MOUNT VERNON - Fifth District appellate judges ordered St. Clair County Circuit Judge Kevin Hoerner to transfer a suit against Walgreen Company to Christian County.
On Nov. 27, Justice Amy Sholar wrote, “The record demonstrates that a trial in Christian County would better serve the ends of justice as well as the convenience of the parties.”
Justices Barry Vaughan and Mark Boie concurred.
Hoerner ruled in February that public and private interests favored St. Clair County but the justices found public and private interests favored Christian County.
They rejected Hoerner’s statement that the case involved issues beyond local controversy, finding it contrary to allegations of plaintiff Theresa Smith.
“Nothing in the record indicates a systematic problem at Walgreen locations,” Sholar wrote.
She found Smith alleged that a Walgreen pharmacist in Christian County overrode a system for certain situations and failed to call a physician.
The justices spotted other errors in Hoerner’s order such as giving weight to the location of a doctor he had dismissed from the case three weeks earlier.
The case concerns the death of Christian County resident John Brumley.
His online obituary states he was born at Alton in 1976, he had family in Wood River and East Alton, and he died in 2021 at a Springfield hospital.
A Christian County judge appointed Smith to administer his estate.
Her counsel Keith Short of Alton sued Walgreen in St. Clair County circuit court last year along with physician Barbara Green, BJC Health, and Physician Groups, all of Missouri.
He claimed Walgreen improperly filled an oral prednisone prescription Green ordered.
Green, BJC and Physician Groups moved to dismiss for lack of personal jurisdiction.
Walgreen moved for transfer to Christian County as a more convenient forum, claiming the conduct in the complaint didn’t take place in St. Clair County.
John Cunningham of Brown and James in Belleville and David Ellington of the firm in St. Louis represent Walgreen
Walgreen argued Smith’s choice deserved less deference because she didn’t live there.
Short responded for Smith that St. Clair County was more convenient to all parties.
He stated Smith resided in Madison County with Brumley’s disabled adult daughter.
He claimed evidence would likely be in the form of medical records and corporate documents in addition to testimony, and this factor weighed in favor of St. Clair County.
He claimed witnesses who travel to testify would benefit from the proximity of St. Clair County to Lambert St. Louis Airport.
He claimed public interest factors weighed in favor of St. Clair County because the issue at the heart of the case was one of national import.
He claimed St. Clair County had greater interest because it had four times as many Walgreen stores as Christian County.
He claimed the burden and expense in St. Clair County would be substantially less.
He claimed court congestion weighed in favor of St. Clair County as it employed 20 judges while Christian County employed two.
Hoerner heard argument last December and took the case under advisement.
On Feb. 1, he dismissed Green, Physician Groups and BJC for lack of jurisdiction.
On Feb. 20, he denied Walgreen’s transfer motion.
He found the issues in the case didn’t solely impact Christian County.
“A significant issue involved is the allegation that defendant Walgreen’s’ policies and procedures do not protect patients,” he wrote.
“Claims that Walgreen’s pharmacists systematically override safety measures put in place to protect patients from fatal overdoses is well beyond a local controversy.”
Walgreen appealed and prevailed.
Sholar’s opinion laid out the rules for deciding motions for a more convenient forum.
She found a court must balance private interests of litigants and public interests affecting administration of the courts.
She found private interests include convenience, access to evidence, availability of process to secure attendance of witnesses, costs of their attendance, viewing premises, and other practical considerations for an easy, expeditious, and inexpensive trial.
She found public interest factors include having local controversies decided locally, congestion of venues, and imposing jury duty on residents of a county with no connection to the litigation.
She found a defendant must show that the balance of public and private interests strongly favors transfer and a judge must evaluate the totality of circumstances.
“When a plaintiff is foreign to the chosen forum and the action that gave rise to the litigation did not occur in the chosen forum, it is reasonable to conclude that the plaintiff engaged in forum shopping to suit his individual interests," she wrote.
“A plaintiff’s right to choose a forum cannot be permitted to override the public interest in orderly and efficient operation of the judicial system.”
Then she analyzed Hoerner’s order.
She found he weighed the convenience of Green and her staff and found them significantly closer to St. Clair County.
She found Green was dismissed for lack of jurisdiction and it was improper to consider her location when evaluating convenience.
She found Walgreen operates stores in St. Clair County but any transactions there didn’t relate to the case and weren’t significant for purposes of forum selection.
As for access to witnesses and sources of evidence, she found Brumley resided in Christian County with his partner and four children.
“Brumley’s partner and the children will likely provide testimony regarding damages and the condition of Brumley before his death," she wrote.
She found employees of the store would likely testify.
She found other witnesses would likely need to travel from company headquarters in Lake County, 235 miles from Taylorville and 315 miles from Belleville.
She found Hoerner speculated there might be a host of experts who would likely be located across the country.
“We give little weight to the location of such experts," she wrote.
She found Hoerner reasoned there might be 20 or more depositions of witnesses in Madison County, St. Clair County, and St. Louis.
“However, the record is devoid of evidence related to St. Clair County witnesses," she wrote.
She found Hoerner reasoned there might be depositions of countless witnesses in Cook and Lake counties.
“We find this level of speculation improper," she wrote.
As for practical considerations she found Hoerner “simply stated that any other practical problems relative to trial are likely of similar nature.”
She found Smith indicated her attorney was in Madison County and defense counsel were in St. Clair County.
“While a court may consider this factor, little weight should be accorded it,” she wrote.
“We conclude that overall, private interest factors favor Christian County.”
She found public interest factors strongly supported Christian County.
She found the most recent annual reports showed the average time between filing and jury verdict was 16 months in Christian County and 34 months in St. Clair County.
She rejected the notion of national impact.
“St. Clair County residents should not be burdened with jury duty when the action neither arose there nor has any relation to that county,” she wrote.