not cause a substantial inconvenience, and plaintiff is entitled to choose a permissible venue unless it causes a substantial inconvenience”.  2010 Va. Cir. LEXIS 328, 2010 WL 1124 3307 (emphasis added).


Likewise, in LaClair in 2013, Newport News denied Defendants’ Objection to Venue and Motion to Transfer Venue. Judge Fisher rejected transfer from Newport News to Virginia Beach, despite “a number of Virginia Beach Deputy Sheriffs (perhaps including the Sheriff himself) who may be called as witnesses”. No. CL12-02485F-15, Order at 2. “[T]he court … considering the authorities cited regarding distance determines the issue of distance to not be the controlling factor in this case.”  Id. at 2-3 (emphasis added).


Similarly, in Rauchfuss in 2016, Newport News again denied Defendants’ Motion to Transfer Venue.  Judge Pugh rejected transfer from Newport News to Williamsburg, holding that a 20-30 minute commute is not “substantial inconvenience” and that “healthcare providers are treated like any other persons” as trial witnesses.  No. CL1302754V-04, 4/6/16 Hr’g Order.


After Williams and presaging Dungee, the Virginia Court of Appeals in City of Danville v. Virginia State Water Control Bd., 18 Va. App. 594, 598 (1994)(emphasis added) underscored that the “good cause” standard for transfer is not relative convenience, i.e., not whether another venue is “substantially more convenient”; instead, the legal touchstone is “substantial inconvenience to the parties or the witnesses”.  See, Ex. 5. Since there was not such “substantial inconvenience” to parties and witnesses existing for the venue transfer ordered, the “Circuit Court abused its discretion by transferring venue;” so the Virginia Court of Appeals in City of Danville reversed the judgment for defendant, remanded the case, and directed transfer back to the original forum for retrial.  Id. at 599.


Finally, even Williams acknowledges that although not absolute, “the presumption of correctness attaches to a plaintiff’s choice of forum,” 239 Va. at 394 (emphasis added), and “should not be lightly defeated”.  Id. at 395 (emphasis added).   See, Osage, supra; Marshall, supra; In re Chinese Drywall Cases, supra; Kollman, supra; Morris, supra. “Plaintiff does not need to explain his reasons for placing venue in any particular forum that §8.01-262 allows.”  Wray, supra, 29 Va. Cir. at 130.


Therefore, even if arguendo Defendants’ venue is relatively or even “substantially more convenient” than Plaintiff’s venue – which is not conceded – the same is irrelevant: the requisite “good cause” that Defendants must prove is “substantial inconvenience” to the witnesses and parties. Defendants have failed to bear their burden of proving “substantial inconvenience” under Dungee and its progeny, and venue remaining in Plaintiff’s venue does not pose “substantial inconvenience” in fact.


The “presumption of correctness” still attaches to Plaintiff’s continued choice of forum. It remains a “permissible venue” where Defendants “regularly conduct substantial business activity” with “any practical nexus” to this action; and venue under §8.01-262(3) is of equal dignity to venue under §8.01-263(4) [“wherein cause of action, or any part thereof, arose”] in the eyes of the law, notwithstanding Defendants’ self-serving suggestions to the contrary.