United States District Court, D. Kansas
P.F., a minor by and through his Natural Mother and Next Friend, JESSICA FLAX, Plaintiff,
ERIC L. HETZEL, D.O., Defendant.
GARY SEBELIUS U.S. MAGISTRATE JUDGE
matter comes before the court upon defendant's Motion for
Determination of Place of Trial (ECF No. 30). Defendant
requests that the trial of this case be held in Wichita,
Kansas. For the following reasons, this motion is denied
a medical negligence case brought by the mother and next
friend of P.F., minor. Plaintiff designated the place of
trial as Kansas City. Defendant, Dr. Eric L. Hetzel,
designated Wichita as the place of trial in his answer. Dr.
Hetzel allegedly failed to diagnose P.F.'s Kawasaki's
disease at Family Practice Associates in Dodge City, Kansas.
Dr. Hetzel resides in Colorado Springs, Colorado, and
plaintiff resides in Cimarron, Kansas. There is a companion
case against a separate hospital regarding the same failure
to diagnose P.F.'s Kawasaki's disease pending in
Kansas City, Missouri, with similar witnesses and evidence.
Many of P.F's treating physicians are located in Dodge
City, Cimarron, Garden City and Wichita, including 17 of the
26 witnesses listed in plaintiff's initial disclosures.
Plaintiff's family previously lived in Kansas City prior
to moving to Cimarron, and designated two fact witnesses who
live in Kansas City. Five treating physicians reside in
Kansas City. Wichita is approximately 150 miles from the
Dodge City area and Kansas City is approximately 330 miles
from Dodge City. Most of the expert witnesses will probably
be from out of state. Kansas City and Wichita both have large
airports. The parties' attorneys have offices in the
Kansas City area.
determine the proper place of trial, the court looks to the
same factors relevant to a motion for change in venue under
28 U.S.C. § 1404(a). The factors are: “(1)
plaintiff's choice of forum; (2) the convenience of the
witnesses; (3) the accessibility of witnesses and other
sources of proof; (4) the possibility of obtaining a fair
trial; and (5) all other practical considerations that make a
trial easy, expeditious, and economical.”
moving party bears the burden of establishing the existing
forum is inconvenient.Unless the balance is strongly in favor of
the defendant, the plaintiff's choice of forum should
rarely be disturbed. Plaintiff's forum must be
“substantially inconvenient” to warrant a change
in forum. A proposed forum is substantially
inconvenient if all or almost all of the witnesses reside in
a different forum and would face a substantial burden if the
trial were held in the other forum.
Plaintiff's Choice of Forum
noted previously, plaintiff designated Kansas City as the
place of trial. However, plaintiff does not reside in Kansas
City and instead resides in Cimarron, approximately 350 miles
from Kansas City. If plaintiff's choice of forum is not
his place of residence, the weight given to this factor is
lessened. Yet, plaintiff's designation of Kansas
City still remains a factor to be considered. Therefore, the
first factor favors Kansas City, if only slightly.
convenience of the forum to the witnesses is the primary
factor to consider.Currently, 17 of the 26 witnesses reside
closer to Wichita. However, many of those 17 witnesses still
reside at least 180 miles away from Wichita. In order to
effectively evaluate this factor, it is important for
discovery to have ended and the parties to have exchanged
final witness lists. Here, discovery will continue until June
29, 2018. Kansas courts have denied transferring the forum if
the parties have not yet determined which witnesses will
actually be called at trial and if other witnesses will be
identified. From the current witness list, two
physicians reside in Wichita and five physicians reside on
Kansas City. Therefore, given the early stages of discovery,
this factor substantially favors neither party.
Accessibility of Evidence, Fair Trial, Other Considerations
party raises the ability to compel witnesses as a significant
factor. Since much of the evidence is in the form of
electronic medical records, they can be accessed in both
Kansas City and Wichita with the same amount of convenience.
Defendant has not contended that he cannot obtain a fair
trial in Kansas City.
other considerations, holding the trial in either location
would require substantial travel for all witnesses. Both
cities have fairly sizeable airports and lodging
opportunities. Further, both attorneys have offices near
Kansas City. This last fact, however, is only given minimal