Wednesday, January 02, 2013

Guest Post – Illinois Supreme Court And Forum Non Conveniens


The following post was sent to us by Brendan Kenny of Blackwell Burke.  It concerns a new Illinois Supreme Court case that could have significant impact on out-of-state plaintiffs’ ability to keep their cases in Madison, St. Clair, etc.

As always with guest posts, the credit/blame goes solely to the poster.  We’re only the piano player.

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I just learned of a December 28, 2012 published Illinois Supreme Court forum non conveniens 5-1 decision that will be helpful to defendants in Illinois by emphasizing 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.

The case is Fennell v. Illinois Central Railroad, and here’s a copy . In Fennell, the Court held that the trial court abused its discretion when it denied defendant Illinois Central’s forum non conveniens motion and that the appellate court had erred in affirming the trial court's denial.  Then the Court remanded the case to the trial court with instructions to dismiss as a matter of law.  Fennell strengthens defendants’ challenges to asbestos, pharmaceutical, and other out-of-state plaintiffs’ forum shopping in plaintiff-friendly locales like Madison County.  The defendants will have a better chance to move such cases to more favorable forums.  This will reduce the settlement value of cases and increase the likelihood of winning the cases that defendants try.

Facts

Fennell was an asbestos case.  The plaintiff claimed 37-year exposure to asbestos-containing products while working for the Illinois Central Railroad.  The plaintiff did not live in Illinois, but rather lived and often worked in Mississippi.  As a railroad worker, plaintiff, also worked across the county for the railroad, and he alleged that he was exposed to asbestos-containing products wherever he worked.  In 2002, plaintiff Fennell and a class of 80 other plaintiffs sued Illinois Central in Mississippi state court.  In that case, Illinois Central filed a motion to dismiss, and in 2006 the Mississippi court dismissed the case without prejudice.

In 2009, rather than re-file in Mississippi, Fennell filed an individual 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.  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.

General Principles

A trial court’s denial of a forum non conveniens motion is reviewed for abuse of discretion – a stringent standard.  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.

Private-interest factors include the parties’ convenience, access to evidence, ability to compel witnesses to appear for trial, coast 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.”  Critically, 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.  As the court stated:

[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 is accorded less deference.  A plaintiff’s home forum for purposes of an interstate forum non conveniens motion is the plaintiff’s home State.

Also, courts have never favored forum shopping.  Decent judicial administration cannot tolerate forum shopping as a persuasive or even legitimate reason for burdening communities with litigation that arose elsewhere and should, in all justice, be tried there.  Indeed, a concern animating our forum non conveniens jurisprudence is curtailing forum shopping by plaintiffs.

Fennell, slip op. at 6 ¶¶18-19 (citations and quotation marks omitted).

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:

Application of Private-Interest Factors

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.  The Court 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 because these witnesses were defendant Illinois Central’s employees.  That status makes it unlikely that Fennell would have difficulty compelling them to testify in Mississippi.  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 that Illinois Central having counsel in Saint Clair County was significant.  Even 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.  On the other side of the ledger, the Court observed that a Saint Clair County jury, unlike a Mississippi one, could not easily view the premises at issue in this case, which would be Fennell's Mississippi job site.

In sum, 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 a jury view of the premises would occur outside of Illinois. On the whole, we conclude that the private interest factors weigh heavily in favor of the convenience of a Mississippi forum over an Illinois forum.

Fennell, slip op. at 11 ¶41.  Of note is the fact that the prior litigation in Mississippi played very little role in the Court’s consideration of the private interest factors.

Application of Public-Interest Factors

The Supreme Court  in Fennell held that because there was insignificant evidence to determine which forum’s docket was more congested, it did not take this factor into account.  But it 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 assuming that Saint 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.

That the action had no Illinois connection was dispositive of the public interest factors:

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 13 ¶46.  Here, the prior Mississippi litigation played no role at all.

In short, only Mississippi’s citizens that have the interest in the litigation.  Thus the Court remanded with instructions to dismiss on grounds of forum non conveniens.  Id. at 14 ¶51.

1 comment:

Anonymous said...

And now for the rest of the story . . . The prior Mississippi litigation was vital to the court's decision. The court's analysis was in three parts, not two: i) deference to plaintiff's choice of forum; ii) private interest factors; iii) public interest factors. The Mississippi litigation was dispositive of the amount of deference given to plaintiff's choice of forum, which in turn is often dispositive in FNC motions. Illinois courts give great deference to plaintiff's choice of forum. They give "less deference" when plaintiff does not reside in Illinois and the cause of action did not arise in Illinois. Here, the court created a new standard, the "far less deference" standard, which applies when a plaintiff is not a resident of Illinois, the cause of action did not arise in Illinois, and Illinois was not plaintiff's first choice of forum. Lest there be any doubt of the importance of this deference to the outcome of the case, note that two of the few words the court emphasized (with italics) in the opinion are the "far" in "far less deference" and the "second" when describing Illinois as plaintiff's "second choice of forum."