Opinion
23-cv-01153-TC-RES
09-03-2024
MONICA KRUSE, Plaintiff v. MARC W. GERDISCH M.D., Defendant
MEMORANDUM AND ORDER
TOBY CROUSE UNITED STATES DISTRICT JUDGE
Monica Kruse filed suit in Kansas state court against Marc Gerdisch M.D. alleging medical negligence that resulted in wrongful death. Doc. 1 at ¶ 1. Gerdisch removed the suit to the District of Kansas, Doc. 1, and now moves to transfer this case to the Southern District of Indiana under 28 U.S.C. § 1404(a) or, in the alternative, to stay this case and mandate referral to the Kansas Medical Review Panel. Doc. 20. For the following reasons, his requests are denied.
All document citations are to the document and page numbers assigned in the CM/ECF system.
I
A
A motion to transfer venue is governed by 28 U.S.C. § 1404 if the plaintiff's chosen venue is proper. Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 55 (2013). Under 28 U.S.C. § 1391(b) venue is proper if a civil action is brought in a judicial district in which any defendant resides provided all defendants are residents of the State in which the district is located, any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or, if there is no district which fits either of those conditions, any judicial district in which any defendant is subject to the court's personal jurisdiction. See Atl. Marine Const. Co., 571 U.S. at 56.
Under 28 U.S.C. § 1404(a), “a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented,” if the convenience of the parties and witnesses and the interest of justice favor transfer. 28 U.S.C. § 1404(a); see also Sprint Commc'ns, L.P. v. Cox Commc'ns, Inc., 896 F.Supp.2d 1049, 1064 (D. Kan. 2012). Courts consider the following factors when determining whether a transfer of venue is convenient and in the interest of justice: “the plaintiff's choice of forum; the accessibility of witnesses and other sources of proof including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and [ ] all other considerations of a practical nature that make a trial easy, expeditious and economical.” Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991). See 28 U.S.C. §1404(a); Emps. Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1167 (10th Cir. 2010); Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir. 1967).
The party moving to transfer the case bears the burden of showing that transfer is appropriate under §1404(a), and that the balance of factors “strongly favors” the venue transfer. Emps. Mut. Cas. Co., 618 F.3d at 1167 n.13. Transfer is proper if it would be in the interest of justice and convenient for the parties. 28 U.S.C. § 1404(a); Van Dusen v. Barrack, 376 U.S. 612, 616 (1964). “Unless the balance is strongly in favor of the movant, the plaintiff's choice of forum should rarely be disturbed.” Emps. Mut. Cas. Co., 618 F.3d at 1167 (quoting Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992)). A plaintiff's choice of forum receives less deference if he or she does not reside there or if “the facts giving rise to the lawsuit have no material relation or significant connection to the plaintiff's chosen forum.” Id. (quoting Cook v. Atchison, Topeka & Santa Fe Ry. Co., 816 F.Supp. 667, 669 (D. Kan. 1993)). But the “convenience of witnesses is the most important factor in deciding a motion under § 1404(a).” Id. (quoting Cook v. Atchison, Topeka & Santa Fe Ry. Co., 816 F.Supp. 667, 669 (D. Kan. 1993)). Nevertheless, “shifting the inconvenience from one side to the other . . . obviously is not a permissible justification for a change of venue.” Scheidt v. Klein, 956 F.2d 963, 966 (10th Cir. 1992).
B
On June 20, 2023, Monica Kruse, as heir of the decedent Anthony Kruse, filed a wrongful death claim in Kansas state court alleging that Gerdisch's negligence in providing medical care caused Anthony Kruse's death. Doc. 1-1 at 1, 9. Gerdisch removed the case to federal court. Doc. 1. According to Mrs. Kruse's complaint, Mr. Kruse, a Kansas resident, had a history of symptomatic aortic valve stenosis which began causing him discomfort in the spring and summer of 2022. Doc. 3 at 10. After finding Dr. Gerdisch, an Indiana doctor, online, Mr. Kruse embarked on a series of remote consultations with Gerdisch. Doc. 1-1 at 5. Thereafter, Mr. Kruse agreed to travel to Indianapolis for surgery to treat his condition. Id. Four days after the surgery, Mr. Kruse died in the Indiana hospital. Id at 8.
The parties dispute the primary location of evidence and witnesses necessary to support Mrs. Kruse's wrongful death claim. According to Mrs. Kruse, most of the relevant “fact witnesses” are in the Wichita, Kansas area. Doc. 29 at 2-3. These include Mr. Kruse's treating cardiologist, Dr. Kshatriya; a surgeon Mr. Kruse originally consulted for the surgery, Dr. Khicha; and damages witnesses including Mrs. Kruse herself, the Kruses' son, and Mr. Kruse's former boss who would testify to Mr. Kruse's lost earning potential. Doc. 29 at 3. Gerdisch has a different view. He points out that nearly all the germane witnesses are in Indiana where the alleged negligence and death occurred. The hospital, hospital staff, nurses, physicians, and other medical professionals who provided care to Mr. Kruse during and after his surgery are in Indiana. Doc. 20 at 7. Thus, Gerdisch requests transfer to the Southern District of Indiana. Doc. 19. In a footnote, Gerdisch alternatively requests referral of this case to the Kansas Medical Review Panel if the case is neither stayed nor transferred. Doc. 20 at 9 n.4.
II
Invoking section 1404(a), Gerdish moves to transfer venue. But while the suit could have been brought in the Southern District of Indiana, Gerdish has failed to establish that the factors applicable to Section 1404(a) strongly favor transfer or that he is entitled to a referral. As a result, his motion is denied.
A
Section 1404(a) allows transfers “[f]or the convenience of parties and witnesses, in the interest of justice, . . . to any other district . . . where [the case] might have been brought.” 28 U.S.C. § 1404(a). No party seriously disputes that the action could have been filed in the Southern District of Indiana-where Gerdisch practices medicine and the surgery and death occurred. The dispute is whether Gerdisch has established the four factors that strongly support transferring the case from Kansas to Indiana. As noted below, he has not.
There is no dispute that Section 1404 applies. Doc. 20; Doc. 29 at 7.
The first factor weighs in favor of Mrs. Kruse. She chose to file suit in Kansas and, as such, argues that her choice of forum should be respected. Doc. 29 at 9. And she notes that she resides in Kansas. Doc. 3 at 2. Thus, she argues her choice of the District of Kansas, as a court in Kansas, should receive deference.
Gerdisch's contrary position lacks merit. He claims Mrs. Kruse did not choose to litigate in the District of Kansas because she chose to file her case in Sedgwick County District Court, and is in federal court only because he removed it from state court. Doc. 20 at 7. That is a false dichotomy: Mrs. Kruse chose to litigate in Kansas and has never sought to litigate in Indiana, which is what Gerdish wants. Her choice of Kansas, despite the removal to federal court, warrants deference. See, Rhythm Engineering, LLC v. A.D. Electric, Inc., No. 21-2091, 2021 WL 1840062 (D. Kan. May 5, 2021) (giving deference to plaintiff's choice of forum in a case that was originally filed in state court); compare Oien v. Thompson, 824 F.Supp.2d 898, 905 (D. Minn. 2010) (“The Court rejects the contention that a plaintiff's choice of forum is entitled to less deference in the § 1404(a) analysis if the plaintiff initially filed suit in state court.”), with U.S.O. Corp. v. Mizuho Holding Co., 547 F.3d 749, 752-53 (7th Cir. 2008) (reaching a different conclusion). See generally 15 Wright, Miller & Cooper, Federal Practice and Procedure, § 3848 (surveying the relevant caselaw).
There are good reasons to defer to Mrs. Kruse's selection of Kansas in this case. For one thing, her husband was and she remains a resident of Kansas. Doc. 20 at 1. And the facts giving rise to this case have a material relation to Kansas. Gerdisch advertised his services nationwide, including to prospective patients in Kansas, on a website that was accessible to Kansans. He engaged in extensive discussions about the surgery with Mr. Kruse, whom he knew resided in Kansas. While Mr. Kruse was in Kansas, Gerdisch advised him to begin treating his high cholesterol, to change his dosage of Rosuvastatin, to cancel a scheduled colonoscopy in Wichita, Kansas, to obtain a heart catheterization in Wichita, Kansas, with the assistance of his office in Indiana, and to get a COVID-19 test before traveling to Indiana. Doc. 3 at 3. And there are a significant number of witnesses that are found in Kansas. These factors are important. See Emps. Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1168 (10th Cir. 2010) (finding that plaintiff's choice of forum was entitled to deference because “the facts giving rise to the lawsuit have a material relation or significant connection to [the forum]”).
As to the accessibility of witnesses and other sources of proof, this factor does not strongly favor transfer. To demonstrate inconvenience as to witnesses “the movant must (1) identify the witnesses and their locations; (2) indicate the quality or materiality of their testimony; and (3) show that any such witnesses were unwilling to come to trial, that deposition testimony would be unsatisfactory, or that the use of compulsory process would be necessary.” Emps. Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1169 (10th Cir. 2010) (quoting Scheidt v. Klein, 956 F.2d 963, 966 (10th Cir. 1992)); see also 15 Wright, Miller & Cooper, Federal Practice and Procedure, § 3851 (“If the moving party merely has made a general allegation that necessary witnesses are located in the transferee forum, without identifying them and providing sufficient information to permit the district court to determine what and how important their testimony will be, the motion to transfer should be denied.”).
Gerdisch has adequately established that he and several witnesses are in Indiana. Indeed, he argues that “all the medical witnesses who assisted with, observed or provided care following Decedent's surgery until the time of his passing-such as anesthesiologists, nurses, respiratory therapy, and other medical providers are in Indiana.” Doc. 20 at 7. This much is true, but it is only one side of the coin. Mrs. Kruse intends to call several witnesses who reside in Kansas. Both Mrs. Kruse and the Kruses' children reside in Kansas and will testify to the damages they suffered and their communications with Gerdisch. Mr. Kruse's former business partners and friends are also testifying Kansans, as well as Mr. Kruse's cardiologist and his cardiothoracic surgeon, Shilpa Kshatriya M.D. and Sanjay Khicha M.D., respectively. Doc. 29 at 11. The burdens and benefits to each side appear to be in equipoise, something that undermines Gerdish's attempt to make a strong showing that transfer should occur. See Scheidt v. Klein, 956 F.2d 963, 965-66 (10th Cir. 1992) (affirming the district court's denial to transfer a case where defendant identified eight potential witnesses in the transferee forum); see also Bartile Roofs, 618 F.3d 1153, 1167 n.13 (“For more than five decades, we have required the movant to demonstrate that the balance of factors ‘strongly favors' a transfer of venue under § 1404(a).”).
Turning to the remaining factors, conflict-of-laws also weighs against transfer. Although it is preferable that the court adjudicating a diversity action be in the state that provides the substantive law, this factor “receives less weight when the case involves relatively simple legal issues.” Emps. Mut. Cas. v. Bartile Roofs, Inc., 618 F.3d 1153, 1169 (10th Cir. 2010). And this factor is also less significant “because federal judges are qualified to apply state law.” Id.
The parties engage in a relatively complex back-and-forth about which state's medical malpractice regime applies and whether Mrs. Kruse is trying to (or has successfully) avoided the states' respective procedural protections. Doc. 20 at 9 (referring to Kan. Stat. Ann. § 654901 and Ind. Code Ann. § 34-18-8-4); Doc. 29 at 8. It appears likely that Indiana substantive law would apply. Ling v. Jan's Liquors, 703 P.2d 731, 735 (Kan. 1985). But see Doc. 29 at 13 (arguing that pre-operative torts occurred in Kansas and, as a result, Kansas law should apply). But regardless of whether the case is litigated in Kansas or Indiana, federal courts in either Kansas or Indiana are equally competent to apply whichever state's substantive law applies. See Scheidt v. Klein, 956 F.2d 963, 966 (10th Cir. 1992) (noting that it was not a significant concern that Florida law governed common law fraud and breach of contract claims tried in Oklahoma); Morrison Construction Co. v. BluRock Concrete, LLC, 380 F.Supp.3d 1155, 1162 (N.D. Okla. 2019) (noting that Plaintiff's tort claims do not involve complex legal issues and federal judges are qualified to apply state law). And discerning whether the Indiana or Kansas laws apply (and how) to this medical malpractice action is one of those legal issues that a court in either jurisdiction can resolve.
Gerdisch's argument as to docket congestion does not weigh in favor of transfer. See Doc. 20 at 7 (citing Table C-5-U.S. District Courts-Civil Federal Judicial Caseload Statistics (March 31, 2022), U.S. Courts, https://www.uscourts.gov/statistics/table/c-5/federal-judicial-case-load-statistics/2022/03/31 (last visited April 16, 2024)). As Mrs. Kruse correctly points out, recent docket statistics suggest that the District of Kansas has a less congested civil docket than the Southern District of Indiana. Doc. 29 at 13; see Table C-5-U.S. District Courts-Civil Statistical Tables for the Federal Judiciary (December 31, 2023), U.S. Courts, https://www.uscourts.gov/statistics/table/c-5/statistical-tables-fed-eral-judiciary/2023/12/31 (last visited April 16, 2023).
B
In a footnote of his brief, Gerdisch argues that even if his motion to transfer is denied, referral to the Kansas medical review panel is required pursuant to the Kansas Medical Malpractice Screening Panels Act, Kan. Stat. Ann. 65-4901 et seq. (“the Act”). Doc. 20 at 9 n.4. That law provides that “if a petition is filed in a district court of this state claiming damages for personal injury or death on account of alleged medical malpractice of a health care provider and one of the parties to the action requests, by filing a memorandum with the court, that a malpractice screening panel be convened, the judge of the district court shall convene a medical malpractice screening panel.” Kan.Stat. Ann. 65-4901(a). Parties to an action must request a screening panel by filing a written request with the judge no “later than 60 days after the defendant subject to the screening panel is served with process.” Kan. R. Rel. Dist. Ct. 142(c). Gerdisch's request is denied without prejudice: the footnote has failed to establish that the Act applies to this suit and that the request is timely.
III
For the foregoing reasons, Gerdisch's motion to transfer venue, Doc. 19, is DENIED.
It is so ordered.