Appellate court overrules Stack in asbestos forum; Says plaintiff should sue in Michigan not Madison County

Steve Korris Sep. 23, 2010, 6:25am



MOUNT VERNON – Madison County Circuit Judge Daniel Stack kept a mesothelioma suit that belonged in Michigan, Fifth District appeals judges ruled on Sept. 21.

Two of three judges directed Stack to grant a motion from CSX Transportation and 34 other defendants for a more convenient forum.

Justice James Wexstten wrote that "residents of Illinois should not be burdened with jury duty given the fact that the action did not arise in, and has no relation to, their state."

"The record strongly indicates that a trial in Michigan would better serve the convenience of the parties and the ends of justice," he wrote.

Claudious Laverty of Texas filed the suit in 2007, individually and as administrator of the estate of late husband Thomas Laverty.

Thomas resided in Texas when he died, after living in Ohio and Michigan.

He worked for Chesapeake and Ohio Railroad, which merged with Seaboard Coast Line in 1980 to form CSX.

His widow's lawyer, Michael Bilbrey of Edwardsville, argued that the suit caused no inconvenience because CSX maintained offices and trackage rights in Illinois.

Stack agreed, but CSX prevailed at the Fifth District.

Wexstten found the railroad's presence in Illinois sufficient to fix venue but not significant in determining convenience.

"Neither the plaintiff nor Thomas ever resided in Illinois," Wexstten wrote.

"The plaintiff conceded that no witness is located in Illinois.

"The plaintiff also concedes that Thomas was exposed to asbestos in Saginaw, Michigan, and that co-worker and medical provider witnesses are located in Michigan."

He wrote that jurors might have to view the injury site.

"It would be irrational for a jury composed of Madison County, Illinois, residents to travel outside of Illinois to view the injury site," Wexstten wrote.

He wrote that on appeal, Laverty suggested she might identify an expert witness in Illinois.

He wrote that "a plan to employ an expert witness located in a desired forum should be given little, if any, consideration in a forum non conveniens analysis, since the plaintiff would thus be able to circumvent the doctrine to select an inconvenient forum."

He supplied statistics showing Madison County's docket carried 15,709 pending civil cases in 2007, while Saginaw County's docket carried 780.

Population doesn't explain the discrepancy, for Saginaw County has about three residents for every four in Madison County.

"The courts have a responsibility to protect finite judicial resources and the efficient functioning of their judicial systems so that they are not impended by nonresident litigation to the extent that their availability to local citizens is diminished," Wexstten wrote.

Justice Thomas Welch concurred, and Justice Richard Goldenhersh dissented.

Goldenhersh wrote that CSX didn't meet its burden to show an alternative forum was more convenient than the one the plaintiff chose.

Kurt Reitz, Erick VanDorn and Heath Hooks, all of Thompson Coburn in Belleville, represented CSX.

Robert Ramsey represented Laverty along with Bilbrey.

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