Madison - St. Clair Record

Wednesday, October 23, 2019

Fifth District affirms Mudge's ruling denying transfer in legal malpractice suit

Attorneys & Judges

By Heather Isringhausen Gvillo | Aug 8, 2019

MOUNT VERNON – The Fifth District Appellate Court affirmed Madison County Chief Judge William Mudge’s order denying transfer in a legal malpractice suit alleging a medical malpractice case was negligently voluntarily dismissed. 

Justice Judy Cates delivered the Aug. 5 opinion with justices David Overstreet and James “Randy” Moore concurring. 

The appellate court held that Mudge did not abuse his discretion when he denied John J. Hopkins and his former law firm’s motion to transfer the underlying case to Effingham County under the doctrine of intrastate forum non conveniens


Rebecca Kujawa, as special administrator of the estate of John Kujawa, filed the legal malpractice complaint against Hopkins and John J. Hopkins & Associates PC in Madison County Circuit Court. Hopkins is currently employed by the asbestos plaintiff firm Gori Julian. 

“The action arose from the defendants’ decisions to voluntarily dismiss the plaintiff’s medical negligence action in state court and refile it in federal court, where it was then dismissed for lack of jurisdiction. Because a plaintiff is permitted to refile a cause of action only one time after taking a voluntary dismissal, the underlying medical negligence action could be recommenced,” Cates wrote. 

John Kujawa underwent knee replacement surgery at St. Anthony’s Memorial Hospital in Effingham in December 2012. The surgery was performed by Dr. Peter Bonutti, and postoperative care was provided by Dr. Jeffrey Jenson. 

John Kujawa was discharged from the hospital on Dec. 8, 2012, and was allowed to return to home with his wife, Rebecca Kujawa, in Ashley, Ill. The decedent was given a prescription for anticoagulant medication because of the risk of blood clots associated with joint replacement surgeries.

Within 10 to 12 hours after being discharged, John Kujawa developed a pulmonary embolism. He died as a result of his injuries. 

Hopkins represented Rebecca Kujawa in a potential medical negligence action against the hospital and Jenson. 

On Nov. 17, 2014, Hopkins filed a medical negligence action in the circuit court of Effingham County on behalf of the estate of John Kujawa. The suit alleged that Jenson failed to recognize that the decedent’s international normalized ratio rate for blood clotting was at a subtherapeutic level and failed to give appropriate medication to get them to an appropriate level. 

After filing the complaint, Hopkins learned that Rebecca Kujawa moved from Illinois to Tennessee. In February 2015, he voluntarily dismissed the case. He refiled the lawsuit on March 2, 2015, in the U.S. District Court for the Southern District of Illinois. 

The federal case was dismissed for lack of diversity jurisdiction on April 7, 2015. 

Hopkins refiled the complaint in Effingham County on April 23, 2015, which was dismissed with prejudice because the plaintiff was only entitled to a single refiling of her complaint after voluntary dismissal. 

Rebecca Kujawa responded by filing a legal malpractice suit against Hopkins in Madison County Circuit Court. 

In their answer to the complaint, the defendants admitted that their conduct fell below the applicable standard of care. However, they denied that a jury in Effingham County would have found either St. Anthony’s Hospital or Dr. Jenson liable in the underlying medical malpractice lawsuit.

Hopkins moved to transfer the complaint to Effingham County or Washington County on grounds of intrastate forum non conveniens

“The defendants claimed that Effingham County was a more convenient forum for the trial of the legal malpractice case because the primary contested issue was whether Dr. Jenson and St. Anthony’s Hospital committed medical negligence while treating the decedent in Effingham County,” the opinion states.

Mudge denied Hopkins’ motion to transfer. 

Hopkins appealed, arguing that Mudge abused his discretion in denying the request to transfer.

The appellate court affirmed Mudge’s ruling.

Cates wrote that “Hopkins and his law firm are residents of Madison County, and so this case is properly venued in Madison County.

“The drafting of pleadings, the legal strategies, and the decisions to voluntarily dismiss the underlying medical negligence action in state court and refile it in federal court occurred at defendants’ offices in Madison County.”

“Accordingly, we find that the plaintiff’s choice of forum should be accorded substantial deference and that the trial court’s application of ‘less deference’ was incorrect. Thus, the battle over forum begins with the plaintiff’s choice of forum in the lead,” she added.

The appellate court further held that Rebecca Kujawa must have chosen a forum that is convenient to her regardless of it being outside of her residence.

“The defendants may not prevail by asserting that a trial in the plaintiff’s chosen forum is inconvenient to the plaintiff,” Cates wrote. 

As for the convenience of witnesses and documentary evidence, the appellate court held that “a court may not presume inconvenience.”

“Further, we do not find that inconvenience is measured solely in mileage,” Cates wrote. 

She added that the witnesses’ schedules will be interrupted whether the case proceeds in Effingham County or Madison County. 

The appellate court also held that both Madison County and Effingham County have some interest in the case, meaning transfer is not strongly favored. 

“The trial court balanced the private and public interest factors and evaluated the totality of the circumstances,” Cates wrote. “The court concluded that the defendants failed to meet their burden to show that the balance of public or private interest factors strongly favored a transfer of the case to Effingham County. After reviewing the record, we find that the trial court did not abuse its discretion in denying the defendants’ motion to transfer based on intrastate forum non conveniens grounds.” 

The ruling did not deal with the defendant's contention that the trial court ignored its argument regarding the inequity of having a Madison County jury judge an Effingham County medical malpractice case. An appeal to the Illinois Supreme Court is likely.

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