Virginia: Medical Malpractice Va. Code Ann. §8.01-265 – a Lawyer’s Venue
Marshall v. Moniz, No. CL08-2018 in York Circuit Court is a medical malpractice action. Defendants have moved to transfer venue to Williamsburg, Virginia.
Va. Code Ann. §8.01-261 provide “Category A or preferred venue”. There is no preferred venue in the Marshall medical malpractice lawsuit .
Va. Code Ann. §8.01-262(3&4) provide “Category B permissible venue,” wherein “the defendant regularly conducts substantial business activity” and/or “the cause of action, or any part thereof, arose”. York County is permissible venue under both of those subsections in the Marshall medical malpractice suit.
“While plaintiff’s choice of forum is not entitled to absolute deference, it ‘should not be lightly defeated’.” Champigny v. Bagly, 55 Va. Cir 381, 382 (Norfolk Jul. 2, 2001)(citations omitted). “A rebuttable ‘presumption of correctness attaches to a plaintiff’s choice of forum’.” Kollman v. Jordan, 60 Va. Cir. 293, 294 (Chesterfield Oct. 29, 2002). When “considerations are equal or even close, the plaintiff’s choice of forum must prevail.” Wray v. Floyd & Beasley Transfer Co., 29 Va. Cir. 126, 130 (Richmond Sep. 17, 1992).
“Plaintiff does not need to explain his reasons for placing venue in any particular forum that §8.01-262 allows.” Id. “According to the plain language of the statute [§8.01-265], Defendant has the burden to show good cause for a transfer.” Id.
The Virginia Supreme Court and numerous Circuit Courts have denied transfer of venue where Defendants have failed to bear their burden of proving “good cause” for “substantial inconvenience” in similar and even arguably more compelling witness circumstances. E.g., VEPCO v. Dungee, 258 Va. 235, 244-247 (1999)(“travelling 30 miles . . . imposed minimal cost and inconvenience”); Birdsall v. Federated Dept. Stores, Inc., 70 Va. Cir. 290, 292-293 (Fairfax Mar. 14, 2006)(New York was location of tort and plaintiff’s prior residence); Exhibit 6, Biess v. Frenkel, No. L02-1139 (Norfolk May 8, 2003); Kollman, supra at 294-295 (courthouses in adjoining localities 12 miles apart); Bradley v. Kellum, 55 Va. Cir. 397, 399 (Charlottesville Jul. 18, 2001)(witnesses speculative and unspecified but most 70 miles away); Champigny, supra at 382-386 (courthouses 20 miles apart); Sponaugle v. Rutledge, 58 Va. Cir. 3, 5-6 (Fairfax May 30, 2001)(single republication 125 miles away from multiple primary defamations and defendant’s residence in James City County); Holte v. Norfolk and Western Ry. Co, 47 Va. Cir. 403, 404 (Richmond Nov. 24, 1998)(movant failed to bear burden without evidence of doing business or inconvenience); Wray, supra at 127-130 (9 witnesses 80 miles away); and Lee v. Richmond, Fredericksburg and Potomac Railroad Co., 23 Va. Cir. 357, 359-362 (Richmond Apr. 9, 1991)(location of tort plus witnesses 50 miles away). Indeed, “the Virginia Supreme Court has held that the mere fact that there is ‘no practical nexus’ between the venue Plaintiff has selected the cause of action does not provide good cause for a transfer.” Kollman, supra (citing Dungee, supra). Significantly, virtually all defense case law is pre-Dungee circuit court orders.
The matter sub judice follows Moore v. Gillis, 239 Va. 239 (1990). There are practical nexuses and minimal – in fact, only speculative unspecified arguable – witness inconvenience. For example, healthcare providers of Plaintiff are located on the Southside, closer to York County; and several witnesses are 125-150 miles away from both York and Williamsburg.
In the medical malpractice claim of Marshall, there is a practical nexus and minimal – in fact, only arguable – witness inconvenience. For example, healthcare providers of Plaintiff are located on the Southside, closer to York County.
