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Forum Shopping Denied: Superior Court Rejects The Availability Of Virtual Technology As A Basis For Denying A Dismissal Based On Forum Non Conveniens

February 11, 2022

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<p style="text-align: justify;">In<em> <a href="">Green v. CSX Transportation Inc.</a></em>, the Superior Court of Pennsylvania rejected a trial court’s conclusion that the availability of virtual technology ameliorated the difficulties of litigating in an inconvenient forum, and reversed the trial court’s denial of CSXT’s motion to dismiss based on <em>forum non conveniens.</em>  Clyde Green filed a Federal Employers’ Liability Act (“FELA”) claim against CSXT, where he worked for 42 years as a train brakeman and conductor, alleging that he developed colon cancer through his employment-based exposure to toxic substances.  Green is a lifelong resident of Maryland and had worked for CSXT and its predecessor entities almost exclusively in Maryland.  Since his employment with CSXT began in 1987, Green never worked in Pennsylvania.  While working for the predecessor companies, Baltimore and Ohio Railroad and the Chessie System, Green would infrequently travel to one rail yard in Pennsylvania.  In his entire career, Green worked at 13 separate railyards.  His former co-workers and supervisors all live in Maryland, as does his immediate family.  Green was diagnosed and exclusively treated for cancer in Maryland.  All of the medical professionals that were directly involved in Green’s health maintain offices or operated their practices in Baltimore or Annapolis, Maryland.</p>
<p style="text-align: justify;">Notwithstanding the extensive connections to Maryland, Green filed his complaint in the Court of Common Pleas of Philadelphia County.  CSXT filed a motion to dismiss based on <em>forum non convenience.</em>  The court denied the motion, concluding that it was “no more vexatious to conduct. . . remote litigation in Maryland or Pennsylvania.”  The court determined that all discovery and trial depositions could be performed remotely, and the Superior Court observed that the trial court “found that remote accessibility made it immaterial as to where the actual action would be litigated.”  The Superior Court soundly rejected this argument:</p>
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<p style="text-align: justify;">Simply put, to the extent the trial court was suggesting the use of video recording technology would ameliorate potential problems with remote witnesses, reliance on these “workaround” methods is misplaced.  Stated differently, overwhelming or exclusive reliance on “modern technology to obviate the need for in-person elements of the trial continuum has been rejected as a justification to deny a motion to dismiss on <em>forum non conveniens </em>grounds.  Citing <em>Wright v. Consol. Rail Corp., </em>215 A.3d 982, 996 (Pa. Super. 2019).</p>
<p style="text-align: justify;">The Superior Court reversed and remanded to the trial court to with directions to dismiss the underlying complaint without prejudice to refiling it in a more appropriate court.  Ultimately, the Superior Court’s decision was based on its conclusion that the trial court had misapplied the relevant public and private factors under Pennsylvania <em>forum non convenience </em>law and that “given the clear viability of Maryland as an alternate forum, it was an abuse of discretion to the contrary.”  Although <em>Green </em>is a fact-specific non-precedential decision that was ultimately decided on other grounds, it stands as persuasive authority for rejecting future attempts to use the availability of virtual litigation technology as an argument to circumvent existing <em>forum non conveniens</em> jurisprudence.</p>
<p style="text-align: justify;">Thanks to James Scott for his contribution to this article.  Should you have any questions, please contact <a href="">Tom Bracken</a>.</p>


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