The following post was sent to us by Brendan Kenny of Blackwell Burke. It concerns a new Illinois Supreme Court casethat could have significant impact on out-of-state plaintiffs’ ability to keeptheir cases in Madison, St. Clair, etc.
As always with guest posts, the credit/blame goessolely to the poster. We’re only thepiano player.
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I just learned of a December 28, 2012 publishedIllinois Supreme Court forum nonconveniens 5-1 decision that will be helpful to defendants in Illinois byemphasizing that Illinois trial courts must grant a defendant’s forum non conveniens motion if theplaintiff has no significant connection to the forum and there is analternative forum that is more convenient.
The case is Fennell v. Illinois Central Railroad,and here’s a copy. In Fennell, the Court held that the trial court abused its discretionwhen it denied defendant Illinois Central’s forumnon conveniens motion and that the appellate court had erred in affirmingthe trial court's denial. Then the Courtremanded the case to the trial court with instructions to dismiss as a matterof law. Fennell strengthensdefendants’ challenges to asbestos, pharmaceutical, and other out-of-state plaintiffs’forum shopping in plaintiff-friendly locales like Madison County. The defendants will have a better chance tomove such cases to more favorable forums. This will reduce the settlement value of casesand increase the likelihood of winning the cases that defendants try.
Facts
Fennell was an asbestos case. The plaintiff claimed 37-year exposure toasbestos-containing products while working for the Illinois Central Railroad. The plaintiff did not live in Illinois, butrather lived and often worked in Mississippi. As a railroad worker, plaintiff, also worked across the county for therailroad, and he alleged that he was exposed to asbestos-containing productswherever he worked. In 2002, plaintiff Fennelland a class of 80 other plaintiffs sued Illinois Central in Mississippi state court. In that case, Illinois Central filed amotion to dismiss, and in 2006 the Mississippi court dismissed the case withoutprejudice.
In 2009, rather than re-file in Mississippi,Fennell filed an individual action against Illinois Central in Saint ClairCounty, Illinois. He alleged that he wasexposed to asbestos and other toxic substances while working for IllinoisCentral, but he did not allege aninjury in Saint Clair County. InMay 2010, Illinois Central filed a forumnon conveniens motion. The trialcourt denied the motion because: (1)Illinois Central’s lawyers had significant evidence in Saint Clair County, (2)two of Fennell’s important witnesses would testify in Illinois but not inMississippi, (3) Saint Clair County is closer for Fennell’s Chicago-basedexpert witness than Mississippi, (4) Saint Clair citizens have an interest in “travelingasbestos and other harmful substances”; and (5) Saint Clair County's docketsare uncongested.
Illinois Central appealed, and a dividedappellate-court panel affirmed. IllinoisCentral appealed to the Illinois Supreme Court, and several amici filed briefs.
General Principles
A trial court’s denial of a forum non conveniens motion is reviewed for abuse of discretion – astringent standard. Under the forum non conveniens doctrine, a trialcourt may decline jurisdiction if it appears that another forum can betterserve the parties' convenience and the ends of justice. When ruling on the motion, trial court mustconsider what forum the totality of public and private-interest factors favor.
Private-interest factors include the parties’convenience, access to evidence, ability to compel witnesses to appear fortrial, coast of presenting willing witnesses at trial, possibility of viewingthe premises at issue, and any other factors that make a trial “easy,expeditious, and inexpensive.” Critically,trial courts should also consider that courts have never favored forumshopping, and that a plaintiff’s interest in selecting a forum is less if theplaintiff is foreign to the forum and the action arose outside the forum. As the court stated:
[W]hen the plaintiff is foreign to the chosen forum andwhen the action giving rise to the litigation did not occur in the chosenforum, the plaintiff’s choice of forum is accorded less deference. A plaintiff’s home forum for purposes of aninterstate forum non conveniensmotion is the plaintiff’s home State.
Also, courts have never favored forum shopping. Decent judicial administration cannottolerate forum shopping as a persuasive or even legitimate reason for burdeningcommunities with litigation that arose elsewhere and should, in all justice, betried there. Indeed, a concern animatingour forum non conveniensjurisprudence is curtailing forum shopping by plaintiffs.
Fennell, slip op. at 6 ¶¶18-19 (citations andquotation marks omitted).
Public-interest factors include the congestion ofthe forum’s courts, the unfairness of imposing jury duty on residents in acommunity unconnected to the litigation, and the interests of local communitiesin deciding local issues.
The Supreme Court held that the trial court abusedits discretion because it failed to properly apply the public andprivate-interest factors:
Application of Private-Interest Factors
Fennell was from Mississippi and his cause ofaction arose outside Illinois. TheSupreme Court noted that trial court ignored that Fennell initially filed inMississippi and re-filed in Illinois. Itemphasized that Fennell lives less than 25 miles from the Mississippicourthouse, but 530 miles away from the Saint Clair courthouse, and that almostno one connected with Fennell's case lives in Illinois. Nothing suggested that having the case inMississippi would unduly hamper the parties’ discovery. The Court held that Fennell's Chicago-basedexpert’s convenience was entitled to little weight because he is compensatedfor his travel, and factoring the convenience of plaintiffs' expert would makeforum shopping even easier.
The Illinois Supreme Court also rejected the trialcourt’s conclusion that two of Fennell’s important witnesses would not testifyin court in Mississippi because these witnesses were defendant Illinois Central’semployees. That status makes it unlikelythat Fennell would have difficulty compelling them to testify in Mississippi. The Mississippi-based witnesses could not becompelled to testify in Saint Clair County, and bringing the willing witnessesthere would cost more.
The Illinois Supreme Court was not persuaded thatIllinois Central having counsel in Saint Clair County was significant. Even assuming that the law firm had manyIllinois Central documents relevant to the case there, the Illinois SupremeCourt noted that modern technology allows litigants to copy and transport thedocuments long distance easily and cheaply. On the other side of the ledger, the Courtobserved that a Saint Clair County jury, unlike a Mississippi one, could noteasily view the premises at issue in this case, which would be Fennell'sMississippi job site.
In sum, plaintiff resides in Mississippi; the allegedexposure occurred in Mississippi and Louisiana; the vast majority of the identifiedwitnesses, including the treating physicians, are located in Mississippi andare not subject to Illinois subpoenas; and a jury view of the premises wouldoccur outside of Illinois. On the whole, we conclude that the private interestfactors weigh heavily in favor of the convenience of a Mississippi forum overan Illinois forum.
Fennell, slip op. at 11 ¶41. Of note is the fact that the prior litigationin Mississippi played very little role in the Court’s consideration of theprivate interest factors.
Application of Public-Interest Factors
The Supreme Court in Fennell held that because there wasinsignificant evidence to determine which forum’s docket was more congested, itdid not take this factor into account. Butit found that Saint Clair County had a strong interest in avoiding subjectingits citizens to jury duty in a case unrelated to their community. And assuming that Saint Clair County citizenshad an interest in “traveling asbestos and other harmful substances,” they havea greater interest in not being burdened with litigation they have no connectionto.
That the action had no Illinois connection wasdispositive of the public interest factors:
If Illinois had any relevant or practical connectionwith this litigation, then it would have an interest in providing a forum. However, plaintiff resides in Mississippi,works in Mississippi, and was allegedly exposed to asbestos in Mississippi orLouisiana. Illinois’ only connectionwith this lawsuit is: the offices of the parties’ counsel; accessible andtransportable documents in the possession of defendant’s counsel; and acompensated expert witness for plaintiff. This does not provide a significantfactual connection with the instant case to justify imposition of the burdensof the litigation upon the citizens and court system of St. Clair County and Illinois.
Fennell, slip op. at 13 ¶46. Here, the prior Mississippi litigation playedno role at all.
In short, only Mississippi’s citizens that have theinterest in the litigation. Thus theCourt remanded with instructions to dismiss on grounds of forum non conveniens. Id.at 14 ¶51.
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