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, 66 L. Ed. 2d 521, 101 S. Ct. 633, reh'g denied, 450 U.S. 971, 67 L. Ed. 2d 623, 101 S. Ct. 1494 (1981) (concluding that Minnesota court constitutionally may apply Minnesota law even though suit more significantly connected with Wisconsin), these tenuous connections are not sufficient to cause this forum to be the appropriate forum in which to maintain this action. See Gulf Oil, 330 U.S. at 506-507 ("In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes the criteria for choice between them.") Maryland has a substantial interest in resolving this controversy because Maryland by a considerable margin has the most significant contacts with the facts giving rise to this action. The alleged malpractice occurred in Maryland; Dr. Levitt, who committed the alleged malpractice, is licensed by the State of Maryland, is employed by Kaiser to practice medicine in Maryland, and lives in Maryland; and the Otts have continued to reside in Maryland since Michael Ott's birth. The State of Maryland has a greater interest in the resolution of this controversy than the District of Columbia. First, the State of Maryland has an interest in resolving conflicts between residents of Maryland and corporations licensed to conduct business in Maryland, particularly when the corporation employs Maryland professionals who are alleged to have committed medical malpractice, and the corporation continues to serve the medical needs of Maryland residents. Second, the State of Maryland has an interest in resolving conflicts that arise in its own backyard, instead of permitting residents of other forums to resolve conflicts that affect primarily Maryland concerns. Third, the burden of jury duty should be imposed on the people of the forum that has the most significant contacts with the litigation, which in this case is Maryland. Fourth, the Court can confidently conclude, without even a superficial analysis of Maryland conflicts of law, that Maryland would apply its own law to this case, and it is appropriate for this case to proceed in the forum in which the controversy arose, using the law that sets forth the standards by which the parties to the suit legitimately expected to be governed in the event of suit.
The District of Columbia has some interest in the outcome of this controversy, but that interest does not match Maryland's substantial interest. See Pain, 637 F.2d at 792-93 (discussing weighing the local public interest of alternative forums). As noted, the District of Columbia has only two connections with this action: Kaiser is incorporated in the District and the Otts receive Kaiser medical insurance through Mr. Ott's employer, which is located in the District of Columbia. The District has an interest in overseeing the conduct of businesses incorporated under the law of the District of Columbia. See Kaiser-Georgetown Community Health Plan, Inc. v. Stutsman, 491 A.2d at 502, 509 (D.C. 1985) (in choice-of-law inquiry, court should consider whether defendant is a corporate citizen of forum). But see Pitts v. Woodward and Lothrop, 327 A.2d 816 (D.C. 1974), cert. denied, 420 U.S. 911, 42 L. Ed. 2d 841, 95 S. Ct. 832 (1975) (in forum non conveniens inquiry, when forum has no particular interest in parties or subject matter to suit, fact that defendant incorporated in forum carries little weight). Maryland assuredly has an interest in overseeing the conduct of businesses licensed to do business in Maryland, and Kaiser is licensed to conduct business in the State of Maryland. Despite the District's and Maryland's interests in overseeing the conduct of a business it has permitted to incorporate and licensed, respectively, these factors lack significance here because this case has no connection with the fact of Kaiser's incorporation or licensing; the case is based on Kaiser's conduct. See Allstate, 449 U.S. at 337-38 (Powell, J., dissenting) (the forum has no interest in regulating that conduct unrelated to property, persons, or contracts executed within the forum).
Maryland, not the District of Columbia, is the situs of Kaiser's alleged misconduct. Maryland, therefore, here has a more compelling interest in overseeing the conduct of Kaiser. The only other connection this matter has with the District of Columbia is Mr. Ott is employed in the District and receives Kaiser medical benefits as an employee benefit. The District has an interest in protecting a member of its workforce. Stutsman, 491 A.2d at 510. Maryland, however, has a more compelling interest in protecting its residents. See Allstate, 449 U.S. at 314 ("The State of employment has police power responsibilities towards the nonresident employee that are analogous, if somewhat less profound, than towards residents.") Moreover, as Justice Powell pointed out in his dissent in Allstate, a state should consider the plaintiff's employment within the forum only when the action affects or implicates the plaintiff's employment status. Id. at 339. Although the Otts' relationship with Kaiser arose as a result of a contract between Kaiser and Mr. Ott's employer, which is in the District, this action in no way affects Mr. Ott's employment within the District of Columbia. The Court cannot reasonably describe the "relationship between the parties to the instant litigation as centering around the District of Columbia since the agreement to provide health care was a benefit of the plaintiff's District employment," Stutsman, 491 A.2d at 508, because the primary relationship between the parties to the instant litigation centered on Maryland, where the Otts routinely received health care; the Otts' status as third-party beneficiaries of a contract that may or may not have been formed in the District of Columbia hardly dominated their more direct relationship as Kaiser patients. Despite the District's interest, therefore, Maryland has a more substantial interest in this litigation.
An additional factor, although not dispositive in and of itself, in favor of dismissing this action on the basis of forum non conveniens is the interest of judicial efficiency. Unnecessarily maintaining two actions based on the same facts -- one action in the Circuit Court for Montgomery County and one action against Kaiser in this Court -- hardly furthers judicial justification for maintaining dual actions, and the Court is unable to justify the double expenditure of time necessitated by requiring two judges and two juries to try this case. The Otts undoubtedly have chosen this forum in which to pursue their claim against Kaiser in the belief that they are more likely to obtain a recovery, and a higher recovery, in the District of Columbia. See Plaintiffs' Memorandum of Law Concerning the Refiling of the Complaint in This Court, p.2 n.1. Although the substantive law of a forum is likely to favor one litigant over the other, the Court's central concern when engaging in a forum non conveniens analysis is furthering the "just, speedy and inexpensive determination of the action," and the Court should not consider the relative amount of recovery. Pain, 637 F.2d at 794-95. Accordingly, the Court declines to evaluate the likelihood of a higher recovery in its forum non conveniens inquiry. But see Stutsman, 491 A.2d at 510-11 (a relevant factor for choice-of-law inquiry was amount of recovery available in alternate jurisdiction). The factors of public interest, therefore, tip the balance in favor of a trial in a foreign forum.
The fourth, and final, factor the Court must consider in determining whether this action should be dismissed on the basis of the doctrine of forum non conveniens is whether the Otts can bring their suit in an alternative forum without undue inconvenience or prejudice. The Otts already have pending an action against Kaiser in the Circuit Court for Montgomery County. The Otts have given no indication that proceeding against Kaiser in that forum would unduly inconvenience or prejudice them. This last factor, therefore, also causes the Court to conclude that the action should be dismissed on the basis of forum non conveniens.
Accordingly, defendant's motion to dismiss on the ground of forum non conveniens is granted. An appropriate Order accompanies this Memorandum Opinion.
ORDER - May 18, 1988, Filed
For the reasons set forth in the accompanying Memorandum Opinion, it hereby is
ORDERED, that defendant's motion to dismiss on the basis of forum non conveniens is granted and the case is dismissed. It hereby is
ORDERED, that defendant's alternative motion for a bifurcated trial is denied as moot.