Forum Non Conveniens in West Virginia – What Factors Should Be Considered When Determining Where to Bring a Lawsuit?

united-states-on-charts-1458255-1280x960Plaintiffs typically bring lawsuits in the forum, or court, that is most convenient for them.  This is most often where they reside, but it may also be where an injurious act took place, or where the defendant resides.  In many personal injury cases, both parties reside in the same state or district. For instance, two neighbors who run into each other during an accident in their neighborhood would be likely to seek out the same court for their dispute.  But in certain circumstances, the parties may differ about where the lawsuit should be brought.  For instance, a defendant may spend half of his year in one state and half of his year in another, and argue that a lawsuit brought against him should be transferred to a different state.  In order to analyze where a case should be brought, courts consider a variety of factors.  A recent decision by the West Virginia Supreme Court highlights the weighing of the factors that must occur.

In State ex rel. Khoury v. Hon. Cuomo, plaintiff Nicole Scarcelli filed a medical malpractice action against Dr. Rajai Khoury in the Circuit Court of Ohio County in West Virginia, a county on the border with Ohio. While performing a surgery for Ms. Scarcelli, Dr. Khoury had allegedly worked on the wrong bone, causing Ms. Scarcelli ongoing pain and additional medical costs.  In choosing to file in Ohio County, Ms. Scarcelli relied on the fact that she lived in the district, and many of the witnesses to be called also resided in that district. However, Dr. Khoury filed a motion to dismiss the action on the basis of forum non conveniens, arguing that Ohio County was the wrong place to bring the action and inconvenient for him as a defendant. Specifically, he noted that the surgery at issue had actually taken place in the State of Ohio, not West Virginia.  In response, Ms. Scarcelli noted that Dr. Khoury’s practice was located in Ohio County and that he also lived in the county. Moreover, Ms. Scarcelli argued that, as plaintiff, her choice of forum was entitled to significant deference.

The Circuit Court denied the motion, noting that while the surgery took place in Ohio, Ms. Scarcelli’s injury and the basis for her surgery arose in West Virginia, as did Dr. Khoury’s subsequent failure to notify Ms. Scarcelli about the surgical mistake. The Circuit Court also considered factors such as the location of her experts, the location of nonresident experts, and the location of her treating physicians. In response, Dr. Khoury filed a motion for writ of prohibition with the Supreme Court of Appeals of West Virginia, requesting that the order denying the motion be overturned.

On appeal, the Supreme Court turned to the factors set forth in West Virginia’s forum non conveniens statute, including the state where the action accrued, whether conducting the case in one location versus another would cause a substantial injustice to either party, and the balance of private and public interests such as judicial expediency. The Supreme Court acknowledged the deference that plaintiffs have in choosing a forum and ultimately sided with the Circuit Court, noting that Dr. Khoury’s motion failed for three primary reasons. First, Dr. Khoury would not face substantial injustice because he lived and worked in West Virginia. Second, the cause of action partially arose in West Virginia when Dr. Khoury failed to adequately inform Ms. Scarcelli and her doctors of the actual surgery that had been performed. Finally, the balance of factors weighed in Ms. Scarcelli’s favor because much of the discovery and many of the experts she would retain in the case lived in Ohio County, West Virginia.

If you or a loved one has been hurt as a result of a medical mistake and are concerned about where you should file your personal injury or medical malpractice claim, the Wolfe Law Firm can help. Our West Virginia personal injury lawyers have been serving clients throughout the state for more than 25 years. Located in Elkins, West Virginia, the firm represents clients in a wide range of injury, criminal defense, and bankruptcy matters. Call us at 1-877-637-5756 or contact us online for a free consultation.

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