Ott v. KAISER-GEORGETOWN COMMUNITY HEALTH PLAN

• Decision Date: 18 May 1988
• Docket Number: Civ. A. No. 87-1787 (SSH).
• Citation: 689 F. Supp. 9
• Parties: Michael OTT, et al., Plaintiffs, v. KAISER-GEORGETOWN COMMUNITY HEALTH PLAN, INC., Defendant.
• Court: U.S. District Court — District of Columbia

689 F. Supp. 9

Michael OTT, et al., Plaintiffs, v. KAISER-GEORGETOWN COMMUNITY HEALTH PLAN, INC., Defendant.

Civ. A. No. 87-1787 (SSH).

United States District Court, for District of Columbia.

May 18, 1988.

Gerard E. Mitchell, Patrick A. Malone, Washington, D.C., for plaintiffs.

Richard W. Boone, Washington, D.C., for defendant.

MEMORANDUM OPINION

STANLEY S. HARRIS, District Judge.

This matter is before the Court upon defendant's motion to dismiss on the ground of forum non conveniens or, in the alternative, for a bifurcated trial. Upon consideration of the motion, the opposition thereto, the reply pleading, and the entire record herein, the Court concludes that the motion to dismiss on the ground of forum non conveniens should be granted.

Plaintiffs, Mr. and Mrs. Ott and their son Michael (the Otts), filed suit against defendant, Kaiser-Georgetown Community Health Plan, Inc., (Kaiser) alleging that Kaiser is liable, on the basis of the doctrine of respondeat superior, for the medical malpractice of one of Kaiser's employees, Dr. Robert M. Levitt. The complaint contends that Michael Ott was born with severe injuries as a result of Dr. Levitt's alleged medical malpractice. The alleged malpractice occurred in Maryland, and the Maryland Health Care Malpractice Claims Act, Cts. & Jud.Proc.Art., Title 3, Subtitle 2A (the Malpractice Claims Act), requires the submission of medical malpractice claims to an arbitration panel prior to bringing an action in court. The Otts filed a claim under the Malpractice Claims Act, and an arbitration panel rendered a decision in favor of Kaiser and Dr. Levitt. The Maryland Court of Appeals held that, pursuant to the Malpractice Claims Act, the Otts must sue both Kaiser and Dr. Levitt in the Circuit Court for Montgomery County in order to pursue their claims against Kaiser and Dr. Levitt. Ott v. Kaiser-Georgetown Community Health Plan, Inc., 526 A.2d 46 (Md.1987). The Otts currently have pending an action against Kaiser and Dr. Levitt in the Circuit Court for Montgomery County. On July 2, 1987, the Otts filed suit against Kaiser in this Court.

Michael Ott was born in Maryland and the Otts have continued to reside in Maryland since Michael's birth. Mrs. Ott and Michael received all their prenatal treatment in Maryland from physicians who are licensed by the State of Maryland and who practice medicine in Maryland. Kaiser is licensed as a health maintenance organization to do business in Maryland. The sole connections this action has with the District of Columbia are that Kaiser is incorporated in the District of Columbia and Mr. Ott, who works in the District of Columbia, receives Kaiser medical insurance for himself and his family as an employment benefit.

The Court need not abstain from assuming jurisdiction over this action because the Otts have pending an action against Kaiser in Maryland state court. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817-19, 96 S.Ct. 1236, 1246-47, 47 L.Ed.2d 483, leave to file petition for reh'g denied, 426 U.S. 912, 96 S.Ct. 2239, 48 L.Ed.2d 839 (1976). However, the Court has the discretion to dismiss the action on the ground of forum non conveniens so long as an adequate alternative forum is available. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Pain v. United Technologies Corp., 637 F.2d 775, 779 (D.C.Cir. 1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). There is a split of authority among the circuits on the question whether federal courts in diversity cases are required to apply the local rule of forum non conveniens under the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Founding Church of Scientology of Washington, D.C. v. Verlag, 536 F.2d 429, 434 n. 13 (D.C.Cir.1976). Although the issue has never been squarely addressed by the Court of Appeals for this circuit, federal courts in the District of Columbia have in practice used the federal law of forum non conveniens. Id. In any case, the law of forum non conveniens in the District of Columbia appears to be identical to federal law on the point at issue in this case.¹

The Court's forum non conveniens inquiry should proceed in four steps:

As a prerequisite, the court must establish whether an adequate forum exists which possesses jurisdiction over the whole case. Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs' initial forum choice. If the trial judge finds this balance of private interests to be in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of a trial in a foreign forum. If he decides that the balance favors such a foreign forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

Pain, 637 F.2d at 784-85.

The "private interest factors" are defined as:

The relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions to the enforcibility sic of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial.

Id. at 782 (quoting Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843). However, when a plaintiff chooses a competent but clearly inappropriate forum in which to bring suit, the plaintiff must show some reasonable justification for bringing suit in the inappropriate forum rather than in a forum that has more significant connections with the defendant or the res, act, or event in suit. Id. at 784 (citing Ginsburg, The Competent Court in Private International Law: Some Observations on Current Views in the United States, 20 Rutgers L.Rev. 100 (1965)).

The "public interest factors" are explained as follows:

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. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case 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.

Id. at 782 (quoting Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. at 843).

An alternate and clearly adequate forum exists which possesses jurisdiction over this action: as stated previously, the Otts have pending an action against Kaiser (and Dr. Levitt) in the Circuit Court for Montgomery County.

The relevant private interest factors set forth above relate to the inconvenience to the parties and witnesses of long distance travel. In this case, travel problems appear insignificant because the situs of the injury and the location of the parties and witnesses are all within a 20 mile radius of the District. The Court must, therefore, discern whether the Otts have shown a reasonable justification for the institution of their action in this forum. The sole reasonable justification the Otts have advanced for bringing suit in this forum is that this Court has broader subpoena power pursuant to Fed.R.Civ.P. 45(e)(1) than does the Circuit Court for Montgomery County. The Otts imply that this broader subpoena power is necessary because they expect to subpoena witnesses and records from Howard University Hospital or Georgetown University Hospital, which are located in the District of Columbia, and the Circuit Court for Montgomery County lacks the power to subpoena witnesses and records from the District of Columbia. The Otts' argument that this broader subpoena power justifies bringing suit in this forum lacks merit. "There is no reason to believe ... that the members of the medical profession or the hospital staffs retained by the Otts would refuse to appear voluntarily without the necessity of subpoena, or if they did so, the Maryland court would not accept the medical testimony obtained by deposition." Frost v. Peoples Drug Store, Inc., 327 A.2d 810, 815 (D.C. 1974) (footnote omitted). See also Walsh v. Crescent Hill Co., 134 A.2d 653, 655 (D.C.Mun.App.1957) (rejecting similar argument on the ground that "there seems to be nothing in the record to justify this apprehension...."). Accordingly, despite the strong presumption against disturbing the Otts' forum choice, the Court concludes that no reasonable private interest factors justify maintaining the action in this forum.

The public interest factors definitively tip the balance in favor of trial in Maryland. This action has only the most tenuous connections with the District of Columbia. Kaiser is incorporated in the District and Mr. Ott receives Kaiser health insurance as an employee benefit through his employer, which is located in the District. Although these tenuous connections are sufficient to meet the constitutional limitations necessary to permit the maintenance of the action in this forum and the application of this forum's law, see Allstate Insurance Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521, reh'g denied, 450 U.S. 971, 101 S.Ct. 1494, 67 L.Ed.2d 623 (1981) (concluding that Minnesota court constitutionally may apply Minnesota law even though suit more significantly connected with Wisconsin), these tenuous...