Forum Non Conveniens: Two Cases Finding for Plaintiff's Forum Choice

(Case One) D.C. Resident Can Sue in D.C. for Injury at Md. Nursing Home

Medlantic Long Term Care Corp. v. Smith,__ A.2d __ (D.C. 2002). Opinion by Ruiz, joined by Washington and King. Trial judge: Retchin.

FACTS: Long-term D.C. resident became resident of nursing home in Silver Spring, Maryland for 11 months. By end of stay, she had multiple severe pressure ulcers. She was transferred to D.C. General Hospital and died 11 days later due to septic shock caused by the ulcers. Resident's personal representative filed suits against the nursing home both in Maryland and the District of Columbia. (Maryland case was wrongful death action filed on behalf of two grandsons living in Maryland; D.C. case was "survival action" only.) D.C. trial court denied motion to dismiss for forum non conveniens.

OUTCOME: Denial of motion AFFIRMED.

HOLDING: Trial court did not abuse its discretion in keeping the lawsuit in D.C., where: (1) plaintiff was long-time D.C. domiciliary who resided only temporarily in Maryland; (2) fact witnesses in Silver Spring were within subpoena power of Superior Court;(3) D.C. has as much interest in outcome of this case as Maryland since case concerned D.C. domiciliary who died in D.C. due to defendants' alleged negligence in Maryland; and (4) defendants do business in D.C.

QUOTE: "Where the decedent was domiciled in the District and died at D.C. General Hospital from complications alleged to have been caused by appellants' negligent care in Maryland, the District of Columbia, no less than the state of Maryland, has a significant interest in how resident corporations conduct business, especially where, as here, defendants also provide similar medical care in the District and the health and safety of a domiciliary are at issue."

COMMENT: Court says fact that parallel litigation is pending simultaneously in Maryland and D.C. for the same injury does not require dismissal of one action. Damages issues in the two cases are completely separate, and trials could be organized so that common issues could be conclusively decided in first case to reach trial. Also, Court declines to decide issue of whether Maryland or District substantive law should apply to the case but says a D.C. court is just as competent in applying Maryland law as a Maryland court, so possible need to look to Maryland law is not itself a reason to transfer.

(Case Two) Virginia Resident Can Sue D.C. Law Firm in D.C. for Multi-Forum Conduct

Nixon Peabody LLP v. Beaupre,__ A.2d __ (D.C. 2002). Opinion by Pryor, joined by Ruiz and Reid. Trial judge: Duncan-Peters.

FACTS: Former editor of Cincinnati Enquirer was transferred to Gannett headquarters in Arlington, Va., then fired for his role in having sponsored an investigative article about Chiquita Brands for which the newspaper ultimately apologized and paid money to Chiquita. D.C. law firm and a partner from firm's New York office acted as counsel to both Gannett and the ex-editor in Chiquita negotiations and criminal investigation. After editor was fired, he sued law firm and individuals in D.C. Trial court denied forum non conveniens motion.

OUTCOME: Denial of forum motion AFFIRMED.

HOLDING: Trial court did not abuse discretion in refusing to dismiss case, despite plaintiff's non-residence in District, where: (1) much of alleged tortious conduct by law firm occurred in D.C.; (2) fact that defense listed numerous witnesses as residing in Ohio did not make insurmountable obstacle where there was no evidence that they would refuse to come to D.C. or that they could not be deposed; (3) plaintiff's forum choice was entitled to less weight since he didn't live here, but fact that claim arose in part from D.C. conduct provided reasonable basis for his choice.

District Liable for Failing to Respond to Inoperative Traffic Signal

District of Columbia v. Carlson, __ A.2d __ (D.C. 2002). Opinion by Terry, joined by Farrell and Glickman. Trial judge: Keary.

FACTS: Construction worker cut power cable, causing loss of power to several traffic signals along Independence Avenue Southwest. D.C. government was notified of traffic signal non-function and responded to several intersections, but not the one at Independence and Sixth Street, across from the Air & Space Museum. Eight hours after outage started, a car hit the plaintiff pedestrian as he was trying to cross Independence Avenue in a crosswalk. Plaintiff sued District on theory that it should have put up temporary stop sign or had police officer direct traffic while power was being restored. District argued that car driver hitting a pedestrian in a crosswalk was not foreseeable result of lack of functioning signal and that car driver's testimony established there was no causation-in-fact. (Car driver claimed his view was blocked by a large car in front of him but testified inconsistently.) Jury found for plaintiff.

OUTCOME: Judgment for plaintiff AFFIRMED.

HOLDING:

(1) Whether car driver would have seen a properly functioning signal or would have responded to temporary traffic control was for jury to decide.

(2) Fact that District government did not respond for nearly eight hours to inoperative signal made it highly foreseeable that a negligent driver might hit a pedestrian crossing the street. Court rejects D.C. argument that driver's violation of criminal statute (hitting pedestrian in crosswalk) was a superseding cause of injury, inasmuch as there was no evidence that driver was anything other than negligent in failing to see pedestrian or inoperative signal.

Placing Noise-Maker Outside Plaintiff's Office Door for Nine Months Could Constitute Intentional Infliction of Emotional Distress

Larijani v. Georgetown University, __ A.2d __ (D.C. 2002). Opinion by Schwelb, joined by Reid; Farrell dissenting. Motions judge: Duncan-Peters.

FACTS: According to plaintiff's complaint, defendant supervisor placed two electrical noise makers outside plaintiff's office door and left them there for nine months, emitting loud and piercing noise. Supervisor refused plaintiff's requests to turn off the devices. Plaintiff alleged serious harm to her physical and mental well-being. Trial court dismissed on grounds that "no juror could reasonably find that the daily use of annoying sound screen devices rises to the level of being so outrageous that it exceeds the boundaries of conduct usually tolerated by a decent society."

OUTCOME: Dismissal REVERSED.

HOLDING:

Complaint states a claim if plaintiff's allegations are believed. "[I]f the noise made by the contraptions in question was indeed as loud, piercing, and unbearable as Ms. Larijani claims ñ and if the defendants continued to subject Ms. Larijani to these conditions for almost nine months, knowing that she had become seriously ill as a result, then a reasonable juror could surely find that the defendants had deliberately set out to torment Ms. Larijani, and that they had kept up this cruel treatment for a very long time."