Doe v. International Psychoanalytical Ass'n , 2015 IL App (1st) 140410 ( 2015 )


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  •                                          
    2014 IL App (1st) 140410
                                                  No. 1-14-0410
    Fifth Division
    Modified opinion filed March 27, 2015
    ______________________________________________________________________________
    IN THE
    APPELLATE COURT OF ILLINOIS
    FIRST DISTRICT
    ______________________________________________________________________________
    )
    JANE DOE,                                      )
    )   Appeal from the Circuit Court
    Plaintiff-Appellee,                      )   of Cook County.
    )
    v.                                             )   No. 13 L 005649
    )
    INTERNATIONAL PSYCHOANALYTICAL                 )   The Honorable
    ASSOCIATION,                                   )   Moira S. Johnson,
    )   Judge Presiding.
    Defendant-Appellant.                     )
    )
    ______________________________________________________________________________
    JUSTICE GORDON delivered the judgment of the court, with opinion.
    Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
    OPINION
    ¶1                                           BACKGROUND
    ¶2                                               I. Parties
    ¶3         The plaintiff is a Venezuela resident who was a patient of psychoanalyst Alicia Leisse de
    Lustgarten (Ms. Leisse), who also lives and practices in Venezuela. At the time of the events
    that led to the filing of this lawsuit, plaintiff was a postgraduate student in clinical
    community psychology working as a clinical therapist at an agency dealing with abused
    women in Venezuela. There is no evidence that she has ever been in Chicago or in the United
    States.
    No. 1-14-0410
    ¶4           The defendant is a not-for-profit corporation incorporated in England and Wales, with its
    principal place of business in London, England. Its only contact with Illinois was a
    conference that it held in Chicago in May 2009 for mental health providers where Ms.
    Leisse, a member of the board of representatives of defendant, made a presentation and used
    plaintiff’s unauthorized sensitive clinical material as an example, which defendant later
    published on the defendant’s website in England without using plaintiff’s name.
    ¶5                                             II. Cause of Action
    ¶6           Plaintiff filed this action against defendant for intentional infliction of emotional distress,
    negligent infliction of emotional distress, and tortious interference with prospective
    economic advantage, claiming that as a direct result of the publication of plaintiff’s sensitive
    clinical material, people in her community could easily identify her, causing her to withdraw
    from her professional community and suffer mental distress and anguish, creating a diagnosis
    of post-traumatic stress disorder.
    ¶7                                     III. Posture of Case in Illinois
    ¶8           After defendant filed a motion to dismiss based on forum non conveniens, seeking a
    transfer to Venezuela, the circuit court denied the motion. Defendant then filed a petition for
    leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Feb. 16, 2011), which
    this court granted, and this interlocutory appeal follows.
    ¶9                                                ANALYSIS
    ¶ 10         This is an interlocutory appeal, taken pursuant to Supreme Court Rule 306. The rule
    provides in relevant part:
    “(a) *** A party may petition for leave to appeal to the Appellate Court from the
    following orders of the trial court:
    2
    No. 1-14-0410
    ***
    (2) from an order of the circuit court allowing or denying a motion to dismiss on
    the grounds of forum non conveniens ***.” Ill. S. Ct. R. 306(a)(2) (eff. Feb. 16,
    2011).
    This court granted defendant’s petition for leave to appeal the trial court’s denial of its forum
    non conveniens motion.
    ¶ 11                                 I. Forum Non Conveniens Doctrine
    ¶ 12         Forum non conveniens is an “equitable doctrine founded in considerations of
    fundamental fairness and the sensible and effective administration of justice.” Langenhorst v.
    Norfolk Southern Ry. Co., 
    219 Ill. 2d 430
    , 441 (2006); Gridley v. State Farm Mutual
    Automobile Insurance Co., 
    217 Ill. 2d 158
    , 169 (2005). This doctrine permits a trial court to
    transfer a case when “trial in another forum ‘would better serve the ends of justice.’ ”
    
    Langenhorst, 219 Ill. 2d at 441
    (quoting Vinson v. Allstate, 
    144 Ill. 2d 306
    , 310 (1991));
    
    Gridley, 217 Ill. 2d at 169
    .
    ¶ 13         The burden is on the party asking for the dismissal to show that the relevant factors
    “ ‘strongly favor’ ” transfer. (Emphasis omitted.) 
    Langenhorst, 219 Ill. 2d at 442
    (quoting
    Griffith v. Mitsubishi Aircraft International, Inc., 
    136 Ill. 2d 101
    , 108 (1990)); Woodward v.
    Bridgestone/Firestone, Inc., 
    368 Ill. App. 3d 827
    , 833 (2006) (in product liability case where
    vehicle accident was in Australia with an Australian plaintiff, burden was on defendant to
    show factors strongly favoring transfer to Australia); Ellis v. AAR Parts Trading, Inc., 
    357 Ill. App. 3d 723
    (2005) (in product liability case where airplane crash was in the Philippines
    with Philippine decedents, burden was on defendant to show factors strongly favoring
    transfer to the Philippines).
    3
    No. 1-14-0410
    ¶ 14          “A trial court is afforded considerable discretion in ruling on a forum non conveniens
    motion.” 
    Langenhorst, 219 Ill. 2d at 441
    . An appellate court will reverse a circuit court's
    decision on a forum non conveniens motion only if the “defendants have shown that the
    circuit court abused its discretion in balancing the relevant factors.” 
    Langenhorst, 219 Ill. 2d at 442
    ; 
    Gridley, 217 Ill. 2d at 169
    ; Dawdy v. Union Pacific R.R. Co., 
    207 Ill. 2d 167
    , 176-77
    (2003). The Illinois Supreme Court has stated: “A circuit court abuses its discretion in
    balancing the relevant factors only where no reasonable person would take the view adopted
    by the circuit court.” 
    Langenhorst, 219 Ill. 2d at 442
    ; 
    Gridley, 217 Ill. 2d at 169
    ; 
    Dawdy, 207 Ill. 2d at 177
    .
    ¶ 15          The issue then is, not what decision we would have reached if we were reviewing the
    facts on a clean slate, but whether the trial court acted in a way that no reasonable person
    would. We find, in the case at bar, that a reasonable person could certainly have taken the
    view adopted by the trial court.
    ¶ 16                                  II. Plaintiff’s Choice of Forum
    ¶ 17          Before weighing the relevant factors, a court must first decide how much deference to
    give to a plaintiff's choice of forum. 
    Langenhorst, 219 Ill. 2d at 448
    (the supreme court
    determined the appropriate amount of deference, before weighing the relevant factors).
    ¶ 18          In the case at bar, the trial court reasonably accorded some deference to plaintiffs' choice
    of forum. Normally, the plaintiff's choice of forum is a “substantial” factor in deciding a
    forum non conveniens motion. 
    Dawdy, 207 Ill. 2d at 173
    ; Griffith v. Mitsubishi Aircraft
    International, Inc., 
    136 Ill. 2d 101
    , 106 (1990). However, the Illinois Supreme Court has
    stated that where the plaintiff chooses a forum other than where she resides, her choice “is
    not entitled to the same weight,” as the choice of her home forum. 
    Dawdy, 207 Ill. 2d at 173
    -
    4
    No. 1-14-0410
    76; 
    Gridley, 217 Ill. 2d at 170
    . In the case at bar, plaintiff is Venezuelan. Thus, her selection
    of a foreign forum “deserves less deference.” 
    Griffith, 136 Ill. 2d at 106
    (citing Piper Aircraft
    Co. v. Reyno, 
    454 U.S. 235
    , 255-56 (1981)); 
    Langenhorst, 219 Ill. 2d at 448
    ; Gridley, 
    217 Ill. 2d
    at 170.
    ¶ 19         However, less deference is not the same as no deference. First American Bank v.
    Guerine, 
    198 Ill. 2d 511
    , 518 (2002) (“ ‘the deference to be accorded is only less, as opposed
    to none’ ” (emphases in original) (quoting Elling v. State Farm Mutual Automobile Insurance
    Co., 
    291 Ill. App. 3d 311
    , 318 (1997))); Ellis v. AAR Parts Trading, Inc., 
    357 Ill. App. 3d 723
    , 741 (2005) (less deference “does not equal no deference”). See also 
    Langenhorst, 219 Ill. 2d at 448
    (plaintiff's choice of a foreign forum was “entitled to somewhat less deference”
    (emphasis in original) (citing 
    Guerine, 198 Ill. 2d at 517
    (“somewhat less deference”))).
    Thus, in the case at bar, the trial court reasonably accorded some deference to plaintiff's
    choice of a forum.
    ¶ 20                                    III. Private Interest Factors
    ¶ 21         The Illinois Supreme Court has held that a court must consider both “the private and
    public interest factors” in deciding a forum non conveniens motion. 
    Langenhorst, 219 Ill. 2d at 443
    ; 
    Gridley, 217 Ill. 2d at 170
    ; 
    Dawdy, 207 Ill. 2d at 172-73
    . The private interest factors
    include: “ ‘(1) the convenience of the parties; (2) the relative ease of access to sources of
    testimonial, documentary, and real evidence; and (3) all other practical problems that make
    trial of a case easy, expeditious, and inexpensive.’ ” 
    Langenhorst, 219 Ill. 2d at 443
    (quoting
    
    Guerine, 198 Ill. 2d at 516
    ); 
    Gridley, 217 Ill. 2d at 170
    ; 
    Dawdy, 207 Ill. 2d at 172
    .
    5
    No. 1-14-0410
    ¶ 22                                  A. Convenience of the Parties
    ¶ 23         Defendant failed to provide a single affidavit stating that it would be inconvenient to
    litigate this matter in Cook County, Illinois, and that a Venezuelan court is much more
    convenient. In the instant case, plaintiff resides in Venezuela but selects Illinois as her
    designated forum. Defendant’s not-for-profit corporation is incorporated in both England and
    Wales, with its principal place of business in London, England. Ms. Leisse, who is not a
    party to this lawsuit, but who could be an important witness, resides in Venezuela.
    Defendant’s employees who processed certain forms to defendant certifying that her
    presentation did not include any sensitive clinical material are located in England.
    Additionally, defendant’s employees who managed the website where the audio file from the
    Chicago presentation was published are also located in England. Dr. Abel Feinstein, the chair
    of defendant’s programme committee for the conference in Chicago, who ultimately
    requested that the audio file be removed from defendant’s website, resides in Argentina.
    ¶ 24         The circuit court found that because Chicago was the site of where the tortious conduct
    initiated, plaintiff’s choice of forum is convenient. To be perfectly correct, the tortious
    conduct by defendant caused injury to plaintiff when it placed the sensitive material on its
    website in England. However, the events that led up to the placement of the material on its
    website did occur in Chicago where the sensitive matter was first published.
    ¶ 25         In addition, plaintiff’s damage witnesses would all probably be residing in Venezuela, but
    that may not reflect on defendant’s burden of showing that the private and public interest
    factors strongly favor transferring the action to Venezuela when defendant fails to file an
    affidavit to show that it is likely to call those witnesses in its case in chief. As part of
    defendant’s burden, it must show that plaintiff’s chosen forum is inconvenient to defendant
    6
    No. 1-14-0410
    and that another forum is more convenient to all parties. Defendant cannot merely assert that
    plaintiff’s chosen forum is inconvenient to plaintiff. 
    Guerine, 198 Ill. 2d at 518
    . Unless the
    balance of factors strongly favors a defendant’s choice of forum, the plaintiff’s choice of
    forum should rarely be disturbed. 
    Langenhorst, 219 Ill. 2d at 444
    .
    ¶ 26         Defendant admits that its employees in England can give testimony in Illinois as easily as
    Venezuela. Thus, there is no real inconvenience for defendant if this case remains in Cook
    County, Illinois.
    ¶ 27                                  B. Ease of Access to Evidence
    ¶ 28         The second private factor, the relative ease of access to sources of testimonial,
    documentary, and real evidence, also does not shift the balance of this forum non conveniens
    analysis in favor of a Venezuela court.
    ¶ 29         This court acknowledges that when witnesses are scattered throughout several countries,
    there may not be one predominant country and thus transfer should be denied. A trial court
    does not abuse its discretion in denying a motion to transfer when most of the potential trial
    witnesses are scattered and no single country enjoys a predominant connection to the
    litigation. Ammerman v. Raymond Corp., 
    379 Ill. App. 3d 878
    , 886 (2008) (citing
    
    Langenhorst, 219 Ill. 2d at 453
    ). In this case, witnesses are scattered between Venezuela,
    England, and Argentina.
    ¶ 30                                 C. All Other Practical Problems
    ¶ 31         The third private factor that the courts consider refers to all other practical problems,
    which includes the process of securing unwilling witnesses. The defendant has provided no
    affidavit to show that there is an unwilling witness who would be unwilling to appear or that
    the unwilling witness could not be compelled to appear through the law of international
    7
    No. 1-14-0410
    treaties. Defendant argues that the parties will endure great expense in litigating the matter in
    Cook County, Illinois, but does not show the court how that expense will diminish for
    defendant if the case proceeded in Venezuela.
    ¶ 32         As for the compulsory process of unwilling witnesses and the cost of obtaining the
    attendance of willing witnesses, these factors do not strongly favor dismissal in favor of
    Venezuela. “If the case remains in Illinois, witnesses in [Venezuela] are not compelled to
    come to the United States; and if the forum is changed to [Venezuela], American witnesses
    [or witnesses from other countries] are not compelled to appear in [Venezuela].” 
    Woodward, 368 Ill. App. 3d at 835
    (“Venezuela” substituted for “Australia”); 
    Ellis, 357 Ill. App. 3d at 743-44
    .
    ¶ 33         Similarly, while some of the documents and records may be in Venezuela, nonetheless,
    the location of documents and records has become a less significant factor in forum non
    conveniens analysis in the modern age of email, Internet, telefax, copying machines, and
    worldwide delivery services, since they can now be easily copied and sent. 
    Woodward, 368 Ill. App. 3d at 834
    .
    ¶ 34         Observing correctly that potential witnesses and evidence was scattered among different
    countries, the trial court concluded that this factor did not tilt in favor of any one forum. We
    cannot find that this conclusion was an abuse of discretion. 
    Woodward, 368 Ill. App. 3d at 834
    (where potential witnesses are “scattered among different forums,” no one forum can be
    said to be more convenient); 
    Ellis, 357 Ill. App. 3d at 747
    ; Berbig v. Sears Roebuck & Co.,
    
    378 Ill. App. 3d 185
    , 188 (2007).
    ¶ 35         Lastly, the court must consider all the other “ ‘practical problems that make trial of a case
    easy, expeditious, and inexpensive.’ ” 
    Langenhorst, 219 Ill. 2d at 443
    (quoting Guerine, 198
    8
    No. 1-14-0410
    Ill. 2d at 516). Both plaintiff’s and defendant’s attorneys maintain offices in Cook County.
    The Illinois Supreme Court has stated that while little weight should be accorded this factor,
    a court may still consider it in the forum non conveniens analysis. 
    Dawdy, 207 Ill. 2d at 179
    ;
    
    Woodward, 368 Ill. App. 3d at 836
    .
    ¶ 36         In sum, the private interest factors, when considered in light of all relevant facts and
    evidence in the record, do not strongly weigh in favor of transfer to Venezuela. We now turn
    to the relevant public interest factors in our forum non conveniens analysis.
    ¶ 37                                     IV. Public Interest Factors
    ¶ 38         When deciding a forum non conveniens motion, a court must also consider the public
    interest factors. These factors include: “(1) the interest in deciding controversies locally; (2)
    the unfairness of imposing trial expense and the burden of jury duty on residents of a forum
    that has little connection to the litigation; and (3) the administrative difficulties presented by
    adding litigation to already congested court dockets.” 
    Langenhorst, 219 Ill. 2d at 443
    -44
    (citing First American Bank v. Guerine, 
    198 Ill. 2d 511
    , 516-17 (2002)); 
    Gridley, 217 Ill. 2d at 170
    ; 
    Dawdy, 207 Ill. 2d at 173
    .
    ¶ 39         The trial court evaluated the first two public factors together, which included the interest
    in deciding the alleged controversy locally and the unfairness of imposing the expense of a
    trial and the burden of jury duty on residents of a county with little connection to the
    litigation. We will also decide these two public factors together. Defendant’s own “Code of
    Ethical Principles” requires that all “psychoanalysts shall respect the confidentiality of their
    patients’ information and documents.” In addition, all medical providers are subject to this
    duty when in Illinois and Cook County jurors certainly have an interest in deciding abuses of
    this duty. When the information was first presented by Ms. Leisse in Cook County and later
    9
    No. 1-14-0410
    published by defendant on its website in London, England, it became the interest of fair-
    minded people. These types of cases are not localized because they have international
    implications concerning a person’s right to privacy on matters disclosed to medical
    providers.
    ¶ 40         Defendant claimed that the trial court erred by refusing to conduct an abbreviated choice-
    of-law analysis and further claims that the substantive Venezuelan law would apply in this
    case. We agree.
    ¶ 41         The Illinois Supreme Court set forth the rules for determining choice of law questions.
    The court instructed that the reviewing court will apply the "most significant contacts" rule,
    as the local law which has the most significant relationship with the occurrence and with he
    parties. When we apply this to a multi-country defamation case, the country of most
    significant relationship will usually be the country where the person allegedly defamed was
    domiciled at the time. Ingersoll v. Klein, 
    46 Ill. 2d 42
    , 48 (1970). The same standard should
    apply to the unauthorized publication of sensitive personal material.
    ¶ 42         This concept is based on the Restatement of the Law, Second, Conflicts of Law (1971),
    § 150(2), which states: "When a natural person claims that he has been defamed by an
    aggregate communication, the state of most significant relationship will usually be the state
    where the person was domiciled at the time, if the matter complained of was published in that
    state." Applying this concept to multi-country publication of unauthorized sensitive material,
    the place of the greatest potential injury to the reputation of the plaintiff will be the place
    where plaintiff lives and works, which is Venezuela.
    ¶ 43         The need to apply the law of a foreign jurisdiction has been considered a significant
    factor favoring dismissal of a suit on grounds of forum non conveniens. Moore v. Chicago &
    10
    No. 1-14-0410
    North Western Transportation Co., 
    99 Ill. 2d 73
    , 80 (1983). However, it is also a significant
    factor that the publication of plaintiff's unauthorized sensitive clinical material first
    originated in Illinois, which is a hub for international conventions and presentations. As such,
    Illinois has a strong interest in maintaining some order in the manner in which those in
    international conventions and presentations treat innocent people. Illinois also has a strong
    interest in making sure that, especially in this century and in the future, concepts of fairness
    and justice prevail in our communities and in our country. We know what a litigant can
    expect in our courts, but know not what happens in the courts of other countries. Although
    the administration of Venezuelan law in this case will not be easy for the trial court, our
    experience dictates that our courts will do its best to provide both sides a fair and just trial.
    ¶ 44          Thus, we cannot find that the trial court's error by refusing to conduct an abbreviated
    choice-of-law analysis, which finds that Venezuelan law should be applied, is enough to
    dismiss this case for forum non conveniens or for this court to say that the trial court abused
    its discretion.
    ¶ 45          Comparative congestion in the respective courts is not a factor in the issue before us.
    Defendant offered no evidence that there is less congestion in Venezuelan courts; it has not
    even named the specific forum in Venezuela that it believes should handle this case.
    
    Woodward, 368 Ill. App. 3d at 836
    (this factor received little weight where defendants
    “offered no evidence” of less court congestion in their proposed forum); Berbig v. Sears
    Roebuck & Co., 
    378 Ill. App. 3d 185
    , 189 (2007) (“court congestion is a relatively
    insignificant factor, especially where the record does not show the other forum would resolve
    the case more quickly”). In addition, our supreme court has held that “[w]hen deciding forum
    non conveniens issues, the trial court is in the better position to assess the burdens on its own
    11
    No. 1-14-0410
    docket.” 
    Langenhorst, 219 Ill. 2d at 451
    . Thus, we cannot find that the trial court abused its
    discretion in giving this factor little weight.
    ¶ 46                                       V. Balancing the Factors
    ¶ 47          In deciding a forum non conveniens motion, the trial court “must balance the private and
    public interest [] [factors].” 
    Dawdy, 207 Ill. 2d at 172
    ; 
    Gridley, 217 Ill. 2d at 169
    -70. The
    balancing should be done “without emphasizing any one factor.” 
    Langenhorst, 219 Ill. 2d at 443
    ; 
    Gridley, 217 Ill. 2d at 169
    ; 
    Dawdy, 207 Ill. 2d at 180
    . “On review, the trial court's
    decision will be reversed only if *** the court abused its discretion in balancing the relevant
    factors.” 
    Dawdy, 207 Ill. 2d at 176-77
    ; 
    Griffith, 136 Ill. 2d at 106
    .
    ¶ 48          In the case at bar, we find that the trial court did not abuse its discretion in balancing the
    relevant factors. First, plaintiff’s choice of forum merited some deference, although she
    chose a foreign forum. Second, the private and public interest factors did not weigh strongly
    in favor of transfer. 
    Langenhorst, 219 Ill. 2d at 433
    (affirming the denial of a motion to
    transfer the case to the accident site, even though plaintiff's chosen forum was neither the
    accident site nor the site of her residence); 
    Woodward, 368 Ill. App. 3d at 837-38
    (affirming
    denial of a motion to transfer product liability case, even though plaintiffs’ chosen forum was
    neither the accident site nor the site of their residence); 
    Ellis, 357 Ill. App. 3d at 748
    (affirming denial of a motion to transfer product liability case, even though plaintiffs’ chosen
    forum was neither the site of the airplane crash or the decedents’ residence).
    ¶ 49                                           CONCLUSION
    ¶ 50          For the foregoing reasons, we affirm the trial court’s order denying defendant’s motion to
    dismiss on forum non conveniens grounds. As discussed above, defendant moved to dismiss
    12
    No. 1-14-0410
    only in favor of an action in Venezuela. We find that the trial court did not abuse its
    discretion in finding that Venezuela was not a more convenient forum.
    ¶ 51         Since we find that the trial court did not abuse its discretion in denying defendant’s
    motion on this basis, we do not decide whether Venezuela was an adequate available forum.
    ¶ 52         Affirmed.
    13