- Illinois Supreme Court Shapes Forum non Conveniens Debate on Plaintiff’s State of Residence and Location Where Asbestos Exposure Occurred
- January 11, 2013 | Author: Anthony M. Goldner
- Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP - Chicago Office
In its first-ever forum non conveniens decision in an asbestos case, the Illinois Supreme Court reversed the lower courts and transferred a case from St. Clair County, IL, to Mississippi - the state where most of the plaintiff's asbestos exposures occurred.
In the past 20 years, Illinois has been one of the primary places for asbestos litigation. Cook County and, particularly, Madison County are packed with several hundred pending mesothelioma matters. The majority of those cases filed in Madison County have no tangible connection to Illinois. Illinois attracts asbestos cases from other jurisdictions due to its plaintiff-oriented substantive law and the ability for plaintiffs diagnosed with a malignant disease to get a trial date as early as nine months from the date of filing the complaint.
For many years, defendants filed and unsuccessfully argued forum non conveniens motions seeking dismissal and transfer for asbestos cases that had little if any connection to Illinois. These motions were routinely denied. Despite the Illinois Supreme Court decision in 2003 in the non-asbestos case Dawdy v. Union Pacific Railraod, which decried the rampant forum shopping that caused Madison County to be considered a mecca for plaintiffs, this ruling only temporarily slowed the out-of-state plaintiff asbestos filings in Madison County. Encouraged by a subsequent Illinois Supreme Court ruling in another forum non conveniens case, Langenhorst v. Norfolk Southern Railway, which seemingly contradicted much of the holding in Dawdy, plaintiffs’ counsel once again flooded Madison County and St. Clair County with asbestos lawsuits on behalf of plaintiffs that had no connection to Illinois. Now it appears the tide has turned back to requiring plaintiffs to have a connection with Illinois.
The Illinois Supreme Court in Fennell v. Illinois Central Railroad, in a 5-1 ruling issued on December 28, 2012, held that the lower courts abused their discretion when they denied defendant’s forum non conveniens motion to dismiss and transfer plaintiff's asbestos action pending in St. Clair County to Mississippi where the majority of the Mississippi resident plaintiff's asbestos exposures occurred. The Fennell decision is the first time the Illinois Supreme Court has issued a ruling on a forum non conveniens dispute in an asbestos case. Assuming the Fennell decision is followed, defendants should be able to successfully transfer and dismiss hundreds of asbestos cases currently pending in Madison, St. Clair, and Cook Counties, IL, to the states in which the plaintiff resides and/or was exposed to asbestos.
Background of Fennell
Plaintiff Walter Fennell, a lifelong Mississippi resident, worked for the defendant since 1970 and claimed asbestos exposures through his employment as a train brakeman, conductor and engineer in Mississippi and Louisiana. He denied any asbestos exposures or medical treatment in St. Clair County or Illinois.
Plaintiff initially filed his asbestos complaint in Mississippi but voluntarily dismissed the complaint and refiled in St. Clair County, IL. Defendant filed a forum non conveniens motion to dismiss and transfer the case back to Mississippi. The circuit court denied the motion, finding that the following factors made St. Clair County a convenient forum for the litigation of the case: (1) presence of documentary evidence in counsel’s offices five miles from the St. Clair County courthouse, (2) residence of two defense witnesses in Illinois, (3) location of one plaintiff's expert in Chicago and (4) the citizens of St. Clair County had a general interest in "travelling asbestos and other harmful substances." The Fifth District Appellate Court affirmed the lower court for essentially the same reasons cited in the lower court's ruling.
Supreme Court Ruling
In the Supreme Court’s opinion, the majority began its analysis by reiterating all the public- and private-interest factors that are to be considered by a lower court when ruling on a forum non conveniens motion. The majority criticized the lower courts in this case because it was apparent that factors favoring the transfer of the case to Mississippi were ignored. The majority reminded all circuit courts in future rulings on forum non conveniens motions to "include all of the relevant private and public interests factors in their analyses.” (Emphasis in the original.)
The Court reiterated prior Supreme Court holdings in forum non conveniens decisions that held a plaintiff's choice of forum is not assumed to be convenient where that plaintiff is both foreign to the forum and his injuries did not occur in the chosen forum. Consequently, less deference will be given to plaintiff's choice of forum and the suspicion will arise that plaintiff has engaged in forum shopping, which is disfavored by Illinois courts. The Court ultimately concluded that plaintiff's choice of St. Clair County to refile his previously filed Mississippi action was an example of forum shopping that “decent judicial administration” cannot tolerate.
The Supreme Court noted that all of plaintiff's identified 14 witnesses were non-residents of Illinois and not subject to Illinois subpoenas. The Court was not persuaded by plaintiff’s reiterated arguments that two of defendant’s witnesses resided in Illinois, documentary evidence was present in Illinois, one of plaintiff's experts resided in Illinois, and the defendant did business in Illinois. Ultimately, the Court concluded that when all of the relevant public- and private-interest factors were properly considered, this case had no tangible connection to Illinois and must be dismissed and transferred to Mississippi.
The Illinois Supreme Court's ruling is encouraging for defendants in non-resident asbestos cases pending in Illinois. However, it is important to be aware that not every non-resident's asbestos complaint will soon be dismissed and transferred. As the Fennell Court noted, each forum non conveniens case is unique and must be considered on its own facts. However, the plain language of the Fennell ruling should result in the transfer of hundreds of pending asbestos cases where the non-resident plaintiff was never exposed to asbestos in Illinois.