Illinois Central argues Mississippi man forum 'shopped' St. Clair County asbestos case

By Bethany Krajelis | Sep 19, 2012

Eaton Plaintiff says witnesses and 'Alton documents' make St. Clair County convenient.



SPRINGFIELD - The attorney representing the defendant in a St. Clair County asbestos case urged the Illinois Supreme Court today to dismiss the suit, calling it a "classic case of forum shopping."

Kenneth Halvachs, an attorney with Boyle Brasher in Belleville, told the justices that Walter Fennell's lawsuit against his client, Illinois Central Railway Co., has no business being heard in St. Clair County.

To bolster support for his take on the doctrine of forum non conveniens, Halvachs stressed that Fennell is a lifelong resident of Mississippi who never specifically alleged that his asbestos-related injury occurred in St. Clair County.

J. Timothy Eaton, a Chicago attorney who argued on Fennell's behalf, told the justices today that Illinois Central has the burden of proving that St. Clair County would be an inconvenient forum and has failed to do so.

Fennell sued the railroad company in 2009, claiming that he developed respiratory problems as a result of being exposed to asbestos and other toxic substances during his career with Illinois Central.

In January, a split panel of the Fifth District Appellate Court affirmed St. Clair County Judge Lloyd Cueto's denial of Illinois Central's motion to dismiss.

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

One justice, however, dissented, saying that "it is difficult, if not impossible, to find any nexus to Illinois, let alone St. Clair County."

Eaton focused a large part of his argument in favor of a St. Clair County forum on the location of certain documents and witnesses.

He told the justices that one of the reasons why St. Clair County would be convenient for both sides is because the "Alton documents" are located there.

Dating back to the 1930s, Eaton said, these documents show that the railroad company was aware of the hazards related to asbestos decades ago.

And based on their old age, Eaton said the "Alton documents" are fragile and as such, should not be removed from St. Clair County. He also argued that copied documents would not have as much of an impact on jurors as originals would.

Halvachs said thanks to improved technology, the documents Eaton called fragile could easily be copied and sent electronically.

He also urged the justices not to buy Eaton's argument for a St. Clair County forum based on the fact his law office is located there.

This, Halvachs said, is not an important factor in the court's analysis of forum and could easily be manipulated.

If counsel's office location was the most important factor in a forum analysis, Halvachs told the court that "my firm could open up an office anywhere" it believes would be favorable to its clients and claim venue is appropriate because his firm has an office there.

In one of only a handful of questions posed by the justices during today's argument, Justice Ann Burke asked Halvachs about the railroad company's connection to Illinois.

He said the company has tracks that run through Illinois and an office in Homewood. The fact a company does business in Illinois, however, is not enough to satisfy forum requirements, he said.

In another question related to location, Justice Rita Garman asked Eaton whether his client's alleged exposure occurred in St. Clair County.

Eaton told Garman that while his client can't pinpoint the exact location of his exposure to asbestos and other harmful materials, it occurred during his career at Illinois Central.

And although Fennell lived in Mississippi, Eaton said Fennell's job took him to several of the railroad company's buildings and put him on trains that went through several states.

Regardless of that aspect, Eaton said St. Clair County is an appropriate forum for several reasons.

In addition to Illinois Central's attorney and the "Alton documents" being located there, Eaton told the justices that two important witnesses are located closer to St. Clair County than to Mississippi.

One, he said, lives in Chicago and the other is based in Tennessee.

Arguing in favor of a Mississippi forum, Halvachs told the court that there are at least a dozen potential witnesses that live in or near Mississippi.

These witnesses are also important, he said, saying they include Fennell's medical providers, family members and former colleagues.

Eaton, however, claimed that Fennell relied on interrogatories of a similar suit he brought in Mississippi when making note of potential witnesses in this case.

He said Fennell wrote in his petition for leave to appeal to the Supreme Court that both sides planned to call some of these Mississippi witnesses at trial.

"It's made up," Eaton told the justices, saying he never said he planned to call these potential witnesses.

Garman then asked Eaton if the court should consider Fennell's Mississippi lawsuit in its analysis.

Fennell was one of 85 plaintiffs in a Mississippi suit, which was brought in 2002 and dismissed in 2006. All of the plaintiffs in that suit lived in Mississippi or Louisiana and were current or former employees of the railroad company.

Eaton said that Fennell's Mississippi case is not significant to his St. Clair County suit, noting that while he was one of 85 plaintiffs in Mississippi, he filed his Illinois suit alone. He also said the record shows the Mississippi suit was dismissed without prejudice.

Halvachs, however, said the fact Fennell filed a suit in St. Clair County after a Mississippi court dismissed a similar suit there shows he was forum shopping.

As the Supreme Court has recognized in past cases, Halvachs said, forum shopping "should not be condoned."

He also told the justices that allowing the case to proceed in St. Clair County would force Illinois taxpayers to incur the costs related to the case of Mississippi residents and would prevent jurors from viewing the railroad company's premises, if the need arose during trial.

Eaton told the justices he couldn't foresee the need for jurors to view the company's premises.

Fennell's case, which garnered amicus briefs from both the plaintiffs and defense bars, marked the last argument of the day for the justices.

They are set to hear arguments in three cases on Thursday before bringing the court's September term to a close on Friday.

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