The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge
Presently before this Court for disposition is a motion to transfer venue, brought by the Plaintiffs. The motion seeks transfer of this action to the United States District Court for the Northern District of Illinois, Eastern Division, pursuant to 28 U.S.C. § 1404(a).
Plaintiffs, Laura Walsh and Daniel Walsh, as administrators of the estate of Jason Walsh, deceased, and in their own right, have brought this medical malpractice action against Defendants, Michael G. Chez, M.D. and Autism and Epilepsy Specialty Services of Illinois (AESS), arising out of the death, on May 9, 2003, of their son Jason, who was then five years old. Jason was diagnosed at an early age with autism-spectrum disorder and Plaintiffs contacted Dr. Chez, an Illinois resident and employee of AESS, because he was a neurologist specializing in autism and epilepsy. The parties agree that Dr. Chez evaluated Jason in Illinois on January 8, 2003. Plaintiffs allege that he decided to treat Jason with four weeks of an oral daily dosage of 50 milligrams of prednisone, a steroid, but that he apparently intended to switch Jason to "pulse" steroid therapy by cutting his dosage to 50 milligrams two days a week thereafter. Plaintiffs allege that Dr. Chez agreed to manage Jason's steroid regimen and that they expected to receive additional instructions about Jason's therapy after they returned to Pennsylvania.
Plaintiffs allege that, on February 11, 2003, more than four weeks after the commencement of Jason's treatment, Laura Walsh was advised by Dr. Chez on the telephone to continue Jason on the same daily dosage of 50 milligrams of prednisone. They further claim that, on February 24, 2003, after Jason had been taking steroids daily for approximately seven weeks, Laura Walsh again contacted Dr. Chez, who, at that time, reduced Jason's dosage to pulse levels of 50 milligrams twice a week. The Walshes complied with his instructions.
Plaintiffs claim that on March 3, 2003, Jason became ill and, over the next week, was diagnosed with a number of medical problems, including adrenal and respiratory conditions. Despite medical efforts, Jason died on May 9. They claim that his death was the direct and proximate result of Dr. Chez's negligence and brought claims in this Court against Defendants for wrongful death, survivorship and emotional distress relating to Dr. Chez's treatment of Jason.
Plaintiffs filed this action on March 3, 2005. On April 11, 2005, Defendants filed a motion to dismiss or transfer for lack of personal jurisdiction and improper venue pursuant to Federal Rule of Civil Procedure 12(b)(2) and 28 U.S.C. § 1406(a) (Docket No. 3). On March 6, 2006, this Court entered a memorandum order denying the motion (Docket No. 32). In an opinion filed that same date, the Court noted "significant factual disputes between the parties as to the nature of Dr. Chez's treatment of Jason." (Docket No. 31 at 9.) As required under the standard of review, the Court construed all of these factual disputes in Plaintiffs' favor and determined that they had established a prima facie showing of personal jurisdiction.
On April 27, 2006, an order of reference was entered, referring the case to the undersigned for all further proceedings and the entry of judgment in accordance with Federal Rule of Civil Procedure 73 and the consent of the parties (Docket No. 37). At a status conference on June 13, 2006, trial was scheduled for the week of September 25, 2006 and the issues of personal jurisdiction, venue and transfer were discussed. Specifically, the Court noted -- and Plaintiffs' counsel acknowledged -- that, if the Plaintiffs were to prevail at trial and the case were appealed, Defendants could revisit the issue of personal jurisdiction. The Court of Appeals might find that personal jurisdiction over the Defendants could not be exercised by this Court and might dismiss the case or transfer it to the United States District Court for the Northern District of Illinois. Plaintiffs' counsel agreed to present to his clients the possibility of voluntarily transferring the case to the Northern District of Illinois. Defendants' counsel indicated that he did not see why Dr. Chez would have any objection.
On August 9, 2006, Plaintiffs filed a motion to transfer venue pursuant to 28 U.S.C. § 1404(a) (Docket No. 43). The motion was based on their concern about the Court of Appeals reversing this Court's preliminary analysis of the personal jurisdiction issue. In particular, they argued that the interest of justice would be served by having one trial in a forum in which personal jurisdiction could unquestionably be exercised over the Defendants.
On August 18, 2006, Defendants filed a response, in which they indicated that they opposed Plaintiffs' motion to transfer. Dr. Chez stated in an affidavit that he wished to have the case resolved on the scheduled date certain, that he had arranged his schedule and that of his witnesses to be available for trial as scheduled and that he did not wish to have the trial delayed, possibly for at least a year, if the case were to be transferred to another court. (Chez Aff. III ¶¶ 5- 8.)*fn1
Defendants further contended that Plaintiffs' argument that they would be left without a remedy should the Court of Appeals reverse the order of Court denying the motion to dismiss or transfer for lack of personal jurisdiction and improper venue is flawed because the Court of Appeals would transfer the case to the United States District Court for the Northern District of Illinois pursuant to 28 U.S.C. § 1631, as a court "in which the action ... could have been brought."
On August 22, 2006, an order was entered, scheduling a hearing for September 5, 2006 to resolve the motion to transfer and to reach a final resolution of the issue of whether Plaintiffs could establish by a preponderance of the evidence that personal jurisdiction could be asserted over the Defendants, which was raised by implication in Plaintiffs' motion to transfer and was clearly still at issue in the case. On September 5, 2006, counsel for the parties arrived, but no witnesses were present to offer testimony.
Plaintiffs' counsel stated on the record that his clients have abandoned one of their two theories of liability and that only the issue of Dr. Chez's weaning of Jason from prednisone remains in the case. He further stated that, as to this issue, there exist far fewer contacts with this forum than he had originally argued and that this made for an even weaker case for establishing personal jurisdiction over the Defendants.
Upon questioning by the Court, Plaintiffs' counsel conceded that he was abandoning his opposition to Defendants' original motion to dismiss or transfer for lack of personal jurisdiction. He argued that having one trial in a forum that unquestionably possesses personal jurisdiction over the Defendants is clearly in the interest of justice; whereas having a trial in this Court, only to face the possibility that the Court of ...