Not way back we mentioned Somerlot v. Jung, ___ A.3d ___, 2025 WL 2157391 (Pa. Tremendous. July 30, 2025), as offering a possible antidote to some Mallory-inspired discussion board buying. Nevertheless, as we identified, Somerlot’s benefits have been restricted, as a result of: (1) they required the pro-active use of discussion board choice clauses prematurely of any litigation, and (2) would solely be obtainable to defendants who had the form of relationship (instantly or by distributors or medical doctors) with a plaintiff that would offer the chance to require such a clause. Thus, the Somerlot resolution was not obtainable to all, and even most, prescription medical product legal responsibility litigation.
Nevertheless, during the last couple of months, Pennsylvania appellate selections involving the extra conventional ideas of discussion board non conveniens and venue have materially modified relevant regulation for the higher, when it comes to their availability as instruments to fight post-Mallory discussion board buying. Since Pennsylvania stays the one massive state to permit basic jurisdiction by consent in prescription medical product legal responsibility litigation, Pennsylvania regulation stays by far an important for coping with post-Mallory discussion board buying.
First, discussion board non conveniens. The Pennsylvania Superior Court docket spent a lot of the final decade encumbering discussion board non conveniens with procedural necessities that made it progressively tougher for defendants to say in opposition to plaintiffs suing in venues – normally Philadelphia County – with zero factual relationship to the filed instances, however with a jury pool that the plaintiffs wished.
Tranter v. Z&D Tour, Inc., ___ A.3d ___, 2025 WL 2731703 (Pa. Sept. 25, 2025), modified all that. Tranter concerned an enormous auto accident in western Pennsylvania. A number of folks died and scores extra have been hospitalized. At the very least fifteen separate lawsuits have been filed – in Philadelphia, which was effectively over 200 miles away. Philadelphia judges are usually not often known as being notably pro-defendant, however even they may not abdomen these actions due to their whole lack of any factual connection to Philadelphia. Nevertheless, a Superior Court docket panel vacated the discussion board non conveniens switch order as a result of the defendants hadn’t recognized the testimony of “key witnesses” who could be inconvenienced by taking the lengthy trek to Philadelphia.
Tranter eradicated all of the amassed boundaries that the Superior Court docket had erected to forestall defendants from asserting discussion board non conveniens. Whereas a plaintiff’s alternative of discussion board “is entitled to weighty consideration,” the discussion board non conveniens doctrine “supplies a needed counterbalance to make sure equity and practicality.” 2025 WL 2731703, at *6 (citations and citation marks omitted). To show {that a} plaintiff’s submitting in a specific discussion board (Philadelphia) was “oppressive” and warranted a switch, “[a] defendant petitioning for switch of venue should [simply] place the grounds on the file.” Id. at *10
Rule 1006(d) do[es] not require any specific type of proof. All that’s required is that the shifting occasion current a ample factual foundation for the petition, and the trial court docket retains the discretion to find out whether or not the actual type of proof is ample. . . . [A]ffidavits have by no means been held needed to acquire switch.
Id. (footnotes and citation marks omitted). No specific type of proof is required.
Furthermore, the space that potential witnesses must journey is all the time an necessary consideration. “A distance of 100 miles supplies a precious benchmark for distinguishing between oppressiveness and mere inconvenience.” Id. “[A]s between Philadelphia and counties 100 miles away, easy inconvenience fades within the mirror and we close to oppressiveness with each milepost of the [Pennsylvania] turnpike.” Id. (quoting Bratic v. Rubendall, 99 A.3d 1, 10 (Pa. 2014)).
The Superior Court docket’s “key witness” requirement had no foundation in Pa. R. Civ. P. 1006, or in precedent, and additional made no sensible sense.
There are quite a few issues with these necessities. First, because the defendants all level out, discussion board non conveniens sometimes is raised fairly early in the midst of a lawsuit − typically earlier than any substantive discovery. . . . Certainly, if a defendant waits too lengthy to boost the matter, there’s a threat that the court docket might cite the defendant’s participation so far as a sign that the plaintiff’s chosen venue is just not, actually, oppressive or vexatious. Requiring the protection to establish and disclose the witnesses and testimony that might be “needed” or “crucial” to its place in impact calls for that the protection current a completely developed trial technique. At such an early stage of the litigation, that is an unreasonably excessive burden.
Tranter, 2025 WL 2731703, at *11 (footnote omitted). The file was clear that “the ‘overwhelming majority’ of [the] witnesses could be required to journey effectively over 200 miles to take part in litigation in Philadelphia.” Id. at *12. Tranter thus flatly “rejected” including any necessities to the discussion board non conveniens doctrine that weren’t within the guidelines. “No additional enhancements upon the doctrine of discussion board non conveniens are needed or warranted.” Id. at *6.
Lastly, the plaintiffs provided trendy know-how as a form of deus ex machina, arguing that distance now not mattered, as testimony may merely happen remotely. That argument went over like a lead balloon:
The plaintiffs’ central argument, nevertheless, is that no distance is essentially burdensome as a result of trendy know-how permits witnesses to testify remotely. We can not agree. . . . [I]t is just not an ample substitute within the peculiar course. Importantly, absent emergency circumstances corresponding to these caused by the pandemic, our Guidelines of Civil Process don’t present for the digital look of witnesses at trial as a matter after all. . . . [O]ne needn’t seek the advice of educational research with a purpose to recognize the much more tangible downsides of digital court docket proceedings. Almost all who’ve practiced regulation lately are accustomed to the drawbacks inherent within the know-how. Reside, in-person court docket proceedings don’t endure from irritating connectivity issues, inadvertently muted microphones (or sounds captured on microphones that ought to be muted), or video feeds caught on comical digicam filters. Digital court docket look is, at greatest, a backup resolution when the choice is unavailable. It’s preferable in each regard for the events, the witnesses, the attorneys, the choose, and the jury to be in a room with each other.
Tranter, 2025 WL 2731703, at *13 (footnotes omitted). The court docket acknowledged plaintiffs’ know-how argument for what it was: “If each assertion of the oppressiveness of a venue is met with a suggestion of digital litigation, then the doctrine of discussion board non conveniens would meet its finish.” Id.
Tranter is, after all, solely about discussion board non conveniens within the context of switch motions throughout the Commonwealth of Pennsylvania. However extending its “oppressiveness” reasoning to post-Mallory instances introduced by discussion board customers anyplace within the nation, and with no Pennsylvania factual connection in any respect (save {that a} defendant occurred to register to do enterprise within the state), ought to be a fortiori. That leads us to a second current Pennsylvania appellate determination, Dickerson v. United States Metal Corp., 2025 WL 2589651 (Pa. Tremendous. Sept. 8, 2025). Even earlier than Tranter demolished the Superior Court docket’s invented limitations on discussion board non conveniens, Dickerson utilized the doctrine to what was clearly Mallory-type discussion board buying. Dickerson was a poisonous publicity case that was really delayed whereas Mallory was pending – first earlier than the Pennsylvania Supreme Court docket, after which in the USA Supreme Court docket. 2025 WL 2589651, at *4. Thus, utilizing discussion board non conveniens was precisely what the Dickerson court docket knew it was coping with. As is the case with all Mallory-type litigation vacationers, the plaintiff “by no means lived or labored in Pennsylvania,” nor did any of the claimed chemical publicity occur in Pennsylvania. Id. One of many defendants was a Pennsylvania company. Id.
Dickerson affirmed dismissal of the case altogether on discussion board non conveniens grounds, adopting the trial court docket’s opinion “as our personal.” Id. at *3. Reviewing the assorted discussion board non conveniens components, Dickerson decided:
- All related publicity and medical remedy witnesses have been situated within the state the place the plaintiff’s decedent lived and labored.
- The areas of consultants didn’t matter.
- “The testimony of Plaintiff’s employers, supervisor, and associates could be simpler in [plaintiff’s home state] and could be harder in Pennsylvania as a result of they can’t be compelled to testify if the case stays in Pennsylvania.”
- Whereas “advertising” proof allegedly “situated in Pennsylvania” may be related, “it was not the central focus of this case” as a result of the product was not a client product, and such proof could possibly be offered by company designees.
- “[I]t is unclear whether or not any of the related [corporate] designees are nonetheless situated in Pennsylvania.
- “Plaintiffs pointed to no specific [corporate] witness that was situated in Pennsylvania and was additionally materials to the trial.”
- Medical proof would possible “be submitted and refuted by consultants” whose location didn’t matter.
- “[T]he protection has a proper to name materials stay witness at trial and that compelling this materials testimony is simpler in [plaintiff’s home state] than in Pennsylvania.”
- To the extent {that a} “jury view” could possibly be related, it could assist venue in plaintiff’s house state.
- “All paperwork, manufacturing info, and testimony have been produced and Plaintiffs have pointed to no particular proof that’s situated in Pennsylvania that would wish subpoena to [plaintiff’s home state.”
- “[T]right here has been no proof {that a} trial in Pennsylvania may happen any sooner than in [plaintiff’s home state].”
- “[B]ecause it’s the alleged extended occupational publicity to merchandise supplied within the office in [plaintiff’s home state] that’s the linchpin situation for trial, [that state’s] courts and juries would have extra of an curiosity on this case than Pennsylvania.”
- “Pennsylvania has no real interest in having its merchandise legal responsibility legal guidelines apply to . . . non-resident international firms that allegedly uncovered Plaintiff” [and] “has no real interest in authorized points associated to accidents to a non-resident . . . that occurred in [plaintiff’s home state].”
- Requiring switch to plaintiff’s house state avoids doable alternative of regulation points.
Dickerson, 2025 WL 2589651, at *5-9 (quoting trial court docket opinion included as “Attachment B”).
There are, after all, variations between prescription medical product legal responsibility litigation and the form of office publicity at situation in Dickerson. However the way in which we see it, these variations steadiness one another in a Mallory discussion board buying scenario. On the one hand, client promoting could also be extra related in prescription medical product litigation, notably if direct-to-consumer promoting is alleged. However, a plaintiff suing a Pennsylvania-based producer of such merchandise wouldn’t want Mallory to acquire basic private jurisdiction. Extra importantly, the discovered middleman rule applies in prescription medical product legal responsibility litigation, and that implies that the situation of the prescribing doctor – nearly all the time within the plaintiff’s house state – is a way more necessary issue, and would additional favor discussion board non conveniens dismissal.
Based mostly on Tranter and Dickerson, discussion board non conveniens motions in opposition to Mallory litigation vacationers would appear to have a major likelihood of success.
Two different current instances Pennsylvania appellate instances additionally warrant point out. Pickering v. Related Realty Property Administration, Inc., ___ A.3d ___, 2025 WL 2672365 (Pa. Tremendous. Sept 18, 2025), and Ojo v. Hanover Meals Corp., 2025 WL 2741622 (Pa. Tremendous. Sept. 25, 2025), each cope with contentions that venue − not discussion board non conveniens – required transfers of instances out of Philadelphia. Pickering is a to-be-published case, and thus binding on all Pennsylvania trial courts, whereas Ojo is just not. Each acknowledge limits on the attain of the hostile Hangey v. Husqvarna Skilled Merchandise, Inc., 304 A.3d 1120 (Pa. 2023), which allowed “doing enterprise” venue in Philadelphia regardless of solely a minuscule (0.005%) of the defendant’s product gross sales arising there.
Each Pickering and Ojo acknowledge that Hangey’ venue evaluation turned on the standard, not amount, of the enterprise that the company defendant did in Philadelphia. Each concerned company defendants with equally microscopic Philadelphia enterprise, however not like the Hangey defendant, these defendants didn’t have any licensed gross sales outlet within the county. Hangey concluded that by having a Philadelphia distributor, the defendant was “not less than making an attempt to make gross sales in Philadelphia, usually and constantly” even when its “merchandise [were] accumulating mud on the shop cabinets.” 304 A.3d at 1149.
That was not the case in Pickering and Ojo. Each courts acknowledged a crucial distinction, for venue functions, between making an attempt and failing (Hangey) and by no means making an attempt in any respect.
Nothing in Rule 2179(a)(2) ensures plaintiffs {that a} defendant should usually conduct enterprise in not less than one Pennsylvania county. The Rule solely permits a plaintiff to sue a defendant in any county the place the defendant usually conducts enterprise – no extra and no much less. Right here, [plaintiff] doesn’t declare [that the defendant] had another persevering with, common, or routine enterprise actions in Philadelphia County. . . . As soon as it made these eight gross sales and shipped its items to Philadelphia, [defendant] did no additional enterprise there. . . . Whereas the producer in Hangey had a relentless presence in Philadelphia and was all the time making an attempt to promote its items by its native seller, [this defendant] carried out subsequent to no enterprise in that county.
Pickering, 2025 WL 2672365, at *6. See Ojo, 2025 WL 2741622, at *5-6 (Hangey utilized solely a defendant “distributing its merchandise instantly” to not gross sales made by unbiased “huge field” retailers).
Pickering and Ojo make an necessary venue level for avoiding being sued in Philadelphia. If a defendant needs to keep away from Philadelphia – keep away from Philadelphia. As Ojo additionally identified, the defendant’s use of Philadelphia’s port services was “not needed for [the defendant’s] existence, as evidenced . . . by the truth that though [it] stopped utilizing the port of Philadelphia solely.” Id. at *4. One other technique to keep away from being sued in Philadelphia – lack of venue – thus exists for these potential defendants who merely don’t do enterprise there.
When one door closes, typically one other opens. Mallory was a jurisdictional catastrophe, however there are different methods to frustrate discussion board buying.