Attorney says Fennell decision is a 'wakeup call'

By Bethany Krajelis | Jan 3, 2013


When the Illinois Supreme Court agreed to review a St. Clair County case on forum non conveniens, bar groups hurried to submit friend-of-the-court briefs and asbestos attorneys started waiting for a ruling.

The wait came to an end late last month, when the court handed down its decision in Walter Fennell v. Illinois Central Railroad Co. and determined that St. Clair County was not the most convenient forum for a Mississippi man’s asbestos suit.

Several area asbestos attorneys say that while the ruling provides practitioners and judges with more guidance on forum non conveniens law, it is unclear how, or if, it will change the way asbestos litigation is handled in Madison and St. Clair counties.

“Only time will tell what the courts will do and how they will interpret this,” said Brad Elward, an attorney at Heyl Royster in Peoria.

Elward wrote the amicus brief in the Fennell case for the Illinois Association of Defense Trial Counsel, which urged the court to create some consistency and uniformity on forum non conveniens analyses in Illinois.

“I think the ruling is positive,” he said, explaining that while the court didn’t create a bright-line approach to forum analyses, it did clearly lay out the factors courts should consider.

Delivered by Justice Charles Freeman, the court, in its 5-1 ruling, reminded trial judges “to include all of the relevant private and public interest factors in their analyses” of forum non conveniens motions.

That statement, as well as the majority’s decision to give plaintiff Walter Fennell less deference in his choice of forum, makes it clear that judges shouldn’t emphasize one factor more than another in their analyses, Elward said.

Fennell, a Mississippi resident, 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 brought the suit in St. Clair County three years after a Mississippi court dismissed a similar suit in which he was named one of 85 plaintiffs.

St. Clair County Circuit Judge Lloyd Cueto denied Illinois Central’s forum motion, noting 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.

Freeman wrote for the majority of the Supreme Court that, “Without belaboring the point, the circuit court failed to recognize several private and public interest factors in its analysis.”

Chicago attorney J. Timothy Eaton, who argued on Fennell’s behalf before the court in September, said that the Dec. 28 opinion was directed solely to the facts of this case.

“I do not think this changes forum non conveniens analysis in Illinois,” Eaton said of the ruling, pointing to a part of the opinion in which the court stressed that “each forum non conveniens case is unique and must be considered on its own facts.”

St. Louis attorney Kurt Reeg said while the majority ruling in Fennell does not set a bright-line approach to forum analysis; it should be considered “a wakeup call for all of the courts, including Madison County, about the proper use of forum non conveniens.”

He said he believes one of the most important lines from the entire opinion is the one reminding judges to consider all of the relevant factors.

The court, he said, basically told judges that they shouldn’t give certain factors more weight than others. Instead, he said, they should “apply all public and private interest factors and let the chips fall where they are going to fall.”

Reeg said while trial lawyers might downplay the significance of the court’s ruling, he believes it’s an important decision that provides a “helpful explanation of what the existing law is” and represents “a strong signal from the Illinois Supreme Court that they are serious about implementing the doctrine of forum non conveniens.”

Although it’s too soon to say how the ruling will play out, Reeg said it’s already been brought up in Madison County Associate Judge Clarence Harrison’s courtroom.

He said a colleague from his firm attended an asbestos motion docket this week, during which time Harrison mentioned the forum ruling and told attorneys that citations regarding forum non conveniens now need to be updated.

Kent Plotner and Lisa LaConte, attorneys at Heyl, Royster in Edwardsville, said in a written statement that the Fennell decision is significant for a handful of reasons.

One of the reasons, they said, is because the case involved an out-of-state plaintiff with alleged asbestos exposure that occurred outside of Illinois.

“Like Fennell, the vast majority of the asbestos cases in Madison County have no connection to the county or the state of Illinois,” they said.

The duo also said that the ruling is important because it makes it clear that “special emphasis can't be placed on any single factor as a reason for denying a dismissal” and requires that if the totality of the circumstances strongly favor a dismissal, the motion should be granted.

Although the ruling provides a lot of guidance, Plotner said parties will continue to fight over forum non conveniens and that the Fennell opinion “obviously, is not the last decision on forum that will come down.”

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