Fennell v. Illinois Central Railroad Company ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Fennell v. Illinois Central R.R. Co., 2012 IL App (5th) 100504
Appellate Court WALTER FENNELL, Plaintiff-Appellee, v. ILLINOIS CENTRAL
Caption RAILROAD COMPANY, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-10-0504
Filed January 3, 2012
Held In plaintiff’s action under FELA alleging that he developed respiratory
(Note: This syllabus ailments as a result of his exposure to asbestos and other toxic substances
constitutes no part of while employed with defendant railroad, the trial court did not abuse its
the opinion of the court discretion in denying defendant’s motion to dismiss on the basis of
but has been prepared interstate forum non conveniens, since the trial court properly concluded
by the Reporter of that after weighing the relevant public- and private-interest factors,
Decisions for the defendant failed to meet its burden of demonstrating that the factors
convenience of the strongly favored dismissal in favor of a Mississippi forum.
reader.)
Decision Under Appeal from the Circuit Court of St. Clair County, No. 09-L-19; the Hon.
Review Lloyd A. Cueto, Judge, presiding.
Judgment Affirmed.
Counsel on Michael C. Hermann and Thomas R. Peters, both of Boyle Brasher LLC,
Appeal of Belleville, for appellant.
William P. Gavin, of Gavin Law Firm, of Belleville, for appellee.
Panel JUSTICE CHAPMAN delivered the judgment of the court, with
opinion.
Presiding Justice Donovan concurred in the judgment and opinion.
Justice Welch dissented, with opinion.
OPINION
¶1 The defendant, Illinois Central Railroad Company, appeals a trial court order denying its
motion to dismiss the plaintiff’s complaint in favor of a Mississippi forum. The defendant
argues that the court abused its discretion. We affirm.
¶2 The plaintiff, Walter Fennell, worked in various capacities for the defendant from 1970
until 2007. In his complaint, he alleges that he suffers from respiratory ailments as a result
of exposure to asbestos, diesel exhaust, sand, environmental tobacco smoke, and toxic dusts,
fumes, and gases. He alleges that this exposure occurred throughout the course of his 37-year
career with the defendant. The plaintiff resides in Hazelhurst, Mississippi, located in Copiah
County. While working for the defendant, he was based at its facility in Jackson, Mississippi,
which is in Hinds County. He worked on trains that ran “mostly in and out of Jackson,
Mississippi, to Gulfport, Louisiana, and McComb, Mississippi.” He also alleges that he
“went to Memphis, Tennessee, Mobile, Alabama, and New Orleans” and attended
engineering school in Homewood, Illinois.
¶3 In 2002, the plaintiff and 84 other plaintiffs filed an action against the defendant in Pike
County, Mississippi. All 85 plaintiffs lived in Mississippi or Louisiana and were current or
former employees of the defendant. The allegations in that litigation were essentially the
same as the allegations in the case before us. In June 2006, the Mississippi trial court granted
a motion to dismiss filed by the defendant. The court dismissed the action without prejudice.
The record in this appeal does not reveal the basis for the defendant’s motion to dismiss the
Mississippi action.
¶4 In 2009, the plaintiff filed the instant lawsuit in St. Clair County, Illinois. He brought his
claims under the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq. (2000))
and the Locomotive Boiler Inspection Act (49 U.S.C. § 20701 et seq. (2000)). As previously
stated, he alleged that he developed respiratory ailments as a result of exposure to asbestos
and other toxic substances over the course of his employment with the defendant.
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¶5 The defendant filed a motion to dismiss on the basis of interstate forum non conveniens.
The defendant argued in its motion, as it does in this appeal, that trial in the plaintiff’s home
county of Copiah County, Mississippi, would be more convenient for all parties. The
defendant argued that dismissal in favor of a Mississippi forum was warranted because (1)
the plaintiff was a lifelong resident of Mississippi who worked out of the defendant’s
Jackson, Mississippi, facility, (2) the plaintiff did not allege that any part of his injury
occurred in St. Clair County or elsewhere in Illinois, (3) numerous potential witnesses lived
in Mississippi, and (4) trial in Copiah County, Mississippi, would be more convenient for the
defendant’s representatives most likely to testify or attend the trial, who were based at its
facility in Memphis, Tennessee.
¶6 In support of its motion, the defendant attached interrogatories in which the plaintiff
identified 13 individuals who were at least potential witnesses, all of whom live in
Mississippi. These individuals include the plaintiff’s wife and three adult children, four
physicians who had treated the plaintiff, and five of his coworkers. We note that the plaintiff
identified these individuals in response to questions asking him to identify family members,
treating physicians, and coworkers. It is unclear how many of these individuals the plaintiff
intends to call as witnesses. We further note that the defendant has not alleged that it intends
to call any of these individuals as witnesses.
¶7 The defendant also attached the affidavit of Charles Garrett, the defendant’s risk
mitigation manager for occupational disease claims. Garrett stated that he and several other
Illinois Central representatives likely to attend the trial or testify live in or near Memphis,
Tennessee. He stated that it would be a hardship for these employees to travel to Belleville
for a St. Clair County trial and that it would be “substantially more convenient” for them to
travel to Copiah County, Mississippi. He did not identify any witnesses or representatives
likely to attend the trial other than himself, and he did not elaborate on the reasons travel to
Copiah County would be more convenient. As we will discuss in more detail later, the two
counties are nearly the same distance from Memphis.
¶8 The plaintiff filed a response to the defendant’s motion to dismiss. The plaintiff pointed
out that the defendant was represented in this lawsuit by a Belleville law firm that had
previously represented it in similar litigation in Illinois, Mississippi, Louisiana, and
Tennessee. The plaintiff emphasized that, as a result of this representation, the defendant’s
counsel had collected numerous items of evidence that would be relevant in this case. This
evidence–consisting of documents and tangible items–was voluminous and was stored in the
Belleville offices of the defendant’s counsel. In support of these allegations, the plaintiff
attached photographs of some of the evidence involved and an affidavit in which his own
attorney stated that he had represented other former employees of the defendant in numerous
prior actions in which the same Belleville law firm had represented the defendant.
¶9 In addition, the plaintiff identified two witnesses that he intends to call, both of whom
are employees of the defendant. Specifically, he intends to call Lyndle Burton, the
defendant’s manager of industrial hygiene, and Charles Garrett, the defendant’s risk
mitigation manager for occupational disease claims. Garrett, as previously noted, is a resident
of Memphis, Tennessee. Burton is a resident of Joliet, Illinois. The plaintiff also identified
Dr. Alvin Schonfield as an expert witness. Dr. Schonfield resides in Chicago, Illinois.
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¶ 10 The court denied the defendant’s motion to dismiss in a written order. The court
expressly found that the St. Clair County court would be a convenient forum because (1)
“almost 80 years of relevant evidence” is located “just five miles from the St. Clair County
Courthouse,” (2) Burton and Garrett, whose testimony would be important to the plaintiff,
could be compelled to testify if the trial were held in Illinois but not if it were held in
Mississippi, (3) St. Clair County is closer and more convenient for the plaintiff’s expert
witness from Chicago, and (4) the citizens of St. Clair County have an interest in litigation
involving asbestos and other toxic substances in railcars that travel throughout the country.
In addition, the court found as follows: “St. Clair County no longer has congested trial
dockets. In fact, there are so few trials that as a matter of policy in Courtroom 404 if the
attorneys agree on a jury week they get it. Guaranteed!” The defendant then filed the instant
appeal pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Feb. 26, 2010).
¶ 11 Forum non conveniens is an equitable doctrine that allows a trial court to decline
jurisdiction if trial in a different forum would be more convenient and “ ‘would better serve
the ends of justice.’ ” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441, 848
N.E.2d 927, 934 (2006) (quoting Vinson v. Allstate, 144 Ill. 2d 306, 310, 579 N.E.2d 857,
859 (1991)). The doctrine is applicable whether the defendant seeks transfer to a different
county within the state (intrastate forum non conveniens) or dismissal in favor of a proposed
forum in another state (interstate forum non conveniens). Both types of forum cases are
governed by the same principles. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 176, 797
N.E.2d 687, 696 (2003).
¶ 12 Although this doctrine gives trial courts the discretion to decline jurisdiction, they should
do so “only in exceptional circumstances.” (Emphasis omitted.) Langenhorst, 219 Ill. 2d at
442, 848 N.E.2d at 934. This is because a plaintiff “has a substantial interest in choosing the
forum where his rights will be vindicated.” First American Bank v. Guerine, 198 Ill. 2d 511,
517, 764 N.E.2d 54, 58 (2002). The plaintiff’s choice, therefore, should be disturbed only if
a defendant can demonstrate that the plaintiff’s chosen forum is inconvenient to the
defendant and that a different forum would be more convenient to all parties. Langenhorst,
219 Ill. 2d at 444, 848 N.E.2d at 935. The burden of proving transfer or dismissal in favor
of a different forum is on the defendant (Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935),
and it is a difficult burden to meet (Langenhorst, 219 Ill. 2d at 443, 848 N.E.2d at 935).
¶ 13 In determining whether a defendant has met this burden, trial courts must consider
various factors identified by our supreme court. These include both private-interest factors
related to the convenience of the parties and public-interest factors related to the efficient
administration of the courts. Erwin v. Motorola, Inc., 408 Ill. App. 3d 261, 274, 945 N.E.2d
1153, 1166 (2011). The private-interest factors include: (1) the convenience of the parties,
(2) the comparative ease of access to witnesses, documents, and other evidence, and (3) “all
other practical problems that make trial of a case easy, expeditious and inexpensive.”
Guerine, 198 Ill. 2d at 516, 764 N.E.2d at 58. The public-interest factors include: (1) the
interest in deciding local controversies locally, (2) the unfairness of imposing the expense
of a trial and the burden of jury duty on a county with little or no connection to the litigation,
and (3) the relative court congestion. Guerine, 198 Ill. 2d at 516-17, 764 N.E.2d at 58.
¶ 14 One additional consideration is the plaintiff’s choice of forum. As previously discussed,
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the plaintiff has a substantial interest in choosing the forum in which to have his claims
resolved. Thus, the plaintiff’s choice of forum is always accorded some deference. Brown
v. Cottrell, Inc., 374 Ill. App. 3d 525, 529, 871 N.E.2d 63, 67 (2007) (citing Gridley v. State
Farm Mutual Automobile Insurance Co., 217 Ill. 2d 158, 170, 840 N.E.2d 269, 277 (2005)).
Where, as here, the plaintiff’s chosen forum is neither his home county nor the county in
which the events giving rise to his cause of action occurred, this choice is accorded less
deference than it otherwise would receive. Langenhorst, 219 Ill. 2d at 442-43, 848 N.E.2d
at 934. However, less deference does not mean no deference. Brown, 374 Ill. App. 3d at 529,
871 N.E.2d at 67 (citing Langenhorst, 219 Ill. 2d at 448, 848 N.E.2d at 938). Unless, on
balance, the relevant factors strongly favor transfer to the defendant’s proposed forum, the
plaintiff’s choice should not be disturbed. Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935.
¶ 15 The trial court must consider and balance all relevant forum factors without placing
undue emphasis on any one factor. Each case is unique and must be decided based on its own
particular set of facts. Langenhorst, 219 Ill. 2d at 443, 848 N.E.2d at 935. On appeal from
an order granting or denying a forum motion, we will reverse only if the trial court abused
its considerable discretion in balancing the relevant factors. Langenhorst, 219 Ill. 2d at 441-
42, 848 N.E.2d at 934. This occurs if no reasonable person could take the view taken by the
trial court. Langenhorst, 219 Ill. 2d at 442, 848 N.E.2d at 934.
¶ 16 Turning to the facts of the case before us, we will first consider the private-interest
factors. These factors include the convenience of the parties, the comparative ease of access
to witnesses and evidence, and all of the other practical considerations that make trying a
case easy, expeditious, and inexpensive.
¶ 17 We first consider the convenience of the parties. The plaintiff in this case resides in
Copiah County, Mississippi, the defendant’s proposed alternative forum. However, the
defendant must demonstrate inconvenience to the defendant; it cannot prevail by pointing
to inconvenience to the plaintiff. Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935. We find
that the defendant has failed to meet its burden of showing that trial in St. Clair County
would be less convenient for it than trial in Copiah County, Mississippi. The defendant has
not identified any of its own witnesses or representatives in Mississippi who would need to
attend the trial, and the record demonstrates that the defendant’s Memphis-based
representatives will face a similar degree of inconvenience attending trial in either forum.
¶ 18 We acknowledge that the defendant presented the affidavit of one of those
representatives, who specifically stated that attending trial in Copiah County would be
“substantially more convenient” for him and the other unnamed representatives. However,
a search of MapQuest shows that the distance between Memphis, Tennessee, and Copiah
County seat Hazelhurst, Mississippi, is 245 miles, while the distance between Memphis and
Belleville, Illinois, is 268 miles. MapQuest, http://www.mapquest.com (last visited Oct. 21,
2011). We may take judicial notice of matters that are readily verifiable, such as the distances
between cities. See Hoskin v. Union Pacific R.R. Co., 365 Ill. App. 3d 1021, 1024-25, 851
N.E.2d 646, 650 (2006) (citing Dawdy, 207 Ill. 2d at 177, 797 N.E.2d at 696). The defendant
offers no support for Garrett’s bald assertion that the 23 additional miles would make
traveling to St. Clair County substantially more burdensome than traveling to Copiah County.
As a practical matter, travel to either forum would involve a drive of approximately half a
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day. We do not believe this factor favors either forum.
¶ 19 We will next consider the relative ease of access to witnesses and other sources of
evidence. The defendant relies heavily on the fact that there are 13 individuals in Mississippi
who are at least potential witnesses, while the plaintiff emphasizes the voluminous
documentary evidence in the possession of the defendant’s Belleville attorneys. While we
agree with the parties that these facts are relevant, we place far less weight on them than do
the parties.
¶ 20 As previously discussed, the 13 potential Mississippi witnesses are the plaintiff’s treating
physicians, coworkers, and family members. Obviously, Copiah County, Mississippi, would
be the more convenient forum for any of these individuals who are actually called to testify
at trial. Although the record does not indicate which, if any, of these witnesses the plaintiff
intends to call, it is likely that at least some of them will be called. The plaintiff will need the
testimony of at least some of his medical providers to establish that he suffered damages
linked to his alleged exposure to toxic substances on the job. Aside from the plaintiff’s
medical providers, however, we cannot speculate as to how many of these potential witnesses
may be called or how important their testimony will be to the plaintiff’s case. See Boner v.
Peabody Coal Co., 142 Ill. 2d 523, 533, 568 N.E.2d 883, 888 (1991); Brant v. Rosen, 373
Ill. App. 3d 720, 728, 869 N.E.2d 232, 240 (2007).
¶ 21 We also emphasize the fact that the defendant has not indicated that it intends to call any
of these individuals as witnesses. As we have discussed, the defendant cannot overcome the
plaintiff’s choice of forum by demonstrating that the plaintiff will be inconvenienced. Thus,
it is appropriate to accord less weight to this list of potential Mississippi witnesses than we
otherwise might.
¶ 22 The only other witnesses identified in the record are the plaintiff’s expert, Dr. Schonfield,
and two of the defendant’s employees, Garrett and Burton. Dr. Schonfield is a Chicago
resident for whom trial in St. Clair County will be much closer and more convenient.
Although we consider his convenience, we place very little weight on this consideration. See
Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 227, 506 N.E.2d 1291, 1295-96 (1987).
Trial in St. Clair County would also be more convenient for Burton, a resident of Joliet,
Illinois. As previously discussed, Garrett lives in Memphis, Tennessee, and trial in either
proposed forum would be equally convenient.
¶ 23 The testimony of witnesses is not the only source of evidence we consider in evaluating
this factor. As previously noted, the plaintiff has placed heavy emphasis on the need to
introduce documentary evidence relevant to the foreseeability of his injuries. This evidence
is in the Belleville offices of the defendant’s law firm. This court has found the location of
documentary evidence to be a relevant but insignificant factor because it is relatively easy
for witnesses to bring documents with them to the trial. Brown v. Cottrell, Inc., 374 Ill. App.
3d 525, 532, 871 N.E.2d 63, 69 (2007).
¶ 24 Here, the plaintiff argues that it would be difficult to bring the required documents to a
trial in Copiah County, Mississippi, due to the volume of the necessary documents and the
age and frailty of some of the relevant documents. He specifically points to a collection of
documents from the 1930s known as the “Alton Railroad Documents.” We note, however,
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that the record shows that attorneys for both parties have tried numerous similar cases in
Tennessee, Mississippi, and Louisiana over the years. This demonstrates that while it is
obviously more convenient to bring these documents to a trial in St. Clair County,
transporting them to an out-of-state forum is not an insurmountable burden.
¶ 25 Considering the comparative ease of access to witnesses and documentary evidence in
this case, we do not believe this factor strongly favors either forum. The need for the plaintiff
to present medical evidence from his Mississippi medical providers tips the balance very
slightly in favor of a Mississippi forum, but we do not believe that the defendant carried its
burden of demonstrating that this factor strongly favors its chosen forum.
¶ 26 The final private-interest factor we consider is all of the other practical issues that make
a case easy, expeditious, and inexpensive to litigate. This factor includes the availability of
compulsory process to compel the testimony of unwilling witnesses and the feasibility of
viewing the site of the incident giving rise to the plaintiff’s claim, if appropriate. Guerine,
198 Ill. 2d at 516, 764 N.E.2d at 58. We may also consider the location of the parties’
attorneys, although this is not a weighty consideration. Dawdy, 207 Ill. 2d at 179, 797 N.E.2d
at 697; Boner, 142 Ill. 2d at 534, 568 N.E.2d at 888.
¶ 27 As previously noted, the trial court found that the defendant’s agents, Burton and Garrett,
would be subject to compulsory process if the trial is held in Illinois but would not be subject
to compulsory process if the trial is in Mississippi, although we note that it appears likely that
the defendant also intends to call both of these people as witnesses. The defendant argues
that the plaintiff’s doctors, family members, and coworkers would not be subject to
compulsory process in Illinois; however, as previously discussed, the defendant has not
specifically alleged that it intends to call any of these people, and we can presume that the
plaintiff will call some of his medical providers.
¶ 28 We also consider the feasibility of a jury view. Here, the plaintiff has not alleged that he
suffered a site-specific injury. Rather, he alleged that he suffers from respiratory ailments as
a result of cumulative exposure to various toxic substances over the course of his 37-year
career working for the defendant. Much of his work was performed aboard moving trains.
We acknowledge that our supreme court has held that courts must consider the possibility
of a jury view of a relevant site even if the probability of such a view is very slim. Dawdy,
207 Ill. 2d at 178-79, 797 N.E.2d at 697. Nevertheless, we need not give much consideration
to this factor when a jury view is not possible because the injury is not site-specific. See
Brown, 374 Ill. App. 3d at 534, 871 N.E.2d at 70.
¶ 29 Finally, we can consider the fact that both parties’ attorneys are based in St. Clair County,
although, as noted, this is not a particularly significant factor. On balance, we find that this
factor weighs slightly in favor of a St. Clair County trial.
¶ 30 We next consider the public-interest factors. These include the interest in deciding local
controversies locally, the unfairness of imposing the expense of trial and the burden of jury
duty on residents of a county with little connection to the litigation, and the comparative
court congestion in the alternative fora. We first note that this case does not involve a
controversy of a particularly local nature. The plaintiff seeks relief under two federal
statutory schemes from a defendant who operates rail lines in multiple states. This is not the
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type of inherently local controversy that must be resolved in either Mississippi or Illinois. See
Hoskin, 365 Ill. App. 3d at 1025-26, 851 N.E.2d at 650-51. This factor, therefore, favors
neither forum.
¶ 31 In addition, we do not believe it would be unfair to burden residents of either St. Clair
County or Copiah County with the expense of a trial in this matter or the burden of jury duty.
Both counties have a legitimate interest in litigating this case because the problems of
exposure to asbestos and other toxins by railroad workers is a national, not local, problem.
See Hoskin, 365 Ill. App. 3d at 1026, 851 N.E.2d at 651. However, Copiah County has an
additional interest in resolving the claim of one of its residents. We also note that the plaintiff
alleges that his work-related exposure to toxic substances took place primarily in Mississippi
and Louisiana, although it is not clear how much–if any–took place within Copiah County
itself. This factor weighs somewhat in favor of trial in Copiah County.
¶ 32 Finally, we compare the burdens of crowded dockets in both counties. Here, the
defendant presented evidence that a higher number of cases are filed in St. Clair County each
year than in Copiah County. However, it did not present any evidence as to how long it takes
to resolve cases in Copiah County. Court congestion is not a significant factor, especially
when a defendant cannot show that one forum can resolve the case more quickly than the
other. Guerine, 198 Ill. 2d at 517, 764 N.E.2d at 58. Moreover, the trial court expressly found
that its dockets were not overburdened. We give deference to this express finding because
the trial court is in a better position than we are to assess the burdens of its own docket.
Boner, 142 Ill. 2d at 538-39, 568 N.E.2d at 891; see also Langenhorst, 219 Ill. 2d at 452, 848
N.E.2d at 940 (giving deference to a court’s express finding that overcrowded dockets are
not a concern).
¶ 33 Weighing all relevant public- and private-interest factors, we find that the trial court
properly concluded that the defendant failed to meet its burden of demonstrating that the
factors strongly favor dismissal in favor of a Mississippi forum. The defendant, however,
argues that the instant case is analogous to the supreme court’s decision in Gridley and this
court’s decisions in Laverty v. CSX Transportation, Inc., 404 Ill. App. 3d 534, 956 N.E.2d
1 (2010), and Skidmore v. Gateway Western Ry. Co., 366 Ill. App. 3d 238, 852 N.E.2d 857
(2006). In all three of these cases, the reviewing court found that a trial court abused its
discretion in denying a forum motion. We are not persuaded.
¶ 34 We find Gridley and Skidmore readily distinguishable. Gridley involved allegations that
the defendant had violated Louisiana statutes by failing to obtain a salvage title on a vehicle
that had been involved in an accident and handled as a total loss before the plaintiff
purchased the vehicle. Gridley, 217 Ill. 2d at 171, 840 N.E.2d at 278. The supreme court
emphasized both Louisiana’s interest in applying Louisiana law in its own courts and
Illinois’s interest in not being burdened with the need to apply the law of another state in
determining that this was the type of dispute that should be resolved locally by a Louisiana
court. Gridley, 217 Ill. 2d at 175, 840 N.E.2d at 280. Skidmore involved a collision between
an automobile and a train at a railroad crossing in Missouri. Skidmore, 366 Ill. App. 3d at
239, 852 N.E.2d at 859. Our supreme court has previously found that automobile accidents
have an inherently local flavor. Dawdy, 207 Ill. 2d at 183, 797 N.E.2d at 699. By contrast,
as previously discussed, this case involves a controversy with a decidedly nonlocal flavor.
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¶ 35 In addition, in both Gridley and Skidmore, the parties had identified numerous witnesses
they intended to call, most of whom were residents of the defendants’ chosen fora. See
Gridley, 217 Ill. 2d at 174, 840 N.E.2d at 279 (noting that most witnesses lived in
Louisiana); Skidmore, 366 Ill. App. 3d at 241-42, 852 N.E.2d at 861 (noting that all
witnesses lived in the Missouri county where the accident took place). This case, by contrast,
involves few specified witnesses, including two who live in Illinois.
¶ 36 Laverty merits further discussion. That case was brought under FELA and involved a
claim that the plaintiff’s decedent had contracted mesothelioma as a result of cumulative
exposure to asbestos over the course of his career working for the defendant railroad.
Laverty, 404 Ill. App. 3d at 534, 956 N.E.2d at 3. The defendant there filed a forum non
conveniens motion, arguing that trial in Michigan would be more convenient. Laverty, 404
Ill. App. 3d at 535, 956 N.E.2d at 4. The trial court denied the motion, but a panel of this
court reversed that decision. Laverty, 404 Ill. App. 3d at 534, 956 N.E.2d at 3.
¶ 37 Some facts relevant to resolution of the defendant’s forum motion in Laverty were
similar to the facts before us. Neither the plaintiff nor the decedent was an Illinois resident.
The plaintiff was a resident of Texas. The decedent was a resident of Texas at the time of his
death, but he was a resident of Michigan and Ohio while he worked for the defendant
railroad. Laverty, 404 Ill. App. 3d at 535, 956 N.E.2d at 3. The defendant argued that most
of the decedent’s alleged exposure to asbestos occurred in Michigan (although we note that
the Laverty court does not discuss whether the record supported this claim). Laverty, 404 Ill.
App. 3d at 535, 956 N.E.2d at 4. As here, none of the injury was alleged to have occurred in
Illinois. Laverty, 404 Ill. App. 3d at 538, 956 N.E.2d at 6.
¶ 38 There were also some important distinctions. In Laverty, all witnesses identified by either
party lived outside of Illinois (although we note that the Laverty court did not discuss where
they did live or indicate whether all or most relevant witnesses were in Michigan). Laverty,
404 Ill. App. 3d at 535-36, 956 N.E.2d at 4. Indeed, the plaintiff there conceded that there
were no Illinois witnesses. Laverty, 404 Ill. App. 3d at 539, 956 N.E.2d at 7. Here, Lyndle
Burton, an employee of the defendant and a witness identified as important by both parties,
lives in Joliet, Illinois. The plaintiff’s expert, Dr. Schonfield, also lives in Illinois, residing
in Chicago.
¶ 39 Additionally, in Laverty, the court considered the fact that none of the identified
witnesses would be subject to subpoena power in Illinois. Laverty, 404 Ill. App. 3d at 538,
956 N.E.2d at 6. In the case before us, Charles Garrett, who both the plaintiff and the
defendant have indicated would be called as a witness, lives in Memphis, Tennessee, as do
several other unidentified Illinois Central representatives who Garrett attests would testify
and/or attend the trial. Here, in contrast to Laverty, the trial court found that both Garrett and
Burton would be subject to subpoena power in Illinois but not in Mississippi.
¶ 40 Unlike the defendant in Laverty, the defendant here has not identified any of its own
witnesses or representatives who live in its proposed alternative forum of Mississippi.
Furthermore, Garrett’s bald assertion that Mississippi is “substantially more convenient” than
Illinois for the Tennessee witnesses, without any factual basis, does nothing to demonstrate
how the plaintiff’s chosen forum of Illinois is inconvenient to the defendant. This is
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particularly true in light of the fact that St. Clair County, Illinois, and Copiah County,
Mississippi, are roughly the same distance from Memphis, Tennessee.
¶ 41 A final distinction between the case before us and Laverty is that here, there is no need
to consider the possibility of a jury view of the situs of the injury. The plaintiff did not suffer
a site-specific injury, as much of his work was performed aboard moving trains. Thus, a jury
view would not be possible.
¶ 42 As we have discussed at length, it is the defendant’s burden to show both that the
plaintiff’s chosen forum is inconvenient to the defendant and that the defendant’s proposed
alternative forum is substantially more convenient for all parties. For the reasons we have
discussed, we conclude that the defendant here has failed to meet its burden of demonstrating
either of these propositions. We find nothing in Laverty, Gridley, or Skidmore to alter our
conclusion.
¶ 43 For the foregoing reasons, we conclude the trial court properly exercised its discretion
in denying the defendant’s forum motion. Thus, we affirm the court’s ruling.
¶ 44 Affirmed.
¶ 45 JUSTICE WELCH, dissenting:
¶ 46 I dissent. It is my belief that the circuit court abused its discretion when it denied the
defendant’s motion to dismiss based on the grounds of forum non conveniens. It is the duty
of this court to give the circuit court guidance. Although Illinois has not adopted horizontal
stare decisis, the appellate courts of this district should interpret findings of the Illinois
Supreme Court in such a way as to give guidance to the circuit courts. The Fifth District’s
most recent case involving forum non conveniens is Laverty v. CSX Transportation, Inc., 404
Ill. App. 3d 534, 956 N.E.2d 1 (2010). Laverty is a case very similar to this case and should
be instructive.
¶ 47 The majority discusses all of the private- and public-interest factors and the amount of
deference that must be given to each factor. A reading of the majority opinion shows how
the circuit court abused its discretion when it denied the defendant’s motion. In this case,
there was not one factor that the supreme court has advised the appellate courts to consider
that could only be considered slight deference or very slight deference. It is difficult, if not
impossible, to find any nexus to Illinois, let alone to St. Clair County, in a forum non
conveniens setting. Therefore, I dissent.
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