Opinion
Civil Action No. 01-2115-CM
August 13, 2001
MEMORANDUM AND ORDER
This case involves plaintiff's allegations of medical negligence and violations of the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd. Specifically, plaintiff alleges that defendants were negligent in failing to adequately assess, test, and manage her injury when she initially was evaluated in the Stormont Vail emergency room and that defendants caused a delay in treatment which resulted in further injury. This matter is before the court on plaintiff's motion to designate Kansas City, Kansas as the place of trial (Doc. 29) and defendants' motion to determine Topeka, Kansas as the place of trial (Doc. 34).
Plaintiff designated Kansas City, Kansas as the place of trial in this case. Thereafter, defendants filed designations listing Topeka, Kansas as the place of trial. Plaintiff claims that Kansas City, Kansas provides a more neutral forum because, plaintiff contends, if the case is tried in Topeka, many potential jurors will likely have been a patient at Stormont Vail or know someone who has.
Pursuant to D. Kan. Rule 40.2, the court may in its discretion determine the place of trial. Included among the factors to be considered are the plaintiff's choice of forum, the convenience of the witnesses, the accessibility of the witnesses and other sources of proof, the relative advantages and obstacles to a fair trial, 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, 1515-16 (10th Cir. 1991). The court notes that the plaintiff's choice of forum is given great deference. Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992). However, where the plaintiff's choice of forum is not her residence, it is given much less weight. Ervin Assocs., Inc. v. Cisneros, 939 F. Supp. 793, 799 (D.Colo. 1996).
The court finds that the balance of the relevant factors favors a trial in Topeka and overrides the presumptive weight given the plaintiff's choice of forum. A review of plaintiff's preliminary witness and exhibit list reveals that all of the thirty-five witnesses identified by name are from Topeka, and none is from the Kansas City area. The court finds that the majority of witnesses would be inconvenienced by having this case tried in Kansas City, Kansas. Topeka would be much more convenient for the witnesses and defendants. The court further finds that plaintiff will not be any more inconvenienced by having trial in Topeka, especially considering that Topeka is where plaintiff resides. Moreover, plaintiff's concern over a fair trial in Topeka is nothing more than mere speculation. The court is confident that the voir dire process will adequately protect the plaintiff's right to a fair and impartial jury. Aramburu v. Boeing Co., 896 F. Supp. 1063, 1064 (D.Kan. 1995); see also Wallace v. Beech Aircraft Corp., No. 96-4128-SAC, 1997 WL 723436, at *6 (D.Kan. Oct. 22, 1997) (granting defendant's motion to designate Wichita as place of trial, despite plaintiff's designation of Topeka, where plaintiff was a Wichita resident, most witnesses were from Wichita, and plaintiff's concern about receiving a fair trial were mere speculation that could be addressed in voir dire). The court determines that the trial will be held in Topeka.
IT IS THEREFORE ORDERED that plaintiff's motion to designate Kansas City, Kansas as the place of trial (Doc. 29) is denied, and defendants' motion to determine Topeka, Kansas as the place of trial (Doc. 34) is granted.