Not long ago we discussed Somerlot v. Jung, ___ A.3d ___, 2025 WL 2157391 (Pa. Super. July 30, 2025), as providing a potential antidote to some Mallory-inspired forum shopping.  However, as we pointed out, Somerlot’s advantages were limited, because:  (1) they required the pro-active use of forum selection clauses in advance of any litigation, and (2) would only be available to defendants who had the sort of relationship (directly or through distributors or doctors) with a plaintiff that would provide the opportunity to require such a clause.  Thus, the Somerlot solution was not available to all, or even most, prescription medical product liability litigation.

However, over the last couple of months, Pennsylvania appellate decisions involving the more traditional concepts of forum non conveniens and venue have materially changed applicable law for the better, in terms of their availability as tools to combat post-Mallory forum shopping.  Since Pennsylvania remains the only large state to allow general jurisdiction by consent in prescription medical product liability litigation, Pennsylvania law remains by far the most important for dealing with post-Mallory forum shopping.

First, forum non conveniens.  The Pennsylvania Superior Court spent much of the last decade encumbering forum non conveniens with procedural requirements that made it progressively harder for defendants to assert in opposition to plaintiffs suing in venues – usually Philadelphia County – with zero factual relationship to the filed cases, but with a jury pool that the plaintiffs wanted.

Tranter v. Z&D Tour, Inc., ___ A.3d ___, 2025 WL 2731703 (Pa. Sept. 25, 2025), changed all that.  Tranter involved a huge auto accident in western Pennsylvania.  Several people died and scores more were hospitalized.  At least fifteen separate lawsuits were filed – in Philadelphia, which was well over 200 miles away.  Philadelphia judges are not known as being particularly pro-defendant, but even they could not stomach these actions because of their total lack of any factual connection to Philadelphia.  However, a Superior Court panel vacated the forum non conveniens transfer order because the defendants hadn’t identified the testimony of “key witnesses” who would be inconvenienced by taking the long trek to Philadelphia.

Tranter eliminated all the accumulated barriers that the Superior Court had erected to prevent defendants from asserting forum non conveniens.  While a plaintiff’s choice of forum “is entitled to weighty consideration,” the forum non conveniens doctrine “provides a necessary counterbalance to ensure fairness and practicality.”  2025 WL 2731703, at *6 (citations and quotation marks omitted).  To prove that a plaintiff’s filing in a particular forum (Philadelphia) was “oppressive” and warranted a transfer, “[a] defendant petitioning for transfer of venue must [simply] place the grounds on the record.”  Id. at *10

Rule 1006(d) do[es] not require any particular form of proof.  All that is required is that the moving party present a sufficient factual basis for the petition, and the trial court retains the discretion to determine whether the particular form of proof is sufficient. . . .  [A]ffidavits have never been held necessary to obtain transfer.

Id. (footnotes and quotation marks omitted).  No particular form of proof is required.

Moreover, the distance that potential witnesses would have to travel is always an important consideration.  “A distance of one hundred miles provides a valuable benchmark for distinguishing between oppressiveness and mere inconvenience.”  Id.  “[A]s between Philadelphia and counties 100 miles away, simple inconvenience fades in the mirror and we near oppressiveness with every milepost of the [Pennsylvania] turnpike.”  Id. (quoting Bratic v. Rubendall, 99 A.3d 1, 10 (Pa. 2014)).

The Superior Court’s “key witness” requirement had no basis in Pa. R. Civ. P. 1006, or in precedent, and further made no practical sense.

There are numerous problems with these requirements.  First, as the defendants all point out, forum non conveniens typically is raised quite early in the course of a lawsuit − often before any substantive discovery. . . .  Indeed, if a defendant waits too long to raise the matter, there is a risk that the court may cite the defendant’s participation thus far as an indication that the plaintiff’s chosen venue is not, in fact, oppressive or vexatious.  Requiring the defense to identify and disclose the witnesses and testimony that will be “necessary” or “critical” to its position in effect demands that the defense present a fully developed trial strategy.  At such an early stage of the litigation, this is an unreasonably high burden.

Tranter, 2025 WL 2731703, at *11 (footnote omitted).  The record was clear that “the ‘vast majority’ of [the] witnesses would be required to travel well over two hundred miles to participate in litigation in Philadelphia.”  Id. at *12.  Tranter thus flatly “rejected” adding any requirements to the forum non conveniens doctrine that were not in the rules.  “No further improvements upon the doctrine of forum non conveniens are necessary or warranted.”  Id. at *6.

Finally, the plaintiffs offered modern technology as a sort of deus ex machina, arguing that distance no longer mattered, as testimony could simply occur remotely.  That argument went over like a lead balloon:

The plaintiffs’ central argument, however, is that no distance is necessarily burdensome because modern technology allows witnesses to testify remotely.  We cannot agree. . . .   [I]t is not an adequate substitute in the ordinary course.  Importantly, absent emergency circumstances such as those brought about by the pandemic, our Rules of Civil Procedure do not provide for the virtual appearance of witnesses at trial as a matter of course. . . .  [O]ne need not consult academic studies in order to appreciate the far more tangible downsides of virtual court proceedings.  Nearly all who have practiced law in recent years are familiar with the drawbacks inherent in the technology.  Live, in-person court proceedings do not suffer from frustrating connectivity problems, inadvertently muted microphones (or sounds captured on microphones that should be muted), or video feeds stuck on comical camera filters.  Virtual court appearance is, at best, a backup solution when the alternative is unavailable.  It is preferable in every regard for the parties, the witnesses, the attorneys, the judge, and the jury to be in a room with one another.

Tranter, 2025 WL 2731703, at *13 (footnotes omitted).  The court recognized plaintiffs’ technology argument for what it was:  “If every assertion of the oppressiveness of a venue is met with a suggestion of virtual litigation, then the doctrine of forum non conveniens would meet its end.”  Id.

Tranter is, of course, only about forum non conveniens in the context of transfer motions within the Commonwealth of Pennsylvania.  But extending its “oppressiveness” reasoning to post-Mallory cases brought by forum shoppers anywhere in the country, and with no Pennsylvania factual connection at all (save that a defendant happened to register to do business in the state), should be a fortiori.  That leads us to a second recent Pennsylvania appellate decision, Dickerson v. United States Steel Corp., 2025 WL 2589651 (Pa. Super. Sept. 8, 2025).  Even before Tranter demolished the Superior Court’s invented limitations on forum non conveniens, Dickerson applied the doctrine to what was clearly Mallory-type forum shopping.  Dickerson was a toxic exposure case that was actually delayed while Mallory was pending – first before the Pennsylvania Supreme Court, and then in the United States Supreme Court.  2025 WL 2589651, at *4.  Thus, using forum non conveniens was exactly what the Dickerson court knew it was dealing with.  As is the case with all Mallory-type litigation tourists, the plaintiff “never lived or worked in Pennsylvania,” nor did any of the claimed chemical exposure happen in Pennsylvania.  Id.  One of the defendants was a Pennsylvania corporation.  Id.

Dickerson affirmed dismissal of the case altogether on forum non conveniens grounds, adopting the trial court’s opinion “as our own.”  Id. at *3.  Reviewing the various forum non conveniens factors, Dickerson determined:

• All relevant exposure and medical treatment witnesses were located in the state where the plaintiff’s decedent lived and worked.
• The locations of experts did not matter.
• “The testimony of Plaintiff’s employers, supervisor, and co-workers would be easier in [plaintiff’s home state] and would be more difficult in Pennsylvania because they cannot be compelled to testify if the case remains in Pennsylvania.”
• While “marketing” evidence allegedly “located in Pennsylvania” might be relevant, “it was not the central focus of this case” because the product was not a consumer product, and such evidence could be presented through corporate designees.
• “[I]t is unclear whether any of the relevant [corporate] designees are still located in Pennsylvania.
• “Plaintiffs pointed to no particular [corporate] witness that was located in Pennsylvania and was also material to the trial.”
• Medical evidence would likely “be submitted and refuted through experts” whose location did not matter.
• “[T]he defense has a right to call material live witness at trial and that compelling this material testimony is easier in [plaintiff’s home state] than in Pennsylvania.”
• To the extent that a “jury view” could be relevant, it would support venue in plaintiff’s home state.
• “All documents, manufacturing information, and testimony have been produced and Plaintiffs have pointed to no specific evidence that is located in Pennsylvania that would need subpoena to [plaintiff’s home state.”
• “[T]here has been no evidence that a trial in Pennsylvania could occur any earlier than in [plaintiff’s home state].”
• “[B]ecause it is the alleged prolonged occupational exposure to products provided in the workplace in [plaintiff’s home state] that is the linchpin issue for trial, [that state’s] courts and juries would have more of an interest in this case than Pennsylvania.”
• “Pennsylvania has no interest in having its products liability laws apply to . . . non-resident foreign corporations that allegedly exposed Plaintiff” [and] “has no interest in legal issues related to injuries to a non-resident . . . that occurred in [plaintiff’s home state].”
• Requiring transfer to plaintiff’s home state avoids possible choice of law issues.

Dickerson, 2025 WL 2589651, at *5-9 (quoting trial court opinion included as “Attachment B”).

There are, of course, differences between prescription medical product liability litigation and the sort of workplace exposure at issue in Dickerson.  But the way we see it, those differences balance each other in a Mallory forum shopping situation.  On the one hand, consumer advertising may be more relevant in prescription medical product litigation, particularly if direct-to-consumer advertising is alleged.  On the other hand, a plaintiff suing a Pennsylvania-based manufacturer of such products wouldn’t need Mallory to obtain general personal jurisdiction.  More importantly, the learned intermediary rule applies in prescription medical product liability litigation, and that means that the location of the prescribing physician – almost always in the plaintiff’s home state – is a much more important factor, and would further favor forum non conveniens dismissal.

Based on Tranter and Dickerson, forum non conveniens motions against Mallory litigation tourists would seem to have a significant chance of success.

Two other recent cases Pennsylvania appellate cases also warrant mention.  Pickering v. Associated Realty Property Management, Inc., ___ A.3d ___, 2025 WL 2672365 (Pa. Super. Sept 18, 2025), and Ojo v. Hanover Foods Corp., 2025 WL 2741622 (Pa. Super. Sept. 25, 2025), both deal with contentions that venue  − not forum non conveniens – required transfers of cases out of Philadelphia.  Pickering is a to-be-published case, and thus binding on all Pennsylvania trial courts, whereas Ojo is not.  Both recognize limits on the reach of the adverse Hangey v. Husqvarna Professional Products, Inc., 304 A.3d 1120 (Pa. 2023), which allowed “doing business” venue in Philadelphia despite only a minuscule (0.005%) of the defendant’s product sales arising there.

Both Pickering and Ojo recognize that Hangey’ venue analysis turned on the quality, not quantity, of the business that the corporate defendant did in Philadelphia.  Both involved corporate defendants with similarly microscopic Philadelphia business, but unlike the Hangey defendant, these defendants did not have any authorized sales outlet in the county.  Hangey concluded that by having a Philadelphia distributor, the defendant was  “at least trying to make sales in Philadelphia, regularly and continuously” even if its “products [were] collecting dust on the store shelves.”  304 A.3d at 1149.

That was not the case in Pickering and Ojo.  Both courts recognized a critical distinction, for venue purposes, between trying and failing (Hangey) and never trying at all.

Nothing in Rule 2179(a)(2) guarantees plaintiffs that a defendant must regularly conduct business in at least one Pennsylvania county.  The Rule only permits a plaintiff to sue a defendant in any county where the defendant regularly conducts business – no more and no less.  Here, [plaintiff] does not claim [that the defendant] had any other continuing, regular, or habitual business activities in Philadelphia County. . . .  Once it made those eight sales and shipped its goods to Philadelphia, [defendant] did no further business there. . . .  Whereas the manufacturer in Hangey had a constant presence in Philadelphia and was always attempting to sell its goods through its local dealer, [this defendant] conducted next to no business in that county.

Pickering, 2025 WL 2672365, at *6.  See Ojo, 2025 WL 2741622, at *5-6 (Hangey applied only a defendant “distributing its products directly” not to sales made by independent “big box” retailers).

Pickering and Ojo make an important venue point for avoiding being sued in Philadelphia.  If a defendant wants to avoid Philadelphia – avoid Philadelphia.  As Ojo also pointed out, the defendant’s use of Philadelphia’s port facilities was “not necessary for [the defendant’s] existence, as evidenced . . . by the fact that although [it] stopped using the port of Philadelphia entirely.” Id. at *4.  Another way to avoid being sued in Philadelphia – lack of venue – thus exists for those potential defendants who simply don’t do business there.

When one door closes, often another opens.  Mallory was a jurisdictional disaster, but there are other ways to frustrate forum shopping.