DUNKWU v. NEVILLE

• Decision Date: 30 May 1990
• Docket Number: No. 89-681,89-681
• Citation: 575 A.2d 293
• Parties: Anthony A. DUNKWU, Appellant, v. Patricia NEVILLE, et al., Appellees.
• Court: D.C. Court of Appeals

575 A.2d 293

Anthony A. DUNKWU, Appellant, v. Patricia NEVILLE, et al., Appellees.

No. 89-681.

District of Columbia Court of Appeals.

Submitted April 26, 1990.

Decided May 30, 1990.

Appeal from the Superior Court, Tim C. Murphy, Motions Judge.

George C. Courtot and John A. DiNucci, Washington, D.C., were on the brief for appellant.

Kenneth W. Curtis, Washington, D.C., was on the brief for appellees.

Before NEWMAN, STEADMAN and FARRELL, Associate Judges.

FARRELL, Associate Judge:

In this case, we take the unusual step of reversing a discretionary decision of the trial court denying a motion to dismiss on the ground of forum non conveniens. We do so because otherwise we would adopt a rule permitting a motion of this kind to be defeated by a showing of very little more than that the plaintiff chose the courts of the District of Columbia as her forum.

A.

Plaintiff Neville, a resident of Virginia, brought suit individually and as next friend of her infant daughter against appellant Dunkwu, a resident of Virginia and a physician specializing in obstetrics and gynecology licensed to practice medicine in Virginia and the District of Columbia, and maintaining offices in both jurisdictions. The complaint alleged negligence by Dr. Dunkwu in the obstetrical care and delivery of the infant from August 1986 through April 1987 when the child was born in Alexandria Hospital, resulting in injuries from which the plaintiffs suffered damages in the amount of $1,000,000. Defendant moved to dismiss the complaint on grounds of lack of personal jurisdiction and, alternatively, forum non conveniens, pointing out that the initial consultation by the mother and all subsequent treatment, including the delivery, had taken place in Virginia and that "[a]t no time were the Plaintiffs seen, examined or treated in the District of Columbia." Plaintiffs responded by conceding these facts but asserting that under District of Columbia law a plaintiff's choice of forum should rarely be disturbed; that Dr. Dunkwu maintained an office in the District of Columbia and practiced there; and that he would suffer little practical inconvenience by a trial in any one of the jurisdictions in the "relatively compact and closely interrelated metropolitan area," citing Aiken v. Lustine Chevrolet, Inc., 392 F. Supp. 883, 887 n. 20 (D.D.C. 1975). On May 18, 1989, the trial court denied the motion to dismiss without opinion. This interlocutory appeal followed.¹

B.

We have repeatedly held that trial court rulings on forum non conveniens motions are entitled to receive considerable deference from this court. We will not reverse such a ruling unless presented with clear evidence that the trial court abused its broad discretion.

Jenkins v. Smith, 535 A.2d 1367, 1369 (D.C. 1987) (en banc). "This deference, however, does not amount to carte blanche," id., because "[u]nlike our review of most acts of judicial discretion, our review of rulings on forum non conveniens motions includes an independent evaluation of . . . [both] 'private' and 'public' factors," id. (citation omitted), the latter referring to

those affecting the District's own interests including the congestion of its court dockets with foreign litigation, the imposition of jury duty on District residents for litigation in which the District has no concern, and the inappropriateness of calling on District of Columbia courts to construe the law of another jurisdiction.

Id. In sum, although only a "clear showing" of abuse of discretion will suffice to reverse the trial court's decision, "such rulings receive closer scrutiny than most exercises of trial court discretion," and "convincing circumstances" may demonstrate trial court error as a matter of law. Id. at 1370, quoting in part Washington v. May Dep't Stores, 388 A.2d 484, 486 (D.C. 1978).

There is a further important aspect of both the trial court's task and our standard of review. While in general, "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed," Mills v. Aetna Fire Underwriters Ins. Co., 511 A.2d 8, 10 (D.C. 1986), quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947), that rule pertains especially when the plaintiff is a resident of theDistrict of Columbia. Id.; Jenkins, supra, 535 A.2d at 1370. "When the plaintiff is from another jurisdiction, however, it is much less reasonable to assume that his choice of a District of Columbia forum is convenient," and in that case "plaintiff's choice deserves less deference." Mills, supra, 511 A.2d at 10-11. Moreover,

Where it is shown that neither party resides in the District and the plaintiff's claim has arisen in another jurisdiction which has more substantial contacts with the cause of action, the burden normally allocated to the defendant to demonstrate why dismissal is warranted for forum non conveniens rests instead upon the plaintiff to show why it is not.

Id. at 11 (emphasis added). The plaintiff in that case "should be required to show some reasonable justification for his institution of the action in the forum state rather than in a state with which the defendant or the res, act or event in suit is more significantly connected." Id., quoting Pain v. United Technologies Corp., 205 U.S.App.D.C. 229, 238, 637 F.2d 775, 784 (1980) (emphasis and further citations omitted).

In explaining the concept of discretion, which inherently "signifies choice," we have stated that "[a]n informed choice among the alternatives requires that the trial court's determination be based upon and drawn from a firm factual foundation," and that "it is an abuse [of discretion] if the stated reasons do not rest upon a specific factual predicate." Johnson v. United States, 398 A.2d 354, 361, 364 (D.C. 1979). We hold in this case that, "[w]here it is shown that neither party resides in the District and the plaintiff's claim has arisen in another jurisdiction which has more substantial contacts with the cause of action," Mills, supra, 511 A.2d at 11, the trial court will have abused its discretion in denying a motion to dismiss on grounds of forum non conveniens unless that choice rests upon the sure factual foundation of an affirmative showing by the plaintiff of "some reasonable justification for his institution of the action in the forum state." Id. We conclude that that showing is absent in the present case.

Mills involved a claim by a Virginia resident against Aetna Fire Underwriters Insurance Company alleging breach of contract for failure to compensate the plaintiff adequately after a fire damaged her store in Fredericksburg, Virginia. In sustaining a dismissal on the ground of forum non conveniens, we pointed out that "[t]he only connection between this litigation and the District of Columbia is the fact that Aetna is licensed to do business here," and that "[n]othing in the record . . . suggests . . . Aetna's presence in the District of Columbia bears any relation to [plaintiff] or her claim." 511 A.2d at 12. That conclusion applies identically to plaintiff's claim in this case. The entire course of treatment, from initial visit through delivery of the child and brief aftercare, took place in Virginia, and though defendant is licensed in the District of Columbia and practices medicine here, that presence bears no discernible relation to plaintiffs or their claim.

Plaintiffs nevertheless offer several grounds for upholding their choice of forum. First, they contend that appellant, because he is licensed and practices medicine in the District, "cannot claim unfamiliarity with the laws of the jurisdiction or claim surprise that the state courts might apply forum law to litigation in which they are involved." Exactly the same could have been said in Mills, however, and still we held that "the connection between Mills, her claim against Aetna, and the District is so attenuated that her choice of forum deserved little deference from the trial court." Id.² Second, appellees invoke choice of law principles and — while not quite arguing that District of Columbia law would have to apply to this action no matter where tried — contend that because Dr. Dunkwu is licensed by the District andmaintains a practice here, there comes into play the District's important interest — unlike that of Virginia — "in holding its corporations [or licensed practitioners] liable for the full extent of the negligence attributable to them," Kaiser-Georgetown Community Health Plan v. Stutsman, 491 A.2d 502, 509-10 (D.C. 1985).

In Stutsman, a choice of law case, we had occasion to discuss the Virginia Malpractice Act applicable to malpractice claimants and defendants who are "health care providers," and the twofold manner in which the Act modifies the law of negligence in that state in malpractice cases: first by creating a panel review procedure that either party may invoke and that, once invoked, bars the filing of suit until the process is completed; and second, by limiting the amount of recovery permitted against "health care providers" in malpractice actions. Id. at 510-11. The District of Columbia has no such law. In applying the governmental interests" analysis used in tort cases to decide whether we would apply District of Columbia law, we noted that the District

has a substantial interest in this litigation. Both defendants are corporate citizens of the District of Columbia. The District has a significant interest, reflected in the fact that it imposes no cap on liability for malpractice, in holding its corporations...