Supreme Court denies request for rehearing in Fennell case

By Bethany Krajelis | May 29, 2013


If it were up to Illinois Supreme Court Chief Justice Thomas Kilbride, the state high court would rehear a St. Clair County asbestos case dealing with forum.

But, unfortunately for the out-of-state plaintiff in the case, Kilbride was the only justice on the state high court who thought so.

The Supreme Court last month denied Walter Fennell’s request for rehearing in his suit against Illinois Central Railroad Co.

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.

In December, the majority of the Supreme Court determined that Fennell’s suit should not be heard in St. Clair County because the “factors strongly favor dismissal in favor of a Mississippi forum.”

The court’s ruling, which Kilbride dissented from and Justice Robert Thomas did not participate in, reversed the decisions of St. Clair County Circuit Judge Lloyd Cueto and the Fifth District Appellate Court that denied Illinois Central’s forum non conveniens motion.

On behalf of the majority of the Supreme Court, Justice Charles Freeman wrote in December that Cueto “failed to recognize several private and public interest factors in its analysis … Accordingly, we remind our trial courts to include all of the relevant private and public interest factors in their analyses.”

Freeman explained in the court’s opinion that after balancing all of the relevant factors, “it is clear that those factors strongly favor dismissal in favor of a Mississippi forum.”

He also noted 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, which included 85 plaintiffs and was dismissed three years before he brought his suit in St. Clair County.

Kilbride, in his dissent to the court’s December opinion, argued that while Fennell’s residence and the site of the injury are not 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,” Kilbride wrote in his dissent. “The defendant, however, has not met its burden of showing those factors ‘strongly favor’ the Mississippi forum.”

In his dissent to the court’s April 18 denial of rehearing, Kilbride reaffirmed his previous dissent and said he would have allowed rehearing in order to address Fennell's arguments.

Fennell argued in his petition for rehearing that the Supreme Court opinion faulted the trial court for not considering several factors in its forum non conveniens analysis and as such, asked the court to remand the matter "for a more thorough decision considering all forum non conveniens factors," Kilbride wrote.

Remanding the matter to the trial court “for more detailed findings would be consistent with our precedent," Kilbride argued in his dissent to the denial of rehearing.

Explaining that a trial court’s decision can only be reversed if it abused its discretion in balancing the relevant factors, Kilbride wrote that this discretion can’t adequately be reviewed “when several of the forum non conveniens factors are not included in the analysis. The trial court did not exercise its discretion or balance those factors.”

Given these circumstances, Kilbride wrote that the Supreme Court should have remanded the matter to the trial court “for express findings on the omitted factors rather than the majority’s judgment that simply reverses the trial court’s decision.”

He added, “A remand to the trial court for findings on the omitted forum non conveniens factors would also be consistent with this court’s reminder to trial courts to include all factors in the analysis.”

In addition, Kilbride wrote that Fennell argued in his rehearing petition that the record doesn’t include a transcript of the trial court hearing, at which Cueto “may have made findings on some of the factors omitted from [his] written decision.”

“Defendant, as the appellant, has the burden of presenting a sufficiently complete record for review,” Kilbride wrote. “Any doubts arising from the incompleteness of the record must be resolved against the appellant.”

“Overall,” Kilbride wrote, “I believe plaintiff’s petition for rehearing presents important points not considered in this court’s opinion.”

Kenneth Halvachs, an attorney with Boyle Brasher in Belleville, represented Illinois Central in arguments before the Supreme Court and Chicago attorney J. Timothy Eaton represented Fennell.

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