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Professional Liability Insurance: A Compendium of State Law
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Illinois Appellate Court Reverses Trial Court: Madison County Asbestos Case Does Not Belong in Illinois
by H. Patrick Morris and David Fanning, Johnson & Bell, Ltd., Chicago, IL
In a decision that may have a significant impact upon asbestos litigation in Madison County, the Illinois Fifth District Appellate Court has recently overturned a trial court ruling against defendant's Motion to Dismiss pursuant to the doctrine of forum non conveniens. While there have been similar decisions in the Fifth District in the past, no other decision more closely addresses the issues of asbestos litigation within the context of specific factual allegations common to many asbestos cases filed in Madison County.
On September 15, 2010, the Fifth District of the Appellate Court of Illinois reversed then-sitting Judge Daniel J. Stack’s denial of defendant’s Motion to Dismiss based upon the doctrine of forum non conveniens. See Laverty v. Csx Transp., 2010 Ill. App. LEXIS 996 (5th Dist., 2010). Judge Stack has just recently retired from the Madison County asbestos docket; Judge Barbara Crowder has taken over in his place. Although the court’s opinion seems unremarkable by virtue of the straight-forward application of case law applying the doctrine of forum non conveniens, the case is remarkable in that it clarifies that a number of factors which the Madison County trial court relied upon in routinely denying defendants' motions to dismiss are of lesser significance, and are insufficient to override the inconvenience of litigating many asbestos cases in Madison County.
In Laverty v. CSX, plaintiff was a resident of Texas at the time the lawsuit was filed. Neither plaintiff nor defendant ever resided in Illinois. Plaintiff was a fireman and engineer for the defendant railroad. He worked primarily in the State of Michigan, but also in the State of Ohio. Plaintiff’s family members resided in Texas, as did many of plaintiff’s treating physicians.
The Laverty court first clarified that the overarching issue in addressing interstate forum non conveniens is whether Illinois is the appropriate state in which to litigate the controversy. In resolving forum non conveniens questions, the trial court must balance private-interest factors affecting the convenience of the parties and public-interest factors affecting the administration of the court.
Addressing the private interest factors, the court first noted that the exposure at issue did not occur in Illinois, and the witnesses to the claimed exposure events were likewise not located in Illinois, a fact to which plaintiff's counsel conceded. Specifically, plaintiff's co-workers and medical providers were located in Michigan and Texas, outside of the subpoena power of Illinois courts. The court noted that the possibility of the jury being able to view the worksites (as opposed to the actual necessity of viewing the site) is an important consideration, and that it would be irrational for a Madison County jury to travel outside of Illinois to view the worksites. These factors strongly favored litigating the matter in Michigan, as opposed to Illinois.
The court observed that the nonresident plaintiff's choice of form deserves less deference, especially where as was the case sub judice, the claimed exposures did not occur in Illinois. In this respect, the argument in favor of dismissal was even stronger than in the earlier Fifth District case of McGinty v. Norfolk S. Ry., 362 Ill. App. 3d 934 (5th Dist. 2005), a non-asbestos personal injury case where at least some of the claimed repetitive injury occurred in Illinois, but where the court nevertheless dismissed the case on account of the available sources of proof being located in another state. The Laverty court quoted McGinty with approval, underscoring “that merely occasionally working in Madison County, Illinois, does not vest the citizens of Madison County, Illinois, with more than a modest interest in the controversy's outcome.” The court also reasoned that despite plaintiff's argument to the contrary, the fact that defendant conducted business in the state of Illinois was not a significant factor for forum non conveniens purposes. The court also found insignificant plaintiff's argument that plaintiff planned to employ an expert witness who was located in Illinois, calling this merely an effort to circumvent the doctrine in an effort to select an inconvenient forum.
With respect to the public interest factors, the court noted that the Saginaw County, Michigan court had far fewer civil cases than the Madison County, Illinois court, and that in accord with the court's responsibility to protect finite judicial resources and the efficient functioning of their judicial systems so that they are not impeded by nonresident litigation to the extent that their availability to local citizens is diminished, this factor strongly favored dismissal. Moreover, given that the claimed exposure did not occur in Illinois, that plaintiff and defendant were at no time residents of Illinois, and that the action did not arise in and had no relationship to the state of Illinois, the residents of Illinois should not be burdened with jury duty. In short, the court held that Illinois had little or no interest in trying the action of a nonresident whose claim arose outside of Illinois.
The Laverty court’s decision was a clear-cut refusal to adopt the reasoning common to the lower court's denial of such forum non conveniens motions on grounds that defendant must show that a specific alternate forum was more convenient than plaintiff's choice of forum. Such reasoning is nicely set forth in the dissenting opinion, which argues that "the burden of a movement in a forum non conveniens motion is to meet the burden of showing that the alternative forum urged by the movement is substantially more convenient than that chosen by the plaintiff."
This recent decision should be read with caution, however in light of the several broad areas of potential distinction with respect to factual scenarios in other cases. Notably, it is often the case that plaintiffs in asbestos litigation performed some work, and received some medical treatment in the state of Illinois. Specifically, it has become increasingly common for individuals who are diagnosed with an asbestos-related disease to seek second opinions with respect to the diagnosis and treatment options in Illinois. While this phenomenon could be attributed to the excellent medical facilities in Illinois, it is also possible that such actions are taken in an effort to circumvent the doctrine of forum non conveniens. It is not yet known whether the Laverty decision will undergo review by the state’s highest court.
This decision also underscores the necessity to fully evaluate the entirety of plaintiff's work and exposure history. Much of this effort occurs through the discovery process, especially in plaintiff's and co-workers’ discovery depositions. Litigators should be keen to extensively examine plaintiffs and co-workers in order to determine each and every possible exposure event, and to establish the nature and character of all locations where plaintiff worked.
Finally, litigants in Madison County asbestos litigation should be encouraged to file and present motions to dismiss on the basis of forum non conveniens on a more routine basis, especially where plaintiff presents little evidence of exposures occurring in Illinois. The Laverty court found it significant that most of the defendants included a forum non conveniens argument in their responsive pleadings. Given the thorough analysis of the evidentiary factors in the analysis of forum non conveniens motions as set forth in Laverty, defendants should be more vigilant in identifying cases that have little to no relation to Illinois, and to perform a thorough investigation of the evidentiary factors to this end.
(DRI thanks Johnson & Bell, Ltd. for this contribution. For more information, contact H. Patrick Morris at email@example.com, 312.984.0244; or David Fanning at firstname.lastname@example.org, 312.984.0289.)