Fifth District upholds O'Malley in forum decision; Spomer says he hopes for law eradicating forum shopping

Ann Maher May 3, 2012, 6:29am



An appellate court judge says he would favor law eradicating forum shopping by limiting venue to the county or counties where the action takes place.

Fifth District Appellate Justice Stephen Spomer wrote a special concurrence to a May 1 decision that affirmed former St. Clair County Circuit Judge Michael O'Malley's ruling that kept a Jackson County plaintiff's class action complaint in St. Clair County.

Spomer agreed that O'Malley did not err as a matter of law in denying Abbott Laboratories' motion to transfer the case - involving allegations of fraudulent billing practices - to Lake County where it is headquartered. And, he agreed that O'Malley did not abuse his discretion in denying Abbott's motion.

But Spomer disagreed with Justices Richard Goldenhersh, who authored the opinion, and Bruce Stewart, that St. Clair County has a local interest in the Jackson County plaintiff's case.

Spomer wrote that he would analyze all private and public interest factors that must be considered in a forum non conveniens decision and focus his analysis differently.

"I would note that my concurrence is necessarily mandated by the current State of Illinois law governing venue and forum non conveniens–a body of law that does not lend itself to uniform application and promotes long and costly litigation processes, as is illustrated by the procedural history of the case at bar," Spomer wrote.

The case involves the estate of Elizabeth Elaine Rath, which claimed in the 2004 lawsuit that Rath, a disabled adult, individually was defrauded by the defendant's billing practices relative to her purchase of enteral feeding equipment and supplies.

Enteral nutrition products are for health care patients who are unable to ingest meals through normal eating.

According to background information in the opinion, Rath filed her claims based upon a federal investigation, "Operation Headwaters," which began in 1999 in the Southern District of Illinois.

In 2003, Abbott, on behalf of Ross Products (a division of Abbott that sells enteral nutrition products) settled claims with the feds. Ross agreed to pay the U.S. $382,408,087 and reimburse relevant state Medicaid programs $17,591,913.

Ross admitted to providing infusion pumps to suppliers who agreed to buy a set amount of entire pump sets. Ross admitted to telling suppliers that they could bill Medicare for pump sets as well as infusion pumps. The settlement agreement states that Ross gave monetary incentives and discounts to suppliers that signed written contracts, calling the incentives "signing bonuses."

In the case at hand, O'Malley denied defendant's motion to transfer in January 2010.

Abbott filed leave to appeal, which the Fifth District denied in April 2010. Subsequently, the Illinois Supreme Court entered a supervisory order directing the Fifth District to vacate its order of April 8, 2010, and allow Abbott's petition for interlocutory appeal.

Goldenhersh concluded that St. Clair County "has an interest in having a local controversy decided locally."

"The circuit court pointedly stated that this is the site of the underlying investigation. Defendant contends that the alleged conduct of defendant that was part of the Operation Headwaters investigation is not the primary factual issue in plaintiff's case," Goldenhersh wrote.

"This does not diminish the local origin of the controversy. Regardless of which facts are likely to be disputed at trial, the genesis of plaintiff's complaints in the investigation makes this a local controversy for St. Clair County."

Spomer concluded by stating, "My hope for the future is that an amendment to current law would limit venue to the county or counties where the accident or transaction giving rise to the cause of action occurred, which would eradicate the practice of forum-shopping and eliminate the need for costly forum non conveniens litigation completely.

"However, under current law, in a case such as this, where the plaintiff chooses a forum closer to the county of her residence, and the county where her cause of action arose, than the defendant's choice, I cannot find an abuse of discretion in the circuit court's refusal to transfer."

O'Malley retired in July 2010 and entered private practice as a pharmaceutical plaintiff's attorney.

W. Jason Rankin and Larry Hepler of HeplerBroom in Edwardsville represented Abbott.

The estate was represented by attorneys at Aschemann Keller LLC in Marion, Robert Sprague of Belleville, and others.

St. Clair County case number 04-L-44

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