October 14, 2026 Legal Intelligencer / Law .com Article, by Cameryn Oakes

The case is being argued as the state Supreme Court also reviews another case concerning the forum non conveniens doctrine, testing the bounds of venue selection after a 2023 state rule change.

Pennsylvania appellate courts are assessing whether to dismiss two medical malpractice cases filed in Philadelphia over interstate forum non conveniens questions—one in which a trial judge dismissed the case and the other with a trial judge granting the case.

The Superior Court held an argument panel for the case of Miller v. Jackson Wednesday morning, which is on appeal under the argument a Philadelphia judge improperly granted to hear a medical malpractice case where the alleged injury occurred in Delaware, where the plaintiffs reside. The health care provider also offers services in Pennsylvania.

“Truthfully, if this isn’t the case to have dismissed and moved to another state, I don’t know what it is,” said Maureen McBride, partner at Lamb McErlane who argued on behalf of the defendants.

“Pennsylvania doesn’t not have an interest,” said Chip Becker, partner at Kline & Specter, who argued on behalf of the plaintiffs.

Philadelphia Judge Denis Cohen denied the motion to dismiss the case on ground of forum non conveniens in April, 2025. A motion to reconsider was filed the next month, and then denied by Cohen in June, 2025.

An appeal was filed in July, 2025, which was taken up by the mid-level appellate court and transferred in January.

The case is brought against Leslie Jackson, Marisa Meyer and Nemours Foundation by two parents on behalf of their child who underwent hernia surgery at Nemours Children’s Hospital in Delaware. The parents allege the defendants failure to correct intraoperative hypoxemia and hypotension led to their child sustaining permanent hypoxic-ischemic brain damage.

Representing the health care providers are McBride and Jonathan Ball of Lamb McErlane, as well as Benjamin Post and Susan Russell of Post & Post.

Attorneys from Kline & Specter are counsel for the parents and their child, including Shanin Specter, Regan Safier, Becker, Garabet Zakeosian, Corrie Woods, Ruxandra Laidacker and Michelle Paznokas.

McBride argued a lack of “local nexus” in the Superior Court case, arguing the case would contribute to administrative difficulties in the Philadelphia court, which she called “congested,” and carry a burden on jurors, judges and taxpayers. While Judge Stabile said the state Supreme Court deters arguments of congestion, McBride said it is appropriate as this is an interstate issue and not between Pennsylvania counties.

Further issues McBride pointed to in holding the case in Philadelphia included application of non-Pennsylvania law, a lack of subpoena power to compel out-of-state witnesses, travel burdens, and business disruptions for non-local defendants.

Becker, who argued on behalf of the parents and child in Superior Court Wednesday, expressed no concern with compelling witnesses in the case, saying that two defendants are based in Chester County and 28 witnesses are health care employees he said the company can enforce attendance. Two other witnesses are based in New Jersey and Maryland, which he said would be an issue to compel regardless of the case being held in Pennsylvania or Delaware.

McBride continued that Philadelphia bears no connection to the cause of action or the plaintiffs.

“It all happened in Delaware,” McBride said, suggesting the case should be tried there instead.

Becker questioned whether weighty reasons overpower the disruption through forum non conveniens, which he rejected, arguing that Pennsylvania holds significant public interest in the matter.

He said Pennsylvania’s public interests lie in the fact the health care provider also operates within the state and operates a “network of referrals” with many Philadelphia patients utilizing its Delaware hospital. He estimated 500 to 600 referrals of Pennsylvania residents to its Wilmington hospital.

Becker argued that judicial discretion does not operate in a “binary universe” of right and wrong. He argued that the Philadelphia judge who granted the case was properly exercising discretion within his ability. McBride argued this case is an abuse of discretion

A 2023 rule change made it possible for medical malpractice lawsuits to be brought in any venue where the health care named as a defendant conducts business. Prior to the change, medical malpractice lawsuits could only be filed in the county court where the medical care at the center of the suit had been performed.

At the same time, the state’s Supreme Court is also reviewing the case of Duxbury v. Reconstructive Orthopedic Associates, in which a Philadelphia judge dismissed a case with plaintiffs based in New Jersey, the same state where the alleged injury took place, under forum non conveniens claims.

The Philadelphia judge dismissed the case on the ground the plaintiffs did not provide adequate evidence. The Superior Court reversed this decision, arguing the burden to prove forum non conveniens falls on the defendant and was not satisfied.

Superior Court Judge Victor Stabile asked if the Miller case should be held while the state’s apex court weighs a similar issue, which McBride responded is up to the court’s discretion.

Read the article on Law.com / Legal Intelligencer here. 

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