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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.

Firm Highlights

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On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.  *Thomas F. Glassman, a shareholder in Marshall Dennehey’s Cincinnati office, filed a brief in the Ohio Supreme Court on behalf of the Ohio Association of Civil Trial Attorneys, in support of the insurer’s position.

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