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Defense Digest

Forum Non Conveniens: It Really Has Little To Do With Convenience

Defense Digest, Vol. 32, No. 2, June 2026

June 30, 2026

by Melissa Devich Cochran

Key Points:

  • In evaluating a challenge for forum non conveniens, deference must be given to plaintiff’s choice of forum.
  • “Congested centers of litigation” alone are not a reason to transfer a case to another forum.
  • When a defendant is incorporated in the chosen forum, that forum has a legitimate interest in adjudicating disputes involving its corporate entities.

Codified at 42 Pa.C.S. § 5322(e), the Pennsylvania doctrine of forum non conveniens allows a court to stay or dismiss a matter in whole or in part where it “finds that in the interest of substantial justice the matter should be heard in another forum.” In evaluating a challenge for forum non conveniens, deference must be given to plaintiff’s choice forum, “but somewhat to a lesser degree when plaintiff’s residence and place of injury are located somewhere else.” See McConnell v. B. Braun Medical, Inc., 221 A.3d 221, 227-228 (Pa. Super. 2019).

The Pennsylvania Superior Court’s March 25, 2026, opinion in Duxbury v. Reconstructive Orthopedic Associates II, P.C. d/b/a/ The Rothman Institute of New Jersey, et al., 354 A.3d 551 (Pa. Super. 2026) illustrates just how the application of forum non conveniens does not necessarily lead to the forum that the facts and everyday considerations may suggest is “convenient.”

The Duxburys filed their medical negligence case in Philadelphia County, Pennsylvania, against Reconstructive Orthopedic Associates II, P.C. (ROA), Atlantic Surgery Care (ASC), and Dr. Alyson Axelrod, who was employed by ROA and The Rothman Institute of New Jersey (RINJ). Notably, the Duxburys are New Jersey residents and the medical care giving rise to their claim was rendered at locations in New Jersey. ROA is a New Jersey corporation with its principal place of business in Philadelphia. ROA also maintained its principal place of business in Philadelphia, and Dr. Axelrod was licensed to practice medicine in Pennsylvania and New Jersey.

The medical defendants filed a motion to dismiss pursuant to 42 Pa.C.S. § 5322(e) and forum non conveniens. The trial court permitted discovery as to the forum issue. Finding “weighty reasons” in support of dismissal, the trial court granted the motion and directed the Duxburys to refile their claim in New Jersey. The trial court found the following factors as “weighty reasons” justifying dismissal: (1) the injuries were sustained in New Jersey; (2) treatment was rendered in New Jersey; (3) relevant medical providers were residents of New Jersey; (4) defendants’ witnesses resided in New Jersey, with the exception of one; and (5) the relevant medical records were located in New Jersey.

On appeal, the Duxburys argued that the trial court erred in its application of existing precedent regarding forum non conveniens, and that a consideration of the facts under a correct application of the law did not support transfer of the action to New Jersey. The Superior Court agreed, reasoning that the trial court had not conducted the full analysis set forth in McConnell, in finding “weighty reasons” alone enough to justify its decision to dismiss the plaintiff’s action with directions to refile it in New Jersey.

McConnell explains that the determination of “weighty reasons” overcomes the deference afforded to a plaintiff’s choice of forum. To make this determination the trial court must examine both the private and public interest factors involved in the case. McConnell, 221 A.3d at 227-228. The “private factors” include:

The relative ease of access to sources of proof; availability of compulsory process for attendance for unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious, and inexpensive.

The public factors to be considered include:

Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. There is an appropriateness, too, in having the trial … in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

The Superior Court reiterated that it is the burden of the moving party (i.e. the appellees/medical defendants) to establish that Pennsylvania is a less convenient forum than another available forum. The appellate court found that the trial court committed an error of law in failing to consider the circumstances linking the case to Pennsylvania as well, and to determine whether Pennsylvania was an inconvenient forum, not simply that New Jersey was more convenient for appellees.

Regarding the private factors, the Superior Court noted that Dr. Axelrod’s proximity to Philadelphia, and concerns about her commute into town were not grounds to dismiss for inconvenience. The appellate court also found that the trial court gave no consideration to whether any witness would not or could not travel to Pennsylvania. Additionally, the court reasoned that the sources of proof—the medical records—while located in New Jersey, likely could just as easily be produced in Pennsylvania. Addressing the medical defendants’ principal place of business in Philadelphia as an “address,” the court “recognized that that for foreign defendants with corporate offices in Pennsylvania,” in terms of convenience for those defendants, that forum state seems as good as any other. McConnell, 221 A.3d at 230; see also Wright v. Aventis Pasteur, Inc., 905 A.2d 544, 551 (Pa. Super. 2006).

Though the trial court failed to consider any public factors, the Superior Court did first find error in the trial court’s focus on Philadelphia as opposed to the state of Pennsylvania. The court then determined that “congested centers of litigation” alone are not a reason to transfer a case to another forum. Second, the court emphasized that “when a defendant is incorporated in the chosen forum, that forum has a legitimate interest in adjudicating disputes involving its corporate entitles.” Finally, the Superior Court found that the medical defendants provided medical care in Pennsylvania and New Jersey, and Dr. Axelrod was licensed to provide medical care in Pennsylvania and New Jersey. As to the question of what state’s law would apply, the parties agreed that New Jersey law would, and there was no showing that the Philadelphia trial judge would be incapable of applying it. The Superior Court concluded that the medical defendants failed to provide sufficient evidence of public factors to support overriding the Duxbury’s choice of forum.

What litigants can learn from the Duxbury opinion is that “convenience” in considering a plaintiff’s choice of forum for litigation is not necessarily a matter of ease, little trouble, or less effort.

Melissa works in our Pittsburgh, PA office. She can be reached at (412) 803-3477 or MDCochran@mdwcg.com.

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In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

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