Bar groups weigh in on forum issue before Illinois Supreme Court

By Bethany Krajelis | Aug 2, 2012



The statewide bar groups for plaintiffs and defense lawyers have offered the Illinois Supreme Court their two cents on forum non conveniens, a long-debated doctrine that sits at the crux of a St. Clair County case currently pending before the high court.

The justices in May agreed to take another look at Walter Fennell v. Illinois Central Railroad Co., but have yet to set the case for oral arguments. The docket for the court's September term will likely be released within the next few weeks.

Given the possibility that a ruling in Fennell could provide statewide guidance on forum, the Illinois Trial Lawyers Association and the Illinois Association of Defense Trial Counsel, as well as a group of asbestos defendant companies, submitted amicus curiae briefs in the case.

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 dismissal in favor a Mississippi forum.

In 2009, Walter Fennell filed a lawsuit in St. Clair County Circuit Court, 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, spurring Fennell to bring his case to St. Clair County. His suit includes claims under the Federal Employers' Liability Act and the Locomotive Boiler Inspection Act.

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. It 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 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!"

St. Clair County's asbestos docket was nearly dormant until 2010. From 2004 to 2007, there were about 60 asbestos cases filed there, compared to more than 1,200 in Madison County during the same time period.

One case was filed in 2007 and none were filed in 2008, but by the end of 2010, the number of filings jumped to 66, according to records from the St. Clair County Circuit Clerk's Office. Filings fell to 31 last year and records show that 23 asbestos cases have been filed in St. Clair County as of July 9.

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

The Illinois Association of Trial Defense Counsel (IDC) said the dissent in Fennell correctly observed that the majority decision 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 IDTC asserts in its friend-of-the-court 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."

The IDC states in its brief to the Supreme Court that "there is a strong need for guidance from this Court as to the appropriate factors for the forum non conveniens analysis and the weight to be afforded to these factors."

The Illinois Trial Lawyers Association (ITLA), however, argues 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 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."

If the court followed through with IDC's request by implementing a bright-line test that only allows plaintiffs to file claims in the place where their injury occurred, ITLA claims that "the forum non conveniens analysis will be turned on its head."

ITLA also used its brief to address "certain accusations leveled by defense amici against Southern Illinois judiciary."

"Amici have cited certain 'studies' that purport to show that Madison County is a jurisdiction where the courts do not respect Defendants' rights," ITLA states. "These scandalous allegations have no place in papers filed in the Supreme Court of Illinois."

The Clifford Law Offices in Chicago submitted the amicus brief on ITLA's behalf and Heyl, Royster, Voelker & Allen in Peoria wrote IDC's brief.

Court documents show that Belleville attorney William P. Gavin and Chicago attorney Tim Eaton represent Fennell.

Michael C. Hermann and Thomas R. Peters, along with some of their colleagues at Boyle Brasher LLC in Belleville, represent Illinois Central.

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Organizations in this Story

Boyle Brasher Heyl Royster Illinois Supreme Court Illinois Trial Lawyers Association

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