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Legal Updates for Health Care Liability

Forum Non Conveniens Motion Prevails Despite Recent Venue Rule Change

Legal Updates for Health Care Liability – March 13, 2024

March 13, 2024

On January 1, 2023, the Supreme Court of Pennsylvania unraveled a 20-year venue rule applicable to medical professional liability cases. Under the previous venue rule, a medical professional liability action may be brought against a health care provider only in a county in which the cause of action arose, i.e., where the care and treatment occurred. Since January 1, 2023, however, plaintiffs have been able to file medical malpractice suits in any county where any defendant could be served or does business, where any transaction or occurrence giving rise to the suit took place, or where any care at issue occurred. 
    
A recent case out of Lackawanna County (Scranton) demonstrates that there is still hope for forum non conveniens motions despite the recent expansion to the venue rules. In Leone v. Gusick, No. 2023 CV 37, 2024 WL 894653 (Lacka. Co. Mar. 01, 2024) (Nealon, J.), the court held that the litigation and eventual trial in a Lackawanna County medical professional liability action commenced by Lycoming County plaintiffs would be too oppressive for the Lycoming County and Centre County physician defendants and their Lycoming County and Montour County defendant employers to remain in Lackawanna County.
    
By way of background, the plaintiffs filed suit on behalf of their son, who were Lycoming County (Williamsport) residents. They named as defendants a Lycoming County physician and his alleged Lycoming County employers, as well as a Centre County physician, who practiced in Clinton County, and his alleged employers, which were situated in Montour County and Clinton County. The plaintiffs alleged that their son had a brain injury dating back to 2001, for which he treated through his early teenage years. He was seen by the defendants from 2013 through 2018, who medically cleared him to play high school football and approved his return to football after head injuries in 2015 and 2017. In August 2018, their son became unresponsive after a helmet-to-helmet hit and was diagnosed with a large acute subdural hematoma with severe mass effect and a severe traumatic brain injury, resulting in paralysis to the right side of his body. 
    
It was undisputed that no care or treatment at issue occurred in Lackawanna County. The sole basis for filing suit in Lackawanna County was that the defendants “regularly, continuously, and systematically conduct business” in Lackawanna County. The court noted that under the recent changes to the venue rules, venue against those defendants was proper given their business contacts with Lackawanna County. The defendants filed a forum non conveniens motion, requesting that the case be transferred to Lycoming County.
    
The court began by outlining the applicable standards, explaining that when considering a petition to transfer venue under Pa.R.C.P. No. 1006(d)(1), the plaintiff's choice of forum is entitled to weighty consideration, the party seeking a change of venue bears a heavy burden in justifying the request to transfer venue, and such a petition will not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant. The defendants in Leone did not argue that the plaintiffs’ choice of venue in Lackawanna County was vexatious, i.e., designed to harass them. Instead, they asserted that Lackawanna County was an oppressive forum for them and their anticipated witnesses due to the burden it would impose upon their professional and familial obligations. 
    
Before addressing oppressiveness, the court noted that it must first make a threshold finding that the specific witnesses who assert a hardship will provide testimony that is essential to the defense. In other words, courts should not consider hardships of defense witnesses who are not key to the defense or who do not possess testimony that is relevant and necessary to the defense. The defense identified the two defendant physicians and another provider at one of the defendant’s facilities, all of whom were found by the court to have been intimately involved with the care that was the subject of the lawsuit.
    
Regarding the issue of oppressiveness, the court reviewed the record evidence before it and found that “[t]he record submitted by the parties reflects that the relevant events in this case transpired primarily in Lycoming County and Clinton County, and to a lesser extent in Montour County, and that no pertinent incident or occurrence took place in Lackawanna County. No witness from Lackawanna County has been identified, nor does this county have any connection to [the Plaintiffs, the Defendants, and their trial witnesses].” The court pointed out that “[t]he only conceivable association that this case has with Lackawanna County” was that the plaintiffs’ Philadelphia-based attorneys maintained a Lackawanna County office. 
    
The court found that the three individuals identified by the defense “provided compelling proof of the substantial hardships that will be imposed upon them by a trial in Lackawanna County.” This included the significant burden that would be placed on both their professional and personal responsibilities should they have to travel to Lackawanna County, which was more than 100 miles away. The plaintiffs countered with an argument that the defendants were not burdened given the availability and use of advanced communication technology. In rejecting the plaintiffs’ arguments, the court highlighted its recent opinion in Brooks v. Griffy, No. 22 CV 3250, 2023 WL 6880248, at *6-7 (Lacka. Co. 2023), wherein it held that the use of advanced communication technology only serves to mitigate inconvenience to witnesses in discovery and does not alleviate the hardship imposed upon them by their appearances at trial.
    
The court ultimately held that the defendants established that Lackawanna County is an oppressive forum and that the litigation and trial of this matter in Lycoming County will provide easier access to necessary witnesses and other sources of proof. The court, therefore, granted the defendants’ forum non conveniens motion and transferred the case to Lycoming County. 

 

Legal Updates for Health Care Liability – March 13, 2024, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved.

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The Enforceability of Online Arbitration Agreements Remains Unresolved in Pennsylvania, But the Pennsylvania Superior Court has Provided Substantive Guidance on the Issue

Key Points: The Pennsylvania Supreme Court confirms that an order compelling arbitration is not immediately appealable as collateral orders. The outcome of Chilutti II has generally left the substantive enforceability issues with browsewrap agreements unresolved in Pennsylvania. Until this issue is resolved by the Pennsylvania courts, companies operating in the Commonwealth should strive to ensure that their registration websites and/or application screens conspicuously present arbitration agreements in manners which ensure their users and consumers assent to the terms of the agreements by following the standards set forth in Chilutti I. Browsewrap agreements have been defined as agreements “‘in which a website offers terms that are disclosed only through a hyperlink and the user supposedly manifests assent to those terms simply by continuing to use the website,’ and typically do not require an electronic signature.” See, Cobb v. Tesla, Inc., 2026 WL 458470, at *1 n. 2 (Pa. Super. Feb. 18, 2026) (citation omitted). They are largely regarded as the “if you keep using this, you agree to everything buried in this link” terms embedded into almost every online agreement consumers and users sign before proceeding with purchases of goods and/or services. While consumers are generally aware of them, many almost never click on the link, nor read them in their entirety. This leaves many consumers and users ignorant of the terms and impact of such agreements. However, one’s ignorance of the otherwise neatly-tucked-away terms rarely renders them unenforceable. The issue of the enforceability of browsewrap agreements has been up for debate for some time in many jurisdictions, including Pennsylvania. Indeed, Pennsylvania had a brief grip on this issue for a period in time. Specifically, in 2023, an en banc Superior Court set forth heightened standards for companies to meet in order to secure assent and enforce browsewrap arbitration agreements. See Chilutti v. Uber Techs., Inc., 300 A.3d 430 (Pa.Super. 2023) (en banc) (“Chilutti I”) Chilutti I involved a husband and wife who sued Uber and its subsidiaries after the wife, a wheelchair bound passenger using Uber’s rideshare service, fell, struck her head, and lost consciousness due to her uber driver failing to provide a seatbelt and making an aggressive turn during the trip. The Chilutti’s filed a negligence lawsuit against Uber and its subsidiaries. In response, the defendants moved to compel arbitration, arguing that “the couple’s conduct on the company’s website and application — when they registered for the ridesharing service — signified that they agreed to be bound by the mandatory arbitration provision found in the hyperlinked terms and conditions.” The trial court granted the defendants’ petition and stayed the proceedings pending the results of arbitration, and the Chilutti’s appealed. On appeal, the Superior Court addressed two issues. First, it addressed the issue of whether it had jurisdiction to hear the appeal. A divided Superior Court determined that it did, with its basis for the holding being that the order from which the Chilutti’s appealed was a collateral order. Next, the Superior Court set out to address the merits of the Chilutti’s substantive claim. The Superior Court concluded that the parties lacked a valid agreement to arbitrate. Its rationale was that Uber’s website and application did not provide reasonably conspicuous notice of the terms to the Chiluttis. In reaching this decision, the en banc Superior Court held that browsewrap arbitration agreements are enforceable in Pennsylvania only if the registration website and application screens explicitly inform consumers that they are waiving the right to a jury trial, the registration process cannot be completed until the consumer is fully informed of this waiver, and, when the agreement is available via hyperlink, the waiver appears at the top of the first page of the terms in bold, capitalized text. Since the ruling, Pennsylvania courts have applied Chilutti I to determine if browsewrap agreements are enforceable.  For instance, the Allegheny County Court of Common Pleas invoked Chilutti I to reject an agreement that lacked an express jury-trial waiver on the assent screen.  See Miller v. Festival Fun Parks, LLC, 92 WDA 2025 (C.P. Alleg. Cnty. Mar. 24, 2025). Similarly, the Superior Court has held that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti I.” Pierce v. FloatMe Corp., 348 A.3d 1077, 1088 (Pa. Super. 2025). While the issue of enforceability of browsewrap agreements appeared to have been resolved by Chilutti I, Pennsylvania courts’ grip on this issue has been slackened by the Pennsylvania Supreme Court’s January 21, 2026, opinion in Chilutti II. See Chilutti v. Uber Techs., Inc., 349 A.3d 826 (Pa. 2026) (“Chilutti II”). Therein, the Supreme Court did not address the merits of the Chiluttis’ substantive claim, but rather the issue of whether the Superior Court had appellate jurisdiction to immediately review the orders staying litigation pending arbitration. The Court ultimately vacated the en banc opinion on jurisdictional grounds, holding that the Superior Court did not have appellate jurisdiction because the trial court’s order from which the Chiluttis appealed did not qualify as a collateral order and, thus, the Superior Court erred in holding to the contrary and lacked jurisdiction to entertain the merits” of the Chiluttis’ substantive claim. As such, Chilutti II has rendered Chilutti I nonbinding, and the issue of enforceability of online arbitration agreements remains unresolved. However, in light of the fact the Supreme Court did not address or comment on the merits of the Chiluttis’ appeal, Chilutti I is still meaningful. Specifically, it provides guidance as to the standards a company should strive to meet to ensure they have obtained users’ assent so that they are able to enforce online arbitration agreements. Additionally, it may serve as persuasive authority in judges’ evaluations of petitions and/or motions to compel browsewrap arbitration agreements until this particular issue is properly put before our appellate courts. Keanna works in our Pittsburgh, PA office. She can be reached at (412) 803-1174 or KASeabrooks@MDWCG.com.

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Thought Leadership

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