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Opinions – 1/31/13: Maryland Court of Special Appeals

Civil Procedure

Transfer of venue 

BOTTOM LINE: The circuit court did not abuse its discretion in granting defendant’s motion to transfer from Baltimore City to Baltimore County on the ground of forum non conveniens, where the the medical treatment in issue took place in the county and the decedent, his treating physician and the only witnesses named to date were, at all pertinent times, residents of the county.

CASE: Smith v. Johns Hopkins Community Physicians, Inc., No. 1191, Sept. Term, 2012 (filed Jan. 23, 2013) (Judges Eyler, D., Hotten & MOYLAN (retired, specially assigned)). RecordFax No. 13-0123-03, 21 pages.

FACTS: This medical malpractice and wrongful death action was filed in the circuit court of Baltimore City by Bernadine I. Smith as personal representative of the estate of William P. Smith, Jr.; by Bernadine I. Smith as the surviving spouse; and by the three surviving children of William P. Smith, Jr. (collectively, the “Smiths”). The suit was brought against the Johns Hopkins Community Physicians, Inc. (“Hopkins”).

Hopkins filed a motion to transfer the case from Baltimore City to Baltimore County on the ground of forum non conveniens. The circuit court granted the motion.

The Smiths appealed to the Court of Special Appeals, which affirmed.

LAW: Under Rule 2-327(c), the court may transfer any action to any other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice.

Although a denial of a transfer of venue is not immediately appealable, the granting of such a motion is. Cobrand v. Adventist Healthcare, Inc., 149 Md. App. 431, 437-38 (2003). See also Payton-Henderson v. Evans, 180 Md. App. 267, 281 (2008)

“[A]n order putting an appellant out of a particular court is also a final judgment. It follows that an order transferring a case from one circuit court to another, for proper venue or for a more convenient forum, and thereby terminating the litigation in the transferring court, is a final judgment and thus immediately appealable. At the same time, an order denying a motion to transfer is not an immediately appealable final judgment, because the litigation may continue in the court issuing the order.” Brewster v. Woodhaven Building and Development, Inc., 360 Md. 602, 615-16 (2000).

“It is the moving party who has the burden of proving that the interests of justice would be best served by transferring the action.” Odenton Dev. Co. v. Lamy, 320 Md. 33, 40 (1990). Thus, Hopkins bore the burden of justifying the transfer.

“When determining whether a transfer of the action for the convenience of the parties and witnesses is in the interest of justice, a court is vested with wide discretion.” Id. at 40.

The circuit court did not abuse its discretion in granting the transfer. The only factor arguably tilting against the transfer was the prerogative routinely extended to a plaintiff, faced with the option of two or more permissible trial venues, to make the choice of his preferred venue. See Cobrand, 149 Md. App. at 439. “Due consideration must…be given to the plaintiff’s selection of forum.” Niemeyer and Schuett, Maryland Rules Commentary (2d ed. 1992, pp. 215-16).

However, where the plaintiff does not live in the forum he initially chooses, the plaintiff’s choice of forum is entitled to “little deference and thus little weight.” Stidham v. Morris, 161 Md. App. 562, 569 (2005).

In deciding whether to transfer a case on the grounds of forum non conveniens, the trial judge must consider the two factors of 1) the convenience of the parties and witnesses and 2) the interests of justice. Murray v. Transcare Maryland, Inc., 203 Md. App. 172, 191 (2012).

Bernadine Smith lives in Baltimore County. One child lives with her in Baltimore County. Her other two children live north and east of Baltimore County, in Harford County and Delaware, respectively. Hopkins has its headquarters in Baltimore County. Not a single party lives in Baltimore City. Dr. Zollinger, the doctor charged with medical malpractice, lives in Baltimore County. During the nine years of the decedent’s treatment, that treatment was all received at the hands of Dr. Zollinger in Baltimore County at the White Marsh office of the Hopkins. The case had no direct connection whatsoever with Baltimore City.

The Smiths claimed, purely in the abstract, that yet unidentified expert witnesses will find Baltimore City a more convenient forum because of Baltimore’s airport and train station. Only two experts, however, have thus far been named, both by Hopkins. One of them both lives and works in Baltimore County. The other lives in Baltimore County. The Smiths failed to identify a single witness for whom Baltimore City would be a more convenient forum.

Some of the key factors that enter into the “interests of justice” consideration are: “(1) considerations of court congestion; (2) the burden of jury duty; and (3) local interest in the matter at hand.” Murray, 203 Md. App. at 192-93.

This case involved allegedly medical malpractice that took place over the course of nine years, exclusively in Baltimore County. The victim was at all pertinent times a resident of Baltimore County. The treating physician was at all pertinent times a resident of Baltimore County. The medical treatment in issue all took place in Baltimore County. There would appear to be no justification whatsoever for imposing the burden of adjudicating this case on the court system of Baltimore City or of imposing the burden of jury duty on the citizens of Baltimore City. See Payton-Henderson v. Evans, 180 Md. App. at 294.

Thus, the circuit court did not abuse its discretions in granting Hopkins’s motion to transfer.

COMMENTARY: The Smiths mounted an independent procedural attack, alleging that the trial judge failed to exercise her discretion because she did not hold a hearing on the motion to transfer. They cite no law, however, for the proposition that a hearing in such a case is required. Moreover, the appellants never requested a hearing. See Odenton Dev. Co., 320 Md. at 41.

Furthermore, the Smiths completely misread the case law that they cited. They relied heavily on DiNapoli v. Kent Island, LLC, 203 Md. App. 452 (2012). In DiNapoli, the Queen Anne’s County circuit court was reversed for transferring a case to Anne Arundel County. The dominant analysis of the case and its primary holding centered on the Court’s conclusion that Anne Arundel County was an improper venue as a matter of law. See id. at 472. That holding has nothing to do with forum non conveniens law.

In cataloguing the accumulation of tertiary errors, the Court pointed out that there had been presented absolutely no evidence whatsoever of inconvenience of any sort to anyone. The reference to the lack “of any indication that the circuit court undertook” a review was in the context of the lack of “any evidence that the convenience factor required transfer of the case.” Id. at 475. That peripheral observation in DiNapoli does not remotely stand for the proposition that even in the presence of bountiful evidence to support a legally proper transfer of venue, the failure of the trial judge to articulate her reasoning would amount to reversible error.

“The exercise of a judge’s discretion is presumed to be correct, he is presumed to know the law, and is presumed to have performed his duties properly. Absent an indication from the record that the trial judge misapplied or misstated the applicable legal principles, the presumption is sufficient for us to find no abuse of discretion. Additionally, a trial judge’s failure to state each and every consideration or factor in a particular applicable standard does not, absent more, constitute an abuse of discretion, so long as the record supports a reasonable conclusion that appropriate factors were taken into account in the exercise of discretion.” Cobrand, 149 Md. App. at 445.

PRACTICE TIPS: “Deference to the plaintiff’s choice is even further discounted when the forum initially chosen by the plaintiff has no meaningful connection to the suit.” Smith v. State Farm Mutual, 169 Md. App. 286, 300 (2006).

Criminal Procedure

Disclosure of grand jury records 

BOTTOM LINE: Because defendant failed to serve the State’s Attorney with his motion seeking disclosure of confidential grand jury testimony, the circuit court properly denied the motion as procedurally deficient.

CASE: Causion v. State, No. 1766, Sept. Term, 2010 (filed Jan. 23, 2013) (Judges Eyler, D. KEHOE & Raker (retired, specially assigned)). RecordFax No. 13-0123-01, 16 pages.

FACTS: In 1997, after a grand jury indicted Shannon Causion for the first degree murder and the use of a handgun to commit the murder, he pleaded guilty to those crimes. The circuit court accepted the plea, convicted Causion, and sentenced him to a term of life with all but fifty years suspended for the murder and a concurrent term of twenty years incarceration for the handgun offense. Causion filed a petition for leave to appeal, which was denied, and a petition for post-conviction relief under the Maryland Uniform Post-Conviction Relief Act, which was also denied by the circuit court. He then filed a petition for leave to appeal the post-conviction court’s denial of his petition, which the Court of Special Appeals denied. Causion then filed a petition for a writ of habeas corpus in the district court; the district court dismissed the petition with prejudice.

In 2010, Causion filed a motion seeking disclosure of confidential grand jury testimony pursuant to Rule 4-642(d) and a request for a hearing on that motion. The certificate of service reflected that the motion was mailed only to the clerk of the Baltimore City circuit court. The record did not reflect that Causion served, or attempted to serve, the State’s Attorney. The circuit court denied Causion’s motion without a hearing. Causion noted a pro se appeal. The State moved to dismiss the appeal.

The Court of Special Appeals affirmed.

LAW: Rule 4-642 permits disclosure of grand jury records in limited circumstances. “The rule is clear, inspection of grand jury files and records, not otherwise allowed by law without one, is permitted only upon order of court, after hearing on a motion filed in the circuit court where the grand jury is convened.” State Prosecutor v. Judicial Watch, 356 Md. 118, 132 (1999). Moreover, a motion pursuant to Rule 4-462 is the exclusive means for access to grand jury records. Id.

To obtain court-ordered disclosure of grand jury material, the moving party has the burden to prove the following: “1) the material they seek is needed to avoid a possible injustice; and 2) the need for disclosure is greater than the need for continued secrecy; and 3) their request is structured to cover only material so needed.” In re Criminal Investigation No. 437 in the Circuit Court for Baltimore City, 316 Md. 66, 85 (1989) (No. 437).

“The trial court has wide discretion in deciding whether the party seeking disclosure has met the burden of demonstrating that the need for disclosure outweighs the need for secrecy.” In re Criminal Investigation No. 51,843 in the Circuit Court for Prince George’s County, 119 Md. App. 112, 120 (1998) (No. 51,843). Thus, appellate courts review a ruling on a Rule 4-642(d) motion for errors of law in the application of these principles and for abuse of discretion in the ultimate decision regarding disclosure. Id.

The circuit court denied Causion’s motion without comment and without the hearing that Rule 4-462(d) requires. The record indicated that Causion undisputedly failed to serve a copy of the motion upon the State’s Attorney, as expressly required by Rule 4-642(d). Moreover, the State did not waive its right to notice by filing an opposition to Causion’s motion.

Under the circumstances, a hearing would have been a futile exercise because the State’s Attorney had not received notice of the motion. While the circuit court did not explain the grounds for its ruling, it was assumed that the court denied the motion because Causion failed to properly notify the State’s Attorney. This interpretation of the ruling explains why, despite Causion’s request for a hearing, the court immediately denied the motion without holding one.

Because the order did not address the merits of Causion’s claim that he was entitled to disclosure for the reasons stated in his motion, Causion is not barred from filing another motion seeking disclosure on the same grounds.

In his motion, Causion asserted that disclosure was necessary to assist in the cross-examination as well as the impeachment of witnesses who testified before the grand jury and to investigate inconsistencies that were never brought out at trial. In Causion’s view, if the denial of his motion for disclosure stands, it will interfere with the fact finding process and his right to impeach.

However, the fact-finding process in Causion’s criminal proceeding was concluded long ago when he voluntarily waived his right to a trial and knowingly pleaded guilty to first degree murder. See, e. g., Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969). There is not, and never will be, any necessity for Causion to cross-examine or impeach the witnesses in question because he waived his right to do so.

Causion also argued in his motion that, because the grand jury in question has long ago completed its deliberations, the need for continued secrecy was no longer required. However, that the grand jury has been discharged reduces, but does not obviate, the strong public interest in secrecy in grand jury proceedings. “For in considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties. Thus, the interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities.” No. 51,843, 119 Md. App. at 117.

COMMENTARY: The jurisdiction of an appellate court is generally limited to final judgments, see CJ §12-301, certain interlocutory orders immediately appealable as allowed by statute, see, e.g., CJ §12-302, and orders that are appealable through the common law collateral order doctrine. See, e.g., Kurstin v. Bromberg, 420 Md. 466, 480 (2011). There is no specific statutory authorization for interlocutory appeals from orders denying access to grand jury records.

“[A] final judgment is one that either determine[s] and conclude[s] the rights of the parties involved or den[ies] a party the means to prosecut[e] or defend[] his or her rights and interests in the subject matter of the proceeding.” Douglas v. State, 423 Md. 156, 171 (2011).

While the question whether an order denying access to grand jury records is appealable appears to be one of first impression in Maryland, on several occasions the appellate courts have exercised appellate review over court orders granting such access. See No. 437, 316 Md. at 76.

In In Re Special Investigation No. 236, 295 Md. 573 (1983) (No. 236), the Court of Appeals concluded that the order granting access was a final judgment because: “[o]nce the motion was granted there was nothing more to be done in this particular case. It thus settled the rights of the parties and terminated the cause.” Id. at 575.

Here, the order of the circuit court also settled the rights of the parties in that it denied Causion’s request to obtain access to the proceedings of the grand jury. There was nothing more that the court could do to give effect to its ruling and Causion sought no other relief.

The State argued that the court’s ruling was not a final judgment because there is nothing in Rule 4-642 that prevents a movant from filing multiple requests for access to grand jury records. To be sure, there is nothing in the rule that explicitly prohibits repeated motions but, as principles such as law of the case and claim and issue preclusion suggest, it is the policy of the State that courts should provide a final resolution to justiciable issues in a single proceeding.

Causion’s request for disclosure was not made in conjunction with other pending litigation. When the circuit court denied his request for the records of the grand jury proceedings that resulted in his indictment. The court’s order “settled the rights of the parties and terminated the cause.” No. 236, 295 Md. at 575.

Therefore, the order denying Causion’s motion was reviewable on appeal as a final judgment.

PRACTICE TIPS: A grand jury’s records can be disclosed for purposes not directly related to criminal proceedings stemming from indictments issued by the grand jury. See, e.g., United States v. Sells Engineering, 463 U.S. 418, 421-22 (1983); No. 437, 316 Md. at 70.