Defense Digest

Shoppers Beware:  The Pennsylvania Superior Court Strictly Interprets Pa.R.C.P. 1006(a.1)

On June 12, 2004, the Superior Court of Pennsylvania decided the case Searles v. Estrada, 2004 Pa. Super. 265 (2004).

Patricia A. Searles and her husband, Wayne Searles, commenced a medical professional liability action against Alberto Estrada, M.D. in Northampton County, Pennsylvania. All parties resided in Northampton County. The surgical procedure from which this medical professional liability action arose occurred at Warren Hospital in Phillipsburg, New Jersey. Dr. Estrada filed Preliminary Objections to the Searles' third amended complaint in the nature of a motion to dismiss for improper venue, based on the amendment to Pennsylvania Rule of Civil Procedure 1006, pertaining to venue in medical professional liability actions. The trial court denied Dr. Estrada's motion to dismiss for improper venue. Dr. Estrada appealed the trial court order.

On January 27, 2003, the Pennsylvania Supreme Court amended Pa. R.C.P. 1006, the venue rule for a medical negligence action, to include subdivision (a.1). Subdivision (a.1) provides that, "Except as otherwise provided by subsection (c), a medical professional liability action may be brought against a healthcare 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). This new amendment applies only to medical professional liability actions filed on or after January 1, 2002.

For venue to be appropriate in Northampton County in Searles, the cause of action must have arisen in Northampton County. In this case, all of Ms. Searles' healthcare treatment took place at Warren Hospital in Phillipsburg, New Jersey. The trial court recognized that no county in Pennsylvania had venue. However, the trial court also held that the venue rule, 1006 (a.1), does not provide for dismissal of a claim as a remedy for lack of venue. It simply provides for transfer to another county within the Commonwealth of Pennsylvania. Although the Pennsylvania Superior Court agreed with the trial court's finding that the action arose in New Jersey and, therefore, it could not be transferred to another county within the Commonwealth of Pennsylvania, it disagreed with the trial court's conclusion that the cause of action could not be dismissed for lack of venue. Rule 1006 (a.1) states that a medical professional liability action may be brought only in the county in which the cause of action arose.

The Superior Court agreed with Dr. Estrada that Rule 1006 (e) permits a trial court to dismiss a case where improper venue was found, even if transfer to another county in Pennsylvania was not possible. The Superior Court explained that the amendment to Pa.R.C.P. 1006 was modeled after the language of the MCARE Act and, in accordance with §514 (a) of that Act, the General Assembly declared the need to change the venue requirements for medical professional liability actions. 42 Pa. Cons. Stat. §5101.1 (a). The new venue rule regarding medical professional liability actions was promulgated to prevent forum shopping in such actions.

Accordingly, the Pennsylvania Superior Court in Searles held that to permit a patient's medical professional liability action to continue in a county that did not have venue pursuant to Rule 1006 (a.1) would be contrary to the intent of the Pennsylvania Legislature and Supreme Court of requiring adjudication of such cases in the county in which the cause of action arose. The Superior Court held that the trial court abused its discretion in failing to sustain Dr. Estrada's Preliminary Objections for lack of venue and in failing to dismiss the case for lack of venue.

Two days after the Superior Court issued its opinion in Searles, it decided the case Engstrom v. Bayer Corporation, 855 A.2d 52 (Pa. Super. 2004), involving a forum non conveniens challenge, holding that a trial court may dismiss an action where the trial court has jurisdiction but venue lies outside of Pennsylvania.

Engstrom involved consolidated appeals from orders dismissing with prejudice, on the basis of forum non conveniens, five complaints against the appellee pharmaceutical company. The appellants claimed that their ingestion of the appellee's products, specifically Alka-Seltzer Plus, caused them to suffer hemorrhagic strokes, resulting in permanent physical damage. The appellants were citizens of Missouri, Washington, Arizona, and Hawaii. The appellee, Bayer Corporation, was incorporated in Indiana and was located in Indiana, until it changed its location to New Jersey in 1995. The only connection to the Commonwealth of Pennsylvania was their corporate headquarters located outside Pittsburgh. There was no connection to Philadelphia County, where this case was brought. The purchase of the medication, the onset, diagnosis, and treatment of the appellants' illnesses all occurred outside of Pennsylvania. No providers of medical service, medical records, or their custodians were located in Pennsylvania. None of the witnesses material to demonstration of the appellants' damage claims resided in Pennsylvania. After a hearing, the trial court granted the appellees' motion dismissing the complaints.

The Superior Court evaluated whether the trial court applied the appropriate test in granting the appellee's forum non conveniens motion. The Superior Court stated that, "The two most important factors to look to retention of the case . . . are: (1) that since it is for the plaintiff to choose the place of suit, his choice of forum should not be disturbed except for weighty reasons, and (2) that the action will not be dismissed in any event unless an alternative is available to the plaintiff."

In this case, the trial court found that the latter of these two factors was not at issue since the appellants' home states provided alternative forum. The Superior Court went on to review the trial court's decision that "weighty reasons" existed to support the disturbance of the plaintiffs' choice of forum. In order to determine whether such "weighty reasons" existed to overcome the plaintiffs' choice of forum, the Pennsylvania Superior Court cited numerous private and public interest factors previously set forth in Petty v. Suburban General Hospital, 525 A.2d 1230, 1232 (Pa. Super. 1987), quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1949). These public and private factors are not mutually exclusive. In addition, in this case, since the appellants were not residents of Pennsylvania, the interest of the Commonwealth in providing a forum for its residents to litigate was not implicated. This balancing test regarding "weighty reasons" also applies to examinations of county to county transfers under Pa. R.C.P. 1006(d)(1), under Cheeseman v. Lethal Extermination, Inc., 701 A.2d 156 (Pa. 1997).

The Superior Court in Engstrom agreed with the trial court that "weighty reasons" existed to supercede the appellants' choice of forum. Specifically, the Superior Court cited the trial court's conclusion, "There is simply no valid reason that the people of Philadelphia County should bear the burdens of adjudicating these cases, including jury duty and the expense of conducting a trial." Further, trial of the lawsuits in Philadelphia would give rise to "needless legal complexity" because of the necessity "to engage in a conflict of laws analysis and to apply unfamiliar foreign law." The trial court also pointed out the enormous burden already faced by the court and the coordinated PPA litigation, "most of which involves out-of-state plaintiffs who choose to file in Philadelphia for no apparent reason other than the fact that their attorneys have offices here."

There is no indication that any petitions for allowance of appeal have been filed in connection with Searles or Engstrom. It is unclear at this point whether the Pennsylvania Supreme Court will take the same position as the Superior Court with regard to the interpretation of Pennsylvania Rule of Civil Procedure 1006 (a.1). For the time being, however, pursuant to the Superior Court's opinions in Searles and Engstrom, it is clear that the Pennsylvania Superior Court is going to be interpreting the rule strictly.

*Christina is an associate at the firm's Philadelphia, Pennsylvania office. Her direct dial number is (215) 575-2612 and her e-mail address is cbidlingmaier@mdwcg.com.