Black v. Help at Home, LLC , 2023 IL App (1st) 220802-U ( 2023 )

2023 IL App (1st) 220802-USECOND DIVISION
February 15, 2023
No. 1-22-0802
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in
the limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
JESSICA BLACK, as Administrator for the Estate ) Appeal from the Circuit Court
of Decedent, PARIS CHANELLE JOHNSON, ) of Cook County.
)
Petitioner-Appellant, )
)
v. ) No. 2020 L 001863
)
HELP AT HOME, LLC (d/b/a Oxford HealthCare) )
and STATEWIDE HEALTHCARE SERVICES, )
LLC (d/b/a Oxford HealthCare), ) The Honorable
) Preston Jones, Jr.,
Respondents-Appellees. ) Judge Presiding.
____________________________________________________________________________
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the
court.
Justices Ellis and Cobbs concurred in the judgment.
ORDER
HELD: While petitioner has a substantial right in her choice of forum, and
although she alleged institutional as opposed to medical negligence thus perhaps
rendering residency and situs of injury less important than usual in a forum non
conveniens determination, the trial court did not abuse its discretion in granting
respondents’ motion to transfer this cause where its consideration of all this and its
balancing of the relevant private and public interest factors was appropriate based on the
particular facts presented.
No. 1-22-0802
¶1 Following the filing of a first amended complaint at law in Cook County, Illinois, by
petitioner-appellant Jessica Black, as Administrator for the Estate of Decedent, Paris
Chanelle Johnson (petitioner), respondents-appellees Help At Home, LLC (d/b/a Oxford
HealthCare) and Statewide Healthcare Services, LLC (d/b/a Oxford HealthCare)
(respondents or as named) filed a motion to dismiss pursuant to forum non conveniens. The
trial court granted respondents’ motion and transferred the instant cause to the circuit court of
Panola County, Mississippi. Petitioner appeals, contending that the court erred in balancing
the factors involved in this transfer determination. 1 She asks that we reverse the court’s
decision and remand. For the following reasons, we affirm.
¶2 BACKGROUND
¶3 The facts herein are taken from the record on appeal. 2
¶4 Paris Chanelle Johnson (Paris) was born on June 6, 2016 at Merit Health Northwest
Hospital in Mississippi to petitioner, her mother, who at all times relevant herein, lived in
Como, Panola County, Mississippi. Paris was born with congenital central hypoventilation
1
Petitioner filed her appeal pursuant to Illinois Supreme Court Rule 306(a)(2). Ill. S. Ct. R. 306(a)(2) (eff. Oct. 1,
2020).
2
In her reply brief on appeal, petitioner included, essentially, a motion to strike respondents’ citations to a portion of
the record that was sealed pursuant to petitioner’s request, urging that we disregard respondents’ statement of facts
and various sections of their argument in their response brief. Petitioner argued that the citations were to a page in
the record that is a “placeholder for exhibits that were filed in the trial court under seal and not made part of the
supporting record on appeal,” noting that said “placeholder” was labeled “Exhibit 3 Medical Records To Be Filed
Under Seal.” We allowed respondents to file a response. Thereafter, petitioner twice attempted to supplement the
record; both times, this Court denied her motion, as she failed to follow proper procedure required for the filing of a
supplemental record. Petitioner then filed a third motion to supplement the record, and the Court allowed her
motion, as that supplemental record was, finally, properly presented and filed. That supplemental record, as
described by petitioner herself, contains “certain medical records *** which were submitted to the trial court as
Exhibit 3 *** and discussed in the surreply of Appellees.” We have reviewed the supplemental record, which
consists of 9 pages, including some medical records of decedent. Accordingly, then, it would seem to this Court that
any dispute petitioner had when urging the striking of respondents’ brief has been resolved, as petitioner has now
supplemented the record with the medical records that were presumably at issue.
Ultimately, and regardless of any debate, we note here that we have thoroughly reviewed the entire record
on appeal and our decision is based solely on what has been properly presented before this Court.
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No. 1-22-0802
syndrome (Haddad Syndrome), which, in part, causes severe sleep apnea and requires a
tracheostomy and the attachment of the patient to a ventilator while sleeping. Days after her
birth, Paris was transferred to LeBonheur Children’s Hospital in Memphis, Tennessee, where
she remained until February 2018, approximately the first 20 months of her life. Upon
discharge, Paris went to live at her home with petitioner, as well as Paris’ grandmother, in
Mississippi. Petitioner hired home health services from Oxford HealthCare in Mississippi to
monitor Paris while she slept, and several different nurses from Oxford attended to her care.
Approximately one month later, on March 24, 2018, Louise Hibbler, a 76-year-old home
health nurse from Oxford HealthCare who resides in Mississippi, was assigned to monitor
Paris. That evening, an incident happened involving Paris’ ventilator which resulted in Paris
failing to receive proper oxygenation and suffering an anoxic brain injury and acidosis. Paris
was taken by ambulance to a local Mississippi hospital and then transported again to nearby
LeBonheur in Tennessee, where she later died on May 29, 2018.
¶5 Petitioner filed a six-count complaint in Cook County, Illinois, which she later amended,
against respondents. Therein, she alleged that Paris was a client of respondents “through
their Oxford HealthCare brand.” She also asserted that Hibbler was an employee of
respondent Help At Home, LLC “and/or” respondent Statewide Healthcare Services, LLC,
both of which were doing business as Oxford HealthCare. According to petitioner’s
amended complaint, Help At Home is a limited liability company with its principal office in
Chicago; Statewide, though a Mississippi limited liability company, has its principal office in
the same suite as Help At Home; and both did business as Oxford HealthCare in Mississippi,
with Help At Home overseeing the activities and employees in Mississippi from its
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centralized administration in Chicago. Petitioner alleged that Hibbler, who had been
assigned to monitor Paris before the incident at issue, had asked “her employer” that it not
reassign her to care for Paris again except as a “last resort,” but that Hibbler was assigned
again to Paris on the night in question, whereupon she failed to properly intervene when the
ventilator’s alarm went off, thereby causing Paris’ death. The first three counts focused on
Help At Home, with count I asserting negligence (wrongful death), count II asserting
vicarious liability (wrongful death), and count III asserting a survival action; the remaining
three counts (counts IV, V, and VI) asserted the same causes of action against Statewide.
¶6 Respondent Help At Home filed a motion to dismiss the three counts against it, pursuant
to section 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West
2020)). It argued that there was no employment relationship between it and Hibbler,
insisting Hibbler was an employee of Oxford HealthCare and it did not share any relationship
with Oxford, including clients, contracts, supervisors or employees. It further argued that it
was a separate and distinct entity from Statewide, and while Statewide did business in
Mississippi, it (Help At Home) did not. Help At Home’s motion was accompanied by the
affidavit of Joel Davis, who claimed to be the chief operating officer and general counsel for
Statewide. Therein, Davis stated that Statewide does business as Oxford, its principal
operations are in Mississippi, and it conducts business only in Mississippi and Alabama. He
further described that Statewide and Help At Home are “sister companies,” but that Help At
Home does not own or operate Oxford and the two (Statewide and Help At Home) maintain
distinct services in different states, such as contracts, territories, licensing, and separate
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employees, operations, accounts, books and records. Davis stated that Hibbler was employed
by Oxford.
¶7 Davis was later deposed. During his testimony, he expressed confusion over his actual
job title and which entity he worked for directly, Help At Home or Statewide. He also
intimated that perhaps both respondents had a payroll system in common, that some of their
higher-level employees reported to the same chief executive officer and performed similar
duties for both companies at the same time, and that lower-level employees for both
companies might share the same handbook. Based on this, petitioner argued that Help At
Home and Statewide/Oxford are “a single enterprise” and that, just as Statewide, it was
“clear and unambiguous that Help At Home LLC operates in Mississippi.”
¶8 The trial court denied Help At Home’s motion to dismiss. It determined that the issue
was whether Help At Home and Statewide/Oxford were one entity, namely, whether they
were sufficiently intertwined. Pursuant to Davis’ deposition, which it called “confusing and
vague,” and other relevant documents showing some “intricate involvement” between the
two, the court concluded that “there is a genuine issue of material fact at this stage” as to the
nature of their relationship and whether Statewide/Oxford was, potentially, a “sister company
or a subsidiary” of Help At Home so that the latter could potentially be responsible for
Hibbler’s conduct as an employee. Thus, it could not dismiss Help At Home from the suit.
¶9 Subsequently, respondents filed a joint motion to dismiss pursuant to the doctrine of
forum non conveniens. In it, they argued that the cause’s connection to Cook County was
tenuous at best and that the matter should proceed in Mississippi. They pointed to several
facts, including that petitioner lives in Mississippi, as did the victim and the only other
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No. 1-22-0802
people present at the time of the incident, namely, Hibbler and Paris’ grandmother; Paris was
treated in a Mississippi hospital and transferred to a southern Tennessee hospital close
thereto; both these hospitals treated her before the incident for the vast majority of her life;
emergency services were provided to Paris in Mississippi and Tennessee following the
incident; Hibbler’s immediate supervisors and other Oxford nurses who provided home
health care to Paris were all in Mississippi; and Oxford, from where petitioner hired home
health care for Paris, had its primary offices in Mississippi. In response, petitioner argued
that all of Oxford’s policies and procedures, including hiring, retention of employees,
payroll, benefits, and employee policies, were promulgated in Chicago at Help At Home’s
corporate headquarters, and that its act of reassigning Hibbler to Paris’ care despite Hibbler’s
expressed desire not to be except as a last resort led to Paris’ death.
¶ 10 The trial court granted respondents’ joint motion. At the outset of its lengthy order, the
court noted that the burden was on respondents to show that petitioner’s choice of forum was
somehow inconvenient to them and that their choice would be more convenient for everyone.
It also noted that it was required to examine the totality of the circumstances when evaluating
all relevant forum factors. Before doing so, it considered what deference to afford
petitioner’s choice of forum. Noting that petitioner “does not reside in Cook County and the
accident did not occur there,” it concluded that her choice of forum should be “afforded
minimum deference.” Thereafter, the court examined the forum factors. With respect to the
private factors, it found the first, convenience of the parties, to be neutral because, though
petitioner chose Cook County and Help At Home has its principal office there, “there is an
open question regarding the amount of control Help at Home exercises over” Statewide/
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Oxford, as it had found during the motion to dismiss. Next, it found that the factors of
relative ease of access to evidence and other practical problems that make trial easy,
expeditious and inexpensive both favored Mississippi. Regarding the former, it cited the
majority of medical providers are in Mississippi and southern Tennessee (closer to
Mississippi than Cook County), as are Hibbler and Paris’ relevant family members, while the
only witnesses in Illinois are a few corporate representatives; regarding the latter, more
potential witnesses were in Mississippi for the sake of compulsory process and the cost of
obtaining attendance, as would be any chance at viewing the premises of the incident. Then,
in considering the pertinent public factors, it determined that the factor of deciding localized
controversies locally favored Mississippi, since, again, this cause involved a Mississippi
resident injured in Mississippi. It found that the factor of unfairness of imposing expense and
burden on a county with little connection to the litigation favored Mississippi as well,
concluding that while Cook County residents might have some interest since Help At Home
has its principal office there, the factor as a whole favored transfer. And, it found the third
public factor of administrative difficulties to be neutral, since neither Mississippi nor
Tennessee publishes court congestion data comparable to Illinois’ annual reports. The court
held that, when “[t]aken as a whole, the factors *** strongly favor transfer” and, accordingly,
it dismissed the cause and transferred it to the circuit court of Panola County, Mississippi.
¶ 11 Petitioner then appeared in our Court seeking leave to appeal pursuant to Illinois
Supreme Court Rule 306(a)(2). See Ill. S. Ct. R. 306(a)(2) (eff. Oct. 1, 2020). We granted
her petition and now address her appeal.
¶ 12 ANALYSIS
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¶ 13 Petitioner contends that the trial court incorrectly transferred this cause to Mississippi.
She insists that it failed to consider the falsities in Davis’ affidavit, thereby rendering its
determination “incomplete,” and that it afforded her forum choice an inappropriate amount of
deference. Then, she argues that the court did not weigh the forum factors properly, as the
cause’s ties to Cook County are significant and mandate a Cook County forum.
¶ 14 It is well established that the standard of review with respect to a determination of a
forum non conveniens motion is abuse of discretion. See Fennell v. Illinois Central R.R. Co.,
2012 IL 113812, ¶ 21; accord Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442
(2006); Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003); Susman v. North Star
Trust Co., 2015 IL App (1st) 142789, ¶ 18. Accordingly, on review, we may reverse the
circuit court’s determination only if it can be shown that the court abused its discretion in
balancing the relevant forum factors. See Langenhorst, 219 Ill. 2d at 442; Dawdy, 207 Ill. 2d
at 177. As the most deferential standard, an abuse of discretion occurs only when no
reasonable person would take the view adopted by the trial court. See Susman, 2015 IL App
(1st) 142789, ¶ 18. In other words, we will not, and cannot, disturb the actions of the trial
court in determining the propriety of a transfer motion unless they are “clearly against logic.”
Miranda v. Walsh Group, Ltd., 2013 IL App (1st) 122674, ¶ 16. The question before us is
not whether we agree with the court’s determination, but whether the court “acted arbitrarily,
without employing conscientious judgment, or whether, in view of all the circumstances, it
exceeded the bounds of reason and ignored recognized principles of law so that substantial
prejudice resulted.” State Farm Fire & Casualty Co. v. Leverton, 314 Ill. App. 3d 1080,
1083 (2000); see also Susman, 2015 IL App (1st) 142789, ¶ 18, quoting Vivas v. The Boeing
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Co., 392 Ill. App. 3d 644, 657 (2009) (“ ‘The issue, then, is not what decision we would have
reached if we were reviewing the facts on a clean slate, but whether the trial court acted in a
way that no reasonable person would’ ”); Ruch v. Padgett, 2015 IL App (1st) 142972, ¶¶ 36,
38-40 (explaining that abuse standard for forum non conveniens review means reversal may
only occur if the trial court abused its discretion in balancing the relevant factors, that an
abuse in balancing occurs only where no reasonable person would take the view of the trial
court, and that a reviewing court “may affirm a trial court's forum non conveniens order on
any basis found in the record”).
¶ 15 Also well-established are the legal principles and considerations surrounding forum non
conveniens motions. These motions rest in the equitable doctrine which considers
fundamental fairness with respect to the sensible and effective administration of justice. See
Fennell, 2012 IL 113812, ¶ 12; Ruch, 2015 IL App (1st) 142972, ¶ 37. Essentially, it allows
a trial court, which otherwise has proper jurisdiction over a cause, to decline jurisdiction and
transfer it to another forum after a determination that the other forum would be better suited
to hear it. See Fennell, 2012 IL 113812, ¶ 12; Ruch, 2015 IL App (1st) 142972, ¶ 37. Such a
determination involves the balancing of several factors.
¶ 16 I. Deference to Choice of Forum
¶ 17 Before these factors may even be considered, however, the trial court must first
determine how much weight to give a plaintiff’s chosen forum. See Fennell, 2012 IL
1138112, ¶ 18; accord Ruch, 2015 IL App (1st) 142972, ¶ 37 (this consideration is primary
before the evaluation of any other relevant factors). The plaintiff has a substantial interest in
choosing the forum and, generally, her choice “should rarely be disturbed.” Langenhorst,
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219 Ill. 2d at 442. Accordingly, it has been said that “the battle over forum begins with the
plaintiff's choice already in the lead.” First American Bank v. Guerine, 198 Ill. 2d 511, 521
(2002). This is particularly true when the plaintiff chooses a forum that is her home
residence or the site of the accident or injury that is the subject of the litigation. See
Langenhorst, 219 Ill. 2d at 442. Yet, the plaintiff's choice is not always entitled to the same
weight or consideration in all cases. See Fennell, 2012 IL 113812, ¶ 18 (citing Dawdy, 207
Ill. 2d at 173). For example, when she chooses a foreign forum–one that is not her residence
or the location of the accident or injury–her choice is afforded only some deference. See
Ruch, 2015 IL App (1st) 142972, ¶ 43; see also Fennell, 2012 IL 113812, ¶ 18 (citing
Dawdy, 207 Ill. 2d at 173). While this is not the same as no deference, it is considerably less
than if she had chosen her home forum or the site of incident or injury. See Ruch, 2015 IL
App (1st) 142972, ¶ 45 (citing Glass v. DOT Transportation, Inc., 393 Ill. App. 3d 829, 834
(2009)); see also Fennell, 2012 IL 113812, ¶ 12.
¶ 18 At the outset of her appeal, petitioner contends that the trial court failed to afford her
choice of forum the required deference to which it was entitled. Her attack is two-fold. First,
she challenges the court’s reliance on the typically-significant considerations of residence
and situs of injury. Her claim in this regard is that the court misconstrued the relevance of
these, as her cause of action does not allege medical malpractice involving what took place in
Mississippi but, rather, corporate negligence originating from actions taken in Illinois that led
to Paris’ wrongful death. Additionally, she challenges the standard the court employed in
making its determination of deference, claiming it improperly reduced the amount owed and
then used an inappropriate standard. We address her latter claim first.
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¶ 19 A. Trial Court’s “Standard”
¶ 20 In her brief, petitioner notes a portion of the trial court’s order wherein, while considering
the deference to give her choice of forum, it stated:
“When a plaintiff’s home forum is chosen, it is reasonable to assume that the
choice is convenient. Guerine, 198 Ill. 2d at 517. However, when the plaintiff
chooses a forum other than the one where he resides, that choice is accorded less
deference. See Langenhorst, 219 Ill. 2d at 448. Even less deference is afforded when
the injury did not occur in the chosen forum. Because [petitioner] does not reside in
Cook County and the accident did not occur here, [her] venue choice of Cook County
is afforded minimum deference.”
From this, petitioner insists that the court “appeared to reduce the amount of deference owed
to [her] choice of forum twice”—once after noting that she and Paris did not reside in Illinois
and then “even less deference” after noting that Paris’ death did not occur here. She also
asserts that the court’s use of the phrase “ ‘minimum deference’ forms no part of the forum
non conveniens vernacular in Illinois” and thus shows it did not consider her choice properly.
Petitioner is correct that the Langenhorst standard is universally used by our courts. Again, it
states that when a plaintiff chooses a forum that is not her residence or the site of the injury,
her choice is entitled to “somewhat less deference.” Langenhorst, 219 Ill. 2d at 448.
(Emphasis in original.) In describing what that means, the supreme court explained, via a
quote from Guerine, which in turn shortened a quote from Elling v. State Farm Mutual
Automobile Ins. Co., that “ ‘ “[W]hile the deference to be accorded to a plaintiff regarding his
choice of forum is less when the plaintiff chooses a forum other than where he resides * * *
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nonetheless the deference to be accorded is only less, as opposed to none.” ’ ” (Emphasis in
original.) Langenhorst, 219 Ill. 2d at 448, quoting Guerine, 198 Ill d at 521, quoting Elling,
291 Ill. App. 3d 311, 318 (1997). The missing portion of that quote is important for our
purposes here. That is, while the facts in both Guerine and Langenhorst concerned only the
residences of the plaintiffs, Elling’s full quote makes clear that not only a foreign residence,
but also a foreign situs of injury, reduces the “lead,” or initial deference, a plaintiff’s choice
of forum would otherwise have. Elling’s full quote reads:
“[W]hile the deference to be accorded to a plaintiff regarding his choice of forum
is less when the plaintiff chooses a forum other than where he resides or where the
injury occurred, nonetheless the deference to be accorded is only less, as opposed to
none.” (Italics in original, underline added.) 291 Ill. App. 3d at 318.
¶ 21 We focus on this to show that we can understand petitioner’s concern with what the trial
court wrote in its order. However, while we may understand it, we do not agree that it rises
to an abuse of discretion so as to cause prejudice and merit our disturbance of its ultimate
forum determination. In our view, while some of the court’s comments could be concerning
in that they do not track black letter forum non conveniens principles, they were nothing
more than misstatements and no indication that the court considered anything improperly
when determining the amount of initial deference to assign petitioner’s choice of forum.
¶ 22 First, as for petitioner’s “double reduction” claim, while the court’s statement that a
forum choice that is not a plaintiff’s residence deserves less deference was correct, we admit
that its statement in the sentence immediately following that, i.e., “Even less deference is
afforded when the injury did not occur in the chosen forum,” does not track the language of
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Langenhorst or Elling. One could potentially argue that the court used the word “even” to
mean “in addition,” such that it intended to say foreign residence reduces deference and, in
addition, foreign situs of injury reduces deference. However, that is a stretch in light of the
language it chose to use. An interpretation similar to petitioner’s, namely, that foreign
residence reduces deference and foreign situs of injury reduces deference even more or even
further, is much more apparent. If this were the trial court’s thinking, it would be mistaken.
¶ 23 However, when it made those statements, the court was summarizing quotations from
Langenhorst. It did so correctly in the first sentence regarding foreign residence and cited
Langenhorst, but then, admittedly, used the “even less” language in the following sentence
regarding foreign situs (and, interestingly, did not provide a citation). Had the court exactly
tracked the language used in Langenhorst/Elling, there would be no concern here.
¶ 24 But, what is more significant than the court’s (poor) word choice is the crux of its
deference determination, which does not come until after all this, in the last sentence of the
paragraph. There, it stated, “Because [petitioner] does not reside in Cook County and the
accident did not occur here, [her] venue choice of Cook County is afforded minimum
deference.” From this, it is clear that the trial court considered both foreign residence and
foreign situs together, and that these, together, afforded her choice of forum less deference
than the substantial deference it otherwise would have had, had residence and situs been
local. Such consideration by the trial court of both residence and situs is, pursuant to Elling,
correct. In spite of what it said earlier, at the time of its actual determination, there is no
indication that the court considered residence first, made a determination to reduce deference,
and then considered situs and determined a further, or second/double, reduction was in order.
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While petitioner would like us to infer this, we do not, as it did not use such words, or any
similar quantifiable amount or percentage of deference reduction when it made its
determination. As inartful as the court’s lead-up to its determination was, there is no explicit
indication that it improperly reduced its deference twice-over when it made its determination.
¶ 25 Petitioner also challenges the court’s use of the phrase, “minimum deference.” Of
course, once again, we would not be dealing with any of this had the court used, exactly, the
Langenhorst standard; there is much to be said about uniformity in the law. However, again,
we believe this to be nothing more than a misstatement and, even if it were more, it did rise
to an abuse of discretion.
¶ 26 The key to the Langenhorst standard is what we have consistently repeated: when a
plaintiff chooses a forum that is not her residence or the site of the injury, her choice is
entitled to “somewhat less deference” than it would have had had these factors been local.
Langenhorst, 219 Ill. 2d at 448. What does “somewhat less deference” mean? Again, it
means, simply, “ ‘less, as opposed to none.’ ” Langenhorst, 219 Ill. 2d at 448, quoting
Guerine, 198 Ill 2d at 521. There is no quantifier here, for example, five-fold less or 30%
less. It is logical, then, that as long as there is some deference afforded to the plaintiff’s
choice, less (of course) than the substantial amount given to plaintiffs who do choose a forum
within their residence or the situs of injury, but not none, the Langenhorst standard is met.
See, e.g., Malloy v. DuPage Gynecology, S.C., 2021 IL App (1st) 192102, ¶ 48; Decker v.
Union Pacific RR Co., 2016 IL App (5th) 150116, ¶ 19. When a court gives less deference,
that does not mean that it gives no deference. See, e.g., Taylor v. Lemans Corp., 2013 IL
App (1st) 130033, ¶ 18.
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¶ 27 Based on this, we conclude that the trial court’s use of the phrase “minimum deference”
here, while admittedly not part of the Illinois forum non conveniens legal vernacular, did not
render its determination of how much deference to initially afford petitioner’s choice of
forum improper. Contrary to any insinuation by petitioner, the trial court did not give it “no
deference” or even “next to no deference.” The court simply gave it less, which is in
accordance with the standard. “Minimum” is much more akin to “somewhat less” than it is
to “none.” The point is, the court recognized that, because petitioner initially chose a forum
that was neither her/the decedent’s residence nor the situs of injury, her choice could not be
afforded the substantial deference it would have otherwise received. It further recognized
that it still owed her choice deference, but in a lesser amount. That it used the phrase
“minimum deference” as opposed to “somewhat less deference” is, essentially, semantics—
less, or “minimum,” properly indicates less than substantial but not none, and that is what
Langenhorst requires.
¶ 28 B. Cause of Action
¶ 29 The other portion of petitioner’s challenge to the trial court’s initial determination of
deference to afford her choice of forum rests, as she says, in the particular cause of action.
She challenges the court’s reliance on the typically-significant considerations of residence
and situs of injury. She claims that the court should never have found these to even be
relevant because her cause of action does not allege a medical malpractice claim against
Hibbler or her immediate employer, Oxford (who are in Mississippi). Rather, she reaffirms
that she asserted a corporate negligence action, namely, that respondents’ negligent conduct
of reassigning Hibbler to monitor Paris after she asked not to be was the act that led to Paris’
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death, that this act was undertaken in Illinois pursuant to respondents’ Illinois-based
employment policies and, thus, that her residence or the situs of injury are not important to an
initial consideration of the amount of deference to be afforded her choice of forum. In this
regard, petitioner potentially has a valid point.
¶ 30 Petitioner’s complaint is somewhat unique here because it is not the typical medical
malpractice or medical negligence claim. She is not suing Hibbler or anyone who provided
Paris directly with medical treatment or home health care, per se. Her claim is one of
institutional negligence. While Paris’ medical care (or lack thereof) occurred in Mississippi,
the cause of action petitioner raises against respondents involves their procedures, including
employment policies, as corporations—corporations that admittedly share an address in Cook
County. It is of no consequence that, at this point in the litigation process, petitioner’s claims
as to respondents’ involvement might only be vague; she was not required to prove up her
entire case on a forum non conveniens motion. See Koss Corp. v. Sachdeva, 2012 IL App
(1st) 120379, ¶ 100 (such a motion is only at a preliminary discovery stage). Accordingly,
given the facts that were pled in her complaint, it very well may be that the usual
considerations of residence and the situs of injury lack relevance and perhaps should not play
a large role in a trial court’s consideration of the amount of initial deference to give her
choice of forum.
¶ 31 On the other hand, we must note that while petitioner characterizes her complaint as
institutional negligence, it cannot be denied that her claims involve wrongful death. The
counts in her amended complaint against both respondents state as much; she labels them, in
fact, “wrongful death.” Our law states that in a wrongful death case, “it is the decedent’s
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residence at the time of death that is of significance” in a forum non conveniens analysis.
Bradbury v. St. Mary’s Hospital of Kankakee, 273 Ill. App. 3d 555, 560 (1995). Moreover,
where a plaintiff sues in a representative capacity on behalf of a decedent, as petitioner does
here, the decedent’s county of residence “is entitled to substantial deference.” Schwalbach v.
Millikin Kappa Sigma Corp., 363 Ill. App. 3d 926, 933 (2005). Taking these principles into
account, then, and contrary to petitioner’s insistence, residence and situs of injury perhaps
should very well remain substantial considerations here.
¶ 32 Ultimately, in consideration of all this, our conclusion with regard to any potential
impropriety that may have occurred in the trial court’s determination of how much initial
deference it was to afford petitioner’s choice of forum is this: if any impropriety did occur, it
was, in the grand scheme of things, inconsequential. Rather, what is clearly certain is that,
again, the court did give petitioner’s choice some deference—it was not substantial, but it
was not none or next to none. And, what is most important of all is that “ ‘deference to the
plaintiff’s choice of forum is but one factor, along with other relevant private and public
interest factors, to be considered in the balancing process.’ ” Grachen v. Zarecki, 200 Ill.
App. 3d 336, 342 (1990), quoting Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill.
2d 101, 108 (1990). Accordingly, whatever the determination as to initial forum deference,
our analysis does not end here, as a transfer of forum may still be appropriate if the private
and public factors, viewed in totality along with the deference consideration, outweigh the
plaintiff’s substantial interests and instead strongly favor a defendant’s suggested transfer.
See Grachen, 200 Ill. App. 3d at 342, citing Griffith, 136 Ill 2d at 108; see also Ruch, 2015
IL App (1st) 142972, ¶¶ 38-40 (we may affirm transfer order on any basis in record).
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¶ 33 Accordingly, and just as the parties do, we now turn to those factors.
¶ 34 II. Private and Public Interest Factors
¶ 35 After the trial court considers the plaintiff’s choice of forum, it then evaluates the private
and public interest factors involved in forum non conveniens determinations. The private
interest factors include: the convenience of the parties; the relative ease of access to
testimonial, documentary and real evidence; the availability of compulsory process to secure
the attendance of unwilling witnesses; the costs to secure the attendance of willing witnesses;
the possibility of viewing the site where the accident occurred, if appropriate; and all other
practical considerations that make a trial easy, expeditious and inexpensive. See Fennell,
2012 IL 113812, ¶ 21. The public interest factors include: the interest in deciding
controversies locally; the unfairness of imposing the burden of jury duty on residents of a
forum with little connection to the litigation; and the administrative difficulties caused by
adding litigation to already congested court dockets rather than resolving the case at its
origin. See Fennell, 2012 IL 113812, ¶ 21. A court must consider all of these private and
public interest factors. See Ruch, 2015 IL App (1st) 142972, ¶ 48; accord Fennell, 2012 IL
113812, ¶ 17. It must not place too much emphasis on any one factor, nor is it to weigh them
against each other. See Langenhorst, 219 Ill. 2d at 443-44; accord Dawdy, 207 Ill. 2d at 175-
76. Rather, it must balance all of them together and view them within the totality of the
circumstances presented, as each forum non conveniens case is unique on its own facts. See
Langenhorst, 219 Ill. 2d at 443-44 (“court must evaluate the total circumstances of the
case”); accord Fennell, 2012 IL 113812, ¶ 24.
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¶ 36 The burden is on the defendant to show that the relevant private and public interest
factors “ ‘strongly favor’ ” its choice of forum and merit disturbing the plaintiff's initial
choice. Langenhorst, 219 Ill. 2d at 444, quoting Griffith, 136 Ill. 2d at 107; accord Fennell,
2012 IL 113812, ¶ 17. Notably, the defendant cannot simply claim that the choice of forum
is inconvenient to the plaintiff. Langenhorst, 219 Ill. 2d at 44. Instead, it must prove that the
balance of factors strongly favors transfer, i.e., that the plaintiff's chosen forum is
inconvenient to the defendant and that another forum is more convenient to all parties. See
Fennell, 2012 IL 113812, ¶ 20; Langenhorst, 219 Ill. 2d at 444. “Although this is a difficult
standard for a defendant to meet, ‘it does not foreclose legitimate transfers when the balance
of factors strongly favors litigation in another forum.’ ” (Emphasis in original.) Langenhorst,
219 Ill. 2d at 443, quoting Guerine, 198 Ill. 2d at 521.
¶ 37 Petitioner begins with the first private factor and asserts that the trial court erred in
finding the convenience of the parties did not favor Cook County. She claims that, based on
Davis’ false affidavit which the court inappropriately ignored, and its prior determination on
the motion to dismiss that respondents were one entity located and doing business in Illinois,
this factor “strongly weighs against transfer.” However, as she wholly mischaracterizes the
record, we disagree.
¶ 38 The trial court did not find that convenience of the parties favored or disfavored transfer
of this cause. Instead, it found that this factor was “neutral” and did not weigh strongly
either for or against transfer. We do not find that the trial court abused its discretion in
making this neutral determination. Contrary to petitioner’s insistence, it never determined
that respondents were one entity doing business in Cook County at any point in the litigation.
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No. 1-22-0802
Rather, in direct opposition, the record shows that the court specifically found there was a
genuine issue of fact as to the nature of the relationship between respondents and which of
them controlled Oxford’s employment policies or decisions—the crux of petitioner’s
amended complaint. Because of this very reason, the court could not grant Help At Home’s
motion to dismiss. Moreover, the court did not, as petitioner asserts, ignore Davis’ affidavit.
Instead, the court agreed during its denial of Help At Home’s motion to dismiss that Davis’
subsequent deposition testimony was vague and confusing in comparison to the affidavit he
provided earlier. It was because of this very reason, the court stated, that it could not grant
the motion. Later, during its evaluation of the convenience factor in the instant forum
motion, the court revisited all this to note that while Help At Home has a principal office in
Cook County, Statewide appears to be based in Mississippi where it operates Oxford, from
which petitioner hired Hibbler, and there remains “an open question” regarding the amount
of control Help At Home exercises over Statewide per the inconsistencies in Davis’
testimony. Accordingly, while the court could not say Cook County was inconvenient to
petitioner as that was her choice, it likewise could not say that the mere fact that Help At
Home has a corporate office in Cook County, without more, mandated a Cook County forum.
See Dawdy, 207 Ill. 2d at 182 (merely conducting business in a county does not necessarily
affect the issue of forum non conveniens, nor does the presence of a corporate defendant's
registered agent; this “is not a dispositive factor” and a court is “to look beyond the criteria of
venue when it considers the relative convenience of a forum”); accord Smith v. Jewel Food
Stores, Inc., 374 Ill. App. 3d 31, 34-35 (2007). This, combined with the open question of
how intertwined respondents are, if at all, does not propel the forum non conveniens issue
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No. 1-22-0802
strongly either way. Therefore, we cannot say that the trial court’s determination that
convenience of the parties was a neutral factor was unreasonable.
¶ 39 Next, petitioner asserts that the trial court erred in concluding that the second private
factor, relative ease of access to evidence, favored transfer. She insists that, because this is a
corporate negligence action, the “critical witnesses” are in Illinois where the decision to
reassign Hibbler took place, and not in Mississippi which accounts only for Paris’ treaters,
who are “far less importan[t]” since medical negligence is not being alleged.
¶ 40 In examining this factor, the trial court, citing Ruch, 2015 IL App (1st) 142972, ¶¶ 61,
commented that in today’s technological age, document transfer is instantaneous and occurs
at the touch of a button, thereby shifting the focus of ease of access away from real and
demonstrative evidence and more toward the availability of testimonial evidence. Then, after
pointing out that neither party had supplied a complete list of prospective witnesses, it noted
that the majority of witnesses involved in this matter, including all those who provided
medical treatment, as well as decedent, her family, and Hibbler, were all in or closer to
Mississippi, while “[t]he only potential witnesses with ties to Cook County are corporate
representatives for” respondents. “Taken as a whole,” it determined this factor favored
transfer.
¶ 41 We agree with the trial court that, when all the circumstances presented are considered
together, relative ease of evidence favors transfer. Again, we understand petitioner’s
characterization of this suit as a corporate negligence case. And, we acknowledge that
perhaps some of respondents’ corporate executives or higher-level employees who may be
able to provide evidence germane to the instant cause are located in Cook County. However,
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No. 1-22-0802
it cannot be denied that Hibbler’s actions and Paris’ medical condition and treatment will
necessarily take a prominent position on the legal stage along with respondents’ employment
policies as this cause proceeds. This is true for many reasons. First, petitioner herself in her
very complaint consistently refers to the negligent acts and omissions of Hibbler in
monitoring Paris’ ventilator as “the cause” of Paris’ death. Clearly, what happened on the
night of the incident, which directly involved Hibbler, a 76-year-old Mississippi resident,
will be critical. Next, petitioner admits she hired Hibbler through Oxford, which operates
and has its primary office in Mississippi. Also, she repeatedly references Hibbler’s “request”
for reassignment and its alleged refusal as an additional reason for Paris’ death. With the
connection between respondents, and Oxford as bound therein, still an open question,
particularly as to the management of employees and employment policies, it is safe to say
evidence with respect to both Oxford and, again, Hibbler (i.e., whom she spoke to, what her
request was, was it honored, etc.) will be fundamental components of this litigation.
Moreover, it would be incredulous to think that, if this cause continues to advance, Paris’
medical care, both prior to the specific incident at issue and in response to it, will not be of
great importance, as well. Paris was treated from birth for the condition that, directly or
indirectly, led to her death, first by doctors at Merit Health Northwest Hospital in
Mississippi, next by doctors a LeBonheur Children’s Hospital in Tennessee, then at home
(again in Mississippi) by the many Oxford home health care nurses who rotated on a daily
basis as evidenced by the supplemental record, and finally, again, by doctors at LeBonheur.
In addition, the ventilator that Paris used on the night of incident was located at her home in
Mississippi, she was rendered emergency aid by paramedics in Mississippi, and she was
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No. 1-22-0802
transported first to a hospital in Mississippi and then one in Tennessee, where she died.
Taking into account all these considerations, it was in no way unreasonable for the trial court
to conclude that the relative ease of evidence factor favors a Mississippi forum in this cause.
¶ 42 With respect to the remaining private forum factor of other practical problems that make
trial easy, expeditious and inexpensive, petitioner asserts that the trial court “did not duly
weigh” each of the considerations involved (specifically, the compulsory process of
unwilling witnesses, the cost of obtaining the attendance of willing witnesses, and viewing
the premises) before concluding they favored transfer, which “[n]o reasonable person based
on the record would have found.” However, after reviewing the court’s separate and
thorough analysis of each of these considerations, we disagree.
¶ 43 Regarding the compulsory process of unwilling witnesses, the court noted that should the
need to compel the testimony of a witness arise, Illinois, Mississippi and Tennessee have all
adopted the Uniform Interstate Depositions and Discovery Act, so the process of doing so
would largely be the same whether the cause remains in Cook County or is transferred; yet,
the fact more of the potential witnesses in the matter are located closer to Mississippi, this
consideration tipped toward favoring transfer. We do not find this determination amounted
to an abuse of discretion. Petitioner claims that the court incorrectly substituted the same
considerations it used to determine the ease of access factor to this one and speculated as to
potential witnesses. However, simply because the court applied similar reasoning gleaned
from one factor to another does not mean that it did not afford each factor its own weight
under the circumstances. Besides, the court did not mention the Uniform Interstate
Depositions and Discovery Act when addressing the ease of access factor, clearly
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No. 1-22-0802
demonstrating that it did, indeed, weigh the compulsory process factor somewhat differently.
Additionally, while petitioner cites case law stating that courts are not to speculate about a
witness’ unwillingness to testify at trial where potential witnesses have yet to be identified,
“we know of no rule that bars a trial court from inferring the relative convenience of
alternative forums, based on its knowledge of their residence and workplace.” Koss Corp.,
2012 IL App (1st) 120379, ¶ 106, ¶¶ 107-08 (holding that trial court did not abuse its
discretion where it considered the inconvenience of forum transfer to witnesses residing in
Wisconsin who might testify but were not yet named at point of forum motion, since “[o]ur
supreme court has held that it is not necessary for ‘defendants seeking forum non conveniens
dismissal [to] submit affidavits identifying the witnesses they would call and the testimony
they would provide if the trial were held in the alternate forum.’ ” (Quoting Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 258-59 (1981))).
¶ 44 Next, regarding the cost of obtaining the attendance of willing witnesses, petitioner
claims the trial court erred in finding this consideration favored transfer because the advent
of video conferencing and technology can be used to cut said cost. This is true; the trial court
acknowledged this in its decision, and our court has often done so as well. See Ruch, 2015
IL App (1st) 142972, ¶ 61 (due to advancements in technology, “this factor is much less
significant than it used to be”). However, petitioner’s argument is a double-edged sword, as
costs can be cut in this regard on both sides. Additionally, the court also reflected, again, on
the convenience to the parties and the relative ease of access to evidence, finding that
Mississippi “appears to be a more convenient forum for the potential witnesses identified so
far” when it comes to the cost of obtaining their attendance. Though consideration of this
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No. 1-22-0802
factor may be less significant today, it does not deserve zero consideration, and the
consideration the court here gave it was not at all an abuse of discretion.
¶ 45 Finally, regarding the viewing of the premises, petitioner claims the court erred in
determining this favored transfer since this is a corporate negligence case and the premises
where Paris suffered the injury “are immaterial.” However, as the trial court pointed out, our
supreme court has repeatedly acknowledged that the possibility of having a jury viewing the
premises of an injury “is an important consideration in ruling on a forum motion.” Fennell,
2012 IL 113812, ¶ 37; Moore v. Chicago & North Western Transportation Co., 99 Ill. 2d 73,
80 (1983). Moreover, this has nothing to do with the necessity or likelihood of viewing the
premises but, rather, simply the possibility of doing so, and this consideration is left most
specifically to the discretion of the trial court. See Ruch, 2015 IL App (1st) 142972, ¶ 70.
While it may eventually prove true that there is no need for a jury to visit Paris’ home to
decide this case, the court was not required to make that determination during this forum
motion. It was only required to consider the possibility of it, and it found it would be
unreasonable to ask a Cook County jury to travel to Mississippi to do so, should the need
arise. Based on the circumstances, we do not find this to be improper.
¶ 46 We now turn to the public interest factors. Instead of addressing these separately or
specifically, petitioner asserts only that this cause of action “has significant connections to
Illinois” and, therefore, there is “a paramount interest in deciding the controversy locally.”
Her argument, which appears at the end of her brief on appeal, is cursory and relatively scant
of support. While we understand petitioner’s argument and we do not discount that there is a
connection between this cause and Illinois, we cannot forget that the essence of a forum non
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No. 1-22-0802
conveniens motion, as we mentioned at the outset herein, is not a question of whether one
proposed forum has proper and legal jurisdiction and the other does not; rather, the question
is which one of two proper forums both possessing legal jurisdiction is better suited to hear
the matter. See Fennell, 2012 IL 113812, ¶ 12; Ruch, 2015 IL App (1st) 142972, ¶ 37. In
the instant cause, the trial court determined the first public interest factor of deciding
localized controversies locally favored transfer, as a Mississippi decedent’s physical injury
took place in Mississippi. While one of the several corporations involved in the suit
maintains an office in Chicago and makes this jurisdiction a legally proper one, that the court
found the also-proper jurisdiction of Mississippi was more appropriate for the reasons it
stated was not unreasonable, especially in light of all the circumstances presented.
Additionally, and again, this suit involves a Mississippi resident suing on behalf of another
Mississippi resident for the effects an incident had on her as her daughter, and it cannot be
denied that it is based on claims of negligence not only concerning employment decisions
potentially made in Cook County but also, as specifically alleged by petitioner herself in her
amended complaint, claims of negligence concerning the specific actions of Hibbler, a
Mississippi resident hired through Oxford, a company doing business in Mississippi.
¶ 47 With this in mind, the trial court found that the next public interest factor, the unfairness
of imposing expense and burden on a county with little connection to the litigation, also
weighed in favor of transfer. The court did recognize that “Cook County residents have
some interest in the controversy given” that Help At Home does have a Chicago office, but it
considered all the circumstances involved to conclude “as a whole this factor favors
transfer.” Clearly, the court thoughtfully examined the connection this litigation has with
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No. 1-22-0802
each of these two forums, along with the fairness of imposing it on one as opposed to the
other. That the court determined these considerations, on the whole, favored Mississippi, is
not at all illogical.
¶ 48 The final public interest factor is the administrative difficulties caused by adding
litigation to already congested court dockets rather than resolving the case at its origin. In
the instant cause, the trial court found this factor to be neutral, since neither Mississippi nor
Tennessee publish the same data regarding court congestion in their jurisdictions as does
Illinois. Obviously, in determining that “a direct comparison * * * is not possible in this
case,” the court properly found this factor to be neutral.
¶ 49 Accordingly, with the trial court having found, via thorough and proper examination, that
two of the three public interest factors supported transfer, we cannot conclude, in light of the
record before us, that no reasonable person would adopt the same reasoning. Just as with the
private interest factors, the trial court did not abuse its discretion. Rather, the court properly
conducted the balance test of private and public interest factors while clearly affording
petitioner’s choice of forum some deference, as it was required to do under the circumstances
presented. The pendulum of the forum non conveniens test simply swung in a direction
petitioner was not expecting.
¶ 50 Petitioner concludes her brief on appeal by stating, ultimately, that the trial court erred in
finding that respondents carried their burden of demonstrating that this cause should be
transferred. We are mindful of the fact that a defendant is not relieved of its burden to show
that the chosen forum is inconvenient to it and another is more convenient to all the parties
simply because the chosen venue has little or no connection to the cause. See Dykstra v. A.P.
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No. 1-22-0802
Green Industries, Inc., 326 Ill. App. 3d 489, 496 (2001). But we believe, just as the trial
court here did, that respondents did make this showing based on the evidence presented,
which we have already discussed at length. See Koss Corp., 2012 IL App (1st) 120379, ¶¶
106-07 (trial court may make inferences in this regard based on evidence presented). In the
end, when all of the relevant private and public interest factors are viewed in their totality,
they strongly favor transfer to Mississippi, which can better serve the convenience of the
parties and the ends of justice with respect to the instant cause. We therefore find that the
trial court did not abuse its discretion in granting respondents’ motion to transfer pursuant to
forum non conveniens.
¶ 51 CONCLUSION
¶ 52 Accordingly, for all the foregoing reasons, we affirm the judgement of the trial court.
¶ 53 Affirmed.
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