MEDICAL MALPRACTICE – JURISDICTION – FORUM NON CONVENIENS – PROCEDURE

Duxbury v. Reconstructive Orthopedic Assocs. II P.C., 2026 Pa. Super. LEXIS 70 (February 4, 2026) Beck. J. BEFORE: BOWES, J., MURRAY, J., and BECK, J.
Alyson Axelrod, D.O., and directing that the action be refiled in New Jersey. The Duxburys contend that the trial court erred in its application of existing precedent regarding forum non conveniens and that a consideration of the facts under a correct application of the law does not support transfer of the action to New Jersey. After careful review, we reverse the trial court’s order and remand for further proceedings in Philadelphia County.
We review an order ruling upon a motion to dismiss based upon the doctrine of forum non conveniens for an abuse of discretion. Hurt for Est. of Jones v. Penn Cent. Corp., 250 A.3d 1227, 1234 (Pa. Super. 2021).
The burden of establishing that Pennsylvania is a less convenient forum than another available forum lies with Appellees. In finding that New Jersey is a more convenient forum, the trial court focused on the remoteness of the case from Pennsylvania, including the availability of New Jersey witnesses, location of the purported negligence and injuries, the Duxburys’ residence, and the burden on the medical practice if the case is tried in Philadelphia County. The trial court, however, was obligated to weigh the circumstances linking the case to Pennsylvania as well and to determine whether Pennsylvania was an inconvenient forum, not simply that New Jersey was a more convenient forum for Appellees. See Failor, 248 A.3d at 537 (stating that “[d]etermining forum non conveniens required the court to consider the relative convenience” of the two states). The trial court’s failure to do so constitutes an error of law.
Securing Witnesses
The trial court relies heavily on the burden that trying the case in Philadelphia would impose on Dr. Axelrod, citing her leg injury, concern about driving to Philadelphia, and the potential impact her travel to Philadelphia would have on her medical care for patients.
Although Dr. Axelrod testified that holding the trial in New Jersey would require her to reschedule fewer patients, there is no indication as to how long she would have to be at the courthouse, regardless of the location, now that she is no longer a party to the action. Furthermore, the fact that Dr. Axelrod finds driving to Philadelphia stressful does not constitute grounds for dismissing the action for inconvenience.
The trial court also points to eight additional “potential witnesses” identified by Appellees who participated in the care Elizabeth received and are located in New Jersey. However, Appellees failed to demonstrate, either before the trial court or in their brief before this Court, that any of these witnesses would not or could not attend trial in Philadelphia.
Moreover, the trial court did not consider that Pennsylvania would be a more convenient forum for Elizabeth’s subsequent treating doctors, two of whom are located in Philadelphia. And both the Duxburys and Appellees identified additional witnesses not located in either Pennsylvania or New Jersey. As these witnesses would have to travel regardless of where the trial takes place, the location of these witnesses favor neither forum, as there is no support in the record that a trial held with these witnesses in New Jersey would be more expeditious or inexpensive than in Pennsylvania.
Assessed as the law requires, the relevant private factors—the ease of access of sources proof (including medical records), the availability of process for unwilling witnesses, and the cost of obtaining witnesses—do not strongly militate in favor of moving this litigation to New Jersey. Pointedly, there is no evidence that New Jersey is a more convenient forum where the litigation can be conducted more easily, expeditiously, and inexpensively than in Pennsylvania. There are witnesses located in both jurisdictions; compulsory process is available to secure the attendance of any witness who will not voluntarily attend; the necessary evidence can be accessed easily in both New Jersey and Pennsylvania; and the defendants have their principal place of business in Philadelphia. Therefore, the trial court abused its discretion in finding the private factors weighed in favor of dismissal of the action from Pennsylvania. See McConnell, 221 A.3d at 229-30 (concluding that the trial court abused its discretion in granting motion to dismiss because the defendant failed to establish private factors where it had corporate offices in Pennsylvania and plaintiff’s difficulty in securing relevant evidence was not a concern).
Public Factors
The trial court did not discuss the public factors; instead, it simply stated that it “reviewed the competing arguments as to the required considerations in forum non conveniens matters, and [found] under the totality of the circumstances, Appellees’ to be most compelling.”
Although we could remand the case, as we have before, for the trial court to consider the public factors, see, e.g., Bochetto, 94 A.3d at 1056, the record fully sets forth the public factors at issue and the evidence is not in question. Therefore, in the interest of justice, we decline to remand, as we are able to analyze the public factors based on the record in this case.
As to the first public factor—congested centers of litigation—Appellees argue the “congestion of the Philadelphia court system is not something that can be reasonably refuted.” Appellees’ Brief at 28. The Duxburys do not dispute this. See generally The Duxburys’ Brief. We agree that this factor could weigh in favor of dismissal. See Burnett v. Penn Cent. Corp., 250 A.3d 1240, 1253 (Pa. Super. 2021) (noting that “there would be more administrative difficulties if the case is tried in Philadelphia, Pennsylvania” than other states); but see Goodman by Goodman v. Pizzutillo, 682 A.2d 363, 369 (Pa. Super. 1996) (while noting the congestion in the Philadelphia courts, concluding that “this factor alone should not be viewed as giving trial courts carte blanche authority to transfer any case which may be as conveniently litigated elsewhere”).
The second public factor—whether the people of a community have some relation to the litigation—weighs against dismissal.
The third and final public factor considers what law applies and whether the home forum should apply the law. The Duxburys have raised negligence claims against Appellees and the parties agree that New Jersey law applies.
After a careful consideration of all the factors relevant to a forum non conveniens analysis, and with the limited deference required in this matter to the Duxburys’ chosen forum, Pennsylvania is a proper forum for this action. The record does not support the trial court’s finding that there were “weighty reasons” to overcome this limited deference. We therefore conclude that trial court abused its discretion in dismissing the action and directing the Duxburys to file the action in New Jersey. See McConnell, 221 A.3d at 232 (concluding that the trial court misapplied the law in dismissing the case on forum non conveniens, noting there were not weighty reasons to disturb the plaintiff’s forum choice); Vaughan, 208 A.3d at 77 (reversing dismissal order where the public and private factors supported the plaintiff’s chosen forum); see also Failor, 248 A.3d at 534-35 (stating “a court will … not dismiss for forum non conveniens unless justice strongly militates in favor of relegating the plaintiff to another forum”) (emphasis in original, citation omitted). Accordingly, we reverse the order and remand for further proceedings.
• This case was filed in Philadelphia against Rothman Urgent Care in Marlton, NJ.
• The Court reversed and said that the case could be brought in Philadelphia and did not have to be in New Jersey.
• Pennsylvania was a proper forum for the action.
• The record does not support that there were “weighty reasons” to overcome the limited difference to the plaintiff’s choice of forum.
• The trial court abused its discretion in dismissing the actions and directing that the case be filed in New Jersey.
• The court goes through the various factors.
• The court will not dismiss for forum non conveniens unless justice strongly militates in favor of relegating the plaintiff to another forum.