January 27, 2014 Articles

Illinois Supreme Court's Decision May Effect Application of Forum Non Conveniens

C. Matt Alva

In December of 2012, the Illinois Supreme Court issued an opinion in Fennell v. Illinois Central Railroad Company (Fennell) that many thought could be a game changer on the issue of forum non conveniens in the State of Illinois.  Fennell v. Ill. Cent. R.R. Co.,987 N.E.2d 355 (Ill. 2012). The Fennell decision was especially significant for Illinois and Missouri practitioners in light of the national toxic tort and personal injury dockets that have developed in Madison and St. Clair counties. This article examines Fennell and discusses its impact on forum shopping in Illinois.

In 2002, Fennell filed an action under the Federal Employers' Liability Act and the Locomotive Inspection Act against defendant Illinois Central Railroad Company in the circuit court of Jefferson County, Mississippi, claiming exposure to asbestos. This case was ultimately dismissed by the Mississippi court in 2006. Thereafter, in 2009, the plaintiff filed a similar suit in the circuit court of St. Clair County, Illinois. Asbestos exposure was again alleged against the defendant, along with exposure to other toxins. In May of 2010, the defendant filed a motion to dismiss based upon the doctrine of forum non conveniens. The defendant argued that Mississippi was the most appropriate forum based on the fact that the plaintiff lived there and had an extensive history of working and receiving medical treatment there.  The circuit court denied the defendant's motion and a divided appellate panel affirmed that decision. The defendant thereafter appealed to the Supreme Court of Illinois (the Court), which granted leave to hear the case.

Illinois Supreme Court's Analysis


At the outset, the court endorsed the forum non conveniens analysis detailed in the U.S. Supreme Court's decision in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). According to the court, an interstate forum non conveniens analysis is an effort to litigate the case in the most appropriate state and is founded in fairness and "sensible and effective judicial administration."  Fennell, 987 N.E.2d at 359. The result is a public and private interest factor test detailed in Gulf Oil and reaffirmed by Fennell. The private factors include: (1) convenience of the parties; (2) relative ease of access to testimonial, documentary, and real evidence; (3) availability of compulsory process to secure unwilling witnesses; (4) cost of obtaining the attendance of willing witnesses; (5) possibility of viewing the premises if appropriate; and (6) all other practical considerations that make a trial easy, expeditious, and inexpensive. Id. at 360. Public interest factors include: (1) administrative burdens of excessive litigation in congested dockets, (2) imposition of jury duty upon people with no relation to the litigation, and (3) interest in deciding localized controversies at home. Id. Importantly, these factors are not weighed against each other, but in totality to determine whether they strongly favor dismissal. Gridley v. State Farm Mut. Auto. Ins. Co., 840 N.E.2d 269, 276-77 (Ill. 2005).

Two other important considerations noted by the court were the deference given to a plaintiff's choice in forum and the inappropriateness of forum shopping.  Fennell, 987 N.E.2d at 360. The Court further acknowledged that each case is "unique and must be considered on its own facts" and that defendants have the burden of showing the plaintiff's forum is inconvenient and that another forum is more convenient. Id. at 361.

Turning to its review of the facts, the court highlighted the trial court's failure to acknowledge the plaintiff's initial filing in Jefferson County, Mississippi.  To the court, this filing evinced plaintiff's "first choice of forum." Consequently, because of this initial filing, any deference typically afforded to the plaintiff was shattered. Id. at 362 (noting "diminished deference" for "what was plaintiff's second choice of forum."). This diminished deference, combined with the fact that the plaintiff and the cause of action were both foreign to Illinois, led the Court to give "far less deference to plaintiff's chosen Illinois forum." Id.

With that said, the Court examined the public interest factors through the prism of diminished deference. While de-emphasizing docket congestion as a factor, the court highlighted the significant burdens this type of litigation has on St. Clair County. Among those burdens, the court noted the imposition of jury duty, court costs, and an overall burdening of the Illinois judicial system.

With regards to the private interest factors, the Court focused on where the important facts of the case occurred.  As one might expect for a plaintiff who lived, worked, and received medical treatment primarily in Mississippi for his entire life, the Court found that the "private interest factors weigh heavily in favor of the convenience of a Mississippi forum over an Illinois forum." Id. at 364.

Ultimately, the court determined that the significant connections between the plaintiff and Jefferson County, as well as the Mississippi forum's interest in having a local matter decided locally, weighed heavily against the case continuing in St. Clair County, Illinois.More specifically, the public and private interest factors strongly favored dismissal in favor of the litigation proceeding in a Mississippi court. 

Impact on Future Defendants


Despite the Court's strong rejection of the forum shopping occurring in Fennell,clients expecting an end to generally regarded plaintiff-friendly forums like St. Clair and Madison counties are likely to be disappointed.  Even after the Fennell decision,these counties continue to attract plaintiffs from all over the country.  In fact, empirical data supports the notion that there is no slow-down in filings.  According to The Madison-St. Clair Record, asbestos filings for 2013 reveal no change when compared to 2012, with the possibility of an increase in the total asbestos filings in Madison County by year's end.  Bethany Krajelis, "2013 asbestos filings on pace with last year at 793 year to date," The Madison-St. Clair Record, June 27, 2013.

For many plaintiffs, the allure of sympathetic judges and juries, as well as favorable case law is worth the risk of having a case dismissed based on forum non conveniens.  This data supports a theory, pushed by the plaintiff's bar, that Fennell was an aberration in the forum non conveniens discussion.  Specifically, plaintiffs are portraying Fennell as distinguishable based on the original filing in Mississippi.

It should also be noted that the public and private interest factor test of Gulf Oil was firmly endorsed by the Court and still offers potential out-of-state plaintiffs numerous opportunities to find a connection to Illinois.  Without a major change in the analytical framework used in the forum analysis, Madison and St. Clair counties will likely continue to attract a large, national set of plaintiffs looking to take advantage of the aforementioned benefits of the Illinois judicial system.

Nevertheless, all is not lost for defendants.  In many ways, the Fennell decision was a thorough rebuke of the trial court's half-hearted analysis.  Going forward, trial and appellate courts will no longer be able to gloss over the Gulf Oil public and private interest factors that favor dismissal.  These courts must address allthe factors and in doing so, may have second thoughts about cavalierly dismissing defendant forum motions.

More importantly, Illinois courts discussing Fennell appear to be doing so in a manner sympathetic to defendants.  Recently, an appellate court used the Fennell decisionto reverse a trial court and grant a defendant's forum non conveniens motion to transfer. See Gross v. Wright, No. 1–12–2024, 2013 WL 2643654 (Ill. Ct. App. June 7, 2013).  The Gross v. Wright case was a medical malpractice matter in which the trial court denied a defendant's motion to transfer the case from Cook County to Will County.  Id. The relevant facts revealed that all of the defendants, the alleged tort, the plaintiff, and most of the declared witnesses were located in Will County and none were located in Cook County.  Through a comparison to Fennell's plaintiff, the appellate court in Gross emphasized how its plaintiff had little relevant connection to the chosen forum.  Without the necessary connections to the forum, the appellate court concluded that the "factual connection between the present case and Cook County is insufficient to justify burdening Cook County with this litigation." Id. at *12.  Accordingly, even under an abuse of discretion standard, the appellate court, using Fennell as a template, reversed the trial court and granted the defendant's motion to transfer to Will County.         

Several other 2013 appellate court decisions have also used Fennell to uphold trial court's dismissal of cases based on the doctrine of forum non conveniens. See, e.g., Siegal v. Global Hyatt Corp., No. 1–11–2832, 2013 WL 5436610 (Ill. Ct. App. Sept. 26, 2013); Khan v. Stockdale Trucking, LLC, No. 1–13–0358, 2013 WL 5209306 (Ill. Ct. App. Sept. 12, 2013); Bailey v. Waste Mgmt. of Ill., Inc., No. 1–12–1986, 2013 WL 1200259 (Ill. Ct. App. Mar. 25, 2013) (upholding defendant's motion to transfer to another Illinois county); but see Pendergrast v. Meade Elec. Co., Inc., 996 N.E.2d 34 (using Fennell to uphold trial court's dismissal of defendant's motion to transfer). For example, in Siegal, the appellate court relied upon Fennell when it affirmed the trial court's grant of a defendant's motion to dismiss based on the principles of forum non conveniens. Siegal, 2013 WL 5436610 at *4-5, *16.   The Siegal courtwas careful to note and analyze the public and private interest factors in its analysis.  This increased attention appellate courts are paying to the factors of Gulf Oil in the wake of the Fennell decision is a potentially significant development for the defense bar.

Conclusion


Overall, the results of Fennell appear mixed. Filings are not going down and may in fact be rising in Madison and St. Clair counties. These filings appear to reflect a confidence in the plaintiff's bar that Fennell does not jeopardize the national dockets in Madison and St. Clair counties. Nevertheless, appellate courts do appear to be taking Fennell seriously. As the aforementioned cases note, particularly the Gross matter, appellate courts post-Fennell are examining public and private interest factors much more closely and this closer attention to the public and private interest factors gives defendants an opportunity to better highlight the rampant forum shopping occurring in Madison and St. Clair counties. Going forward, defense counsel should reassess the depth, analysis, and detail of their forum motions because strong forum motions may be an avenue for a cost-effective dismissal for the client. 

Keywords: litigation, products liability, forum non conveniens, asbestos, Fennell, forum shopping, Madison County, St. Clair County


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