Illinois has long been a hotbed of asbestos litigation. Most of those lawsuits are filed in Madison County, where more than 25 percent of the country’s asbestos cases are pending. In 2012, the American Tort Reform Foundation ranked Madison County as the number-three “judicial hellhole” in the nation. The report noted that 1,563 asbestos lawsuits were filed in Madison County in 2012, which represented an increase of 600 cases from 2011. Only 10 percent of those cases were filed by Madison County residents. Madison County’s neighbor to the south, St. Clair County, has recently joined Madison County as a forum of choice for plaintiff lawyers in asbestos cases. From 2009 to 2010, St. Clair County experienced a 1,250 percent increase in asbestos filings. In other words, asbestos is big business in southwest Illinois. However, a recent ruling by the Illinois Supreme Court may put an end to these asbestos dockets.
The Fennell Case
The ruling came in Fennell v. Illinois Central Railroad on December 28, 2012. The plaintiff in Fennell claimed that he was exposed to asbestos-containing products for 37 years while working for the Illinois Central Railroad. Like the majority of asbestos plaintiffs in southwest Illinois, the plaintiff did not live in Illinois. Rather, he lived and worked mostly in Mississippi. However, as a railroad worker, the plaintiff also worked in other states across the country. His complaint alleged that he was exposed to asbestos-containing products everywhere he worked.
The plaintiff in Fennell first sued Illinois Central in Mississippi state court along with a class of 80 other plaintiffs in 2002. Illinois Central successfully moved to dismiss that case, and the case was dismissed without prejudice in 2006.
The Fennell plaintiff refiled his claims in an individual lawsuit filed in St. Clair County, Illinois, in 2009. His complaint alleged that he was exposed to asbestos and other toxic substances while working for Illinois Central but, importantly, he did not allege that he was exposed to these substances, or injured, in St. Clair County. In response to discovery requests inquiring as to the locations where the plaintiff worked for Illinois Central, he responded “mostly in and out of Jackson, Mississippi, to Gulfport, Louisiana, and McComb, Mississippi.” The plaintiff also responded that he had been to Illinois once, for engineer school, in Homewood, Illinois, which is not in St. Clair County. Accordingly, Illinois Central moved to dismiss the Fennell complaint in May 2010, arguing that the case should be dismissed under the doctrine of forum non conveniens because Mississippi would be the most convenient forum to try the case. The trial court denied the motion because: (1) Illinois Central’s lawyers had significant evidence in St. Clair County, (2) two of Fennell’s important witnesses would testify in Illinois but not in Mississippi, (3) St. Clair County is closer for Fennell’s Chicago-based expert witness than Mississippi, (4) St. Clair citizens have an interest in “traveling asbestos and other harmful substances,” and (5) St. Clair County's dockets are uncongested.
Illinois Central petitioned the Illinois Court of Appeals for permission to appeal. The court granted Illinois Central’s petition, but a divided panel of the court eventually affirmed the denial of Illinois Central’s motion to dismiss. In his dissent, one of the judges of the court of appeals noted that “[i]t is difficult, if not impossible, to find any nexus to Illinois, let alone St. Clair County, in a forum non conveniens setting.” Illinois Central appealed the decision to the Illinois Supreme Court.
Weighing Public and Private Factors
On review, the Illinois Supreme Court noted that the denial of motions to dismiss based on forum non conveniens is reviewed under Illinois law for an abuse of discretion. Under the forum non conveniens doctrine, a trial court may decline jurisdiction if it appears that another forum can better serve the parties' convenience and the ends of justice. When ruling on the motion, the trial court must consider what forum the totality of public- and private-interest factors favor.
The Private Factors Supported Dismissal of the Fennell Case
The court explained that private-interest factors include the parties’ convenience, access to evidence, ability to compel witnesses to appear for trial, the cost of presenting willing witnesses at trial, the possibility of viewing the premises at issue, and any other factors that make a trial easy, expeditious, and inexpensive. The court held that public-interest factors include the congestion of the forum’s courts, the unfairness of imposing jury duty on residents in a community unconnected to the litigation, and the interests of local communities in deciding local issues. The court explained that trial courts must balance the public and private factors but must not weigh the factors against each other. Rather, trial courts must balance all factors before determining whether a case should be dismissed for forum non conveniens reasons.
The court also noted that, in evaluating forum non conveniens motions, trial courts should consider the fact that the law has never favored forum shopping. The court recognized that a plaintiff’s choice of forum should be afforded deference but held that such choice is accorded less deference “[w]hen the plaintiff is foreign to the chosen forum and when the action giving rise to the litigation did not occur in the chosen forum, the plaintiff’s choice of forum . . .” Fennell, slip. op. at p. 6. The court reasoned that decent judicial administration could not tolerate forum shopping as a persuasive or even legitimate reason for burdening communities with litigation that arose elsewhere and that should, in all justice, be tried there. In fact, the court noted that one of the primary goals of Illinois’ forum non conveniens jurisprudence is to prevent forum shopping.
The facts of the Fennell case showed that the plaintiff had, at all times relevant to his claims, resided in Mississippi. Moreover, his discovery responses clearly established that his cause of action arose outside Illinois. In fact, it appeared that even the plaintiff himself had at one time recognized that Mississippi was a more convenient forum to litigate his claims because he first filed suit there. The Illinois Supreme Court apparently found this to be an important fact, as it noted that the Fennell plaintiff lives fewer than 25 miles from the courthouse where he filed his first lawsuit, while the St. Clair County courthouse was 530 miles from his home. The court also found that almost no one connected with Fennell's case lived in Illinois and therefore concluded that the case could be litigated in Mississippi without unduly hampering the parties’ discovery. The court specifically noted that Fennell's Chicago-based expert’s convenience was entitled to little weight because he is compensated for his travel. The court found that factoring the convenience of experts into a forum non conveniens analysis would make forum shopping easier.
The Illinois Supreme Court also rejected the trial court’s conclusion that two of Fennell’s important witnesses would not testify in court in Mississippi because these witnesses were employed by Illinois Central Railroad and could therefore easily be compelled to testify in Mississippi. On the other hand, the court explained that Mississippi-based witnesses could not be compelled to testify in St. Clair County, Illinois, therefore making it unlikely that they would travel there willingly.
The court’s analysis also discounted the fact that much of the documentary evidence relating to the plaintiff’s claim was located at a law firm in St. Clair County, Illinois. The court explained that modern technology allows litigants to copy and transport the documents long-distance easily and cheaply. The court also found it important that a St. Clair County jury would not be able to easily tour the premises giving rise to the plaintiff’s claim, though a jury in Mississippi easily could.
The court concluded that the private factors weighed heavily in favor of dismissing the Fennell lawsuit under the doctrine of forum non conveniens because the plaintiff resides in Mississippi; the alleged exposure occurred in Mississippi and Louisiana; the vast majority of the identified witnesses, including the treating physicians, are located in Mississippi and are not subject to Illinois subpoenas; and site visit would be impracticable for an Illinois jury.
The Public Factors Supported Dismissal of the Fennell Case
The court then turned to the public factors applicable to the case. The court found that there was insufficient evidence to establish which forum was more congested, so it disregarded that factor of the analysis. The court did note, however, that St. Clair County had a strong interest in not subjecting its citizens to jury duty in cases unrelated to their community. The court further explained that, even assuming that St. Clair County citizens had an interest in “traveling asbestos and other harmful substances,” they have a greater interest in not being burdened with litigation they have no connection to.
Ultimately, the court concluded that the public-interest factors required the case to be dismissed under the doctrine of forum non conveniens because the lawsuit had no connection whatsoever with the state of Illinois. The court explained that:
If Illinois had any relevant or practical connection with this litigation, then it would have an interest in providing a forum. However, plaintiff resides in Mississippi, works in Mississippi, and was allegedly exposed to asbestos in Mississippi or Louisiana. Illinois’ only connection with this lawsuit is: the offices of the parties’ counsel; accessible and transportable documents in the possession of defendant’s counsel; and a compensated expert witness for plaintiff. This does not provide a significant factual connection with the instant case to justify imposition of the burdens of the litigation upon the citizens and court system of St. Clair County and Illinois.
Fennell, slip op. at p. 13.
In sum, the court concluded that the public and private factors weighed heavily in support of dismissing the lawsuit, reversed the trial court’s denial of Illinois Central’s motion to dismiss, and remanded the case to the trial court with instructions to dismiss the case.
Although Fennell analyzes Illinois’ forum non conveniens jurisprudence in the context of an asbestos case, its holding will likely reach far beyond asbestos dockets. Before Fennell, defendants had had little recourse when sued in personal-injury cases in disconnected Illinois forums because trial courts would afford overwhelming deference to the plaintiff’s choice of forum and deny forum non conveniens motions almost as a matter of course. The Fennell decision mandates a more serious application of the multi-factor forum non conveniens test and discounts the plaintiff’s choice of forum when the plaintiff and his or her case are not connected to Illinois in some manner. While the effect of Fennell is yet to be seen, most commentators agree that the ruling will go a long way in curtailing the “forum shopping” that has been pervasive in personal injury lawsuits filed in Illinois.
Keywords: litigation, mass tort, Illinois, asbestos, forum non conveniens
Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).