Decker v. Union Pacific Railroad Company , 404 Ill. Dec. 708 ( 2016 )

NOTICE
2016 IL App (5th) 150116
Decision filed 07/12/16. The
text of this decision may be NO. 5-15-0116
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
DAVID DECKER, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 14-L-807
)
UNION PACIFIC RAILROAD COMPANY, ) Honorable
) Vincent J. Lopinot,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion.
Presiding Justice Schwarm and Justice Stewart concurred in the judgment and
opinion.
OPINION
¶1 The defendant, Union Pacific Railroad Company, filed a petition for leave to
appeal from an order of the circuit court of St. Clair County, denying its motion to
transfer this case to Marion County based on forum non conveniens. The petition for
leave to appeal was filed pursuant to Illinois Supreme Court Rule 306 (eff. Feb. 16,
2011). We granted the petition, and for reasons that follow, we affirm.
¶2 BACKGROUND AND PROCEDURAL HISTORY
¶3 The plaintiff, David Decker, was employed by the defendant as a locomotive
engineer. On July 23, 2012, at 7 a.m., the plaintiff reported for work at the defendant's
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Salem, Illinois, yard, along with brakeman Kevin Flanigan and conductor William J.
McDaneld. The plaintiff was a member of a three-man crew that was scheduled to run
one of the defendant's locomotives from Salem to Mt. Vernon, Illinois, to drop off freight
cars at the Mt. Vernon yard. After dropping off the cars, the crew was scheduled to
return to Salem. The plaintiff obtained the paperwork for the run, completed the morning
briefing with the crew, and then began his inspection of the locomotive. As the plaintiff
stepped onto the floor of the air compressor compartment, he slipped on an oily film and
fell. He suffered injuries to his neck, right shoulder, and right arm. There were no
witnesses to the plaintiff's fall.
¶4 A few minutes after the plaintiff fell, brakeman Flanigan discovered the plaintiff
on the floor in the air compressor compartment. The plaintiff asked Flanigan to help him
up, and Flanigan assisted the plaintiff to his feet. The crew then contacted their
supervisors at the Salem yard. One of the supervisors, T. Andy Brown, notified the
defendant's claims office of the incident, and then drove the plaintiff to the emergency
department at Salem Township Hospital. James Crawford, an employee in the claims
office, was assigned to investigate the incident. He went to the Salem yard that day, and
obtained recorded statements from brakeman Flanigan and Conductor McDaneld.
¶5 Clay Monroe, another supervisor at the Salem yard, called Glenn Elliot, a
supervisor at the defendant's Dupo Service Track, to request a mechanical inspection of
the subject locomotive, as the defendant had no mechanics that worked out of the Salem
yard. The Dupo Service Track is located in St. Clair County, Illinois. Glenn Elliot held
the position of Foreman General 1–Locomotives, and supervised 4 foremen, and 10
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mechanics, at the Dupo Service Track. Elliot and his team conducted periodic
inspections of the defendant's locomotives and performed maintenance and service on
locomotives at the Dupo Service Track. Elliot also dispatched his team to other locations
within the territory of the defendant's St. Louis Service Unit to inspect and service
locomotives.
¶6 Elliot was the only mechanic available at the time the inspection request was
made. He drove from the Dupo Service Track to the Salem yard. The drive took about
an hour. Elliot arrived at the Salem yard at approximately 9:50 a.m., and began an
inspection of the subject locomotive. Elliot noted that an oily film covered
approximately 90% of the floor in the air compressor compartment. He took some
photos of the area, and then applied a special product to the floor in an effort to dry up the
oily substance. Once Elliot finished his inspection, and completed his report, he returned
to his office in Dupo, Illinois. When Elliot arrived back at his office, he made a copy of
his report, and sent it to the defendant's claims office in St. Louis, Missouri. Elliot
retained the original of his report in his office at the Dupo yard.
¶7 On May 8, 2013, the plaintiff filed a two-count complaint against the defendant in
the circuit court of Marion County. Count I was brought under the Federal Employers'
Liability Act (FELA) (45 U.S.C. § 51 et seq. (2012)), and alleged, among other things,
that the defendant was negligent in failing to provide the plaintiff with a reasonably safe
place to work, and that the plaintiff's injuries resulted in whole or in part from the
defendant's negligence. Count II was brought under the Locomotive Inspection Act
(LIA) (49 U.S.C. § 20701 et seq. (2012)), and alleged that the plaintiff was injured as a
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result of defective equipment on the locomotive. Section 20701 of the LIA provides that
a railroad carrier may use a locomotive on its railroad line only when the locomotive and
its parts and appurtenances (1) are in proper condition and safe to operate; (2) have been
inspected as required; and (3) can withstand every test prescribed by the Secretary of
Transportation. 49 U.S.C. § 20701 (2012). A violation of the LIA constitutes negligence
per se under the FELA.
¶8 On August 28, 2014, the plaintiff filed a motion to voluntarily dismiss his action in
Marion County, without prejudice. The defendant filed a memorandum in response, and
claimed that the plaintiff was seeking a voluntary dismissal in order to avoid compliance
with the expert disclosure deadline in the scheduling order. The defendant asked the
court to award it $4032.84 in costs under Illinois Supreme Court Rule 219(e) (eff. July 1,
2002). The plaintiff's motion was called for hearing on September 22, 2014. After
considering the arguments of counsel, the court took the matter under advisement. On
December 12, 2014, the court issued an order granting the plaintiff's motion for voluntary
dismissal without prejudice. The court did not grant the defendant's request for costs
under Rule 219(e), but noted that the plaintiff had tendered taxable costs to the defendant.
¶9 On December 17, 2014, the plaintiff filed a nearly identical, two-count complaint
against the defendant in the circuit court of St. Clair County. Count I alleged negligence
under the FELA, and count II alleged violations of the LIA.
¶ 10 On January 30, 2015, the defendant filed a motion and memorandum of law, with
attachments, requesting that the court transfer the case to Marion County based on forum
non conveniens. Therein, the defendant argued that St. Clair County had little relevant
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connection to the plaintiff's cause of action, and that the plaintiff had engaged in "forum
shopping" when he voluntarily dismissed his case in Marion County, and refiled it in St.
Clair County. The defendant further argued that St. Clair County was an inconvenient
forum in which to try the case because the plaintiff did not reside in St. Clair County, and
the events which allegedly caused the plaintiff's injuries did not occur in St. Clair County.
The defendant noted that the incident occurred in Marion County, and claimed that the
majority of relevant fact witnesses resided in or near Marion County, that the plaintiff's
medical care providers were located in Marion County and Jefferson County, and that the
subject locomotive was inspected immediately after the plaintiff's fall at the Salem yard
in Marion County. The defendant also pointed out that Salem is the county seat of
Marion County, that Belleville is the county seat of St. Clair County, and that Salem is
approximately 60.4 miles from Belleville.
¶ 11 The plaintiff filed a memorandum in opposition to the defendant's forum motion,
along with supporting documents. The plaintiff argued that the forum motion should be
denied because St. Clair County was a convenient forum for the trial of his case, and
because the defendant failed to show that the relevant private and public interest factors
strongly favored a transfer to Marion County. The plaintiff noted that the defendant had
a service facility in Dupo, St. Clair County, Illinois; that the records regarding the subject
locomotive's maintenance history were maintained at the Dupo facility; that Glenn Elliot,
the supervisor who inspected the locomotive within hours after the accident, resided in
Swansea, St. Clair County, Illinois; and that Elliot works out of the service facility in
Dupo. The plaintiff also pointed out that there were two other maintenance foremen who
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were familiar with the maintenance and inspections involving the subject locomotive, and
that one resided in Madison County, Illinois, and the other resided in Festus, Missouri.
The plaintiff indicated that the claims employee who investigated the circumstances
surrounding the plaintiff's fall resides in St. Louis County, and works in the defendant's
claims department in St. Louis, Missouri; and that the defendant maintains general
offices, including its claims department, in the city of St. Louis.
¶ 12 In addition, the plaintiff pointed out that during discovery, he requested an
inspection of the subject locomotive, and the defendant elected to produce the locomotive
in St. Clair County for the convenience of the parties. The plaintiff also noted that the
defendant had exercised its right to have the plaintiff examined by a physician, whom the
defendant anticipated would be called as its own expert witness, and that the defendant
chose a doctor who resided in, and maintained his office, in St. Louis, Missouri, rather
than a physician who was located in or near Marion County. The plaintiff mentioned that
counsel for both parties had offices in St. Clair County. The plaintiff argued that St. Clair
County has an interest in this case because the defendant has a substantial presence in St.
Clair County, and because the defendant conducts inspections and maintenance of its
locomotives in St. Clair County. The plaintiff further argued that the dockets in the St.
Clair County circuit court are not congested, and that his case could be tried
expeditiously and less expensively in St. Clair County.
¶ 13 The defendant's forum motion was called for hearing on March 3, 2015. After
considering the arguments of counsel, the court took the matter under advisement. On
March 4, 2015, the court entered an order denying the motion to transfer. The order, in
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its entirety, states: "Motion to Transfer for Forum Non Conveniens basis is denied." The
defendant filed a timely petition for leave to appeal under Illinois Supreme Court Rule
306, and we granted the petition.
¶ 14 ANALYSIS
¶ 15 On appeal, the defendant contends that the circuit court abused its discretion in
denying its motion to transfer based on forum non conveniens.
¶ 16 Forum non conveniens is an equitable doctrine founded in considerations of
fundamental fairness, and sensible and effective judicial administration. Langenhorst v.
Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441, 848 N.E.2d 927, 934 (2006). The
doctrine allows a circuit court to decline jurisdiction of a case when it appears that
another forum can better serve the convenience of the parties and the ends of justice.
First American Bank v. Guerine, 198 Ill. 2d 511, 515, 764 N.E.2d 54, 57 (2002). A trial
court is vested with considerable discretion in determining whether to grant a forum non
conveniens motion, and its ruling will not be reversed unless it can be shown that the
court abused its discretion in balancing the relevant public and private interest factors.
Langenhorst, 219 Ill. 2d at 442, 848 N.E.2d at 934. A trial court abuses its discretion
where no reasonable person would take the view adopted by the court. Langenhorst, 219
Ill. 2d at 442, 848 N.E.2d at 934.
¶ 17 In evaluating a forum non conveniens issue, the circuit court must consider all
relevant private interest factors and public interest factors, and evaluate the total
circumstances of the case, without emphasizing any single factor. Langenhorst, 219 Ill.
2d at 443, 848 N.E.2d at 935. The private interest factors are not weighed against the
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public interest factors, and each case must be considered on its own unique facts.
Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935.
¶ 18 Factors of private interest include the convenience of the parties, the relative ease
of access to sources of proof, the accessibility of witnesses, and all other practical
considerations that make the trial of a case easy, expeditious, and less expensive.
Langenhorst, 219 Ill. 2d at 443, 848 N.E.2d at 935; Guerine, 198 Ill. 2d at 516, 764
N.E.2d at 58. Factors of public interest include the interest in deciding controversies
locally, 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, and the administrative
difficulties presented by adding additional litigation to a congested court docket.
Langenhorst, 219 Ill. 2d at 443-44, 848 N.E.2d at 935; Guerine, 198 Ill. 2d at 516-17,
764 N.E.2d at 58. The defendant has the burden to show that the balance of relevant
private and public interest factors strongly favors transfer to another forum. Langenhorst,
219 Ill. 2d at 444, 848 N.E.2d at 935.
¶ 19 Before analyzing the relevant public and private interest factors, the circuit court
should consider how much deference to give to the plaintiff's choice of forum. The
plaintiff has a substantial interest in selecting the forum for his case, and the plaintiff's
choice of forum should not be disturbed unless other factors strongly favor transfer. See
Langenhorst, 219 Ill. 2d at 448, 848 N.E.2d at 938; Guerine, 198 Ill. 2d at 517, 764
N.E.2d at 58. That said, the plaintiff's choice of forum is not entitled to the same weight
in all cases. The plaintiff's choice of forum is given somewhat less deference when the
plaintiff chooses a forum other than his home forum or the location where some part of
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the action arose. Guerine, 198 Ill. 2d at 517, 764 N.E.2d at 59. Less deference, however,
does not mean no deference. Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59. The
defendant has the burden to show that the plaintiff's chosen forum is inconvenient to the
defendant, and that another forum is more convenient to all parties. Langenhorst, 219 Ill.
2d at 444, 848 N.E.2d at 935; Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59. In doing so,
however, the defendant may not argue that the plaintiff's chosen forum is inconvenient to
the plaintiff. Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935; Guerine, 198 Ill. 2d at
518, 764 N.E.2d at 59.
¶ 20 Our supreme court has recognized that forum non conveniens jurisprudence was
cultivated in an effort to curtail forum shopping by plaintiffs. Guerine, 198 Ill. 2d at 521,
764 N.E.2d at 61. Forum shopping has been looked on with disfavor because it has the
potential to burden communities with litigation over disputes that arose elsewhere. See
Guerine, 198 Ill. 2d at 520-21, 764 N.E.2d at 61. Our supreme court has also recognized
that forum shopping is not employed exclusively by the plaintiffs' bar, and that both
plaintiff's counsel and defense counsel engage in tactical maneuvers to obtain a forum
that will enable them to achieve the best result for their clients, while all other
considerations of inconvenience are secondary. Guerine, 198 Ill. 2d at 521, 764 N.E.2d
at 61.
¶ 21 Plaintiff's Choice of Forum
¶ 22 With these principles in mind, we first consider what deference is due the
plaintiff's choice of forum. Every choice of forum must rise or fall on its own unique set
of facts. In this case, the plaintiff originally filed his action in the circuit court of Marion
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County, which sits in Salem, Illinois. After some period for discovery, the plaintiff
voluntarily dismissed his case in Marion County, as permitted under section 2-1009 of
the Code of Civil Procedure. 735 ILCS 5/2-1009(a) (West 2014) (a plaintiff may, at any
time before trial, upon notice and payment of taxable costs, dismiss his case without
prejudice). Thereafter, the plaintiff refiled his case in the circuit court of St. Clair
County, which sits in Belleville, Illinois. Again, the plaintiff's actions were in accordance
with our venue statutes and other rules of civil procedure. St. Clair County, however,
was the plaintiff's second choice of forum.
¶ 23 Relying on the supreme court's decision in Fennell v. Illinois Central R.R. Co.,
2012 IL 113812, ¶ 19, 987 N.E.2d 355, and this court's decision in Laverty v. CSX
Transportation, Inc., 404 Ill. App. 3d 534, 956 N.E.2d 1 (2010), the defendant contends
that St. Clair County is entitled to little deference because it is the plaintiff's second
choice of forum, and because it has no connection to the litigation. The defendant further
contends that the facts and circumstances in this case are analogous to Fennell, and that
Fennell requires that this case be transferred to Marion County. We disagree. If we were
to limit our consideration to the procedural tools used by the plaintiff in this case, the
circumstances might appear, in a very narrow sense, to be analogous to those in Fennell.
After taking full measure of the circumstances herein, however, we conclude that this
case is readily distinguishable from both Fennell and Laverty, and that the supreme
court's decisions in Langenhorst and Guerine are closer, factually, to the instant case, and
will better guide our analysis.
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¶ 24 In Fennell, the plaintiff alleged he had been exposed to asbestos during his
lifetime of work with the defendant railroad. The plaintiff initially filed his lawsuit in his
home forum of Mississippi. After the case had been pending for three years, he
voluntarily dismissed it without prejudice, and then refiled it in St. Clair County.
Fennell, 2012 IL 113812, 987 N.E.2d 355. During discovery, the plaintiff acknowledged
that he had never been in St. Clair County, Illinois, and could not state that any of his
injuries arose in Illinois. The only connections the litigation had with Illinois were that
the defendant's risk manager was located there, and that the plaintiff's expert witness and
his attorney's office were located there. The defendant filed a motion to dismiss the case
based on interstate forum non conveniens. The circuit court denied the defendant's
motion to dismiss after evaluating some, but not all, of the private and public interest
factors required for consideration in determining the most appropriate forum. The circuit
court's order was affirmed on appeal (Fennell v. Illinois Central R.R. Co., 2012 IL App
(5th) 100504, 964 N.E.2d 158), but reversed by our supreme court. In its review of the
circuit court's order, the supreme court voiced concern that the circuit court had not
considered all of the private and public interest factors in making its determination of
whether St. Clair County was the more convenient forum. The supreme court reminded
the trial courts to include all of the relevant public and private interest factors in their
analysis, and to evaluate the total circumstances of the case in determining whether the
balance of factors strongly favors dismissal. Fennell, 2012 IL 113812, ¶ 24, 987 N.E.2d
355.
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¶ 25 Next, the supreme court turned to the question of what deference to accord the
plaintiff's choice of forum. The supreme court noted that the plaintiff had originally filed
his case in Mississippi, his home forum. After dismissing his cause of action in
Mississippi, the plaintiff then filed his case in Illinois. The supreme court found there
was nothing in the record to indicate that the parties' abilities to conduct discovery or
engage in other pretrial matters was unduly hampered by proceeding in a Mississippi
court. Fennell, 2012 IL 113812, ¶ 25, 987 N.E.2d 355 Based upon this subsequent
filing, the supreme court held that the circuit court should have accorded "diminished
deference *** to what was plaintiff's second choice of forum." (Emphasis in original.)
Fennell, 2012 IL 113812, ¶ 25, 987 N.E.2d 355. The supreme court then pointed out that
the plaintiff's choice of an Illinois forum was entitled to less deference because the
plaintiff did not reside in Illinois, and the plaintiff had not worked in Illinois. Therefore,
despite the fact that the plaintiff's claim alleged injuries as a consequence of repetitive
exposure that would have occurred over time, in different locales, it was clear that the
cause of action did not arise in Illinois. After taking all of these circumstances into
account, along with the fact that Illinois was the plaintiff's second filing, the supreme
court held that the plaintiff's choice of Illinois should be granted "far less deference."
(Emphasis omitted.) Fennell, 2012 IL 113812, ¶ 26, 987 N.E.2d 355. Thereafter, the
supreme court went through the balancing analysis of all of the relevant private and
public interest factors. The residence of the plaintiff, the potential locations of the
alleged injury, and the location of the witnesses all weighed in favor of the convenience
of Mississippi over Illinois. Further, the supreme court noted that, "[i]f Illinois had any
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relevant or practical connection with this litigation, then it would have an interest in
providing a forum." Fennell, 2012 IL 113812, ¶ 46, 987 N.E.2d 355. Ultimately, after
completing its analysis, the supreme court concluded that the factors strongly favored
dismissal of the Illinois case in favor of a Mississippi forum.
¶ 26 We turn next to Laverty, which, like Fennell, was also an asbestos exposure case
filed in Madison County, Illinois, under the FELA. Laverty, 404 Ill. App. 3d 534, 956
N.E.2d 1. The plaintiff's decedent had been employed by the defendant as a railroad
fireman and engineer. Over the course of his long career, he worked on engines
throughout Michigan and Ohio. Laverty, 404 Ill. App. 3d at 535, 956 N.E.2d at 3. The
defendant filed a motion to dismiss based on interstate forum non conveniens, arguing
that a trial in Michigan would be more convenient. Laverty, 404 Ill. App. 3d at 535, 956
N.E.2d at 4. During the hearing on the defendant's motion, the plaintiff conceded that the
decedent had not been exposed to asbestos in Illinois, and that no witnesses were located
in Illinois. Laverty, 404 Ill. App. 3d at 536, 956 N.E.2d at 4. The trial court denied the
motion to dismiss. On appeal, a panel of this court, with one justice dissenting, reversed
the decision of the circuit court, finding that Michigan was the more appropriate forum.
Laverty, 404 Ill. App. 3d 534, 956 N.E.2d 1.
¶ 27 In a well-reasoned dissent, Justice Goldenhersh, relying on Langenhorst, stated
that the appropriate focus of a forum non conveniens motion is whether the defendant has
met its burden of showing that the alternative forum urged by the movant is substantially
more convenient than the forum chosen by the plaintiff. Laverty, 404 Ill. App. 3d at 541-
42, 956 N.E.2d at 9-10 (Goldenhersh, P.J., dissenting). Justice Goldenhersh argued that
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the majority, in their consideration of the defendant's forum non conveniens motion,
improperly focused on whether Illinois was the appropriate state to litigate the
controversy, rather than whether the defendant's choice of an alternative forum was
substantially more convenient, after balancing the private and public interest factors, and
after consideration of the amount of deference to be given to the plaintiff's choice of
forum. Laverty, 404 Ill. App. 3d at 541-42, 956 N.E.2d at 9-10 (Goldenhersh, P.J.,
dissenting). As aptly described in the dissent, the majority's focus suggested that it was
plaintiff who had to justify his choice of Illinois as the forum state. Justice Goldenhersh
indicated his belief that the majority had improperly shifted the burden away from the
defendant, which was counter to the focus prescribed in Langenhorst, that it is the
defendant's burden to show that the balance of relevant private and public interest factors
strongly favors transfer to the alternative forum chosen by the defendant. Langenhorst,
219 Ill. 2d at 444, 848 N.E.2d at 935; Laverty, 404 Ill. App. 3d at 541-42, 956 N.E.2d at
9-10 (Goldenhersh, P.J., dissenting). In addition, the majority in Laverty placed too
much emphasis on the situs of injury or exposure, and the fact that the plaintiff resided
outside of Illinois. This runs afoul of Guerine. Guerine, 198 Ill. 2d at 518, 764 N.E.2d at
59 (in ruling on a forum non conveniens motion, the trial court must evaluate the total
circumstances of the case, without placing central emphasis on any one factor). We have
reexamined Laverty in light of the issues raised in this appeal. In doing so, we noted that
the majority in Laverty followed the forum non conveniens analysis set forth in McGinty
v. Norfolk Southern Ry. Co., 362 Ill. App. 3d 934, 841 N.E.2d 987 (2005), and that
McGinty was decided prior to our supreme court's decision in Langenhorst. Clearly, the
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forum non conveniens analysis in Langenhorst applies here. Therefore, because we
believe that the majority's reasoning in Laverty is at odds with the pronouncements by
our supreme court in Langenhorst and Guerine, we decline to follow it. In doing so, we
are not indicating that the result in Laverty was in error. We simply believe that the
pronouncements are not in accord with our supreme court's guidance on forum non
conveniens jurisprudence, as set forth in Langenhorst and Guerine.
¶ 28 The case sub judice is not an asbestos case, nor is it a repetitive injury case.
Nevertheless, as we previously noted, some of the procedural facts in the case at bar are
similar to those in Fennell. In both Fennell and this case, the plaintiff initially filed his
action in his home forum. After taking a dismissal without prejudice, the plaintiff refiled
his case in a forum other than his home forum or the place of injury. The similarities,
however, end there, as the case at bar is distinct from Fennell and Laverty. In contrast to
Fennell, the plaintiff's chosen forum of St. Clair County has a substantial connection to
the litigation. The facts obtained through discovery indicated that inspections,
maintenance, and service of the subject locomotive were routinely performed by
mechanics who worked out of the Dupo Service Track located in St. Clair County,
Illinois. These mechanics worked under the direction of the supervisors at the Dupo
Service Track offices in St. Clair County. These facts are particularly significant because
part of the plaintiff's claim arises from the defendant's alleged failures to comply with the
LIA. As previously noted, the LIA provides that:
"A railroad carrier may use or allow to be used a locomotive or tender on its
railroad line only when the locomotive or tender and its parts and appurtenances-
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(1) are in proper condition and safe to operate without unnecessary
danger of personal injury;
(2) have been inspected as required under this chapter and
regulations prescribed by the Secretary of Transportation under this
chapter; and
(3) can withstand every test prescribed by the Secretary under this
chapter." 49 U.S.C. § 20701 (2012).
¶ 29 In accordance with the provisions in the LIA, the defendant's personnel in St. Clair
County were required to inspect and maintain the subject locomotive, and other
locomotives, so that the equipment was safe to operate, without unnecessarily causing
injury to railroad employees and others. While the record is unclear as to whether the
subject locomotive was actually inspected and serviced at the Dupo Service Track, it
appears uncontroverted that the inspections and maintenance were performed by the
mechanics who worked out of the Dupo Service facility, and that the service records were
entered, maintained and are stored at the Dupo facility. In this case, there is testimony
and documentary evidence located in St. Clair County relevant to the plaintiff's proofs
regarding alleged violations of the LIA. Indeed, these violations may have occurred in
St. Clair County. Given the allegations in the plaintiff's complaint, St. Clair County has a
substantial connection to this case because it is a site where part of the plaintiff's cause of
action arose. Koss Corp. v. Sachdeva, 2012 IL App (1st) 120379, ¶ 120, 975 N.E.2d 236.
¶ 30 In this case, the plaintiff initially chose his home forum, and the site where he was
injured, to file his case. The plaintiff has claimed that he first learned, during the
discovery process, that the maintenance and inspection records were located in St. Clair
County. There is no reason in the record for us to presume that plaintiff would have
16
known where all of the documents would have been located prior to his injury and the
initiation of his lawsuit. Nevertheless, the plaintiff dismissed his initial cause of action
and refiled it in St. Clair County. St. Clair County is the plaintiff's second choice of
forum, but, unlike Fennell, it is a forum with a significant connection to the litigation. As
such, we believe it should be accorded "somewhat less deference," but that does not mean
no deference. Langenhorst, 219 Ill. 2d at 448, 848 N.E.2d at 938. Under the unequal
balancing test, the plaintiff's choice of forum is still given some deference, and here, the
battle over forum starts with the plaintiff's choice in the lead. Guerine, 198 Ill. 2d at 521,
764 N.E.2d at 61.
¶ 31 Having determined the amount of deference due plaintiff's choice of forum, we
now turn our attention to the private and public interest factors which determine the
convenience to the litigants. Our supreme court has recognized that the doctrine of forum
non conveniens depends largely on the context in which the convenience of the parties is
considered. Guerine, 198 Ill. 2d at 526, 764 N.E.2d at 63. "Today, we are connected by
interstate highways, bustling airways, telecommunications, and the world wide web."
Guerine, 198 Ill. 2d at 525, 764 N.E.2d at 63. That pronouncement was some 14 years
ago, and today, aided by advancements in technology, our world is even smaller.
¶ 32 Private Interest Factors
¶ 33 Turning to the private interest factors, we initially consider the convenience of the
parties. The plaintiff resides in Marion County, but as previously noted, the defendant
may not prevail on a forum motion by asserting that a trial in the plaintiff's chosen forum
is inconvenient for the plaintiff. Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935. The
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defendant is a transportation company with headquarters in Omaha, Nebraska. It
operates in several states, and has offices and facilities in both Marion County and St.
Clair County. The defendant provides freight-hauling services on tracks which run
through Marion County and St. Clair County. As previously discussed, the defendant
maintains a large service facility in Dupo, Illinois, and this service track is responsible for
maintaining the locomotives in a condition that will not harm others. Therefore, this
factor is neutral, in that both counties are convenient to the parties.
¶ 34 Next, we consider the relative ease of access to testimonial, documentary, and
other evidence. In this case, the plaintiff was injured in Salem, Illinois. No one
witnessed the plaintiff's fall. At the time of the incident, two crew members, Kevin
Flanigan and William McDaneld, were working with the plaintiff. These crew members
were identified as preoccurrence and postoccurrence witnesses. Flanigan resides in
Centralia, Illinois, located in Clinton County. He lives approximately 16 miles from the
Salem courthouse and 49 miles from the courthouse in Belleville. McDaneld resides in
Marion County. He would have a 60-mile commute to Belleville. Another
postoccurrence witness, Randy Brubaker, also lives in Marion County, and would have a
60-mile commute to Belleville.
¶ 35 The plaintiff's injury was reported to his supervisor, T. Andy Brown. Brown is no
longer employed by the defendant, and he currently resides in Pulaski, Tennessee.
Pulaski, Tennessee, is approximately 326 miles from Salem and 368 miles from
Belleville. James Crawford, the defendant's claims department employee who
interviewed the plaintiff's crew, works in the defendant's offices in St. Louis, Missouri,
18
and is a resident of St. Louis County, Missouri. St. Louis is approximately 74 miles from
Salem and 17 miles from Belleville.
¶ 36 Following the accident, Glen Elliot, a supervisor who works out of the Dupo
Service Track facility, was summoned to Salem to inspect the subject locomotive. Elliot
is a resident of Swansea, St. Clair County, Illinois. Elliot's commute to the St. Clair
County courthouse would be less than 2 miles, and his commute to Marion County would
be approximately 60 miles.
¶ 37 Because this action includes a claim under the LIA, the subject locomotive's
history of inspections, maintenance, and repairs is significant. Records of the "shop
history" on the locomotive indicate that it was inspected and serviced during the months
before, and shortly after, the plaintiff's injury. The work performed on the locomotive
was scheduled from the Dupo Service Track. Mechanics from the Dupo Service Track
performed the inspections, and the service work. Further, the records regarding the
service history for the subject locomotive are maintained at the Dupo Service Center in
St. Clair County, Illinois. The records also show that Elliot and two foremen, John
McCarthy and John Foltz, made entries into the subject locomotive's shop history.
McCarthy resides in Bethalto, Illinois, which is approximately 85 miles from Salem and
33 miles from Belleville. Foltz resides in Festus, Missouri, which is approximately 108
miles from Salem and 60 miles from Belleville.
¶ 38 The plaintiff received medical care at Salem Hospital in Marion County. His
family physician is located in Marion County, and his treating orthopedic surgeon is
located in Mount Vernon, Illinois. Mount Vernon is located in Jefferson County, and is
19
approximately 22 miles from Salem and 65 miles from Belleville. The defendant
retained a physician to examine the plaintiff, and this physician is located in St. Louis
County, Missouri. The office of the retained expert is 28 miles from Belleville and 87
miles from Salem.
¶ 39 In summary, the plaintiff and the preoccurrence and postoccurrence witnesses are
located in Marion County and Jefferson County. The plaintiff's supervisor is located in
Tennessee. The witnesses who investigated the accident, and the documentary evidence
are located in St. Clair County, and St. Louis, Missouri. The testimonial and
documentary evidence regarding the condition of the subject locomotive is concentrated
in St. Clair County. The medical testimony and records are located in Marion County,
Jefferson County, and St. Louis County. The plaintiff's employment, earnings, and
retirement information, is located in St. Louis, Missouri. Therefore, St. Clair County is
closer to all of the service information on the subject locomotive, the employee-witness
who investigated the oily substance after the plaintiff's fall, the defendant's claims'
department information, the plaintiff's proof-of-wage loss documentation, and the
defendant's choice of an expert physician. According to the record, only a few of the pre-
and postoccurrence witnesses still reside in or near Marion County. Although the
plaintiff's medical care occurred in both Marion County and Jefferson County, we
recognize that treating physicians often do not appear at trial, as most prefer to have their
testimony recorded by way of deposition. In this case, as in Guerine, the potential trial
witnesses and other sources of proof are scattered among several counties, including the
plaintiff's chosen forum, and no single county enjoys a predominant connection to the
20
litigation. Guerine, 198 Ill. 2d at 526, 764 N.E.2d at 64. Furthermore, the defendant has
not demonstrated any impediment to accessing sources of testimonial and documentary
evidence if the trial is held in St. Clair County. See Langenhorst, 219 Ill. 2d at 450, 848
N.E.2d at 939 ("None of defendants' arguments assert any real inconvenience to anyone
or any practical problems militating against trying this case in St. Clair County."). In
light of the foregoing, we find that this factor slightly favors St. Clair County.
¶ 40 Another private interest factor is the possibility of viewing the accident scene.
This factor is not concerned with the necessity of viewing the premises, but rather the
possibility of viewing the premises, if appropriate. Langenhorst, 219 Ill. 2d at 448-49,
848 N.E.2d at 938. In a case where the accident scene has been substantially changed, or
it is difficult to identify the site where the injury or exposure occurred, a view of the
scene may not be appropriate. See Langenhorst, 219 Ill. 2d at 448-49, 848 N.E.2d at 938
(view of accident scene would not be appropriate or improve a jury's understanding of the
case where rail crossing had substantially changed since the day of the accident), but cf.
Fennell, 2012 IL 113812, ¶ 37, 987 N.E.2d 355; Laverty, 404 Ill. App. 3d at 538, 956
N.E.2d at 6 (emphasizing the possibility of viewing location of alleged exposure as an
important consideration, and that the appropriateness or necessity of viewing the
premises is a decision within the discretion of the circuit court).
¶ 41 In this case, the plaintiff was injured inside one of the defendant's locomotives.
Therefore, it is a site-specific injury. The site of the injury, however, is mobile. No one
has suggested that a view of the Salem yard would be pertinent to any issue, or otherwise
appropriate in this case. The possibility of having a jury view the inside of the
21
locomotive may be appropriate, and is a factor to be considered. Based on the
defendant's records, the subject locomotive is not stationed in one place. It moves around
the defendant's railroad system, and travels throughout a territory that includes Marion
County and St. Clair County. The locomotive was inspected by the defendant's employee
at the Salem yard immediately after the plaintiff was injured. Then, during the discovery
phase of the case, the defendant produced the locomotive for inspection by the plaintiff in
St. Clair County. The record shows that the defendant initially scheduled the inspection
at the Dupo Service Track, and later changed the location to the yard of its subsidiary, the
Alton & Southern Railroad, in East St. Louis, Illinois. Thus, the defendant chose to have
the subject locomotive viewed by the parties in St. Clair County, Illinois. As such, the
defendant would be hard-pressed to credibly claim that it would be inconvenient to
produce the locomotive at a trial in St. Clair County, should the circuit court determine
that a view of the locomotive would be appropriate. As such, the defendant has not
shown that this factor strongly favors Marion County.
¶ 42 Next, we consider the remaining private interest factors regarding the availability
of compulsory service to secure the attendance of unwilling witnesses, the costs to secure
the attendance of willing witnesses, and other practical considerations that make the trial
of a case easy, expeditious, and inexpensive. In this case, most of the liability witnesses
are currently employed by the defendant, and may be compelled to appear through a
notice under Illinois Supreme Court Rule 237(b) (eff. July 1, 2005). The plaintiff's
treating physicians and medical records are subject to subpoena, whether the subpoenas
are issued in Marion County or St. Clair County.
22
¶ 43 The costs of securing the attendance of the employee-witnesses would almost
certainly balance out whether the trial occurs in St. Clair County or Marion County.
Given that the distance between Salem and Belleville is approximately 60 miles, it is
unlikely that an overnight stay would be required for any witness, aside from Mr. Brown.
Mr. Brown resides in Tennessee. If he traveled by air, he would likely fly into Lambert
International Airport in St. Louis. Lambert Airport is closer to Belleville than Salem, and
there are many accommodations between Lambert Airport and Belleville. As noted
previously, we recognize that in this type of litigation, the plaintiff's treating physicians
and the defendant's expert physicians rarely appear live at trial. Medical testimony is
more commonly introduced through evidence depositions, as the parties would likely
incur significant expenses should their medical witnesses appear live. This is true
whether the trial is held in Marion County or St. Clair County. Finally, we note that the
attorneys for both parties have their offices in St. Clair County. Although this factor does
not carry great weight, it remains a factor that falls within the other practical
considerations that make a trial easy, expeditious, and inexpensive. The remaining
private interest factors slightly favor St. Clair County.
¶ 44 Public Interest Factors
¶ 45 We now consider the public interest factors. Initially, we note that the plaintiff's
claim against the defendant does not involve a particularly localized controversy. The
plaintiff was injured in Marion County, but the injuries were allegedly caused by a
defective condition in a locomotive. The locomotive moves throughout the defendant's
23
system. The defendant is a railroad corporation with its corporate headquarters in
Omaha, Nebraska.
¶ 46 Next we consider whether St. Clair County has a sufficient connection to this case
to warrant the burden of a trial on the citizens and the circuit court of St. Clair County.
As previously noted, the defendant has a significant presence in St. Clair County. The
subject locomotive, and other locomotives within the defendant's system, are routinely
inspected and serviced by mechanics who perform their work out of, or are dispatched
from, the Dupo Service Track. The scheduling of inspections and maintenance is
administered and documented by supervisors who work out of the Dupo facility.
Inspection and maintenance records are created and kept at the Dupo facility. As
previously noted, much of the inspection and maintenance work is governed under the
LIA, and the plaintiff's complaint alleges violations of the LIA. Based on the record, St.
Clair County has an interest in determining whether the defendant is properly identifying
and repairing any hazardous defects in locomotives, and locomotive equipment, used by
its employees. St. Clair County has a sufficient interest in the case to justify the expense
of trial and the imposition of jury service on its citizens. Certainly, Marion County also
has an interest in this case because one of its residents was injured on a locomotive there.
In this case, it was the locomotive that was alleged to have been poorly maintained.
Therefore, this factor does not strongly favor a transfer to Marion County.
¶ 47 We next consider the matter of docket congestion. We note that each of the
parties has relied on certain select statistics within the Annual Report of the Illinois
Courts that might, if considered in isolation, favor their respective choice of forum. A
24
review of the Annual Report of the Illinois Courts, which the parties referenced, indicates
that between 2010 and 2014, the case clearance rates in the Twentieth Judicial Circuit,
including St. Clair County, have been higher than the clearance rates in the Fourth
Judicial Circuit, including Marion County. In 2014, Marion County reported four law
cases disposed of by verdict, while St. Clair County reported three law cases disposed of
by verdict. The average time in months from filing to verdict for those cases was 40.8 in
Marion County and 36.6 in St. Clair County. The record does not show that St. Clair
County's dockets are more congested than Marion County's dockets. Moreover, the trial
court is in the best position to consider any administrative problems in relation to its own
docket or its ability to try the case in an expeditious manner. Langenhorst, 219 Ill. 2d at
451, 848 N.E.2d at 939. Based on the statistics, this factor does not strongly favor a
transfer to Marion County.
¶ 48 Considering all relevant private and public interest factors, the balance of factors
does not weigh strongly in favor a transfer of this case to Marion County. In this case,
like Guerine, the potential trial witnesses and other sources of proof are scattered among
several counties, including the plaintiff's chosen forum, and no single county enjoys a
predominant connection to the litigation. Guerine, 198 Ill. 2d at 526, 764 N.E.2d at 64.
The balance of factors must strongly favor transfer of the case before the plaintiff can be
deprived of his chosen forum, and this is not such a case. Guerine, 198 Ill. 2d at 526, 764
N.E.2d at 64. The circuit court's decision to deny the defendant's motion to transfer
based on forum non conveniens was not an abuse of discretion.
25
¶ 49 Finally, we believe that it is necessary to comment on the circuit court's order in
this case. The circuit court failed to provide any findings or set forth its analysis
regarding the public and private interest factors, either during the motion hearing or in its
written order. Recently, there has been some discussion regarding whether a circuit
court's exercise of discretion can be adequately reviewed in the absence of an analysis of
the forum non conveniens factors. See Fennell, 2012 IL 113812, ¶¶ 75-76, 987 N.E.2d
355 (Kilbride, C.J., dissenting upon denial of rehearing) (trial court's exercise of its
discretion cannot be reviewed adequately when several of the forum non conveniens
factors are not included in the analysis, and a remand to the trial court for express
findings on the omitted factors would be appropriate and consistent with the supreme
court's reminder to include all factors in the analysis); see also Wilder Chiropractic, Inc.
v. State Farm Fire & Casualty Co., 2014 IL App (2d) 130781, ¶ 47, 13 N.E.3d 194;
Pendergast v. Meade Electric Co., 2013 IL App (1st) 121317, ¶¶ 23-27, 996 N.E.2d 34.
¶ 50 In the pending case, the trial court's analysis was not incomplete, it was wholly
absent. Nevertheless, we proceeded to examine each of the relevant factors because the
facts pertinent to the analysis were largely uncontroverted. A court's failure to provide an
adequate analysis will not always be a basis for reversal. See Estate of Rath v. Abbott
Laboratories, Inc., 2012 IL App (5th) 100096, ¶ 23, 968 N.E.2d 1247 (the issue is not the
detail of the underlying order, but whether the circuit court abused its discretion). That
said, we believe that judicial economy is better served when the circuit court provides the
parties, as well as reviewing courts, with its analysis of the relevant factors when
deciding a forum non conveniens motion. We echo the exhortations of our supreme court
26
to circuit courts to include all of the relevant private and public interest factors in the
analyses (Fennell, 2012 IL 113812, ¶ 24, 987 N.E.2d 355), and to leave a better record of
their decision-making process (Guerine, 198 Ill. 2d at 520-21, 764 N.E.2d at 60-61). In
any motion proceeding, the parties to the litigation bear some responsibility to aid the
court in issuing its orders. Therefore, we urge the trial bar to aid the trial court with
proposed orders, and respectfully request the circuit courts to issue specific rulings
setting forth the analysis of all the relevant private and public interest factors. Judicial
economy is best served by the clarity of the trial court's order.
¶ 51 CONCLUSION
¶ 52 After reviewing the record, and following the supreme court's reasoning in
Langenhorst and Guerine, we find that the defendant has failed to show that the balance
of private and public interest factors strongly favors a transfer of this case to Marion
County, or that Marion County is more convenient to all parties. Moreover, it is clear
from the record that there are many factors that actually favor St. Clair County as a
convenient forum. Therefore, the circuit court did not abuse its discretion in denying the
defendant's motion to transfer based on the doctrine of forum non conveniens.
¶ 53 Accordingly, the order of the circuit court is affirmed.
¶ 54 Affirmed.
27
2016 IL App (5th) 150116
NO. 5-15-0116
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
DAVID DECKER, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 14-L-807
)
UNION PACIFIC RAILROAD COMPANY, ) Honorable
) Vincent J. Lopinot,
Defendant-Appellant. ) Judge, presiding.
__________________________________________________________________________
Opinion Filed: July 12, 2016
__________________________________________________________________________
Justices: Honorable Judy L. Cates, J.
Honorable S. Gene Schwarm, P.J., and
Honorable Bruce D. Stewart, J.,
Concur
__________________________________________________________________________
Attorneys Thomas E. Jones, Harlan A. Harla, Thompson Coburn, LLP, 525 West
for Main Street, P.O. Box 750, Belleville, IL 62222-0750
Appellant
__________________________________________________________________________
Attorney William P. Gavin, Gavin Law Firm, #17 Park Place Professional
for Centre, Belleville, IL 62226
Appellee
__________________________________________________________________________