Thompson v. Northwestern Memorial Healthcare , 2021 IL App (1st) 210012-U ( 2021 )

2021 IL App (1st) 210012-UNo. 1-21-0012
Order filed December 3, 2021
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
YVONNE TONEY THOMPSON, Mother and Next ) Appeal from the
Friend of Sadie Thompson, a Minor, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
v. ) No. 19 L 4537
NORTHWESTERN MEMORIAL HEALTHCARE, )
Individually and d/b/a NORTHWESTERN MEDICINE; ) Honorable
NORTHWESTERN MEDICINE CENTRAL DUPAGE ) Melissa A. Durkin
HOSPITAL, and MICHELLE SZWEDO, M.D., ) Judge, presiding.
)
Defendants-Appellees, )
)
(Michelle Szwedo, M.D.; Dr. Paul K. Rosenberg, Ltd., )
d/b/a Female Healthcare, Ltd.; Michael Hussey, M.D.; and )
Northwestern Medicine Regional Medical Group, )
Respondents in Discovery). )
)
)
JUSTICE SHARON ODEN JOHNSON delivered the judgment of the court.
Presiding Justice Daniel Pierce and Justice Sheldon Harris concurred in the judgment
ORDER
No. 1-21-0012
¶1 Held: We affirm where the circuit court did not abuse its discretion in transferring the
forum to DuPage County when the balance of plaintiff’s deference, private and
public interests did strongly favor transfer.
¶2 Plaintiff Yvonne Toney Thompson, mother and next friend of Sadie Thompson, filed a
medical negligence action in Cook County against defendants, Northwestern Memorial Healthcare
d/b/a Northwestern Medicine (NMHC) and Northwestern Medicine Central DuPage Hospital
(CDH). On defendants’ motion, the circuit court transferred the matter to DuPage County. On
interlocutory appeal, plaintiff contends that the circuit court abused its discretion in granting
defendants’ motion to transfer to DuPage County when one of the three defendants is a Cook
County resident, part of the cause of action arose in Cook County, the witnesses are scattered
across several counties in Illinois, and no deference was given to plaintiff’s choice of forum. For
the following reasons, we affirm,
¶3 BACKGROUND
¶4 Plaintiff filed the instant cause of action on April 26, 2019. Plaintiff and her daughter Sadie
were residents of Kendall County at the time of filing. The complaint set forth allegations of
medical malpractice against defendants for the injuries sustained by Sadie on November 14, 2016,
when plaintiff entered CDH and gave birth to her. After plaintiff entered CDH, she had symptoms
of a developing placental abruption and complained of pain shortly after being admitted to CDH.
Sadie sustained a hypoxic-ischemic injury to her brain after she and plaintiff went through multiple
medical emergencies before and after Sadie’s delivery.
¶5 A. Defendants and Respondents in Discovery
¶6 At the time of plaintiff’s filing, defendant NMHC was an Illinois corporation with its
principal place of business in Cook County. NMHC was the sole shareholder of defendant CDH
which was located in DuPage County. Both NMHC and CDH had registered agents located in
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Cook County. Respondent in discovery Dr. Szwedo, lived in Batavia, Illinois. Respondent in
discovery Michael Hussey M. D. (Dr. Hussey) lived and worked in DuPage County. Northwestern
Medicine Regional Medical Group (NMR) had no offices or facilities in Cook County. 1
Respondent in discovery Dr. Paul K. Rosenberg, Ltd., d/b/a Female Healthcare Ltd (Female
Healthcare) had no offices or facilities in Cook County, and its sole officer Dr. Rosenberg, was a
resident of DuPage County.
¶7 B. Complaint
¶8 Plaintiff’s complaint alleged that on November 14, 2016, NMHC exercised control over
the day-to-day operations of CDH and committed institutional negligence when they failed to
implement proper services, equipment, training, education, policies, and procedures. Plaintiff
alleged that defendants were negligent when they failed to recognize and respond to the medical
complications of plaintiff and Sadie which resulted in severe neurological injury to Sadie. Plaintiff
alleged that Dr. Szwedo was the agent of defendants and Female Healthcare and arrived 60 minutes
after she was first informed of the severity of her condition. Lastly, the complaint provided that
respondents in discovery Dr. Szwedo, Female Healthcare, Dr. Hussey, and NWM could have
information as to who, if anyone, should be named as additional defendants in this matter.
¶9 On July 1, 2019, Dr. Szwedo filed a motion to voluntarily convert to a defendant pursuant
to 735 ILCS 5/2-402 (West 2018) of the Illinois Code of Civil Procedure (Code), the circuit court
granted the motion on July 12, 2019.2
¶ 10 C. Forum non conveniens motion and related filings
1
The parties do not identify where NMR’s principal place of business is located nor where its registered
agents are.
2
Defendants will include Dr. Szwedo moving forward.
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¶ 11 On July 26, 2019, MNHC and CDH filed a motion to dismiss/transfer venue from Cook
County to DuPage County pursuant to Illinois Supreme Court Rule 187 (Ill. S. Ct. R 187 (eff. Jan.
1, 2018)) and forum non conveniens. The motion alleged that the complained of medical care
occurred in DuPage County, CDH was located in DuPage County, plaintiff did not reside in Cook
County, the occurrence witnesses were closer to DuPage County, NMHC did not have direct
involvement in the case, and the public and private interests favored transfer.
¶ 12 On September 29, 2020, a memo in support of the motion was filed further arguing that:
(1) Dr. Szwedo was a resident of and worked in DuPage County; (2) Dr. Hussey who was likely
to be converted to a defendant was a resident of and worked in DuPage County; (3) Tracy Wolford
who would be the trial representative for both Northwestern entities worked in DuPage County
and was a resident of Kane County; (4) plaintiff was not a resident of Cook County, and the
majority of the occurrence and damages witnesses likely were residents of or were closer to
DuPage County; (5) although NMHC had its principal place of business in Cook County, they
were not directly or indirectly involved in patient care in CDH; (6) plaintiff’s choice of forum was
given less deference because she was not a resident of Cook County; (7) the convenience to the
parties favored a transfer to DuPage County because, at that time, no employees from NMHC were
scheduled to be called, CDH would be burdened by having its staff go to Cook County for trial,
and it provided an ease of access of testimonial evidence for the trial; (8) although plaintiff
identified several witnesses whose contacts favored Cook County, plaintiff did not identify the
role of those witnesses nor did defendants see the medical records of the providers identified by
plaintiff as a service provider. Defendants attached affidavits of Dr. Szwedo, Wolford, Dr. Hussey,
and the occurrence witnesses that have treated Sadie (Sara Mertens, RN; Shannon Noss, RN; Amy
Fleck, RN; Terri Pheanis, RN; Tina Mitchell, RN; Jennifer Willamee; and Dora Castro-Ahillen,
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RN) indicating that it would be more convenient to travel to DuPage County while Cook County
would be more burdensome.
¶ 13 Next, defendants argued that the public interest factors favored a transfer when: (1) the
alleged negligent care was a local controversy interest to DuPage County residents; (2) the costs
of the trial would burden Cook County residents when the matter was loosely related to it; (3)
Cook County had a lesser interest in the matter because plaintiff and daughter were not residents;
and (4) the DuPage County docket was less crowded than Cook County
¶ 14 On the same date of July 26, 2019, in addition to the motion to dismiss/transfer venue,
defendants filed a motion to dismiss NMHC for non-involvement pursuant to 735 ILCS 5/2-1010
(West 2018) of the Code. The motion argued that NMHC had no involvement in the care and
treatment at issue, did not employ or supervise any of the medical providers involved in the care
and treatment at issue, and did not operate, maintain or manage CDH.
¶ 15 On August 9, 2019, Dr. Szwedo filed a motion to join defendants’ motion to
dismiss/transfer pursuant to Rule 187 and forum non conveniens. The circuit court granted this
motion on September 12, 2019.
¶ 16 On October 8, 2020, plaintiff filed a response to defendants’ motion to dismiss or transfer
venue arguing that venue had been established in Cook County and it was plaintiff’s chosen forum.
Plaintiff denied that defendants met their burden in demonstrating an overwhelming need to
transfer the case to DuPage County because there were allegations that NMHC failed to enforce
policies, supervise, or train employees, and the relevant transactions occurred, in part, in Cook
County. Plaintiff argued that the private interests did not favor transfer when: (1) it was likely that
every proceeding in this case would be remote due to social distancing requirements; (2) plaintiff’s
initial choice should prevail; (3) NMHC and CDH, were both registered in Cook County; (4)
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MNHC and CDH’s registered agent was located in Chicago; (5) crucial functions of CDH were
handled solely in Cook County such as the promulgation and enforcement of policies, supervision
of employee nurses and doctors, general counsel, human resources, claims management, and
corporate compliance; (6) all advertising, marketing, and use of the NMHC brand name
“Northwestern Medicine” and names and logos were controlled in Chicago; (7) NMHC insures
CDH and would pay the claim in this case; (8) the chosen forum was home to the NMHC and
CDH; (9) defendants were not allowed to argue that the choice of forum was inconvenient for
plaintiff and must prove that the chosen forum was inconvenient to both parties if they sought
transfer; (10) defendants could not argue that DuPage County would be more convenient to
Wolford because she resides in Kane County, which was adjacent to Cook County; (11) Dr.
Szwedo’s claim of inconvenience should not be considered because plaintiff did not add her as a
defendant; (12) the remaining three factors also did not weigh strongly toward transfer.
¶ 17 Plaintiff argued that the access to source evidence factor had become less significant
because of technological advancements, however, this favored Cook County because most of the
documentary evidence was located therein. Plaintiff maintained that since Sadie’s birth she
received extensive treatment in Cook County and those providers who could testify about that
treatment were located in Cook County. Plaintiff pointed out that the witnesses that provided
affidavits for defendants were all parties to the case, residents of various counties, and did not
provide their proposed testimony and therefore should not be considered. Additionally, she argued,
the nurses, in this case, were employed and paid by NMHC, whose headquarters are in Cook
County.
¶ 18 Plaintiff denied defendants' assertion that she failed to identify the role of her witnesses.
Plaintiff intended to call four family members as damage witnesses, all of whom would find Cook
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County more convenient. Those family members were plaintiff’s brother and sister-in-law,
Bernard and Corisa Cobb-Toney, residents of Cook County; plaintiff’s aunt, Joan Fortune, who
was a resident of Cook County; and plaintiff’s cousin Tiana Hankins, a resident of Cook County.
Additionally, plaintiff identified the eight medical providers who practice in Cook County and
provided that they were Sadie’s pediatrician (Afsaneh Talai, MD), pediatric neurologist
(Chaloungchai Phitsanuwong, MD), pediatric gastroenterologist (Allan Pratt, MD), registered
dietician (Stephanie Schimpf), neurosurgeon (Matthew Ross, MD), physical medicine &
rehabilitation physician (Ana Marie Rojas, MD), pediatric urologist (Mohan Gundeti), and
orthopedic surgeon (Haluk Altiok, MD).
¶ 19 Plaintiff argued that the public interests, in this case, do not favor transfer when: (1) NMHC
and CDH operated their crucial functions from Cook County; (2) NMHC and CDH held
themselves out as one entity; (3) Cook County had an interest in deciding a controversy involving
defendants; (4) Cook County residents had an interest in this litigation to see that the Cook County
defendants implement changes to their policies and procedures to correct negligent medical
treatment; (5) Sadie was treated in Cook County and continued to receive extensive treatment in
Cook County for her injuries; and (6) cases in DuPage County take longer to resolve than in Cook
County.
¶ 20 Plaintiff also filed a response to defendants’ motion to dismiss NMHC for non-
involvement. Plaintiff argued that NMHC cannot be dismissed because it was directly involved in
the care at issue and actively operated CDH from Cook County.
¶ 21 On October 26, 2020, defendants filed a reply to plaintiff’s response to their forum non
conveniens motion arguing that the cause of action at issue only occurred in DuPage County, not
Cook County. Defendants asserted that plaintiff’s arguments were rooted in a venue analysis not
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a motion on forum non conveniens. Defendants argued that the residence and employment of the
majority of the parties and trial witnesses, and public interests favored transfer to DuPage County.
On the same date, defendants’ filed a reply to plaintiff’s response to their motion to dismiss for
non-involvement arguing that plaintiff’s claims against NMHC were unsupported and plaintiff
could not show that NMHC was involved in the occurrence at issue.
¶ 22 On December 9, 2020, after balancing the private and public interests to determine the
proper forum, the circuit court granted the forum non conveniens motion and transferred the
proceedings to DuPage County. The circuit court stated that the first private interest factor,
convenience, favored transfer when: (1) plaintiff was a resident of Kane 3 county, which was
closer to DuPage County; (2) NMHC owned CDH; (3) Wolford’s affidavit indicated DuPage
County would be more convenient for her since she was a resident of Kane County and worked in
DuPage; and (4) defendant, Dr. Szwedo’s affidavit indicated that DuPage County would be more
convenient for her because she was a resident of and worked in DuPage County. The circuit court
determined that based on these factors, DuPage County would be more convenient for all of the
parties.
¶ 23 For the second private interest factor, ease of sources, the circuit court ruled it favored
transfer when: (1) all of the occurrence witnesses worked in DuPage County and provided
affidavits of how DuPage County would be more convenient for them; (2) plaintiff’s damage
witnesses did not provide any affidavits indicating Cook County was more convenient to them and
the only witness who appeared to be relevant was Sadie’s father, who did not reside in Cook
County; (3) those who treated Sadie at CDH who provided affidavits that DuPage County was
3
The circuit court used Kane and Kendall County interchangeably throughout its order as plaintiff’s
county of residence.
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more convenient; (4) plaintiff listed eight medical professionals who provided care to Sadie, but
did not indicate the significance of the treatment and where it occurred; (5) the documentary
evidence was determined to be portable and there was no evidence to support that this information
was in Cook County; and (6) the location of the evidence was found to be neutral because neither
party included this in their filings.
¶ 24 The circuit court found the third and fourth factors, the availability of compulsory process
and the cost of obtaining the attendance of willing witnesses, to be neutral and not addressed by
the parties. The circuit court found the fifth factor, the possibility of viewing the premises, favored
transfer to DuPage County but gave little weight to it because the case had little to do with the
physical condition of CDH. The circuit court found the sixth factor, other practical considerations
that would make trial easy, expeditious, and less expensive, to be neutral as well. Although plaintiff
argued that Covid-19 procedures made the proceedings in pretrial available remotely, the circuit
court noted that it does not address the conditions at trial, which a forum non conveniens motion
addresses.
¶ 25 The circuit court ruled that the public interest favored DuPage County. The court found
that the first public interest factor, the interest in deciding local matters locally, strongly favors
transfer to DuPage County when: (1) all relevant conduct occurred in CDH; (2) Dr. Szwedo was a
resident of and worked in DuPage County; (3) since the alleged conduct occurred in CDH, it was
a matter of local interest to the residents of DuPage County; (4) the polices of NMHC were not at
issue because Dr. Szwedo used her medical judgment when she arrived at the hospital and took
control; and (5) the registered agents of NMHC and CDH, and unrelated activities were irrelevant.
¶ 26 The circuit court found the second public interest factor, the fairness of imposing the
expense of trial and the burden of jury duty on a county with little connection to the litigation,
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favored a transfer to DuPage County when: (1) this action contained allegations of medical
negligence in a DuPage County hospital by a DuPage County doctor; and (2) it was not clear that
the alleged institutional negligence occurred in Cook County, and if it did, it would be so tangential
that it would be unfair to impose the expense of trial on Cook County residents.
¶ 27 The circuit court found the third public interest factor, docket congestion, to weigh in favor
of Cook County but gave it little weight. The court noted Cook County does get through cases
faster than DuPage County despite the increased volume of cases it had. It pointed to a statistic
plaintiff provided that demonstrated in 2018 it took Cook County 30.1 months to get cases off the
docket compared to 45.6 months it took DuPage County.
¶ 28 The circuit court ruled that defendants showed that it would be substantially more
convenient for all parties and all witnesses to try this case in DuPage County and granted the
motion forum non conveniens. The circuit court entered and continued defendants' motion for non-
involvement to DuPage County.
¶ 29 On January 8, 2021, plaintiff filed a petition for leave to appeal an interlocutory order
pursuant to Illinois Supreme Court Rule 306 (a)(2) (Ill. Sup. Ct. R. 306(a)(2) (eff. Oct. 1, 2020).
This court granted the motion on February 24, 2021.
¶ 30 ANALYSIS
¶ 31 On interlocutory appeal, plaintiff contends that the circuit court abused its discretion in
granting defendants’ motion to transfer to DuPage County when one of the three defendants is a
Cook County resident, part of the cause of action arose in Cook County, the witnesses are scattered
across several counties in Illinois, and no deference was given to plaintiff’s choice of forum.
¶ 32 A. Standard of Review
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¶ 33 A circuit court is granted considerable discretion in ruling on a forum non conveniens
motion. Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006). We will reverse the
circuit court's decision only if there is a showing that it abused its discretion in balancing the
relevant factors. Id. A circuit court abuses its discretion in balancing the relevant factors only
where no reasonable person would take the view adopted by it. Id.
¶ 34 B. Venue
¶ 35 Under section 2-101 of the Code of Civil Procedure (Code), venue is established when:
“(1) in the county of residence of any defendant who is joined in good faith and with probable
cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of
fixing venue in that county, or (2) in the county in which the transaction or some part thereof
occurred out of which the cause of action arose.” 735 ILCS 5/2-101 (West 2018). Further, the
Code provides that an Illinois corporation “is a resident of any county in which it has its registered
office or other office or is doing business.” 735 ILCS 5/2-102 (West 2018). This court has
recognized that the venue statute “is designed to ensure that the action will be brought either in a
location convenient to the defendant, by providing for venue in the county of residence, or
convenient to potential witnesses by allowing for venue where the cause of action arose.”
Langenhorst, 219 Ill. 2d at 441.
¶ 36 C. The Doctrine of Forum Non conveniens
¶ 37 The application of the doctrine of forum non conveniens presumes the existence of more
than one proper venue and permits the court in which the action is filed to decline jurisdiction and
direct the lawsuit to an alternative forum which it determines can better serve the convenience of
the parties and the ends of justice. Evans v. MD Con., Inc., 275 Ill. App. 3d 292, 294 (1995). A
forum non conveniens motion causes a court to look beyond the requirements of venue when it
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considers the relative convenience of a forum.” Langenhorst, 219 Ill. 2d at 441. “The fact that a
defendant conducts business within the county is not the only factor the court should consider in
its analysis.” Id.
¶ 38 D. Plaintiff’s Choice of Forum
¶ 39 Generally, the plaintiff's initial choice of forum will prevail, given venue is proper and the
inconvenience factors attached to such forum do not greatly outweigh the plaintiff's substantial
right to try the case in the chosen forum. Langenhorst, 219 Ill. 2d at 443. However, a plaintiff’s
choice of forum is given less deference when the plaintiff does not reside, and the action did not
arise in that forum. Id. at 442-43.
¶ 40 First, we note that the parties do not dispute that venue is proper in Cook County. However,
the contention that exists is whether the transfer to DuPage County was proper under a forum non
conveniens motion, which we will now examine. The circuit court found that plaintiff’s choice of
forum was unreasonable given that she did not live in Cook County, and the acts that led to the
cause of action did not clearly involve NMHC.
¶ 41 Plaintiff contends that the circuit court erred in assigning no deference, as opposed to great
deference, to plaintiff’s choice of forum by ruling that it was unreasonable. The court should have
also given great deference to plaintiff’s institutional negligence claim because the corporate
conduct was a substantial part of the acts that gave rise to the injury that occurred in Cook County.
Plaintiff contends that the conduct at issue occurred for years when NMHC failed to draft and
enforce appropriate policies and procedures, failed to provide training and appropriate equipment,
and failed to provide appropriate physician services.
¶ 42 Defendants assert that NMHC’s involvement in this matter is limited to being CDH’s sole
shareholder. Defendants contend that since plaintiff does not reside in Cook County and the
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incident occurred in DuPage County, her choice is entitled to less deference citing Evans v. Patel,
2020 IL App (1st) 200528, ¶33, as support. Defendants maintain that although plaintiff contends
that the actions of NMHC that led to the negligence occurred in Cook County, plaintiff has not
supported her vague claims with facts in her complaint nor does she connect those claims to
causation. Defendants maintain that the circuit court evaluated plaintiff's vague claims regarding
policies and procedures conducted in Cook County. Further, defendants contend that the circuit
court observed that the institutional negligence claim was concerning the services she received in
DuPage County and involved medical judgment, not negligence in drafting policies or procedures
or anything in kind.
¶ 43 Given the facts that were pled in plaintiff’s complaint, substantial deference should be
given to her choice of forum. Although plaintiff does not reside in Cook County, she complained
that the actions taken by NMHC in Cook County led to both institutional negligence and medical
negligence in DuPage County. Langenhorst, 219 Ill. 2d at 442-43. We disagree with defendants'
contention that plaintiff's choice of forum should be given less deference because her claims are
vague when it comes to the involvement of NMHC. This court in Koss has held that it is
unreasonable to require a plaintiff to prove up its entire case on a forum non conveniens motion.
Koss Corp., v. Sachdeva, 2012 IL App (1st) 120379, ¶ 100. Defendants assert that Koss is
distinguishable from this case and stands for the proposition that it is improper for the circuit court
to not address a plaintiff’s institutional negligence claim at all. However, Koss specifically
addressed that a forum non conveniens motion is at a preliminary discovery stage, making it
unreasonable to consider an argument based on the failure to plead a cause of action. Id. ¶ 102.
Therefore, the circuit court’s rejection of plaintiff’s institutional negligence claim against NMHC
and its involvement in the negligence claim on the basis that they were undeveloped, irrelevant, or
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not supported by affidavit is improper. Id. ¶ 101. However, our analysis does not end here; a
transfer of forum may still be appropriate if the private and public interests outweigh plaintiff’s
substantial interests. Langenhorst, 219 Ill. 2d at 443.
¶ 44 E. Private and Public Interests
¶ 45 A defendant carries the burden of showing that disturbing the plaintiff’s choice of forum
is warranted due to the relevant private and public interest factors strongly favoring the transfer.
Langenhorst, 219 Ill. 2d at 444. The interests are not weighed against each other, rather the circuit
court must evaluate the total circumstances. Id. “The defendant must show that the plaintiff's
chosen forum is inconvenient to the defendant and that another forum is more convenient to all
parties.” Id. The defendant cannot claim that the choice of forum is inconvenient to plaintiff. Id.
¶ 46 The circuit court must balance various private interest factors affecting the litigants’
convenience and various public interest factors affecting the administration of the courts. Evans v.
MD Con, Inc., 275 Ill. App. 3d 292 (1995). The relevant private interests include:
“the convenience of the parties; the relative ease of access to sources of testimonial,
documentary, and real evidence; the availability of compulsory process to secure
attendance of unwilling witnesses; the cost to obtain attendance of willing witnesses; the
possibility of viewing the premises, if appropriate; and all other practical considerations
that make a trial easy, expeditious, and inexpensive.” Fennel v. Illinois Cent. R. Co., 2012
IL 113812, ¶15.
The relevant public interest factors include: “the administrative difficulties caused when litigation
is handled in congested venues instead of being handled at its origin; the unfairness of imposing
jury duty upon residents of a community with no connection to the litigation; and the interest in
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¶ 47 1. Private Interests
¶ 48 Plaintiff maintains that the circuit court abused its discretion in transferring this case to
DuPage County based on the private interests that existed. For the first private interest factor,
convenience, plaintiff asserts that defendant NMHC is a corporate resident of Cook County and
the majority of the potential witnesses do not reside in DuPage County but instead live, work,
provide, and/or continue to provide, medical care in Cook County. Plaintiff asserts that defendant
may not argue that her choice of forum is inconvenient for her. Defendants contend that the circuit
court acted within its discretion when it granted the motion to transfer the case to DuPage County
when: (1) plaintiff received the care at issue in DuPage County; (2) plaintiff initially lived in
DuPage County, but moved to Kendall County; (3) plaintiff received treatment from a physician
who resides and exclusively practices in DuPage County; (4) all of the occurrence witnesses, the
trial representative, and Dr. Szwedo all provided affidavits that stated DuPage County would be
more convenient while a trial in Cook County would be inconvenient and burdensome. The circuit
court echoed defendants' contentions in its ruling and did not place any weight on NMHC’s Cook
County presence.
¶ 49 Plaintiff is correct, defendants must not argue that plaintiff’s forum of choice is not
convenient for her. Langenhorst, 219 Ill. 2d at 441. Instead, defendants have the burden of showing
that the new forum is convenient for all parties and the existing forum is inconvenient to defendant.
Id. The circuit court is tasked with evaluating the total circumstances that exist. Langenhorst, 219
Ill. 2d at 444. Defendants trial representative, Wolford attested to DuPage County being more
convenient for NMHC and CDH. The third defendant Dr. Szwedo attested to DuPage County
being more convenient for her. Given the representations that all of the defendants made by and
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through themselves or their representatives, we cannot say the circuit court erred in finding the
first factor strongly favoring transfer.
¶ 50 For the second factor, ease of access to sources, plaintiff provided that all of her witnesses
as to damages as well as the medical professionals who have recently provided services to Sadie
would find Cook County more convenient. Defendant’s occurrence witnesses, however, indicated
that DuPage County would be more convenient. The circuit court did not place any weight on
plaintiff’s proposed damage witnesses, except for noting that plaintiff’s husband did not live in
Cook County. Similarly, the circuit court did not place any weight on the convenience of the
medical staff that were located in Cook County. Instead, it determined the significance of
treatment, and ruled that the location of the treatment was not clear. The court noted that no
affidavits were provided by any of plaintiff’s potential witnesses. Instead, the circuit court gave
weight to the occurrence witnesses of defendants, and the treatment Sadie initially received in
DuPage County during her birth and shortly thereafter. This court has held that affidavits
identifying witnesses and their proposed testimony are not required in a motion forum non
conveniens proceeding. Koss, 2012 IL App (1st) 120379, ¶ 100. Given this, the witnesses that
plaintiff stated would find Cook County more convenient than DuPage County, must be given
some weight. Id.
¶ 51 Plaintiff indicated that four of her damage witnesses would find Cook County more
convenient while there was no indication of what would be more convenient for the eight
practitioners who have treated Sadie in Cook County. Whereas, defendants indicated at least eight
witnesses, from nurses to the trial representative, would find DuPage County more convenient.
When plaintiff’s witnesses are considered alongside defendants’ occurrence witnesses, we find
that this factor does strongly favors transfer.
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¶ 52 Factors one and two are the relevant factors for this appeal, however, plaintiff contends
that for factor six, it would be more expeditious for counsel of all of the parties to have Cook
County as the chosen forum because the offices are blocks away from Cook County’s courthouse.
However, plaintiff raises this issue for the first time on appeal; therefore, this argument is forfeited.
Lopez v. Northwestern Memorial Hosp., 375 Ill. App. 3d 637, 651 (2007).
¶ 53 As discussed above, an analysis of the private interest factors favors transfer to DuPage
County. Accordingly, we find that the circuit court did not abuse its discretion. We will now look
at the public interest factors.
¶ 54 2. Public interests
¶ 55 Plaintiff contends that the circuit court ignored her institutional negligence claim in
reaching its determination on the public interest factor. She alleges that Cook County residents
have an interest in deciding these matters locally because they would want to decide how a Cook
County corporation is making decisions for its hospitals. Defendants however claims that the
public interest factors favor transfer when the actions that gave rise to the cause of action arose in
DuPage County. Defendants assert that Cook County residents should not have to be burdened
with the costs of this case when the defendant is only tangentially related to Cook County. Lastly,
defendants maintain that DuPage County has a lighter caseload than Cook County.
¶ 56 For the first factor, the administrative difficulties caused when litigation is handled in
congested venues instead of being handled at its origin, the circuit court found this to not favor
transfer. Defendants are correct, Cook County has a heavier workload. However, according to
statistics provided by plaintiff, Cook County nonetheless processed its cases sooner. In 2018,
Cook County took 30.1 months versus DuPage County’s 45.6 months. We have held that a circuit
court knows its own docket and just because a county is busier than another, it does not necessitate
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a transfer. First Nat’l Bank v. Guerine, 198 Ill.2d 511, 525 (2002). This factor does not favor
transfer.
¶ 57 For the second factor, the unfairness of imposing jury duty upon residents of a community
with no connection to the litigation, the circuit court found this to favor transfer. In making this
determination the circuit court did not give weight to plaintiff’s institutional negligence claim and
found it hard to find that NMHC contributed to the medical negligence claim. Consequently, the
court found the connection to DuPage County strong and that the actions that gave rise to this
cause of action rested in Dr. Szwedo, a DuPage County resident. The circuit court determined that
plaintiff's claims had no merit based on the circuit court's assumptions of what transpired. This is
a determination that a circuit court is within its discretion to make, however, not pursuant to a
forum non conveniens motion. Koss, 2012 IL App (1st) 120379, ¶ 102. We have held that at this
stage it is not appropriate to consider whether a plaintiff failed to state a cause of action. Id. Given
the pleadings at issue, Cook County residents have an interest in this litigation because the
corporate defendant is from that forum. See Glass v. DOT Transp., Inc., 393 Ill. App. 3d 829, 837
(2009) (residents in plaintiff’s chosen forum have an interest when it involves their residents).
Nevertheless, given the representations from NMHC’s trial representative, that it would be more
convenient for NMHC if it were in DuPage County, we cannot say the trial court abused its
discretion in finding that this factor does favor transfer.
¶ 58 For the third factor, the interest in having local controversies decided locally, the circuit
court once again gave no weight to plaintiff’s institutional negligence claim and determined that
the alleged negligence can only be attributable to Dr. Szwedo and not NMHC, making this a local
controversy to DuPage County. For the reasons stated above, we find both counties have an interest
in this case. Glass, 393 Ill. App. 3d at 837. Therefore, this factor does not strongly favor transfer.
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¶ 59 Looking at the totality of the public interest factors, the circuit court did not abuse its
discretion in finding that the factors strongly favored transfer.
¶ 60 Although plaintiff’s choice of forum was entitled to substantial deference because part of
the alleged cause of actions arose in Cook County and both counties having an interest in the
matter, the applicable factors strongly favor transfer to DuPage County. The private interests of
convenience and ease of access strongly favor transfer when the majority of witnesses and the
majority of the parties find DuPage County more convenient. Thus, in full consideration of both
the private and public interests at issue, we do not find that no reasonable person would take the
view adopted by the circuit court and therefore we find that there was no abuse of discretion.
¶ 61 CONCLUSION
¶ 62 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 63 Affirmed.
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