Elizabeth Duxbury (“Elizabeth”) and Brian Duxbury (“Brian”) alleged that while treating Elizabeth, Rothman Urgent Care referred her to Dr. Axelrod for further treatment. Elizabeth saw Dr. Axelrod at the Egg Harbor, New Jersey location of The Rothman Institute of New Jersey (“RINJ”) on June 7, 2021. At this appointment, Dr. Axelrod suggested bilateral transforminal epidural injections by fluoroscopic guidance to treat the lower back pain. Dr. Axelrod administered the epidural injections into Elizabeth’s back on June 25, 2021, in Egg Harbor, New Jersey.
When Dr. Axelrod inserted the first needle into Elizabeth’s right side, she felt a sensation like an electrical shock, and what felt like pins and needles in her right leg. The Duxburys contended that Dr. Axelrod failed to use fluoroscopic guidance when administering the shot.
The Duxburys alleged that Reconstructive Orthopedic Associates II, P.C. (“ROA”) has a principal place of business in Philadelphia and RINJ, while existing under the law of New Jersey, has a place of business in Philadelphia. They further averred that Dr. Axelrod is licensed to practice in New Jersey and Pennsylvania, specializes in physical medicine and rehabilitation, is an employee and agent of ROA and RINJ, and lists her professional address in Egg Harbor, New Jersey.
The Defendants filed a motion to dismiss pursuant to 42 Pa.C.S. § 5322(e)5 and forum non conveniens. The Duxburys filed a response to this motion. The trial court court granted the motion to dismiss and directed the Duxburys to file the complaint in New Jersey. The Duxburys appealed.
Forum Non Conveniens
In Pennsylvania, the doctrine of forum non conveniens, which originated in Common Law, has been codified by statute:
“Inconvenient forum.-When a tribunal finds that in the interest of substantial justice the matter should be heard in
another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.”
42 Pa.C.S. § 5322(e)
The Superior Court of Pennsylvania stated in its February 4, 2026 Opinion: “The trial court, however, was obligated to weigh the circumstances linking the case to Pennsylvania as well and to determine whether Pennsylvania was an inconvenient forum, not simply that New Jersey was a more convenient forum for Appellees … the trial court did not consider that Pennsylvania would be a more convenient forum for Elizabeth’s subsequent treating doctors, two of whom are located in Philadelphia. And both the Duxburys and Appellees identified additional witnesses not located in either Pennsylvania or New Jersey. As these witnesses would have to travel regardless of where the trial takes place, the location of these witnesses favor neither forum, as there is no support in the record that a trial held with these witnesses in New Jersey would be more expeditious or inexpensive than in Pennsylvania.”
“[W]e conclude that the court abused its discretion in finding the private factors weighed in favor of dismissal of the action. Determining forum non conveniens required the trial court to consider the relative convenience of Pennsylvania. The trial court instead engaged in a “one-sided discussion” of factors weighing against the Duxbury’s choice of forum.”
“[T]he relevant private factors—the ease of access of sources proof (including medical records), the availability of process for unwilling witnesses, and the cost of obtaining witnesses—do not strongly militate in favor of moving this litigation to New Jersey. Pointedly, there is no evidence that New Jersey is a more convenient forum where the litigation can be conducted more easily, expeditiously, and inexpensively than in Pennsylvania … Therefore, the trial court abused its discretion in finding the private factors weighed in favor of dismissal of the action from Pennsylvania.”
Furthermore, “Examining the public factors as the law requires, Pennsylvania’s interest in this litigation is as strong, if not stronger, than New Jersey’s interest.”
“We therefore conclude that trial court abused its discretion in dismissing the action and directing the Duxburys
to file the action in New Jersey.”
Source Duxbury v. Reconstructive Orthopedic Associates II, P.C., 2026 PA Super 22.
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