Hoskin v. Union Pacific Railroad Company

NOTICE NO. 5-04-0670
Decision filed 05/08/06. The text of
this decision may be changed or IN THE
corrected prior to the filing of a
Petition for Rehearing or the APPELLATE COURT OF ILLINOIS
disposition of the same.
FIFTH DISTRICT
___________________________________________________________________________
DONALD R. HOSKIN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 04-L-512
)
UNION PACIFIC RAILROAD COMPANY, ) Honorable
) Phillip J. Kardis,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
The defendant, Union Pacific Railroad Company, appeals an order of the trial court
denying its motion to transfer the plaintiff's complaint to Randolph County on the grounds of
forum non conveniens. The defendant argues that the trial court abused its discretion in
denying the motion because the relevant factors overwhelmingly favor a transfer. We affirm.
The plaintiff, Donald R. Hoskin, worked for the defendant for 30 years as a welder
and trackman, among other duties. On February 12, 2003, he was injured while working as a
welder. On May 20, 2004, the plaintiff filed a two-count complaint in Madison County,
seeking compensation for his injuries under the Federal Employers' Liability Act (FELA) (45
U.S.C. '51 et seq. (2000)). Count I alleged that the plaintiff injured his shoulder on February
12, 2003, while he was cutting rail with a rail saw "in or around" Madison County, Illinois.
Although the complaint does not specify where the accident took place, the record reveals
that it occurred in St. Louis, Missouri. Count II alleged that the plaintiff suffered from
repetitive trauma as a result of his work for the defendant as a welder, a "substantial portion"
of which was performed in Madison County. In an affidavit, he averred that he worked as a
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welder in Madison County for a total of six months between 1990 and 1994.
On August 25, 2004, the defendant filed a motion to transfer the case to Randolph
County, where the plaintiff resides, on the grounds of forum non conveniens. On September
23, the court denied the motion to transfer. This appeal followed.
Forum non conveniens is an equitable doctrine that allows a trial court to decline
jurisdiction in favor of a different court when doing so would better serve the interests of
"fundamental fairness and the sensible and effective administration of justice." Langenhorst
v. Norfolk Southern Ry. Co., No. 99924, slip op. at 9 (March 2, 2006). The trial court enjoys
broad discretion in ruling on a motion to transfer venue on the grounds of forum non
conveniens. In exercising this broad discretion, the trial court must consider the relevant
public- and private-interest factors. Langenhorst, slip op. at 10. The public-interest factors
include the following: (1) the interest in deciding local controversies locally, (2) the relative
congestion of the court docket in each forum, and (3) the unfairness of imposing the burden
of jury duty and the expense of a trial on a county with no connection to the litigation. The
private-interest factors include the following: (1) the convenience of the parties, (2) the
relative ease of access to witnesses and evidence, and (3) the practical considerations that
make a case easy, expeditious, or inexpensive to try. Langenhorst, slip op. at 10. In
weighing these factors, the trial court must also consider that the plaintiff's right to choose the
forum in which to bring his suit is a substantial one; therefore, the plaintiff's choice should
rarely be disturbed. Langenhorst, slip op. at 9. Unless the defendant demonstrates that the
relevant factors overwhelmingly favor a transfer, the court should deny the motion.
Langenhorst, slip op. at 9.
We note that in the instant case, the defendant filed its motion to transfer prior to
conducting any significant discovery into the forum issue. As a result, the record contains
limited information from which we can assess the relative convenience of the parties' chosen
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fora. We reiterate that it is the defendant who bears the burden of demonstrating that a
transfer is appropriate. Langenhorst, slip op. at 10. On the record before us, the defendant
has failed to meet this burden.
We first consider the relevant private-interest factors. Here, it makes sense to consider
two of those factorsBthe convenience of the parties and the relative ease of access to
witnesses and sources of documentary and other evidenceBtogether. With respect to the
convenience of the parties, the defendant must show that the plaintiff's chosen forum is
inconvenient to the defendant and that the defendant's proposed forum is more convenient to
all the parties. Langenhorst, slip op. at 10. The plaintiff resides in Randolph County;
however, the defendant may not prevail by arguing that the plaintiff's chosen forum is
inconvenient to the plaintiff. Langenhorst, slip op. at 11. The record contains no evidence of
the location or locations from which any of the defendant's representatives will have to travel
in order to attend the trial. Thus, the defendant has presented no evidence that it will be
inconvenienced by having to send representatives to the trial.
The defendant's primary allegation of inconvenience comes from the following
statement in the affidavit of its senior claims analyst:
"It would be inconvenient for Union Pacific to replace [the] employees [that it
intends to call as witnesses] if they are required to travel to Madison County,
Illinois[,] for trial in this matter. It would also be inconvenient for Union Pacific to
transport these individuals to Madison County for the trial[] and also pay their wages
and expenses for the duration of the time spent at trial."
Even if we assume that replacing employees who testify at a trial and paying their expenses
and wages while they do so is the type of burden that might render a transfer appropriate, we
do not see how these burdens would be mitigated by holding the trial in Randolph County.
Moreover, the record does not support the defendant's implicit claim that transporting
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witnesses to Madison County for a trial will be significantly more burdensome than
transporting them to Randolph County; indeed, the opposite appears to be true.
Neither party has specifically identified any witness residing in either Madison
County or Randolph County, aside from the plaintiff himself. The plaintiff identified two
potential witnesses but did not specify where either resides. The defendant identified three
potential witnesses in addition to the plaintiff. These witnesses reside in Streator, Illinois;
Salem, Illinois; and Bloomsdale, Missouri. Although the defendant did not provide
information on the driving times or distances from each of these towns to the courthouses in
Randolph and Madison Counties, we may take judicial notice of matters that are capable of
instant and indisputable demonstration, such as the distances between towns. See Dawdy v.
Union Pacific R.R. Co., 207 Ill. 2d 167, 177, 797 N.E.2d 687, 696 (2003). A search of
MapQuest reveals that Streator, Illinois, is located 197 miles from Edwardsville, the county
seat of Madison County, and 271 miles from Chester, the county seat of Randolph County.
To drive from Streator to Chester, the witness will have to travel through Madison County.
Salem, Illinois, is a 70-mile drive from Edwardsville and a 105-mile drive from Chester.
Bloomsdale, Missouri, is 33 miles from Chester and 81 miles from Edwardsville. MapQuest,
http://www.mapquest.com (last visited May 5, 2006).
Of the three identified witnesses, then, Madison County is closer for two while
Randolph County is closer for one. The defendant also alleges that it might call additional
coworkers of the plaintiff who reside in Randolph County; however, because the defendant
does not specify who any of these individuals are or what the subject of their testimony will
be, we need not consider this rather speculative assertion. See Langenhorst, slip op. at 13
(rejecting a similar argument).
On the whole, we do not believe that the defendant has met its burden of showing that
Madison County is inconvenient to it or that Randolph County would be more convenient to
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both parties. We do not find that the convenience of the parties favors either forum.
Madison County is closer to two of the three identified witnesses. Although the
record does not identify what sources of documentary or other evidence might be needed, the
plaintiff was treated for his injuries by physicians in St. Louis, Missouri, and Belleville,
Illinois, both of which are closer to the Madison County courthouse than the Randolph
County courthouse. Presumably, the plaintiff will need testimony or medical records from
these physicians. We conclude that a consideration of the relative ease of access to witnesses
and other sources of evidence favors Madison County. The record contains virtually no
evidence from which we might assess the remaining private-interest factorBthe other practical
considerations that make a trial easy, expeditious, or inexpensive.
We next consider the public-interest factors. The first is the interest in deciding local
controversies locally. The controversy in the instant case is not one that is particularly local
in flavor. The plaintiff is seeking relief under a federal statutory scheme from a defendant
that operates rail lines throughout the country. The controversy involves a repetitive-trauma
injury alleged to have occurred over many years during which the plaintiff worked at various
locations, including Madison County. Thus, this is not the type of inherently local
controversy that must be resolved locally. See First American Bank v. Guerine, 198 Ill. 2d
511, 525, 764 N.E.2d 54, 63 (2002); Schwalbach v. Millikin Kappa Sigma Corp., No. 5-03-
0515, slip op. at 9-10 (December 16, 2005).
We turn next to the unfairness of imposing the burden and the expense of a trial on a
forum with no significant connection to the litigation. Here, the defendant maintains tracks
in Madison County, which are maintained by employees using the same types of work tools
and methods alleged to be unsafe in the plaintiff's complaint. Presumably, the defendant
employs Madison County residents. Madison County has a legitimate interest in ensuring
that the defendant provides a safe work environment within its borders. While this is a
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legitimate interest, Randolph County has the same interest in the litigation, and Randolph
County has the additional interest in resolving the claim of its resident, the plaintiff. This
factor, then, somewhat favors Randolph County.
Finally, we consider the relative court congestion in the parties' proposed fora. In
2004, when the plaintiff filed this action, the average time from filing to a verdict for civil
trials in Madison County was 41.9 months. Administrative Office of the Illinois Courts,
2004 Annual Report of the Illinois Courts, Statistical Summary 53. The average time it took
for a case to go from filing to a verdict in Randolph County during the same period was 12.4
months. Administrative Office of the Illinois Courts, 2004 Annual Report of the Illinois
Courts, Statistical Summary 55. While this factor favors Randolph County, we note that it is
to be accorded little weight. Czarnecki v. Uno-Ven Co., 339 Ill. App. 3d 504, 510, 791
N.E.2d 164, 170 (2003).
The defendant also calls to our attention this court's recent pronouncement in McGinty
v. Norfolk Southern Ry. Co., 362 Ill. App. 3d 934, 841 N.E.2d 987 (2005), which was
decided while this appeal was pending. There, this court addressed the appropriate level of
deference to be accorded a plaintiff's choice of forum when the plaintiff alleges that a portion
of a non-site-specific injury occurred in the chosen forum. As previously noted, the
plaintiff's choice of forum is an important consideration, always entitled to some deference.
How much deference depends upon whether it is the plaintiff's home county or the situs of an
incident at issue in the litigation. When a plaintiff chooses a forum that is neither the
plaintiff's home county nor the situs of the incident, that choice is entitled to "somewhat less
deference" (emphasis in original) than it otherwise would merit. Langenhorst, slip op. at 14.
In McGinty, as here, a long-term railroad employee brought an action pursuant to
FELA and alleged that he had sustained injuries from repetitive trauma while working at
several different locations, including Madison County. McGinty, 362 Ill. App. 3d at 935, 841
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N.E.2d at 988. Like the plaintiff in this case, he argued that because of the repetitive nature
of his injury and because at least some of the work that led to it had been performed in
Madison County, Madison County was the situs of at least a portion of the events that formed
the basis of his claim. McGinty, 362 Ill. App. 3d at 935, 841 N.E.2d at 988.
In determining the proper level of deference to be accorded the plaintiff's choice on
the basis of his situs-of-the-injury argument, this court noted that the connection between the
plaintiff's work in Madison County and his injuries was far more tenuous than the connection
between a one-time, site-specific injury and the place where it occurs. Thus, his choice of
forum was not entitled to the level of deference it would have been accorded if it had been
the situs of a more site-specific injury. McGinty, 362 Ill. App. 3d at 939, 841 N.E.2d at 991.
The McGinty court gave only "slight deference to [the plaintiff's] choice of forum on
the basis of the injury situs." (Emphasis added.) McGinty, 362 Ill. App. 3d at 939, 841
N.E.2d at 991. Implicit in this language is the notion that, while not entitled to the same level
of deference as the location of a site-specific injury "that more directly ties an injury to a
particular county" (see McGinty, 362 Ill. App. 3d at 939, 841 N.E.2d at 991), the plaintiff's
choice is nevertheless entitled to at least slightly more deference than it would be were his
chosen forum not the situs of any part of his injury.
Significantly, the court's conclusion regarding the appropriate level of deference to
give to the plaintiff's choice of forum did not end the inquiry. We noted that the plaintiff and
all the witnesses identified by the parties lived near Kansas City, Missouri. McGinty, 362 Ill.
App. 3d at 939, 841 N.E.2d at 991-92. It was only after examining the relevant factors in
their totality that we concluded that the circumstances presented strongly favored the
defendant's proposed forum of Jackson County, Missouri. McGinty, 362 Ill. App. 3d at 940,
841 N.E.2d at 992. The same conclusion is not warranted here. As previously noted, the
factors in the instant case do not strongly favor either forum. While the plaintiff's choice of
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forum is entitled to somewhat less deference than it would be accorded were it his home
county or the situs of the accident at issue in count I of his complaint, it is still entitled to
deference. The defendant has not shown a connection to Randolph County sufficient to
overcome the plaintiff's choice.
Finally, the defendant contends that the instant case presents a stronger case for
transfer than Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 506 N.E.2d 1291 (1987),
and Czarnecki. We disagree. In Bland, the supreme court found that a trial court had abused
its discretion by refusing to transfer a case to Macon County. Bland, 116 Ill. 2d at 223, 506
N.E.2d at 1293. There, as here, the plaintiff's chosen forum was neither the situs of a specific
accident at issue nor the plaintiff's home county. Bland, 116 Ill. 2d at 221-22, 506 N.E.2d at
1293. Unlike this case, however, the defendant was able to demonstrate a predominant
connection to its proposed forum. Macon County was both the site of the plaintiff's accident
and his home county. Bland, 116 Ill. 2d at 221-22, 506 N.E.2d at 1293. It was also the
residence of all nine witnesses identified by the defendant and the location of the plaintiff's
relevant medical records. Bland, 116 Ill. 2d at 226, 506 N.E.2d at 1295. Similarly, in
Czarnecki, a Will County resident sought damages for injuries sustained in an accident that
occurred in Will County. Czarnecki, 339 Ill. App. 3d at 509, 791 N.E.2d at 169. In addition,
five witnesses, including the sole occurrence witness, lived in Will County. Czarnecki, 339
Ill. App. 3d at 510, 791 N.E.2d at 170.
The instant case, unlike Bland and Czarnecki, involves a situation in which neither
party's chosen forum has a predominant connection to the litigation. The plaintiff is a
resident of Randolph County. He alleges two injuries: one is a repetitive-trauma injury that
is not specific to any site; the other occurred in St. Louis. None of the named witnesses
resides in Randolph County, and neither party has identified any records, documents, or other
sources of evidence that are located there. The factors that led the Bland and Czarnecki
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courts to conclude that a transfer was required simply are not present in the instant case. We
conclude that the trial court properly exercised its discretion.
For the reasons stated, we affirm the order of the trial court denying the defendant's
motion to transfer.
Affirmed.
SPOMER, P.J., and WELCH, J., concur.
9
NO. 5-04-0670
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
DONALD R. HOSKIN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 04-L-512
)
UNION PACIFIC RAILROAD COMPANY, ) Honorable
) Phillip J. Kardis,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: May 8, 2006
___________________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable Stephen L. Spomer, P.J., and
Honorable Thomas M. Welch, J.,
Concur
___________________________________________________________________________________
Attorneys Thomas E. Jones, Heath H. Hooks, Thompson Coburn LLP, 525 West Main Street,
for P.O. Box 750, Belleville, IL 62222-0750
Appellant
___________________________________________________________________________________
Attorney Robert B. Ramsey, Blunt & Associates, Ltd., P.O. Box 373, Edwardsville, IL
for 62025
Appellee
___________________________________________________________________________________