Asbestos attorneys William Kohlburn and Brad Elward acknowledged the issues surrounding forum and jurisdiction disputes in local asbestos litigation while discussing Missouri and Illinois appellate practices at the HarrisMartin Midwest Asbestos Conference.
Kohlburn of Simmons Hanly Conroy in Alton and Elward of Heyl Royster Voelker & Allen in Peoria provided tips for appellate practice in Illinois and Missouri at the conference on Sept. 23 at the Four Seasons Hotel in St. Louis.
Kohlburn started by talking about the Decker case against Union Pacific out of St. Clair County.
The case is a personal injury suit alleging Decker was injured when he fell, but the case addresses forum disputes. The defendant’s forum non conveniens motion was denied and upheld by the Fifth District Appellate Court.
Union Pacific recently filed a petition for further review, which is currently pending before the Illinois Supreme Court.
Kohlburn explained that witnesses and sources in the suit were scattered across several Illinois counties, but the suit had “case specific connections” to St. Clair County that were created by the defendant, and therefore maintained jurisdiction.
“When you have a case that has connections to a number of different forums, whether it be different states or different counties within Illinois and you want to select a particular forum, it isn’t enough that the case is spread across different forums,” he said. “You’re going to have a much better chance of keeping your case where you file it and resisting a forum motion if the forum you select is one where there is really a more case specific connection as opposed to a more general connection.”
Kohlburn also encouraged plaintiffs to defend their forum choice, even though “it is the defendant’s burden to demonstrate that the other forum is substantially more convenient to everyone involved.”
However, he said plaintiffs need to act as though they have the burden of proof to fight for their forum.
“If you are a plaintiff and want to hold your forum, you need to treat it that way,” he said.
Kohlburn and Elward explained that there are three types of interlocutory appeals - disputes over forum non conveniens, personal jurisdiction and change of venue – all of which involve issues on where the asbestos case is litigated.
Illinois permits each of those interlocutory appeals. In fact, Elward urged defendants to appeal early in the case rather than waiting until after trial to appeal, explaining that an appellate court won’t want to retry a case just for jurisdiction issues.
However, Missouri is less likely to grant interlocutory review.
Kohlburn said forum non conveniens appeals are “dead” in Missouri, while personal jurisdiction appeals “are very much alive.”
He explained that it is much easier to weigh a personal jurisdiction decision than a forum motion.
Aside from venue disputes, Kohlburn and Elward said jury instructions are also a common reason to appeal.
“You can wash away a lot of sins with good jury instructions. You can create a lot of problems with bad jury instructions,” Kohlburn said.
Regardless of a party’s reason for appealing, the two said the most important tip for litigating an appeal is to read the rule book.