Callahan v. Bledsoe, et al.

Filing 81

MEMORANDUM AND ORDER granting in part and denying in part 40 Motion to Transfer Case. The case will not be transferred to Wichita, Kansas fordocketing and maintenance. The case will be transferred to Wichita, Kansas for trial. Signed by District Judge Julie A. Robinson on 4/6/2017. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JENOISE M. CALLAHAN,
Plaintiff,
Case No. 16-CV-2310-JAR-GLR

v.
SCOTT BLEDSOE ET AL.,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Jenoise Callahan filed this action against Defendant Dr. Scott Bledsoe and
Wesley Medical Center, LLC (collectively referred to as “Defendants”) alleging a medical
malpractice claim for failure to properly diagnose and treat her hypertension, intracranial
pressure, and increased cerebral spinal fluid pressure, which led to her permanent loss of vision.
This matter comes before the Court on Defendants’ Joint Motion to Transfer This Action to
Wichita, Kansas for Docketing, Maintenance, and Jury Trial (Doc. 40).1 The motion is fully
briefed, and the Court is prepared to rule. For the reasoning explained more fully below, the
Court grants Defendants’ motion to transfer the trial to Wichita, Kansas. However, the Court
denies transfer of the case as to docketing and maintenance.
I.

Background
Plaintiff is a citizen and resident of Denver, Colorado. Defendant Wesley Medical

Center, LLC (“Wesley Medical”) is a Delaware limited liability company that at all relevant
times was registered and qualified to do business and conducted business in the state of Kansas.
Defendant Wesley Medical at all relevant times owned and operated a medical facility known as
1

Defendants made a demand for designation of Wichita, Kansas as the place for trial in their answers. See
Doc. 9 at 5; Doc. 13 at 7.

1

Galichia Heart Hospital or Wesley Woodlawn Hospital and Emergency Room located in
Wichita, Kansas. Defendant Scott Bledsoe (“Dr. Bledsoe”) is a physician licensed in the state of
Kansas who practices in Wichita, Kansas. Plaintiff’s counsel is located in Kansas City,
Missouri. Defendants’ counsel is located in Wichita, Kansas and Tulsa, Oklahoma.
Plaintiff alleges that she was not properly diagnosed and received improper treatment
while in Defendant Wesley Medical’s emergency room on May 15, 2014. Defendant Dr.
Bledsoe was the attending physician while she was under Defendant Wesley Medical’s care.
Plaintiff was re-admitted to Defendant Wesley Medical on May 17-18 where she became blind.
II.

Legal Standard
Defendants request the case be transferred to the Wichita division pursuant to 28 U.S.C. §

1404 and D. Kan. Rule 40.2. Under Rule 40.2, “[t]he court is not bound by the requests for place
of trial. It may determine the place of trial upon motion or in its discretion.” In this district,
when considering a motion for intra-district transfer,2 courts look to the same factors relevant for
change of venue under 28 U.S.C. § 1404.3 That statute, § 1404(a), provides in pertinent part:
“For the convenience of the parties and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where it might have been brought.”4
Under a § 1404(a) analysis, a district court should consider (1) plaintiff's choice of forum; (2) the
convenience of the witnesses; (3) the accessibility of witnesses and other sources of proof; (4)

2

The United States District Court for the District of Kansas is considered one district with three divisions
in Kansas City, Topeka, and Wichita. Thus, a motion for transfer within the District of Kansas is considered intradistrict between the divisions.
3

Performance Food Group, Inc. v. Ajax Int’l Group, LLC, No. 12-2525, 2015 WL 5227926, at * 1 (D.
Kan. Oct. 22, 2012).
4

The parties do not challenge that this action could be brought in Wichita.

2

the possibility of obtaining a fair trial; and (5) all other practical considerations that make a trial
easy, expeditious and economical.5
Although a plaintiff’s forum choice “should rarely be disturbed,”6 the plaintiff’s choice of
forum receives little deference when, as here, the plaintiff does not reside there.7 Further, in
addition to living outside the chosen forum, “courts have given little weight to a plaintiff’s
choice of forum where the facts giving rise to the lawsuit have no material relation or significant
connection to the plaintiff’s chosen forum.”8 The party seeking to transfer the case has the
burden of proving that the existing forum is inconvenient.9
III.

Discussion
Defendants move for an intra-district change of venue from the Kansas City division to

the Wichita division of the entire case. The Court will not grant Defendants’ request to transfer
the entire case to the Wichita division. For purposes of docketing, all filings are done
electronically, so it does not matter whether the case is considered in Kansas City or Wichita.
5

Lopez-Aguirre v. Bd. of Cnty. Comm’rs of Shawnee Cnty., Kan., No. 12-2752-JWL, 2014 WL 853748, at
*1 (D. Kan. Mar. 5, 2014); see also Taher v. Wichita State Univ., No. 06-2132-KHV-DJW, 2007 WL 1149143, at *1
(D. Kan. Apr. 18, 2007) (citations omitted).
6

Mortg. Research Ctr., LLC v. Flagship Fin. Group, LLC, No. 16-2253-JAR, 2016 WL 7229259, at * 3 (D.
Kan. Dec. 14, 2016).
7

See 613 Agro Holdings, LLC v. Renick, No. 12-245, 2013 WL 1091632, at * 7 (D. Kan. Mar. 15, 2013)
(quoting Benson v. Hawker Beechcraft Corp., No. 07-2171, 2007 WL 1834010, at *2 (D. Kan. June 26, 2007);
Menefee v. Zepick, No. 09-2127-MLB, 2009 WL 1313236, at * 1 (D. Kan. May 12, 2009)). There has been some
differences among judges within this district on the exact weight to give to the plaintiff’s choice of forum when the
plaintiff is not a resident of the chosen forum. See Spires v. Hosp. Corp. of Am., No 06-2137-JWL, 2006 WL
1642701, at *2 (D. Kan. June 8, 2006) (considering the plaintiffs’ choice of forum to have equal weight to the other
factors, but determining it not “significantly more weighty” than the other factors where the connection to the forum
was obscure as to the case and the plaintiff); Toelkes v. BNSF Ry. Co., No. 15-2651-JAR, 2015 WL 7312437, at *4
(D. Kan. Nov. 19, 2015) (considering the factors for convenience of the witness and accessibility of the witnesses
and evidence as the primary factors, and treating the plaintiff’s choice of forum as neutral); Tiffany v. Topeka, Kan.,
No. 09-2232-CM, 2009 WL 1683515, at * 1 (D. Kan. June 16, 2009) (stating that “the factor weighs only slightly in
favor of plaintiff” when the plaintiff is out of forum). Ultimately, the Court finds Plaintiff’s choice of forum is at
least a factor to be considered, but it must be given less weight in light of the fact that “the rationale for allowing the
plaintiff to dictate the forum evaporates” when the plaintiff lives outside of the forum. McIntosh v. City of Wichita,
Kan., No. 14-2402, 2015 WL 1646402, at *2 (D. Kan. Apr. 14, 2015) (citations omitted).
8

McIntosh, 2015 WL 1646402, at * 2.

9

Toelkes, 2015 WL 7312437, at *1 (citing Lopez-Aguirre, 2014 WL 853748, at *2).

3

Further, in this district, most pretrial proceedings in civil cases, including discovery disputes, are
conducted by phone. Most pretrial motions in civil cases are decided on the briefing and rarely
called for a hearing. Thus, it is inconsequential whether docketing and maintenance is completed
in Kansas City. Instead, the Court considers Defendants’ request that the trial be set in Wichita.
For the reasoning explained more fully below, the Court finds that trial is properly set in the
Wichita division.
A.

Plaintiff’s Choice of Forum
Plaintiff has designated Kansas City, Kansas as the place of trial, but she resides in

Denver, Colorado.10 Thus, she is an out-of-forum plaintiff. Plaintiff argues that her choice to
designate Kansas City as the place of trial should be given deference because she is blind and
needs to travel to Kansas for trial. She admits that this factor “is not as weighty as it would be
with residency,” but should still be given significant weight based on her disability.11
The Court is not persuaded Plaintiff’s choice of Kansas City should be afforded great
weight. First, Plaintiff must fly from Denver, Colorado to Kansas. Plaintiff may do so through
Kansas City or Wichita. Both have sizeable airports, and to the extent that Plaintiff requests this
Court take judicial notice of a price difference in the Wichita airport and the Kansas City airport,
the Court declines to do so based on the briefing presented. Based on the fact that the underlying
cause of action occurred in Wichita, it is clear that Plaintiff and her brother, Jim Callahan, are
familiar with Wichita, and it will not be an entirely foreign city for Plaintiff. Second, Wichita
and Kansas City, both hotel accommodations and the Courthouse, have facilities that can provide
assistance to Plaintiff’s needs as a blind woman. The Court does not find that Plaintiff’s
disability provides reasoning to afford greater deference to her choice of Kansas City for trial.
10

Doc. 1 ¶ 1.

11

Doc. 44 at 5.

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Further, the Court gives little weight to this factor because Kansas City has little to no
connection to the facts of the underlying cause of action. Upon reading Plaintiff’s Complaint,
Kansas City is not mentioned a single time, other than serving as the location of Defendant
Wesley Medical’s registered agent. The allegations of medical malpractice took place entirely in
Wichita, Kansas. Thus, this Court finds the nexus to Wichita and lack of connection to Kansas
City counsels against affording deference to Plaintiff’s choice of trial location.
Plaintiff argues that this Court should follow the analysis in Nkemakolam v. St. John’s
Military School.12 In Nkemakolam, the plaintiffs were out of state residents suing the defendant,
who was located in Salina, Kansas, in Kansas City.13 The defendant wanted the trial moved to
Topeka, which was closer to the defendant.14 The court gave deference to the plaintiffs’ choice
of forum because the plaintiffs were out of state residents who needed to fly to Kansas and the
presence of a large airport made Kansas City more convenient than Topeka.15 Also, the court
found “although Topeka might be marginally more convenient for St. John’s and its witnesses,
that factor is at least counter-balanced by the loss in convenience to plaintiffs and other witnesses
residing outside the state.”16
The Court finds that this case is distinguishable from Nkemakolam. Plaintiff is an out-ofstate resident suing Defendants, which are both located in Wichita. While the Court considers
Plaintiff’s choice of forum, it does not give as much deference as in Nkemakolam because
Wichita has a sizeable airport with national airlines. Unlike the only marginal convenience to
the defendant in Nkemakolam for transfer from Kansas City to Topeka, there is a large difference
12

876 F. Supp. 2d 1240, 1247–48 (D. Kan. 2012).

13

Id.

14

Id.

15

Id.

16

Id.

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in convenience to Defendants to transfer from Kansas City to Wichita. Defendants are located in
Wichita and the distance between Wichita and Kansas City is nearly two hundred miles. Thus,
the key factors that led to the denial of transfer in Nkemakolam counsel for transfer in this case.
Ultimately, although this Court finds that Plaintiff’s designation of Kansas City as the
place for trial should be afforded some weight, this factor weighs little or is neutral given the
underlying cause of action has no tie to Kansas City, Defendants are located in Wichita, and
Plaintiff can travel to Wichita.
B.

Convenience And Accessibility of Evidence
The relative convenience of the forum is a primary consideration in deciding a motion to

transfer where plaintiff is out of forum.17 Plaintiff’s proposed forum must be “substantially
inconvenient” to warrant a change in forum.18 A proposed forum will be “substantially
inconvenient” if all or practically all the witnesses reside in a different forum and traveling to the
proposed forum is a substantial burden.19 To demonstrate inconvenience, Defendant 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.”20

17

McIntosh v. City of Wichita, Kan., No. 14-2402, 2015 WL 1646402, at *2 (D. Kan. Apr. 14, 2015)
(citations omitted).
18

Id.

19

Id.

20

Mortg. Research Ctr., LLC v. Flagship Fin. Group, LLC, No. 16-2253-JAR, 2016 WL 7229259, at * 4
(D. Kan. Dec. 14, 2016) (quoting Empl’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1169 (10th Cir.
2010)).

6

Based on the Court’s review of the Rule 26 disclosures and interrogatories filed in
conjunction with this motion,21 the Court finds that an overwhelming majority of the witnesses
disclosed are located in Wichita. Plaintiff identified six key fact witnesses located in Wichita or
the surrounding area in her supplemental interrogatory answers.22 She listed only one witness in
the Kansas City metropolitan area, and she listed one witness in the Topeka area. Several of
these witnesses did not have locations listed, but were primarily going to testify as acquaintances
who knew Plaintiff’s condition prior to May 15, 2014. Four of the witnesses were out of state,
and these witnesses will be required to travel regardless of whether the trial is in Kansas City or
Wichita.
Plaintiff’s list of material fact witnesses omits the medical care providers involved in the
alleged malpractice and subsequent treatment, which are some of the witnesses that will provide
the material testimony to the underlying claim. Defendant Wesley Medical listed ten healthcare
providers, and seven of the providers are located in the Wichita area.23 One of the providers is in
the Kansas City area, and two of the providers are out of state. Defendant Dr. Bledsoe’s list of
witnesses is consistent with Defendant Wesley Medical’s list. Thus, taking in consideration the
submissions of the parties, the Court finds the overwhelming majority of the witnesses are
located in Wichita as opposed to Kansas City. With particular emphasis on the healthcare
providers who will provide the most material testimony, these witnesses are almost exclusively
located in Wichita or out of state as opposed to Kansas City.24

21

Docs. 41-1, 41-2, 41-3, 44-1

22

Doc. 41-1 at 20–23.

23

Doc. 41-2.

24

Plaintiff makes the argument that much of the material evidence will be in the form of medical records
that can easily be presented in Kansas City. Doc. 44 at 6. However, the Court is not persuaded that this counsels for
keeping the trial in Kansas City. As explained, the witnesses are overwhelmingly in Wichita. The parties may

7

Plaintiff makes a particularly unavailing argument that her current treating physicians and
unidentified experts will be coming to Kansas from out of state, so the trial should be held in
Kansas City to accommodate these witnesses. As out-of-state witnesses, these physicians and
experts will bear the burden of travel regardless of whether the trial is in Wichita or Kansas City.
The Court does not agree that because witnesses will be coming from out of state, the trial should
be held in Kansas City. As the Court has previously explained, to the extent Plaintiff requests
the Court take judicial notice of a price difference in flights to Kansas City and Wichita, the
Court declines to do so. These out-of-state witnesses may fly to Wichita rather than Kansas City.
While this case is not yet through discovery, most, if not all, of the material witnesses to
Plaintiff’s treatment have been identified through the initial disclosures and interrogatories. This
Court need not defer deciding on this factor until the close of discovery and every witness has
been discovered as Plaintiff suggests.25 The Court is persuaded that it is best to decide the trial
location at this stage as opposed to waiting until closer to trial to ease the planning for both
parties. More importantly, the Court finds it clear that few identified witnesses are located in
Kansas City or surrounding area, and it is not alleged that discovery will disclose more witnesses
in the Kansas City area. There is no reason to wait until the close of discovery to decide trial
location. Therefore, the Court concludes that Wichita is a more convenient location for trial than
Kansas City as the majority of the witnesses to Plaintiff’s care reside in the area surrounding
Wichita. This factor weighs heavily in support of changing the place of trial to Wichita.

present the records anywhere, including in Wichita. Thus, this is seemingly a further reason to have the trial in
Wichita.
25

See Toelkes v. BNSF Ry. Co., No. 15-2651-JAR, 2015 WL 7312437, at *4 (D. Kan. Nov. 19, 2015)
(“And although other courts have reasoned otherwise, the Court finds waiting until the parties exchange final
witness lists under Rule 26(a)(3)(B)—only 30 days prior to trial—is far too late to reconsider the place of trial and
still allow the witnesses and parties to arrange cost-effective travel and lodging arrangements.”). But see E.E.O.C. v.
Newman Univ., No. 05-2404-KHV, 2006 WL 23566, at *2 (D. Kan. Jan. 4, 2006) (denying motion for determination
of place of trial where initial witness lists and Rule 26(a) disclosures had not been exchanged).

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C.

Relative Advantages and Obstacles to a Fair Trial
Plaintiff argues that she may not receive a fair trial in Wichita because Defendant Wesley

Medical is a local hospital that employs a number of Wichita residents.26 Plaintiff, therefore,
argues Wichita residents are unlikely to award a large judgment against a Wichita employer.
However, this Court finds this argument to be speculative as this Court has found that fair trials
may be conducted with businesses who have headquarters and employ residents in the place of
trial.27 The Court finds that voir dire will alleviate Plaintiff’s concerns about bias in favor of
Defendant Wesley Medical and ensure Plaintiff a fair trial. Thus, this factor weighs in favor of
transferring to Wichita.
D.

Other Considerations
The Court may consider the “costs in the form of mileage, meals, and hotel expenses”

incurred by holding the trial in Kansas City as opposed to Wichita.28 The Court may also
consider the cost of forcing medical practitioners to travel for trial testimony at the expense of
time lost treating patients.29 As the Court demonstrated above, the majority of the witnesses are
in Wichita, so the cost of mileage, meals, and hotel would be great if the witnesses were required
to travel to Kansas City. Plaintiff and her brother, Jim Callahan, will incur the cost of mileage,
meals, and hotel regardless of whether the trial is in Kansas City or Wichita as both are from out
of state. This is also true of the other out-of-state treating physicians and experts. Plaintiff has
26

Since the briefing for this motion was initially filed, the Court granted Defendants’ Motion and Demand
for Jury Trial (Doc. 46) on March 1, 2017. Doc. 71. Otherwise, this factor would have been neutral as the Court
would have instead conducted a bench trial.
27

See Aramburu v. Boeing Co. et al, 896 F. Supp. 1063, 1065 (D. Kan. 1995) (“The court rejects the
plaintiff's contention that he will have more difficulty finding a fair and impartial jury in Wichita than Topeka. The
court is confident that the plaintiff’s concerns that Wichita residents will be reluctant to hold against Boeing will be
adequately addressed during voir dire of the prospective jurors.”).
28

Hughes v. Blue Cross & Blue Shield of Kan., Inc.. No. 12-2339, 2012 WL 3644845, at * 4 (D. Kan. Aug.

24, 2012).
29

Spires v. Hosp. Corp. of Am., No 06-2137-JWL, 2006 WL 1642701, at *3 (D. Kan. June 8, 2006).

9

demonstrated that only a couple witnesses are from the Kansas City metropolitan area, so these
witnesses will incur such costs. However, based on review of the Rule 26 disclosures and
interrogatories, it appears the majority of the witnesses will be in Wichita.
Also, the majority of the Wichita witnesses are doctors who would be pulled away from
their practices if trial was in Kansas City. The out-of-state treating physicians and experts are
going to be pulled away from their practices regardless of whether the trial is in Wichita or
Kansas City. There is only one identified doctor, Dr. Whittaker, who is located near Kansas
City, so he will be pulled away from his practice if the trial is in Wichita.30 Ultimately, this
weighs in favor of transfer to Wichita.
III.

Conclusion
Based on the arguments presented, the Court is persuaded that it is appropriate to try this

case in Wichita, Kansas. Although Plaintiff’s designation of Kansas City as the preferred choice
for the place of trial is entitled to deference, this factor was ultimately accorded little weight or
was neutral given the lack of ties to Kansas City and Plaintiff’s ability to travel to Wichita. The
balance of the other factors and circumstances surrounding this case override that factor. The
majority of the witnesses are from the Wichita area. Plaintiff’s counsel is the only real tie the
Court can find to Kansas City. Ultimately, this Court finds it will be more convenient to try this
case in Wichita.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Joint Motion to
Transfer This Action to Wichita, Kansas for Docketing, Maintenance, and Jury Trial (Doc. 40) is
granted in part and denied in part. The case will not be transferred to Wichita, Kansas for
docketing and maintenance. The case will be transferred to Wichita, Kansas for trial.
30

Doc. 41-2 at 2. Plaintiff’s interrogatory answers indicate that she received medical care from several
doctors in the Kansas City metropolitan area during the five years prior to May 15, 2014. See Doc. 41-1 at 7.
However, it is unclear whether any of these healthcare providers will be called to testify.

10

IT IS SO ORDERED.
Dated: April 6, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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