J-A22006-17



                              2018 PA Super 6

PAIGE MOODY AND KHALIL TOMLINSON,               IN THE SUPERIOR COURT OF
CO-ADMINISTRATORS OF THE ESTATE                       PENNSYLVANIA
OF GIANNA TOMLINSON, DECEASED

                        Appellant

                   v.

LEHIGH VALLEY HOSPITAL-CEDAR
CREST, LEHIGH VALLEY HEALTH
NETWORK, LVPG-EMERGENCY
MEDICINE, TERESA M. ROMANO M.D.,
JULIE N. PHILLIPS M.D., KENNETH P.
RACHWAL PA-C, REGINA L. WYERS PA-C
VICTOR RODRIGUEZ, M.D., NATHAN C.
HIMES M.D. ALEXANDER M. KOWAL M.D.
AND MEDICAL IMAGING OF LEHIGH
VALLEY, P.C., CHILDREN’S HOSPITAL OF
PHILADELPHIA, SACRED HEART
HOSPITAL, SACRED HEART HEALTH
SYSTEMS, SACRED HEART PEDIATRICS
ASSOCIATES AND ANDREW UNGER,
M.D.

                                                   No. 3580 EDA 2016


                   Appeal from the Order October 5, 2016
           In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): May Term 2016 No. 0038


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

OPINION BY BOWES, J.:                           FILED JANUARY 18, 2018

     This is a wrongful death and survival action sounding in medical

malpractice.   Paige Moody and Khalil Tomlinson, co-administrators of the

Estate of Gianna Tomlinson, Deceased, (hereinafter “Administrators”),


* Retired Senior Judge specially assigned to the Superior Court.
J-A22006-17



appeal from the five identical October 5, 2016 orders granting the Defendant

medical care providers’ petitions to transfer venue from Philadelphia County

to Lehigh County on forum non conveniens grounds.1 After thorough review,

we reverse and remand for further proceedings consistent with this opinion.

       On September 7, 2015, seventeen-month-old Gianna presented to

Lehigh Valley Hospital with a history of vomiting and coughing. She came

under the care of defendant Kenneth Rachwal, PA-C, and she underwent a

chest x-ray, which was interpreted by defendant Doctors Himes and/or

Kowal. Gianna was diagnosed with a respiratory infection and discharged,

and her parents were directed to follow up with her pediatrician.

       Three days later, Administrators followed up at defendant Sacred

Heart Pediatrics. Defendant Dr. Rodriguez diagnosed a respiratory infection.

When the symptoms persisted, Administrators returned to the pediatrician’s

office with Gianna on September 28, 2015, but no additional testing was

conducted.     On October 1, 2016, Gianna was seen again at Lehigh Valley

Hospital where she was treated by defendant PA-C Wyers and/or defendant

Dr. Phillips for complaints of coughing and difficulty breathing.        They

discharged the infant without conducting any further tests. On October 4,

2016, Gianna returned to Lehigh Valley Hospital with complaints of

____________________________________________


1An order changing venue in a civil action is interlocutory but appealable as
of right. Pa.R.A.P. 311(c).



                                           -2-
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shortness of breath, worsening cough, and decreased intake. Another chest

x-ray was performed that, according to Administrators, was correctly

interpreted as depicting an enlarged heart.           At that point, Lehigh Valley

Hospital contacted Children’s Hospital of Philadelphia to arrange for transfer

to that facility by helicopter.      Physicians at the latter facility made specific

recommendations for testing and medication in anticipation of Gianna’s

transfer.

       Gianna was admitted to the Cardiac ICU at Children’s Hospital,

intubated, and placed on ECMO support.2               On the second day of her

hospitalization, while undergoing a cardiac procedure, she was administered

an overdose of Versed, roughly ten times the proper dose.              She died at

Children’s Hospital eight days later on October 12, 2015, and a full autopsy

was performed at that facility.

       On June 6, 2016, Administrators filed a complaint in the Philadelphia

Court of Common Pleas against Lehigh Valley Hospital-Cedar Crest, Lehigh

Valley Health Network, LVPG-Emergency Medicine, Teresa Romano, M.D.,

Julie N. Phillips, M.D., Kenneth P. Rachwal, PA-C, and Regina Wyers, PA-C

(the “Lehigh Valley Hospital Defendants”); Medical Imaging of Lehigh Valley,
____________________________________________


2  ECMO stands for extracorporeal membrane oxygenation, which is a
technique involving the removal of the blood, extraction of carbon dioxide,
and oxygenation of the red blood cells. It is used to provide cardiac and
respiratory support to a patient whose heart and lungs are incapable of
sustaining life.



                                           -3-
J-A22006-17



P.C., Nathan Himes, M.D., Alexander M. Kowal, M.D. (the “Medical Imaging

Defendants”); Sacred Heart Hospital, Sacred Heart Healthcare System,

Sacred   Heart    Pediatric     Associates,   Andrew   Unger,    M.D.,   and    Victor

Rodriguez, M.D. (the “Sacred Heart Defendants”); and the Children’s

Hospital of Philadelphia (“Children’s Hospital”). Administrators alleged that

the Lehigh County medical care providers and Children’s Hospital in

Philadelphia,    collectively   and   individually,   provided   negligent     medical

treatment to Gianna.       The Lehigh Valley Hospital Defendants, the Medical

Imaging Defendants, and the Sacred Heart defendants (collectively the

“Lehigh County Defendants”) failed to recognize signs and symptoms of

Gianna’s cardiac abnormalities, even though they were depicted on the

original radiography, thereby increasing the risk of death. While in a serious

condition at Children’s Hospital, the Hospital’s agents administered an

overdose of sedatives to Gianna, which also was alleged to have contributed

to her death.

      On July 19, 2016, Dr. Unger, Sacred Heart Hospital, and Sacred Heart

Health System petitioned for a transfer of venue to Lehigh County based on

forum non conveniens grounds.           Dr. Unger and the Risk Manager of the

Sacred Heart entities, Michele Coleman, submitted affidavits purporting to

establish that a multiple week trial in Philadelphia would be oppressive. Dr.

Unger averred therein that as the current director of Pediatrics and only one

of two neonatologists on staff at Sacred Heart Hospital, his practice served

                                         -4-
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Lehigh County and Northampton County.        He was told to anticipate a trial

lasting   multiple   weeks.    Based    on   “the   immediacy   required   and

unpredictable nature of neonatology care and emergencies, 24/7 coverage is

required” by him and one other physician.      Affidavit, Andrew Unger, M.D.,

7/11/16, at ¶9. Dr. Unger averred that if he was required to attend trial in

Philadelphia, “the impact on my ability to serve my patients and cover the

hospital with regard to neonatology care and emergencies would be

significant and oppressive.”    Id.    He represented that if the case was

transferred to Lehigh County, he could remain on call and respond to issues

at Sacred Heart Hospital. Id. As one of only three pediatricians on staff, his

prolonged absence would “significantly affect the operation of the pediatric

office and clinic and of the pediatric department of Sacred Heart Hospital.”

Id. at ¶10. He cited the burden of travel, time away from his clinical and

hospital duties, disruption to the Hospital, “and the difficulty of presenting

Lehigh County witnesses and proof at the time of trial and throughout

litigation will be significant and oppressive.” Id. at ¶11. Two days later, Dr.

Unger filed an affidavit of non-involvement in which he maintained that he

was not involved in Gianna’s care when the alleged negligence occurred, and

he sought dismissal from the action.

      Risk Manager Michele Coleman also averred that a multiple week trial,

absences of “a large number of Sacred Heart staff and physician witnesses

and parties will be significantly oppressive to the operation of the Sacred

                                       -5-
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Heart [corporate defendants] . . . which cannot easily manage absences and

extended absences of critical staff in the same way that a large hospital is

able to.” Affidavit, Michele Coleman, 7/6/16, at ¶9. She reiterated that Dr.

Unger’s attendance at trial in Philadelphia for several weeks would be

“significant and oppressive.” Id. at ¶10. In sum, “the impact of distance,

burden of travel, staff time away from hospital duties, disruption of the

operation of Sacred Heart Hospital and Sacred Heart Health Systems, and

difficulty obtaining witnesses and proof at the time of trial and throughout

litigation will be significant and oppressive.” Id. at ¶13.

      On August 8, 2016, Administrators filed a response in opposition to the

Sacred Heart Defendants’ petition in which they argued that, due to the

extensive medical care received by Gianna at Children’s Hospital over a

period of eight days, many witnesses were located in Philadelphia.        They

argued further that the sixty-mile distance from Allentown to Philadelphia

was not an oppressive commute, and Dr. Unger could provide neonatology

on-call coverage in the evenings upon his return.        Administrators offered

proof of numerous other pediatricians who could provide coverage for Dr.

Unger.   They also pointed out that Dr. Unger had a pending motion for

dismissal due to uninvolvement.

      On August 10, 2016, upon consideration of the motion to transfer

venue filed by the Sacred Heart Defendants, and the responses thereto, the

court issued a rule to show cause why the motion should be granted,

                                      -6-
J-A22006-17



returnable at an argument and evidentiary proceeding on September 28,

2016.     The order also advised the parties that the court would “accept

affidavits or deposition evidence and upon application for good cause shown,

live testimony, relevant to the question of forum non conveniens.” Order,

8/1/16, at 1.

        Thereafter, Administrators served interrogatories related to the venue

issues upon the Sacred Heart defendants, and scheduled the deposition of

Dr. Unger, who did not appear. When, despite several requests, Dr. Unger

failed to supply dates when he was available for deposition, Administrators

served him with a notice to attend the hearing.     Dr. Unger did not attend

due to other commitments.

        On September 27, 2016, the day before the hearing, Defendant

Rodriguez, M.D., who was no longer associated with Sacred Heart, the

Medical Imaging Defendants, and Children’s Hospital moved to join the

petition to transfer venue.    On the day of the hearing, the Lehigh Valley

Hospital Defendants filed a separate motion to transfer venue with

accompanying affidavits, and afterwards, the Medical Imaging Defendants

filed affidavits from the defendant physicians and the executive director. At

the close of the hearing, in response to counsel for Administrators’

statement that they might need twenty days to respond to the new motion

and yet unseen affidavits, the court granted them two days to respond.




                                     -7-
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     On October 5, 2016, the court granted all motions to transfer venue to

Lehigh County on forum non conveniens grounds.         Administrators filed a

motion for reconsideration on October 18, 2016, and a notice of appeal on

November 2, 2016. Thereafter, on November 22, 2016, the court denied the

motion for reconsideration as moot.

     Administrators timely appealed and they raise three issues for our

review:

  1) Whether the trial court committed an abuse of discretion and
     misapplied the law in transferring venue of this action to Lehigh
     County on forum non conveniens grounds and disturbing
     Plaintiffs’ appropriately chose venue of Philadelphia County
     where Plaintiffs’ Complaint includes claims against a defendant
     located in Philadelphia County and a substantial portion of the
     medical care and factual circumstances at issue all occurred in
     Philadelphia County, including the minor-decedent’s death such
     that key evidence and witnesses critical to Plaintiffs’ proofs will
     be located in Philadelphia County and further by placing a
     burden on Plaintiffs to prove oppression to Philadelphia
     witnesses that does not exist under Pennsylvania law?

  2) Whether the trial court committed an abuse of discretion and
     misapplied the law in ruling that Defendants met their heavy
     burden for transfer of this action to Lehigh County on forum non
     conveniens grounds and determining that Defendants sufficiently
     demonstrated that litigating this action in Philadelphia County
     would be oppressive and vexatious to the Defendants located in
     Lehigh County based upon bald assertions set forth in Affidavits
     that were refuted by the limited evidence provided as well as the
     travel distance from Lehigh County to Philadelphia that is
     insufficient to cause an excessive burden upon Defendants?

  3) Whether the trial court abused its discretion in transferring
     venue to Lehigh County despite Defendants’ refusal to engage in
     discovery and produce witnesses for testimony as well as limiting
     Plaintiffs’ time for response to newly filed Motions/Joinder
     Motions seeking transfer of venue and affidavits in support

                                      -8-
J-A22006-17



       thereof, such that it deprived Plaintiffs’ of a full and proper
       opportunity to refute Defendants’ claims of oppressiveness and
       vexatiousness in opposing Defendants’ various motions to
       transfer venue?

Appellants’ brief at 5. We will treat the issues together as they all implicate

the propriety of the transfer on forum non conveniens grounds.

       Venue in this wrongful death/survival action sounding in medical

negligence is governed by Pa.R.C.P. 1006, which provides in pertinent part

that, “[e]xcept as otherwise provided by subdivision (c), a medical

professional liability action may be brought against a health care provider for

a medical professional liability claim only in a county in which the cause of

action arose.” Pa.R.C.P. 1006(a.1). Where, as here, “the action to enforce

a joint or joint and several liability against two or more defendants includes

one or more medical professional liability claims, the action shall be brought

in any county in which the venue may be laid against any defendant under

subdivision (a.1).” Rule 1006(c)(2). Thus, venue is proper in this medical

malpractice case in both Lehigh and Philadelphia Counties, and only in those

counties.3


____________________________________________


3  The result is the same if we view this case as one for wrongful death and
survival. In Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384
(Pa.Super. 2002), this Court held that the proper venue for wrongful death
and survival actions is the county where the tortious act occurred. Since the
tortious acts herein allegedly occurred in both Philadelphia and Lehigh
counties, venue lies in both counties.



                                           -9-
J-A22006-17



      Administrators opted to bring the action in Philadelphia County where

defendant Children’s Hospital of Philadelphia is located, and that choice is

entitled to great deference.   Cheeseman v. Lethal Exterminator, Inc.,

701 A.2d 156, 161 (Pa. 1997); Bratic v. Rubendall, 99 A.3d 1 (Pa. 2014).

"[A] plaintiff generally is given the choice of forum so long as the

requirements of personal and subject matter jurisdiction are satisfied."

Zappala v. Brandolini Prop. Mgmt., 909 A.2d 1272, 1281 (Pa. 2006)

(“Zappala I”).

      However, that choice is not absolute.     The Sacred Heart Defendants

availed themselves    of the    forum    non conveniens    provision of Rule

1006(d)(1), which permits “the court upon petition of any party” to “transfer

an action to the appropriate court of any other county where the action

could originally have been brought” “for the convenience of parties and

witnesses.”   Pa.R.C.P. 1006(d)(1).     Much later, the remaining Defendants

joined in the petition, or filed new petitions, and the trial court granted the

relief requested.   The issue herein is whether the trial court abused its

discretion in transferring the case to Lehigh County from Philadelphia County

on forum non conveniens grounds.

      The following principles govern a trial court’s ruling on a petition to

transfer venue for forum non conveniens. “The plaintiff's choice of forum is

to be given great weight, and the burden is on the party challenging the

choice to show it was improper.”      Zappala v. James Lewis Group, 982

                                      - 10 -
J-A22006-17



A.2d 512, 518-519 (Pa.Super. 2009). The burden is a heavy one. As our

High Court reiterated in Bratic, supra at 8, “the convenience [of the

parties] or the lack thereof is not the test our case law has established: the

moving party must show the chosen forum is either vexatious or

oppressive.” “Vexatious” in this context requires a showing of facts on the

record that the plaintiff’s choice of forum was intended to harass the

defendant,    even   at   some   inconvenience   to   the   plaintiff   himself.

Cheeseman, supra at 162.         Oppressiveness requires a detailed factual

showing by the defendant that the chosen forum is oppressive to him.

Evidence that trial in another county would provide easier access to

witnesses or other sources of proof, or to the ability to conduct a view of

premises involved in the dispute are two examples of such facts. Wood v.

E.I. duPont De Nemours and Co., 829 A.2d 707, 712 (Pa.Super. 2003)

(en banc).     The plaintiff's choice of forum will prevail even if it is

inconvenient to the defendants.      In Hoose v. Jefferson HomeHealth

Care, Inc., 754 A.2d 1, 4 (Pa.Super. 2000), a defendant’s claim that "no

significant aspect of a case involves the chosen forum, and that litigating in

another forum would be more convenient[,]" was not the type of record

evidence that proves litigating the case in the chosen forum is oppressive or

vexatious. We relied upon Cheeseman, supra at 162, in concluding that,

“There is a vast difference between inconvenience and oppressiveness in this

context.” Hooseman, supra at 5.

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J-A22006-17



       Our standard of review of a trial court’s decision granting or denying a

transfer of venue is well-settled: it will not be disturbed absent an abuse of

discretion. Zappala I, supra at 1284; Wood, supra at 709. An abuse of

discretion occurs when the trial judge overrides or misapplies the law, or

exercises judgment in a manifestly unreasonable manner, or renders a

decision based on partiality, prejudice, bias, or ill-will. Bratic, supra at 3.

The trial court's failure to hold the defendants to the proper burden in

proving forum non conveniens constitutes an abuse of discretion.               See

Catagnus v. Allstate Ins. Co., 864 A.2d 1259, 1264 (Pa.Super. 2004).

       The trial court noted that fifteen of the sixteen defendants, the only

exception being Children’s Hospital of Philadelphia, were based in Lehigh

County.    The Lehigh County Defendants submitted affidavits in support of

the petitions to transfer venue.4          In evaluating those affidavits, the trial

court referenced Bratic, supra at 9, where our High Court discussed the

specificity required to satisfy the requirement of a factual showing of

vexatiousness or oppressiveness:

       The witnesses need not detail what clients or tasks will be
       postponed or opportunities lost in order for the judge to exercise
       common sense in evaluating their worth; indeed, no one can
       foretell such detail. One hopes a judge may comprehend the

____________________________________________


4 Children’s Hospital of Philadelphia joined the petition filed by the Sacred
Heart defendants but did not submit any documentation in support of the
contention that venue in Philadelphia was vexatious or oppressive.



                                          - 12 -
J-A22006-17



       existence of relevant general disruption from the allegations in
       the affidavit, sufficiently to rule on the issue.

Trial Court Opinion, 2/15/17, at 6 (quoting Bratic, supra at 9).

       The trial court examined the affidavits submitted by the Sacred Heart

defendants, the parties who initially petitioned for transfer.           It focused on

the averments of Dr. Unger that coverage was required at all times, and that

as one of two neonatologists and one of three pediatricians on staff at

Sacred Heart, trial in Philadelphia would be oppressive as it would impact his

ability to treat patients and affect the operation of the hospital and affiliated

entities.   Ms. Coleman’s affidavit, as well as the affidavit of Stephen A.

Lanshe, the Vice-President and General Counsel of Sacred Heart Health Care

System, expressed the same concerns about coverage for absent physicians.

       Administrators provided the court with evidence that the Sacred Heart

website listed a third neonatologist and numerous pediatricians.5                    In

addition,   Administrators      supplied       documentary   evidence,    received   in

response to discovery, that Dr. Unger recently had been absent from Sacred

Heart for a two-week vacation, and that he had taken additional time off,

often one week at a time, for personal and professional activities.              They

offered the evidence to refute the Sacred Heart Defendants’ claim that Dr.
____________________________________________


5 Ms. Coleman submitted a supplemental affidavit in which she averred that
the website was in error regarding a third neonatologist. The numerous
pediatricians listed on the website had staff privileges to see their patients,
but did not provide coverage to the hospital.



                                          - 13 -
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Unger’s absence would be oppressive because it would not be able to find

coverage for him, resulting in a negative impact on services. The trial court

expressly refused to consider such evidence, stating an unwillingness “to

impede upon a defendant’s personal life in such a manner.”        Trial Court

Opinion, 2/15/17, at 17-18. The court found that “[e]vidence that Dr. Unger

goes on vacation, attends to other personal or professional obligations, or

travels comparable distances for reasons other than litigation expands the

analysis beyond the appropriate level of inquiry.” Id. at 18. Furthermore,

the court refused to consider Dr. Unger’s filing of an affidavit of non-

involvement in determining whether venue was oppressive in Philadelphia,

viewing it as speculation as to whether Dr. Unger would ultimately be

dismissed from the lawsuit or the path litigation would take. Id. at 18.

      The remaining Lehigh County defendants filed last minute joinders to

Sacred Hearts’ petition or a new petition. The court considered a number of

affidavits they submitted right before the hearing or shortly thereafter. For

instance, Defendant Dr. Victor Rodriguez, who at the relevant time was a

pediatrician at Sacred Heart, had taken a new position as a staff pediatrician

at St. Luke’s Hospital in Phillipsburg, New Jersey, and as a school physician

for three school districts in New Jersey. He averred that the distance from

his new job in Phillipsburg to Philadelphia was approximately seventy-five to

eighty miles, versus twenty miles to the Lehigh County courthouse, and that




                                    - 14 -
J-A22006-17



trial conducted in Lehigh County would afford him the ability to see his

patients or respond to emergencies.

       The Medical Imaging Defendants joined the petition filed by Sacred

Heart, and supplied affidavits from Executive Director Greg Palmieri,

Defendant     Dr.   Alexander      Kowal,      and   Defendant   Dr.   Nathan   Himes.

According to Mr. Palmieri, Dr. Kowal is one of two board-certified pediatric

radiologists, and one of four radiologists performing pediatric imaging for the

Lehigh Valley Hospital network. Dr. Himes is one of ten neuroradiologists on

staff, but only one of two neuroradiologists who work the 4:00 p.m. shift, for

which it is difficult to find coverage.         He averred that trial in Philadelphia

would negatively impact services since other Medical Imaging physicians

would have to accommodate their absence. Dr. Koval also represented that

he would be unable to share evening caretaking responsibilities for his four

young children if he was in Philadelphia.6 Dr. Himes merely reiterated that

his absence would burden his fellow physicians who would have to cover.

       Finally, the last minute motion filed by the Lehigh Valley Hospital

defendants included affidavits from Dr. Teresa Romano, Dr. Phillips, PA-C

Rachwal and PA-C Wyers. All alleged a similar theme: that travel to, or a

prolonged stay in, Philadelphia County would be burdensome personally and
____________________________________________


6 Dr. Kowal also acknowledged in his affidavit that he routinely travels to
other Medical Imaging locations in Luzerne and Monroe Counties that are as
distant, or more distant, than Philadelphia.



                                          - 15 -
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present staffing challenges. Dr. Romano, one of five physicians specializing

in pediatric emergency medicine, stated that she works part-time to

accommodate her children, one of whom has special needs and requires

transportation to therapy several times each week.               Affidavit, Teresa

Romano, M.D., 9/27/16, at ¶11.            Dr. Julie Phillips, one of two full-time

pediatric emergency physicians, maintained that the time spent traveling to

and from Philadelphia would impact patient access to her specialty care.

      PA-C Kenneth Rachwal and PA-C Regina Wyers represented that they

work night shift so that they are available to take care of their children

during the day, and that, at present, they do not have substitute childcare.

Both alluded to staffing challenges in covering that night shift if they were

required to travel to Philadelphia daily.

      The trial court framed the question as whether Philadelphia was an

oppressive or vexatious forum, and concluded that, “[a]s a collective whole,

the   affidavits   created   a   clear   record   of   oppressiveness   of   trial   in

Philadelphia.”     Trial Court Opinion, 2/15/17, at 15.      The court declined to

compare the significance of claims against Children’s Hospital of Philadelphia

to claims against the Lehigh County defendants.               However, it faulted

Administrators for not identifying “a single witness that resides in or near

Philadelphia which would find the transfer of this case to Lehigh County

oppressive[,]” and “baldly rely[ing]” on the child’s lengthy stay at Children’s

and the discovery from that defendant” “to assume the oppressive nature of

                                         - 16 -
J-A22006-17



trial in Lehigh County as it relates to potential witnesses not yet identified.”

Id. at 14.    The court concluded that, “The Plaintiffs expect this level of

assumption to outweigh the record established by the Defendants” and

found the argument “speculative.”        Id.    The “overall weight” of the

defendants’ personal and professional hardships “compared to the bald

assertions by Plaintiff that possible, potential Philadelphia witnesses may find

Lehigh County oppressive, sufficiently established the basis to transfer the

matter to Lehigh County.” Id. at 15. In addition, the commuting distance

of sixty-four miles, while less than the 100 miles presumed to be oppressive,

when coupled with the disruption to the personal and professional lives of

the individual defendants, was oppressive. The trial court found Philadelphia

to be an “oppressive and vexatious forum.” Id. at 18.

      Administrators contend first that the trial court misapplied the law and

abused its discretion by failing to give the proper deference to their chosen

forum. The court largely dismissed the fact that a defendant and numerous

witnesses, as well as documentary evidence, are located in Philadelphia.

Administrators point to their legally supported negligence claims against

Defendant Children’s Hospital where the decedent was hospitalized for eight

days, underwent cardiac studies and other testing, and where she was

negligently administered an overdose of a sedative that allegedly contributed

to her death, which ultimately occurred in that facility.       Administrators

maintain that they will rely on evidence and key witnesses located in

                                     - 17 -
J-A22006-17



Philadelphia to prove negligence and causation against both Children’s

Hospital and the Lehigh County defendants.          They posit that evidence

located in Philadelphia also will prove vital to the Lehigh County Defendants

in attempting to disprove their role in Gianna’s death. Administrators also

allege that the same level of inconvenience due to the commute results

when Philadelphia witnesses must travel to Lehigh County. They argue that

Children’s Hospital’s joinder in the petition to transfer “affirmatively

establishes the lack of any oppression resulting from the distance between

Lehigh County to Philadelphia as [Children’s Hospital] is obviously willing to

have many of its own employees/medical staff as well as counsel make the

approximately    60   mile     commute   without   any   claimed   oppression.”

Appellants’ brief at 29 n.7.

      According to Administrators, the trial court misapplied Fessler v.

Watchtower Bible and Tract Society of New York, 121 A.3d 44

(Pa.Super. 2015), and erroneously placed the burden of proof upon them to

prove that witnesses in Philadelphia would find Lehigh County oppressive or

vexatious. In finding that they failed to adduce such proof, the trial court

stated that, “Plaintiffs have not identified a single witness that resides in or

near Philadelphia which would find the transfer of this case to Lehigh County

oppressive.”    Trial Court Opinion, 2/15/17, at 14.         In characterizing

Administrators’ claim of voluminous discovery and records emanating from

Philadelphia as mere “assumption” that could not “outweigh the record

                                     - 18 -
J-A22006-17



established by the Defendants,” id., Administrators contend the trial court

improperly balanced the relative convenience of Philadelphia and Lehigh

County.

       Furthermore, Administrators question whether the affidavits provided

detailed information of oppressiveness rather than inconvenience by being

required to attend trial in Philadelphia.          They characterize Dr. Unger’s

statement that a multiple week trial would impact his ability to provide

coverage at the Hospital and serve patients, which was largely parroted by

Risk Manager Michele Coleman, as speculation.          The allegations by Sacred

Heart’s general counsel that it is a smaller hospital that cannot manage the

absence of critical staff is similarly deficient according to Administrators.

Administrators submitted proof obtained through discovery that Dr. Unger

was absent from the Hospital for a period of fourteen consecutive days in

late May to June 2016, and numerous other times when he was away for a

week at a time. They contend the trial court inexplicably refused to consider

such evidence although it tended to refute the notion that procuring

coverage for Dr. Unger would be oppressive.7 The court, while insisting that

such personal probing “expands the analysis beyond the appropriate level of
____________________________________________


7 Counsel for Administrators argued, in response to claims that Dr. Unger’s
absence was oppressive, that despite his two–week vacation and extended
professional obligations, “And last time I checked, Sacred Heart is still
operating and the NICU is still operating and they found coverage.” N.T.,
9/28/16, at 37.



                                          - 19 -
J-A22006-17



inquiry,” then turned around and placed great weight on the disruption to

the personal and professional lives of the Lehigh County individual

defendants due to the lack of substitute childcare and coverage. Trial Court

Opinion, 2/15/17, at 18. Administrators argue that, while it is inconvenient

to obtain coverage, it is not sufficient evidence of oppression to sustain the

Defendants’    burden   to     transfer.       Additionally,   the   court   ignored

Administrators’ argument that a trial date could be set well in advance on a

date-certain   to   minimize    inconvenience      and   allow   planning    by   the

defendants.

      Administrators direct our attention to the numerous cases, ignored by

the trial court, where our courts have held it to be an abuse of discretion to

disturb a plaintiff’s choice of venue even where there were no Philadelphia

defendants or witnesses and no factual aspect of the case occurred there.

See Fessler, supra; Hoose, supra; Cooper v. Nationwide Mut. Ins.

Co., 761 A.2d 162 (Pa.Super. 2000); Walls v. The Phoenix Insurance

Co., 979 A.2d 847 (Pa.Super. 2009); Cheeseman, supra. Administrators

represent that “there has never been a precedential appellate ruling in this

Commonwealth where there was an active defendant residing in [the chosen

forum] . . . and where it was deemed appropriate to nonetheless transfer to

another venue on forum non conveniens grounds.” Appellants’ brief at 32.

Cf. Bratic (affirming transfer from Philadelphia to Dauphin County of action

for abuse of process and wrongful use of civil proceedings based on earlier

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tortious interference lawsuit in Dauphin County; all defendants were from

Dauphin County; all of defendants’ witnesses resided or worked more than

100 miles away; only connection to Philadelphia was the defendants’

attenuated business relations there). They point out that the instant case is

all the more remarkable as negligence giving rise to the cause of action,

considerable    medical   care,   witnesses   and   evidence   are   located   in

Philadelphia.

      Finally, Administrators complain about the procedure herein.         They

point out that the Sacred Heart Defendants evaded discovery and filed two

affidavits immediately prior to the hearing.        The other Lehigh County

Defendants waited six weeks, until the eve of the evidentiary hearing

scheduled on the Sacred Heart Defendants’ petition, to file joinders or new

petitions.   Some of the supporting affidavits were filed after the hearing.

Administrators did not have copies of many of the affidavits or an

opportunity to conduct discovery regarding the allegations contained therein

prior to the hearing, and a mere two days thereafter to refute them. The

Lehigh County Defendants counter that Administrators failed to object

below, and, hence, the issue is waived.

      We start from the premise that the plaintiff’s choice of forum is

controlling and, only then, do considerations like forum non conveniens

come into play. As our High Court noted in Cheeseman, a "plaintiff's choice




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of forum should rarely be disturbed by the grant of a Rule 1006(d)(1)

petition." Cheeseman, supra at 162.

      Forum non conveniens “is a necessary counterbalance to insure [sic]

fairness and practicality.” Bratic, supra at 7 (quoting Okkerse v. Howe,

556 A.2d 827, 832 (Pa. 1989)). However, the burden is on the defendant,

and it has been described as a heavy burden, to “demonstrate, with detailed

information on the record, that the plaintiff’s chosen forum is oppressive or

vexatious to the defendant.” Cheeseman, supra at 162.

      Moreover, the term forum non conveniens is actually a misnomer

because inconvenience is not enough reason to transfer venue.              The

plaintiff’s choice of venue must be either vexatious, i.e., intended to harass,

or so oppressive as to require transfer.          Cheeseman, supra.         In

Cheeseman, the Supreme Court held that claims in the defendant’s petition

“that no significant aspect of the case involves the chosen forum, and that

litigating in another forum would be more convenient . . . do not amount to

a showing that the chosen forum is oppressive or vexatious.” Id. at 162.

      Preliminarily, we find no evidence in the record that would support a

finding that venue in Philadelphia County is vexatious, i.e., intended to

harass. Defendant Children’s Hospital is located in Philadelphia.    The only

argument advanced by the Lehigh Defendants that even remotely implies

vexatiousness in the choice of forum is their contention that liability against

Children’s Hospital is thin or limited to one instance of negligence that did

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not cause Gianna’s death.          We find any implication that liability against

Children’s Hospital was fabricated to achieve venue in Philadelphia to be

wholly without support for the following reasons.

       We note that the petition to transfer was filed early in the proceedings

herein. The trial court has not yet ruled on preliminary objections filed by

the Lehigh Valley, Sacred Heart, and Medical Imaging Defendants, some of

which were in the nature of a demurrer.8 Nor has it considered Dr. Unger’s

affidavit of non-involvement. The parties have not conducted discovery on

the merits.      Based on the record before us, which consists largely of

pleadings, Children’s Hospital of Philadelphia is a viable defendant.

       Furthermore, the alleged liability of Children’s Hospital is not limited to

the single occasion where Gianna was given an overdose of sedative, as the

Lehigh County Defendants suggest. Administrators also averred that agents

of Children’s Hospital failed to appreciate the risk of cardiac decompensation

from medication errors, to recognize that Gianna’s symptoms and clinical

picture included myocarditis and potential cardiac failure, and to properly

treat and manage those conditions. Administrators pled that, together with
____________________________________________


8   Although the Lehigh County defendants argue that liability against
Children’s Hospital is thin, we note that Children’s Hospital is the only
defendant that did not file preliminary objections to the Complaint. In
contrast, many of the Lehigh Valley and Sacred Heart defendants have filed
preliminary objections in the nature of a demurrer. It is quite possible,
perhaps probable, that the number of defendants in Lehigh County will
shrink after demurrers are ruled upon and dispositive motions are decided.



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the negligence of the Lehigh County Defendants, the negligence of Children’s

Hospital caused or increased the risk of Gianna’s death.

       In    addition,    Administrators       contend   that   many     of    the   tests

administered at that facility, as well as medical documentation of Gianna’s

condition upon her arrival there, is highly probative evidence in proving

negligence against both the Lehigh County Defendants and Children’s

Hospital. This is not a situation where Philadelphia County’s involvement is

incidental    or    tangential.     See    Bratic,   supra      (fact   that   defendant

occasionally       did   business   in    Philadelphia   was     only   connection     to

Philadelphia). Nothing in the record supports a finding that the filing of the

case in Philadelphia was vexatious.

       We find merit in the Administrators’ contention that the trial court did

not apply the proper legal standard in ruling on the petition to transfer. In

faulting Administrators for not introducing specific evidence of individuals in

Philadelphia who would be oppressed by a trial in Lehigh County, the court

missed the mark.         Administrators did not have the burden to prove that

Lehigh County was oppressive to certain individuals, and such evidence was

irrelevant to the inquiry herein.9        The trial court compounded its error by


____________________________________________

9
  In Fessler v. Watchtower Bible, 131 A.3d 44 (Pa.Super. 2015), this
Court construed Bratic as requiring consideration of the totality of
circumstances. The distance between the two forums, the disruption to the
(Footnote Continued Next Page)


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concluding that any assumption that trial against Children’s Hospital of

Philadelphia would involve witnesses and evidence from Philadelphia did not

“outweigh the record established by the Defendants.” Trial Court Opinion,

2/15/17, at 14. In concluding that “the overall weight of [the Defendants’]

affidavits, compared to the bald assertion by Plaintiff that possible, potential

Philadelphia witnesses may find Lehigh County oppressive, sufficiently

established the basis to transfer the matter to Lehigh County[,]” id. at 15,

the court improperly engaged in a balancing test.            We rejected that

approach in Cheeseman, Wood, and Catagnus, because it disregarded the

great weight accorded to the plaintiff’s initial choice of forum. Transfer on

forum non conveniens grounds is proper only if the defendant proves that

the chosen forum is oppressive to him.

      In addition, despite the court’s insistence that it considered the totality

of the circumstances, the record refutes that representation.         The court

expressly refused to consider Administrators’ evidence that Dr. Unger had

been away from Sacred Heart Hospital for extended periods on vacations

and professional commitments, professing that it was “unwilling to impede

upon a defendant’s personal life[,]”. . . “for purposes of establishing the

proper forum.” Id. at 18.

(Footnote Continued) _______________________

parties’ personal and professional lives, are part of the equation, but no one
factor is dispositive.



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       We find the evidence that the Sacred Heart defendants apparently

found coverage when Dr. Unger was absent for relatively long periods for

personal and professional reasons relevant to the issue of whether his

attendance in Philadelphia for a multiple week trial would be oppressive. 10

The evidence was produced in response to discovery requests, and admitted

without objection.       The trial court cited no authority in support of its

conclusion that the evidence was beyond the scope of the relevant inquiry,

and we know of none.

       Despite its reluctance to consider evidence of the personal life of Dr.

Unger that tended to undermine the Sacred Heart defendants’ claim that the

chosen forum was oppressive, the trial court had no similar reservation

about relying upon individual defendants’ claims of personal hardship in

support of it decision transfer the case to Lehigh County.     The trial court

placed great weight upon disruption to the personal and professional lives of

the individual defendants due to a present lack of substitute childcare, the

inability to share parenting responsibilities in the evening, the need to

____________________________________________


10  The affidavits filed by the Sacred Heart defendants assume that Dr.
Unger would be required to stay in Philadelphia for several weeks and be
unavailable for emergencies on a 24/7 basis. The majority of Lehigh County
defendants would be traveling approximately 128 miles each day, admittedly
far less than the 200 mile round-trip commute viewed as oppressive in
Bratic v. Rubendall, 99 A.3d 1 (Pa. 2014). There was no explanation
offered as to why Dr. Unger could not provide on call coverage in the
evenings or on weekends.



                                          - 26 -
J-A22006-17



transport a child to therapy several days per week, and coverage for hospital

shifts. The trial court also ignored the fact that trial is two years away, and

that it can be set for a date-certain that would allow the individual

defendants to make alternate arrangements for short-term personal and

professional commitments.       In sum, we find such evidence of present

inconvenience to be a factor entitled to little weight in determining

oppressiveness in the future.

      Finally, the trial court dismissed as speculation Administrators’

common sense observation that Children’s Hospital physicians, staff, and

administrators would face similar personal disruption in commuting and

arranging for childcare if trial was moved to Lehigh County.         While we

recognize that the smaller size of the Lehigh County medical entities may

make it more difficult to procure coverage for physicians and staff attending

trial in Philadelphia, a trial in Lehigh County still would present coverage

challenges for Children’s Hospital’s agents and employees called to testify.

The trial court was too quick to dismiss and disregard the obvious disruption

to the operation of the Philadelphia defendant.

      Finally, although we need not reach Administrators’ contention that the

procedure herein was unfair, we find merit in their complaints. The Sacred

Heart Defendants filed their petition on July 18, 2016, and on August 10,

2016, the court scheduled the evidentiary hearing to allow time for discovery

related to the forum non conveniens issue. Dr. Unger evaded being deposed

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J-A22006-17



prior to the hearing.   He also did not comply with a notice to attend the

September 28, 2016 hearing where he could have been questioned.               The

remaining Lehigh County Defendants waited more than six weeks, until the

eve of the evidentiary hearing, to seek leave to join the petition or file their

own petition and supporting affidavits.       Several of the affidavits had not

been filed as of the hearing and Administrators had not seen them. Thus,

Administrators had no notice of the facts and circumstances forming the

basis for the latest claims that trial in Philadelphia would be oppressive, and

no opportunity to engage in discovery to probe the significance of the

averments contained in their affidavits.

      The   Lehigh   County    Defendants      argue    on   appeal   that   since

Administrators did not object and seek additional time for discovery, they

waived any challenge to the procedure. The record reveals, however, that

when the court asked Plaintiffs’ counsel if he objected to the late-filed

affidavits, counsel protested that he had yet to see the affidavits, and thus,

he did not know whether he had an objection.           Counsel advised the court

several times that he was unable to respond to several of the motions and

affidavits as they had not been filed or served upon him. Counsel suggested

that, since a new motion had been filed, Administrators might need the

twenty-day period conferred under the rules to respond. The court rejected

that notion, characterizing the filings as “joinders,” which was not entirely

correct, and ordering responses by Friday, two days hence.

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J-A22006-17



      On these facts, we decline to find waiver.              The Sacred Heart

Defendants’ evasion of discovery evidences a lack of good faith.         The late

joinders and/or late filings of petitions to transfer, together with supporting

affidavits, was calculated to avoid discovery and ambush Administrators with

new claims of oppressiveness and no notice or opportunity to refute them.

The trial court played into Defendants’ hands by ignoring the untimeliness of

the   joinders   and   petitions   and   the   lack   of   reasonable   notice   to

Administrators, and denying counsel’s request for discovery and the

customary twenty days to respond. We do not countenance such tactics in

this Commonwealth.

      In conclusion, since the trial court applied the wrong legal standard in

granting the petitions to transfer venue on the basis of forum non

conveniens, and abused its discretion in refusing to consider evidence

presented by Administrators tending to refute the oppressiveness of venue

in Philadelphia, we reverse and remand for further proceedings consistent

herewith.

      Order reversed. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/18/18




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