Professional Liability

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.

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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.