MADISON - ST. CLAIR RECORD

A Mississippi man’s asbestos lawsuit should not be heard in St. Clair County, the Illinois Supreme Court held Friday.

Saying that “factors strongly favor dismissal in favor of a Mississippi forum,” the state high court, in a 5-1 ruling with one justice not participating, reversed the lower courts’ decision that denied Illinois Central Railroad Co.’s forum non conveniens motion.

Walter Fennell sued the railroad company in 2009, claiming he developed respiratory problems after being exposed to asbestos and other toxic substances during his career with Illinois Central.  He was one of 85 plaintiffs in a similar suit that was brought in Mississippi and dismissed three years earlier.

In denying Illinois Central’s forum motion, St. Clair County Circuit Judge Lloyd Cueto noted that the location of certain evidence, as well as the area’s interest in asbestos and a relatively open trial docket, made St. Clair County a convenient forum.

“Without belaboring the point, the circuit court failed to recognize several private and public interest factors in its analysis,” Justice Charles Freeman wrote for the court. “Accordingly, we remind our trial courts to include all of the relevant private and public interest factors in their analyses.”

Justices Rita Garman, Lloyd Karmeier, Ann Burke and Mary Jane Theis made up the majority of the court. Chief Justice Thomas Kilbride dissented and Justice Robert Thomas did not participate in the decision.

Pointing to Gulf Oil Corp. v. Gilbert, Freeman wrote that some of the private interest factors courts should consider in a forum analysis include the convenience of the parties, ease of access to evidence, availability to secure attendance of witnesses and the possibility of viewing the premises, among others.

Relevant public interest factors, he added, include “administrative difficulties caused when litigation is handled in congested venues instead of being handled in its origin; the unfairness of imposing jury duty on residents of a community with no connection to the litigation; and the interest in having local controversies decided locally.”

Freeman said an additional consideration in a forum analysis is deference to the plaintiff’s choice of forum, as well as the general idea that courts don’t favor forum shopping.

“Although these controlling legal principles are generally recognized, each forum non conveniens case is unique and must be considered on its own facts,” Freeman wrote in the opinion.

During oral arguments before the Supreme Court in September, attorneys representing Illinois Central urged the justices to reverse the lower courts in favor of a Mississippi forum, emphasizing that Fennell lived in that state and never alleged that his injury occurred in St. Clair County.

Saying that St. Clair County is a more convenient forum, Fennell’s attorneys focused their argument on “voluminous evidence” stored at the defendant’s law firm in Belleville and the location of certain witnesses.

Freeman wrote for the majority that, “[W]e recognize that the location of documents, records and photographs has become a less significant  factor in forum non conveniens analysis in the modern age of Internet, email, telefax, copying  machines, and  world-wide  delivery  services, since those items can now be easily copied and sent.”

“We conclude that the ease of accessing these documents does not outweigh the substantial inconvenience of requiring distant witnesses to travel to Illinois,” he added.

In addition, Freeman wrote that the only connection Fennell’s lawsuit has to Illinois is that the parties’ attorneys have offices in St. Clair County and that certain documents are located and one plaintiff’s expert witness is also located there.

“This does not provide a significant factual connection with the instant case to justify imposition of the burdens of the litigation upon the citizens and court system of St. Clair County and Illinois,” he wrote.

After balancing all of the relevant factors and “granting far less deference to plaintiff’s chosen Illinois forum,” Freeman said “it is clear that those factors strongly favor dismissal in favor of a Mississippi forum.”

He explained that the deference of Fennell’s choice of a St. Clair County forum “is significantly lessened” because Illinois was his second choice of a forum following his unsuccessful suit in Mississippi.

Kilbride, however, wrote in his dissent that “Although the plaintiff’s residence and the site of the injury are not located in Illinois, his choice of forum is, nevertheless, still entitled to deference.”

“After reviewing the relevant private and public interest factors, I believe they are fairly evenly balanced. At most, they may slightly favor trial in Mississippi,” he wrote. “The defendant, however, has not met its burden of showing those factors ‘strongly favor’ the Mississippi forum.”

Kenneth Halvachs, an attorney with Boyle Brasher in Belleville, represented Illinois Central in arguments before the court. He did not immediately return a message seeking comment.

Chicago attorney J. Timothy Eaton argued on Fennell’s behalf. He said he was disappointed with the ruling and not sure yet whether his client would further petition the state high court.

"I believe the court was influenced by the fact this was the plaintiff's second choice of forum," he said, referring to the dismissed Mississippi suit.

Saying the opinion was directed solely to the facts of this case, Eaton said "I do not think this changes forum non conveniens analysis in Illinois."

The Illinois Association of Defense Trial Counsel had urged the court in a friend-of-the-court brief to provide some guidance "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 advocated against adopting a bright-line rule in its own brief to the court, saying there is already a multi-factor test in place to analyze forum non conveniens.