Supreme Court sets docket for September term; Arguments over St. Clair forum case slated

Bethany Krajelis Sep. 5, 2012, 2:00am



The Illinois Supreme Court will hear arguments this month in a St. Clair County asbestos case over forum.

The state high court on Tuesday posted online its schedule for the upcoming term, which will begin Monday behind closed doors. The justices are slated to hear arguments in 24 cases over a two-week period that starts Sept. 11 and ends Sept. 20.

On Sept. 19, the court will hear arguments in Walter Fennell v. Illinois Central Railroad Co., the only Fifth District case set to be argued this month and one that deals with the long-debated doctrine of forum non conveniens.

During the first week of their September court term, the justices will hear arguments in eight criminal cases, a consolidated matter over detention, a juvenile case, a legal malpractice complaint and a writ of mandamus request from the Rock Island state's attorney.

Besides the Fennell case, the justices will arguments in their second week of term over a variety of issues ranging from waivers to the attorney-client privilege to immunity under the state's Farm Nuisance Suit Act.

The justices will also take up cases this month dealing with class certification in a suit over the city of Chicago's procedure for issuing violations to taxi cab drivers and the constitutionality of two state laws.

One of the laws being challenged governs the state's system for education funding and the other, which has not been enforced due to pending litigation, would require physicians to notify parents when minors seek abortions.

But when it comes to cases of interest for asbestos attorneys in St. Clair and Madison counties, the Fennell case is the one to watch.

At issue in the case is whether St. Clair County Judge Lloyd Cueto erred in denying Illinois Central's motion to dismiss for forum after determining the railroad company failed to show that factors favored a Mississippi forum.

Given the importance that forum plays in asbestos cases, the Illinois Association of Defense Trial Counsel (IDC) and the Illinois Trial Lawyers' Association (ITLA), as well as a group of asbestos defendant companies, each submitted an amicus curiae brief on the issue.

The defense bar contends in its brief that the Fennell case provides the justices the opportunity to offer much needed guidance on forum while the trial lawyers' group asserts that a bright-line approach to analyzing forum is not needed.

Fennell background

In 2009, Walter Fennell filed a lawsuit in St. Clair County Circuit Court against Illinois Central Railroad Co., claiming he developed respiratory problems as a result of being exposed to asbestos and other toxic substances during his career with the defendant.

Fennell, a Mississippi resident, brought a similar suit in his home state in 2002 along with 84 other plaintiffs who lived in Mississippi or Louisiana and were current or former employees of Illinois Central.

The trial court there granted the defendant's motion to dismiss in 2006. Fennell then brought his suit, which includes claims under the Federal Employers' Liability and the Locomotive Boiler Inspection acts, to St. Clair County.

Illinois Central filed a motion to dismiss on the basis of interstate forum non conveniens, arguing that Mississippi would be the most convenient forum for the parties because Fennell, several potential witnesses and defendant's representatives lived or were based in Mississippi.

The company also noted that Fennell did not allege that his injury occurred in St. Clair County or anywhere else in Illinois.

In support of a St. Clair County forum, Fennell pointed out that the defendant was represented by Boyle Brasher, a Belleville law firm that had collected a voluminous amount of evidence in the course of representing it in similar litigation in Illinois, Mississippi, Louisiana and Tennessee.

Cueto agreed with Fennell and denied Illinois Central's motion to dismiss.

According to the Fifth District Appellate Court ruling, Cueto determined that St. Clair County would be a convenient forum because "almost 80 years of relevant evidence" is located "just five miles from the St. Clair County Courthouse."

He also wrote in his order that "St. Clair County no longer has congested trial dockets. In fact, there are so few trials that as a matter of policy in Courtroom 404 if the attorneys agree on a jury week they get it. Guaranteed!"

In January, a split panel of the Fifth District Appellate Court affirmed Cueto's denial of the defendant's motion to dismiss.

The majority of the panel held that Fennell's case did not present "the type of inherently local controversy that must be resolved in either Mississippi or Illinois."

Justice Thomas Welch, however, dissented from the majority opinion of Justices James Donovan and Melissa Chapman.

Saying that the panel should have followed its 2010 forum decision in Laverty v. CSX Transportation, Welch wrote in his dissent that "it is difficult, if not impossible, to find any nexus to Illinois, let alone to St. Clair County."

Appellate court documents show that Belleville attorney William P. Gavin and Chicago attorney Tim Eaton represent Fennell and Michael C. Hermann and Thomas R. Peters, along with their colleagues at Boyle Brasher LLC in Belleville, represent Illinois Central.

Friend of the court briefs

The IDC said in its amicus curiae brief that Welch's dissent correctly observed that the majority decision in Fennell conflicts with past forum decisions of the Fifth District, as well as the Supreme Court.

The bar group contends that the state high court needs to reverse the lower courts "in order to preserve the consistency and uniformity of Illinois jurisprudence concerning forum non conveniens law."

The lower courts, the IDC contends, failed to see the issue presented in a broader sense.

"Here, the true issue question is what nexus exists between this litigation involving a non-resident and an alleged Mississippi exposure and Illinois," the IDC asserts in its brief. "One is left asking, why is this case, or any similarly situated case, allowed to proceed in Illinois? With today's limited financial and judicial resources, that question rings even louder."

ITLA, however, argues in its amicus brief that a bright-line approach to analyzing forum non conveniens when a plaintiff is an out-of-state resident with exposure that occurred outside of Illinois is not needed because a multi-factor test to do so is already in place.

ITLA contends that the forum appeal in this case "has little to do with true inconvenience and more to do with defendant jockeying for a favorable forum. More precisely, defense amici are jockeying for a ruling that will substantively change the venue rule in Illinois under the guise of forum non conveniens."

By asking the court to look at the forum issue in a broader sense, ITLA claims that IDC requests "a bright-line rule that is contrary to the entire body of forum non conveniens jurisprudence."

"The other asbestos defendants claim there is a litigation crisis that favors dismissal," ITLA states in its amicus brief. "They then paint an unsupported picture of litigation gloom and financial doom that screams out for a broad forum non conveniens pronouncement against asbestos cases that is contrary to years of forum non conveniens case law."

ITLA further contends that, "By creating the bogey man of a litigation crisis defense amici try to frighten this Court into taking a short-cut analysis around the multi-factor test."

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