Norfolk Southern Railway is asking Madison County Circuit Judge Nicholas Byron to dismiss a Federal Employers' Liability Act (FELA) complaint based on forum non conveniens.
The railroad argues that Michigan --where plaintiff Jeff Kelly lives, or Indiana -- where the plaintiff is employed, are more appropriate forums.
Norfolk also argues that a case Kelly previously filed was dismissed by a Cook County judge pursuant to forum non conveniens.
Instead of re-filing the case in Indiana or Michigan, Kelly re-filed an almost identical complaint under FELA in Madison County on Jan. 25.
Kelly alleges 32 years of fixing railroad tracks have subjected him to repetitive stress injuries.
Kelly claims Norfolk failed to provide him a reasonably safe place to work, failed to provide safe methods of work, failed to provide sufficient manpower and failed to provide him safe tools and equipment.
He claims those alleged negligent acts caused him to sustain severe and permanent injuries to his right and left knees which cause him to suffer great pain and mental anguish, lose wages and incur medical expenses.
But Norfolk argues that Kelly's claim is barred because the doctrine of forum non conveniens precludes a plaintiff from re-filing in the state of Illinois if a claim was previously dismissed, rather than transferred on forum grounds.
"The Third District held that to allow such re-filing would be counter to the fundamental fairness and effective judicial administration that the doctrine is meant to protect," Norfolk's motion states.
Norfolk argues that it is still a fact that Indiana or Michigan have the most significant factual connections with this litigation, therefore a trial in Indiana or Michigan would better serve the ends of justice.
According to Norfolk, Kelly has resided in Cassopolis Mich., since 1982 and has been headquartered in Indiana throughout his employment.
Norfolk also argues that all of the known potential witnesses either live in Indiana or Michigan and there are none in Madison County or Illinois.
The railroad also argues that Kelly received all of his medical treatment in Indiana or Michigan and that all private and public interests weigh strongly in favor of litigating the case in Indiana or Michigan rather than Madison County, since Madison County has no significant connection to the subject matter of the case.
Citing the Fifth District decision in McGinty v. Norfolk Southern, Norfolk argues that Kelly's argument that he occasionally worked in Madison County is insufficient to defeat the motion to dismiss for forum non conveniens.
Norfolk claims that if this case were allowed to continue in Madison County, its Illinois counsel would have to travel to Indiana to conduct a substantial amount of discovery depositions of fact witnesses, doctors and site inspections which would cause them to incur unnecessary additional legal expenses.
In addition, Norfolk argues that it would be inconvenient to replace any employee/witnesses who may be required to travel to Madison County for the trial.
The railroad also claims it would be inconvenient to transport witnesses to Edwardsville for a trial and also pay their wages and expenses for the duration of the time spent at trial.
Norfolk is represented by Kurt Reitz and Matthew Grossman of Thompson Coburn in Belleville.
Kelly is represented by David Jones of Pratt & Tobin in East Alton.
He is seeking at least $100,000 in damages, plus costs of the suit.
Byron has yet to set the motion for a hearing.
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