State Supreme Court Issues Forum Non Conveniens Decision

A tip of the hat to faithful reader Brendan Kenny at Blackwell Burke for noting the recent decision by the Illinois Supreme Court in Fennell v. Illinois Central Railroad.

The issue is forum non conveniens. Brendan notes that the Illinois Supreme Court ruled that the trial court abused its discretion when it denied defendant Illinois Central's forum non conveniens motion. The state Supreme Court reversed the appellate court judgment affirming the trial court's denial, and remanded the case to the trial court with instructions to dismiss. Per Brendan, this 5-1 decision will be helpful to defendants as it emphasizes that Illinois trial courts must grant a defendant's forum non conveniens motion if the plaintiff has no significant connection to the forum and there is an alternative forum that is more convenient. This decision likely strengthens defendants' challenges to asbestos plaintiffs forum shopping in plaintiff-friendly forums like Madison County. This will allow defendants to move asbestos cases to more appropriate forums. 

Brendan notes that Fennell involved plaintiff's 37-year exposure to asbestos-containing products while working for Illinois Central. Fennell lived and sometimes worked in Mississippi, but he also worked across the country for the railroad, and he alleged that he was exposed to asbestos-containing products wherever he worked. In 2002, Fennell and a group of 80 other plaintiffs sued Illinois Central in Mississippi state court. In 2006, Illinois Central filed a motion to dismiss, and the Mississippi court dismissed the case without prejudice.

In 2009, rather than re-file the case in Mississippi, Fennell filed an action against Illinois Central in Saint Clair County, Illinois. He alleged that he was exposed to asbestos and other toxic substances while working for Illinois Central, but he did not allege an injury in Saint Clair County. In May 2010, Illinois Central filed a forum non conveniens motion. Brendan observes that the trial court denied the motion because: (1) Illinois Central's lawyers had significant evidence in Saint Clair County, (2) two of Fennell's important witnesses would testify in Illinois but not in Mississippi, (3) Saint Clair County is closer for Fennell's Chicago-based expert witness than Mississippi, (4) Saint Clair citizens have an interest in "traveling asbestos and other harmful substances"; and (5) Saint Clair County's dockets are uncongested.

Illinois Central appealed, and a divided appellate-court panel affirmed. Illinois Central appealed to the Illinois Supreme Court, and several amici filed briefs.

A trial court's denial of a forum non conveniens motion is reviewed for 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, trial court must consider what forum the totality of public and private-interest factors favor.

Brendan notes that private-interest factors include the parties convenience, access to evidence, ability to compel witnesses to appear for trial, cost of presenting willing witnesses at trial, possibility of viewing the premises at issue, and any other factors that make a trial "easy, expeditious, and inexpensive." Trial courts should also consider that courts have never favored forum shopping, and that a plaintiff's interest in selecting a forum is less if the plaintiff is foreign to the forum and the action arose outside the forum. 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 Supreme Court held that the trial court abused its discretion because it failed to properly apply the public and private-interest factors. Brendan points out that Fennell was from Mississippi and his cause of action arose outside Illinois. The Supreme Court noted that trial court ignored that Fennell initially filed in Mississippi and re-filed in Illinois. It emphasized that Fennell lives less than 25 miles from the Mississippi courthouse, but 530 miles away from the Saint Clair courthouse, and that almost no one connected with Fennell's case lives in Illinois. Nothing suggested that having the case in Mississippi would unduly hamper the parties' discovery. And it held that Fennell's Chicago-based expert's convenience was entitled to little weight because he is compensated for his travel, and factoring the convenience of plaintiffs' expert would make forum shopping even 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; these witnesses were Illinois Central employeees and this makes it unlikely that Fennell would have difficulty compelling them to testify in Mississippi. In contrast, the Mississippi-based witnesses could not be compelled to testify in Saint Clair County, and bringing the willing witnesses there would cost more.

The Illinois Supreme Court was not persuaded, Brendan notes, that the office of Illinois Central's counsel in Saint Clair County was significant. Assuming that the law firm had many Illinois Central documents relevant to the case there, the Illinois Supreme Court noted that modern technology allows litigants to copy and transport the documents long distance easily and cheaply. 

The Supreme Court found that Saint Clair County had a strong interest in avoiding subjecting its citizens to jury duty in a case unrelated to their community. And even assuming that Saint Clair County citizens had some interest in "traveling asbestos and other harmful substances," they have a greater interest in not being burdened with litigation they have no connection to. 

 

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