Guest Post – Tale of Two Districts: How Does Fennell Apply to Illinois Resident Plaintiffs?
Here’s another guest post about recent forum non conveniens developments in Illinois by Brendan Kenny of Blackwell Burke. This is important because forum non constrains the appetite of the black hole counties of that state. As always our guest posters get all the credit and take all the blame.
In Fennell, the Illinois Supreme Court made clear that Illinois trial courts must grant a defendant’s forum non conveniens motion if the plaintiff has no significant connection to the forum. Readers will recall that Fennell was one of the thousands of out-of-state residents who have filed cases in Illinois plaintiff-friendly forums. So much for foreign plaintiffs—but what about Illinois residents who file in Cook, Saint Clair, or Madison County instead of the county where they live? Does Fennell prevent Illinoisans from forum-shopping within their state’s borders? Two recent appellate court decisions suggest that it does.
The decisions are Gross v. Wright, et al (June 7, 2013)(unpublished) and Blake v. Colfax (June 21, 2013)(published). In each case, the defendant appealed a Cook County trial court’s ruling denying a forum non conveniens motion. The Gross court reversed the denial and the Blake court affirmed it. Although the outcome of these appellate decisions was different, their careful analysis of the private- and public-interest factors indicate that Illinois trial courts must apply Fennell in suits brought by Illinois plaintiffs, or face reversal.
In Gross, Sylvia Gross arrived at a Will County hospital complaining of chest pains. She was discharged two days later. Two days after that, she was admitted to another Will County hospital complaining of abdominal pain and died later that day. Gross’s surviving spouse sued the Will County providers and doctors in Cook County, and three of the eight defendants filed a forum non conveniens motion, which the trial court granted.
In Blake, while driving the work van of his Cook County employer (Colfax Corporation) in Will County, Edward Warren swerved across the highway’s center line and crashed into Mendy Blake’s oncoming car. The responding medical personnel were from Will County, and Ms. Blake received most of her medical treatment in Will and Du Page Counties. Mr. and Ms. Blake sued Mr. Warren and Colfax Corporation in Cook County, and the defendants filed a forum non conveniens motion, which the trial court denied.
Gross‘s Key Factors
The trial court denied the defendants’ motion because (1) three of the four defendant doctors did not live in Will County, (2) one of the defendant doctors served as an expert witness in a medical malpractice case in Cook County three years earlier, (3) Cook County had an interest in the litigation because one of the defendant doctors lived there and decedent worked there for 18 years, and (4) court congestion favored keeping the case in Cook County. (¶18.)
The appellate court did not find the trial court’s factors persuasive, and explicitly relying on Fennell, reversed the trial court’s denial because:
- The alleged medical malpractice and wrongful death occurred at Will County health care facilities;
- The treating doctors had predominantly Will County practices and no significant connection to Cook County;
- That nurse witnesses lived in or near Will County;
- The plaintiff and plaintiff’s decedent lived in Will County and had no significant connection to Cook County (¶¶41–56); and
- Based on the lack of a connection to Cook County, the court concluded that the “plaintiff’s chosen forum does not have a sufficient factual connection with the litigation to justify imposition of the burdens of litigation upon the citizens and court system of that county.” (¶49.)
Blake‘s Key Factors
The opinion in Blake was issued two weeks after the Gross opinion, and the Blake court evidently read it carefully because it responded directly to the case. The appellate court, which did not cite Fennell, upheld the trial court’s denial of the forum non conveniens motion because:
- Colfax’s headquarters was in Cook County and it performs the overwhelming majority of its work there (¶5);
- Mr. Warren’s work address was in Cook County, where he worked the vast majority of the time (¶5);
- The involvement of Will County personnel was not at issue in the case because they were not parties (¶21); and
- Cook County had an interest in how Colfax “fulfilled its obligations to train and supervise safe drivers and to service and maintain safe vehicles.” (¶26.)
Blake (FNC denied, aff’d) and Gross (FNC denied, rev’d) in Context – Table
Factors Blake Gross
|Site of Alleged Injury||
Traffic accident and Ms. Blake’s follow-up medical care in Will County.
Defendants’ van stored in Cook County and subject to Cook County court’s order of protection. (¶¶3, 7.)
|Med. malpractice/wrongful death in Will County. (¶¶3–5.)|
|Distance b/t Forums||Approximately 64.2 miles.||Approximately 45 miles.|
|Plaintiffs’ Residences||Will County. (¶4.)||Plaintiff and decedent both lived in Will County. (¶1.)|
Mr. Warren: in county neighboring Will County. (¶5.)
Colfax Corp.: office and headquarters in Cook County. (¶5.)
|All health care providers based in Will County, and only one doctor lives in Cook County. (¶¶3, 37.)|
|Plaintiffs’ Convenience||Mr. Blake worked in Cook County, and submitted an affidavit stating that trial in Will County would affect work and his ability to meet with attorneys. (¶4.)||Plaintiff submitted an affidavit stating that Will County was inconvenient. (¶40.)|
|Plaintiffs’ connection to Plaintiffs’ Forum||Mr. Blake worked in Cook County. (¶4.)||Decedent may have worked in Cook County. (¶49.)|
|Defendants’ connection to Plaintiffs’ Forum||
Mr. Warren: his work address was in Cook County, and he did the overwhelming majority of his work there. (¶5.)
Colfax Corp.: headquartered in Cook County, and the overwhelming of its business was there. (¶5.)
Three of four doctors practiced only in Will County, and none practiced in Cook County. (¶1.)
All health care providers based in Will County. (¶3.)
|Witnesses’ Convenience and Availability||The only nonparty witness lived in the county neighboring Will County, but he submitted affidavit stating he was willing and able to testify in Cook County. (¶6.)||Three of four nurse witnesses live in Will County, with none living in Cook County. (¶11.)
Coroner, a Will County resident, performed autopsy in Will County. (¶42.)
|Practical Considerations||Cook County court close to law offices of counsel for both sides. (¶9.)
No indication that site visit would be helpful to jury. (¶¶22)
Cook County court close to law office of plaintiff and two defendants’ counsel. (¶40.)
Medical records located in Will County. (¶43.)
No out-of-state witnesses. (¶42.)
|Forum’s Interest||Favored Will County because accident occurred there, but Cook County had interest because Colfax was resident and regularly used Cook County roads. (¶10.)||Cook County has essentially no interest in the litigation, but Will County had a predominant connection to the facts of the case. (¶49.)|
|Docket Congestion||Cases go to trial two to three months quicker in Cook County. (¶10.)||There are almost ten times as many cases in Cook County courts, but cases go to trial faster in Cook County. (¶54.)|
Takeaways from Gross and Blake
Although the Fifth and Sixth Divisions arrived at different conclusions, their detailed analyses suggests that appellate courts are applying Fennell’s analysis of forum shopping by out-of-state plaintiffs to limit in-state plaintiffs’ ability to bring suits in Illinois forums where they have no significant connection. The three most important factors in the appellate courts’ analysis are (1) where the parties’ and witnesses’ connections to the forum, (2) where the conduct forming the basis of the lawsuit occurred, and (3) the forum’s interest in the lawsuit.
Gross’s Unanswered Question About Effect of Non-Joining Defendants
In Gross, plaintiff argued that because only three of eight defendants joined in the motion to transfer, the other five must not find Cook County to be an inconvenient forum. (¶39.) The appellate court discounted the argument because the trial court prevented one defendant from joining in the motion and three of the nonmoving defendants moved to join the appeal. (¶39.)
In multi-defendant mass-tort cases involving many defendants where each defendant files its own forum non conveniens motion or none at all, it probably doesn’t matter much whether any particular defendant files or joins in a motion. But it remains to be seen whether the decision of similarly situated defendants in a smaller case not to file or join in a forum non conveniens motion can be an important factor in trial courts’ analysis.