Bruce v. Atadero ( 2010 )

FIFTH DIVISION
November 12, 2010
No. 1-09-2463
PAULA BRUCE, Special Administrator )
of the Estate of Michael Bruce, )
Deceased, )
) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
) Cook County,
v. )
) 08 L 14130
ARSENIO D. ATADERO, Individually, )
SHERMAN HOSPITAL, an Illinois Corporation, ) The Honorable
and SHERMAN HEALTH SYSTEM, an Illinois ) Elizabeth M. Budzinski,
Corporation, ) Judge Presiding.
)
Defendants-Appellants. )
)
JUSTICE TOOMIN delivered the opinion of the court:
In this appeal, we determine whether the circuit court properly declined to transfer venue
based on intrastate forum non conveniens where the original action was brought in the forum
where the injury occurred and where several key witnesses resided and, following voluntary
dismissal, was refiled in a forum other than where plaintiff resided.
Plaintiff Paula Bruce, special administrator of the estate of Michael Bruce, brought
wrongful death and survival claims against defendants, alleging they were negligent in their
treatment of decedent, which occurred in McHenry County. Plaintiff originally filed this action in
McHenry County, where defendant Sherman Hospital was a resident. After discovery had
proceeded for almost two years, plaintiff voluntarily dismissed the action and refiled in Cook
County, where two physical therapy facilities of Sherman Hospital were located, but which were
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not related to the treatment at issue, bringing the same claims and making the same allegations
contained in her prior complaint. Defendants filed motions to transfer venue based on the
doctrine of intrastate forum non conveniens. The trial court denied the motions. For the
following reasons, we reverse and remand the matter to the circuit court with directions to
transfer the cause to McHenry County.
BACKGROUND
Plaintiff filed this action in McHenry County on March 10, 2006, grounded on claims for
wrongful death and survival, alleging that defendants negligently failed to diagnose decedent’s
deep vein thrombosis, resulting in his death on March 18, 2004. Plaintiff’s allegations stemmed in
part from the treatment decedent received at Sherman Hospital and the Sherman Hospital
Immediate Care Center, located in McHenry County, following an injury to his left leg.
Defendant Sherman Health Systems, a resident of Kane County, is the parent corporation of
Sherman Hospital. Plaintiff’s allegations against defendant Dr. Arsenio Atadero were based on
the care he rendered to decedent on March 10, 2004, in his medical office in McHenry County.
Decedent was treated and died in the emergency department at Sherman Hospital’s main facility
in Kane County.
Decedent was a resident of Kane County. Plaintiff and decedent’s two minor children
likewise presently reside in that forum. Defendant Dr. Atadero is a resident of McHenry County,
where he also maintains his office. He has privileges to practice and sees patients at hospitals
located in McHenry and Kane Counties. Dr. Atadero’s nurse and potential witness, Joanna
Pledger, works in McHenry County and lives in Kane County.
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Defendant Sherman Hospital’s main facility is in Kane County, but the treatment rendered
to decedent primarily occurred at facilities in McHenry County. Nurse Jason Carman, who
treated decedent at Sherman Hospital’s Immediate Care Center in McHenry County, resides in
McHenry County. Nurse Carman presently works at a different hospital in Cook County, Illinois.
Two other nurses who were involved in the care of decedent at Sherman Hospital Immediate Care
Center, Debra Wojcik and Bonnie Gabriel, work in McHenry County.
The witnesses who provided treatment to decedent the day of his death at Sherman
Hospital in Kane County are: nurses Michael Taster and Susan Hacke, who reside in McHenry
County; Dr. Timothy Wang, who resides in Kane County; Dr. Dalia Gvildys, who resides in
DuPage County; and Dr. Douglas Jackson, who resides in Cook County.
Plaintiff listed the following individuals as damage and loss-of-society witnesses: plaintiff,
her two sons, and her neighbors, who all reside in Kane County; and plaintiff’s mother and father,
who reside in Indiana. Plaintiff also listed seven loss-of-society witnesses who live in Cook
County, including plaintiff’s aunt and uncle; plaintiff’s cousin; and plaintiff’s two sisters. The only
witness to the initial accident and injury to decedent’s leg was David Spagnola, who was
decedent’s coworker. Spagnola resides in Cook County.
The case was pending in McHenry County for almost two years before plaintiff voluntarily
dismissed it and refiled in Cook County. Defendants moved to dismiss or transfer the case back
to McHenry County under the doctrine of intrastate forum non conveniens. On August 19, 2009,
the circuit court entered a 16 page memorandum opinion and order denying defendants’ motion.
Defendants filed a petition for leave to appeal pursuant to Supreme Court Rule 306(a)(2) (210 Ill.
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2d R. 306(a)(2)). Pursuant to supervisory order of the Illinois Supreme Court, we granted
defendants’ petition for leave to appeal.
ANALYSIS
Defendants Sherman Hospital and Sherman Health Systems maintain that the circuit court
abused its discretion in giving undue weight to the fact that Sherman Hospital was a resident of
Cook County for venue purposes. Defendants contend that plaintiff’s choice of Cook County
was entitled to less deference because the plaintiff did not reside in the county and the incident did
not occur there and the public and private interest factors strongly favored transfer from Cook
County back to McHenry County. Defendants further argue that plaintiff’s selection of forum
upon refiling should be afforded even less deference given there is a clear inference of forum
shopping due to the fact that she previously filed her cause of action in McHenry County, the situs
of the wrongful conduct. Plaintiff maintains that the balance of all private and public factors
weighs in favor of allowing her choice of forum, and that her prior filing of this action is irrelevant
to a forum non conveniens analysis and does not lessen the deference due to her choice of forum.
Our precedent instructs that forum non conveniens is an equitable doctrine founded on
considerations of fundamental fairness and the sensible and effective administration of justice.
Langenhorst v. Norfolk Southern Railway Co., 219 Ill. 2d 430, 441, 848 N.E.2d 927, 934 (2006).
Under the doctrine the trial court has the authority to transfer a lawsuit intrastate, even when the
venue where the suit was filed is proper. See Torres v. Walsh, 98 Ill. 2d 338, 344-50, 456 N.E.2d
601, 604-07 (1983). “ ‘It is often said that the plaintiff may not, by choice of an inconvenient
forum, “vex,” “harass,” or “oppress” the defendant by inflicting upon him expense or trouble not
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necessary to his own right to pursue his remedy.’ ” Torres, 98 Ill. 2d at 345-46, 456 N.E.2d at
604-05, quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct.
839, 843 (1946). The doctrine presupposes the existence of at least two forums in which the
defendant is amenable to jurisdiction. Jones v. Searle Laboratories, 93 Ill. 2d 366, 371, 444
N.E.2d 157, 159 (1982). In adopting the intrastate forum non conveniens doctrine in Torres, our
supreme court recognized the Illinois courts’ authority to transfer cases as long existing at
common law. Torres, 98 Ill. 2d at 347, 456 N.E.2d at 605. “The doctrine allows a trial court to
decline jurisdiction of a case when it is apparent that trial in another forum with proper
jurisdiction and venue ‘would be more convenient and would better serve the ends of justice.’ ”
Glass v. DOT Transportation, Inc., 393 Ill. App. 3d 829, 832, 912 N.E.2d 762, 766 (2009),
quoting Vinson v. Allstate, 144 Ill. 2d 306, 310, 579 N.E.2d 857, 859 (1991). “A court having
jurisdiction and venue over a case may dismiss or transfer the case if it “has no practical
connection to the forum.” Torres, 98 Ill. 2d at 348, 456 N.E.2d at 606, citing, e.g., People ex rel.
Compagnie Nationale Air France v. Giliberto, 74 Ill. 2d 90, 383 N.E.2d 977 (1978); Adkins v.
Chicago, Rock Island & Pacific R.R. Co., 54 Ill. 2d 511, 301 N.E.2d 729 (1973). In the event a
plaintiff files suit in an improper forum, the Civil Practice Law (735 ILCS 5/2-101 et seq. (West
2008)) provides for the means to transfer the cause to a proper venue or dismiss the action.
Williams v. Illinois State Scholarship Comm’n, 139 Ill. 2d 24, 40, 563 N.E.2d 465, 472 (1990).
In determining the appropriate forum in which the case should be tried, it is incumbent
upon the court to balance the prevailing private and public interests. Glass, 393 Ill. App. 3d at
832-33, 912 N.E.2d at 767, citing Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 172, 797
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N.E.2d 687, 693 (2003). “In Illinois, the private interest factors include the convenience of the
parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the
availability of compulsory process to secure attendance of unwilling witnesses; the cost to obtain
attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all
other practical considerations that make a trial easy, expeditious, and inexpensive.” Glass, 393
Ill. App. 3d at 833, 912 N.E.2d at 767, citing Dawdy, 207 Ill. 2d at 172, 797 N.E.2d at 693. The
relevant public interest factors implicate: “the administrative difficulties caused when litigation is
handled in a congested venue instead of being handled at its origin; the unfairness of imposing jury
duty upon residents of a county with no connection ot the litigation; and the interest in having
local controversies decided locally.” Glass, 393 Ill. App. 3d at 833, 912 N.E.2d at 767, citing
Dawdy, 207 Ill. 2d at 173, 797 N.E.2d at 693. “The private interest factors are not weighed
against the public interest factors; rather, the trial court must evaluate the total circumstances of
the case in determining whether the defendant has proven that the balance of factors strongly
favors transfer.” Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935.
Our consideration of the issue makes clear that the burden is on the defendant to show
that the relevant private and public interest factors “strongly favor” the defendant’s choice of
forum to warrant disturbing plaintiff’s choice. Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at
935. The defendant must show that plaintiff’s chosen forum is inconvenient to the defendant and
that another forum is more convenient to all parties. First American Bank v. Guerine, 198 Ill. 2d
511, 518, 764 N.E.2d 54, 59 (2002). Unless the balance of factors strongly favor a defendant’s
choice of forum, the plaintiff’s forum choice should rarely be disturbed. Langenhorst, 219 Ill. 2d
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at 444, 848 N.E.2d at 935; Guerine, 198 Ill. 2d at 517, 764 N.E.2d at 58.
Nonetheless, “the plaintiff's interest in choosing the forum receives somewhat less
deference when neither the plaintiff's residence nor the site of the accident or injury is located in
the chosen forum.” Guerine, 198 Ill. 2d at 517, 764 N.E.2d at 59. While we are mindful of this
limitation when the plaintiff chooses a forum other than where he resides, “ ‘the deference to be
accorded is only less, as opposed to none.’ ” (Emphasis in original.) Guerine, 198 Ill. 2d at 518,
764 N.E.2d at 59, quoting Elling v. State Farm Mutual Automobile Insurance Co., 291 Ill. App.
3d 311, 318, 683 N.E.2d 929, 935 (1997).
Prevailing practice further dictates that the determination of a forum non conveniens
motion lies within the sound discretion of the trial court. Glass, 393 Ill. App. 3d at 832, 912
N.E.2d at 766-67, citing Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 176-77, 797 N.E.2d
687, 696 (2003). Therefore, on review, the trial court’s decision will be reversed only if it can be
shown that the court abused its discretion in balancing the relevant factors. Bland v. Norfolk &
Western Ry. Co., 116 Ill. 2d 217, 223, 506 N.E.2d 1291, 1293-94 (1987). It is well settled that
an abuse of discretion will be found where no reasonable person would take the view adopted by
the trial court. Glass, 393 Ill. App. 3d at 832, 912 N.E.2d at 766-67, citing Dawdy, 207 Ill. 2d at
177, 797 N.E.2d at 696.
Here, our analysis yields the conclusion that the circuit court abused its discretion in its
findings regarding the balance of private and public factors. As a preliminary consideration we
note that the court, in its 16 page memorandum opinion and order, afforded inordinate weight to
the fact that Sherman Hospital operates two physical therapy facilities in Cook County, and
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therefore was a resident of Cook County:
“As to the private factors in this case, it has not been shown that it would be more
convenient to litigate this case in McHenry than it would be to litigate it in Cook County.
Although [p]laintiff’s choice of Cook County as forum is given less deference as she is not
a resident of Cook County and the actions giving rise to her claims did not occur in Cook
County, [p]laintiff’s choice of forum is still given deference. Sherman is a resident of
Cook County. Plaintiff has identified fifteen witnesses who will testify as to damages.
Eight of these witnesses reside in Cook County, five reside in Kane County and include
Plaintiff, and two live in Indiana. Even assuming that not all of [p]laintiff’s identified
witnesses will testify at trial, the expected witnesses identified by [p]laintiff are scattered
across Cook and Kane Counties, as well as Indiana. David Spagnola, who was
[d]ecedent’s co-worker, also resides in Cook County and is expected to testify regarding
the accident that led to the injuries for which [p]laintiff was treating with [d]efendants.
***
Dr. Douglas, a physician who treated [d]ecedent at Sherman, is a resident of Cook
County and has been identified as a potential witness. * * * In evaluating the private
interest factors, transferring this case to McHenry County has not been shown to be
strongly favored as Sherman is a resident of Cook County and witnesses from Cook
County are expected to offer testimony.
In evaluating the public interest factors, it is clear that Cook County residents have
an interest in deciding this controversy which involves a resident of this county. Sherman
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resides in Cook County and witnesses who are expected to testify, including Dr. Douglas
and eight of [p]laintiff’s damage witnesses, reside in Cook County. As such, it would not
be unfair to impose the expense of a trial and the burden of jury duty on the residents of
Cook County.
***
In this case, Cook County has an interest in deciding a controversy involving one
of its residents – Sherman.
***
This case is distinguishable from Evans [v. MD Con, Inc., 275 Ill. App. 3d 292(1995)] as [p]laintiff has identified witnesses from Cook County. Additionally, Sherman
is a resident of Cook County.
***
Here, although [p]laintiffs do not reside [in] Cook County, Sherman is a resident
of Cook County. (Emphasis added.)
We concur in defendants’ argument that the court indeed gave undue weight to the fact
that Sherman Hospital was a resident of Cook County. As defendants maintain, while the
existence of those additional facilities in Cook County renders Sherman Hospital a resident of
Cook County for purposes of venue under section 2-102(a) of the Illinois Code of Civil
Procedure (735 ILCS 5/2-102(a)(West 2008)), the inquiry in a forum non conveniens analysis
requires a court to look beyond the statutory criteria for venue and to determine the relative
convenience of competing forums. Williams, 139 Ill. 2d at 41, 563 N.E.2d at 473, citing Foster
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v. Chicago & North Western Transportation Co., 102 Ill. 2d 378, 384-85, 466 N.E.2d 198, 199
(1984) (application of this doctrine invokes principles of convenience and fairness in choosing
between two or more forums that have jurisdiction). Under an intrastate forum non conveniens
analysis, neither of the facilities in Cook County had any semblance of a connection to decedent’s
care and treatment at issue in this case. Rather, all of the treatment on which plaintiff’s complaint
is based occurred at Sherman Hospital’s Immediate Care facility in McHenry County and at Dr.
Atadero’s office in McHenry County.
Moreover, we determine that the private interest factors clearly weigh in favor of
defendants. Regarding convenience of the parties, defendants presented affidavits averring that it
would be more convenient to have this matter tried in McHenry County. Dr. Atadero attested in
his affidavit that a trial in McHenry County would be more convenient than a trial in Cook County
because it would allow him to see patients and fulfill some of his daily responsibilities, given the
location of his office and the hospitals where he has privileges. Nurse Jason Carman, whose
conduct is also central to the allegations in plaintiff’s complaint, likewise averred that a trial in
McHenry County would be more convenient than a trial in Cook County.
Regarding the ease of access to sources of evidence, the trial court also placed
considerable reliance on the fact that plaintiff’s damage witnesses were located across several
counties, while ignoring that the vast majority of the key medical witnesses, whose treatment of
decedent was at issue in this case, reside in McHenry County. Four of the five medical providers
who treated decedent, Dr. Dalia Gvildys and nurses Michael Taster, Jason Carman, and Susan
Hacke, reside in McHenry County. The fifth treatment provider resides in Kane County. Only
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Dr. Douglas, who treated decedent at Sherman, is a resident of Cook County. Plaintiff, her two
sons, and two neighbors, disclosed as damage witnesses, reside in Kane County. Although we
recognize that the witness to the accident initially causing plaintiff’s injury, Spagnola, resides in
Cook County, we do not perceive the initial accident to be a significant issue in this case. The
only other witnesses residing in Cook County are further damage witnesses: decedent’s mother,
decedent’s brother, and plaintiff’s aunt, uncle, cousin and two sisters.
It is therefore apparent that the majority of witnesses who have knowledge of the conduct
allegedly resulting in decedent’s wrongful death reside in McHenry County. Defendant Dr.
Atadero resides in McHenry County. Thus, the convenience of the parties weighs in favor of
defendants. The fact that several, perhaps cumulative, damage witnesses reside across several
counties simply does not weigh in favor of plaintiff’s choice of Cook County. This is especially
true considering that plaintiff’s residence is in not in Cook County, her newly chosen forum, and
the wrongful acts and omissions alleged all occurred in McHenry County, the forum of her
original choice.
We have previously noted that “the location of documentary evidence has become less
significant because today's technology allows documents to be copied and transported easily and
inexpensively.” Ammerman v. Raymond Corp., 379 Ill. App. 3d 878, 890, 884 N.E.2d 1221,
1233 (2008). Also, we recognize that “a viewing of the site is rarely or never called for in a
medical negligence case,” and “that factor, standing alone, is simply insufficient to justify transfer
[to a different county under a forum non conveniens analysis].” Hackl v. Advocate Health &
Hospitals Corp., 382 Ill. App. 3d 442, 452, 887 N.E.2d 726, 734 (2008). Moreover, no showing
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has been made as to the availability of compulsory process to secure attendance of unwilling
witnesses or the cost to obtain attendance of willing witnesses. However, “all other practical
considerations that make a trial easy, expeditious, and inexpensive” (Glass, 393 Ill. App. 3d at
833, 912 N.E.2d at 767, citing Dawdy, 207 Ill. 2d at 172, 797 N.E.2d at 693) weigh in favor of
defendants. Sherman Hospital and Atadero have sufficiently shown that Atadero can more
conveniently attend trial without affecting his practice if the trial takes place in McHenry County
rather than Cook County, and personnel for the McHenry County location for Sherman Hospital
are located within McHenry County.
We further determine that the public interest factors likewise weigh heavily in favor of
having the matter tried in McHenry County. Given that the acts or omissions alleged to have
cause the wrongful death of decedent occurred in McHenry County, the forum of the injury
clearly has a public interest in the medical care provided at its medical facilities by physicians to its
residents. Although court congestion alone is relatively insignificant and does not justify a venue
transfer (Dawdy, 207 Ill. 2d at 181, 797 N.E.2d at 698), we take judicial notice of the fact that the
McHenry courthouse is less congested than the Cook County courthouse. Thus, the balance of
all factors strongly favors defendants.
In Gundlach v. Lind, 353 Ill. App. 3d 677, 820 N.E.2d 1 (2004), relied upon by
defendants, we reversed the judgment of the circuit court denying a forum non conveniens motion
and directed the transfer of the action to McHenry County under similar circumstances. In
Gundlach, the plaintiffs resided in Lake County and would have had to travel to either McHenry
or Cook County; however, the defendants were all residents of McHenry County, and that forum
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was more convenient for them. Gundlach, 353 Ill. App. 3d at 683, 820 N.E.2d at 5. Also, the
evidence was more easily accessible in McHenry County than in Cook County where 20 potential
occurrence witnesses identified by defendants all worked and resided in McHenry, compared to 2
surgeons identified by plaintiff who were believed to reside in Cook County. Gundlach, 353 Ill.
App. 3d at 683, 820 N.E.2d at 5.
In Gundlach the public interest factors also weighed strongly in favor of transferring the
case to McHenry County because the litigation arose from alleged negligence during a medical
procedure performed at a McHenry hospital, and as such, it was a local controversy that would be
of interest to the citizens of McHenry County, whereas the citizens of Cook County had no
interest in the litigation. Gundlach, 353 Ill. App. 3d at 683, 820 N.E.2d at 6. We held it would
be unfair under such circumstances to impose the costs of the trial and the burden of jury duty
upon the citizens of Cook County. Gundlach, 353 Ill. App. 3d at 683, 820 N.E.2d at 6. In
addition, although court congestion alone is relatively insignificant and does not justify a venue
transfer, we took judicial notice that, according to the annual report of the Administrative Office
of the Illinois Courts for 2003, “McHenry County had 701 pending law cases seeking over
$50,000 in relief, while Cook County had 26,353.” Gundlach, 353 Ill. App. 3d at 683, 820
N.E.2d at 6.
In the case sub judice, the circuit court here found that “Gundlach is distinguishable from
[the instant case] in that all of the defendants in Gundlach were residents of the county where the
defendants were attempting to transfer the case.” However, we find this sole distinction
unavailing, as Sherman Hospital is a resident of McHenry County as well. Notably, plaintiff has
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no argument against the application of Gundlach to this case.
Moreover, we find the circuit court abused its discretion in giving scant consideration to
the fact that plaintiff had originally filed her action in McHenry County. Although the court noted
defendants’ argument concerning plaintiff’s previous filing in McHenry County and inference of
forum shopping, it was not moved by this consideration. In this case, given that plaintiff is not a
resident of Cook County and the acts or omissions did not occur in Cook County, but rather in
McHenry County, plaintiff’s previously chosen forum, with no change in circumstances such that
Cook County would be a more convenient forum, we find that plaintiff is engaging in forum
shopping. When the plaintiff is foreign to the chosen forum and the action that gives 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, a strategy contrary to the purposes
behind the venue rules.’ ” Dawdy, 207 Ill. 2d at 174, 797 N.E.2d at 694, quoting Certain
Underwriters at Lloyd's, London v. Illinois Central R.R. Co., 329 Ill. App. 3d 189, 196, 768
N.E.2d 779, 785 (2002). As the supreme court noted in Guerine, “[a] concern animating our
forum non conveniens jurisprudence is curtailing forum shopping by plaintiffs.” Guerine, 198 Ill.
2d at 521, 764 N.E.2d at 61.
Our supreme court embodied this concern in the analysis from the very beginning upon its
adoption of the doctrine in Torres:
“In recognizing the discretion of the trial court to dismiss a case within its jurisdiction
when a more appropriate intrastate forum is available and when maintenance of the action
in the original forum causes unnecessary hardship to the defendant and other interested
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parties, we hope to promote fair play between plaintiffs and defendants and discourage the
incessant jockeying for a more sympathetic jury likely to come forward with a more
substantial award.” Torres, 98 Ill. 2d at 351, 456 N.E.2d at 607.
“Subsequent decisions have reiterated that forum non conveniens is founded in
considerations of fundamental fairness and sensible and effective judicial administration.” Peile v.
Skelgas, Inc., 163 Ill. 2d 323, 333, 645 N.E.2d 184, 189 (1994). Since Torres, our supreme
court has continued to characterize the intrastate application of the doctrine as rooted in the
court's discretionary power to dismiss a case within its jurisdiction when a more appropriate
forum is available. Peile, 163 Ill. 2d at 333, 645 N.E.2d at 189.
The plaintiff in Peile, who was injured in a gas explosion at his Pike County home,
originally filed his case in Madison County, but it was later transferred to Pike County. Peile, 163
Ill. 2d at 326-27, 645 N.E.2d at 186. Discovery proceeded in Pike County for two years, during
which time the plaintiffs amended their complaint and added defendants. Peile, 163 Ill. 2d at 327,
645 N.E.2d at 186. Two months before the trial date the plaintiffs voluntarily dismissed their
lawsuit and then refiled in St. Clair County. Peile, 163 Ill. 2d at 327, 645 N.E.2d at 186. In turn,
the trial court denied the defendants’ motion to transfer the refiled suit back to Pike County, and
our supreme court reversed. Peile, 163 Ill. 2d at 344-45, 645 N.E.2d at 194. The court
concluded that the plaintiff's second choice of forum should have been accorded less deference.
Peile, 163 Ill. 2d at 344-45, 645 N.E.2d at 194. The court stated: “In light of these
circumstances, we believe that the circuit court of St. Clair County should have accorded lesser
deference, in its forum non conveniens analysis, to what was plaintiffs' second choice of forum for
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trial, a forum selected almost two years after the case had been transferred to Pike County.”
(Emphasis omitted.) Peile, 163 Ill. 2d at 344, 645 N.E.2d at 194.
Adhering to the principles espoused in Peile, in Czarnecki v. Uno-Ven Co., 339 Ill. App.
3d 504, 791 N.E.2d 164 (2003), we held the trial court erred in not transferring a cause of action
from Cook County to Will County on forum non conveniens grounds raised by defendants. In
Czarnecki, the plaintiff filed a personal injury action against the defendants in Will County in
1996. Czarnecki, 339 Ill. App. 3d at 505-06, 791 N.E.2d at 166. Twenty days before trial, the
plaintiff voluntarily dismissed his complaint. A year later, he refiled a virtually identical complaint
in Cook County; no new defendants, allegations, or theories of liability were added. Czarnecki,
339 Ill. App. 3d at 506, 791 N.E.2d at 166. The defendants filed motions to transfer the case
back to Will County pursuant to the doctrine of forum non conveniens, which the trial court
denied. The plaintiff was a resident of Will County; the accident occurred in Will County; the
only occurrence witness cited by the plaintiff's interrogatory answers was a Will County resident;
and a remaining person at the scene resided in Ogle County. Additionally, two of the plaintiff’s
treating doctors, his vocational counselor, and two defense-retained opinion witnesses were Cook
County contacts. Czarnecki, 339 Ill. App. 3d at 507-08, 791 N.E.2d at 168. Nine other
witnesses were dispersed among six Illinois counties and in Indiana. Czarnecki, 339 Ill. App. 3d
at 508, 791 N.E.2d at 168.
On appeal, we held that the trial court abused its discretion in denying the motion to
transfer, finding that the private interest factors favored the transfer of the case back to Will
County, since the plaintiff was a Will County resident; the place of his injury was in Will County;
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and five potential witnesses, including the sole occurrence witness, were located in Will County.
Czarnecki, 339 Ill. App. 3d at 510, 791 N.E.2d at 170. The public interest factors also strongly
favored transfer to Will County because Cook County had a minimal interest in the action, as
plaintiff’s injuries were sustained at a Will County construction site. Thus, Will County’s interest
in securing safety at local construction sites substantially favored transfer to that county.
Czarnecki, 339 Ill. App. 3d at 509, 791 N.E.2d at 169. We found that the presence of
defendants’ registered agents and their conducting of unrelated business transactions in Cook
County, while sufficient to fix venue, were not significant factors for forum non conveniens
purposes. Czarnecki, 339 Ill. App. 3d at 509, 791 N.E.2d at 169. Moreover, we accorded less
deference to the Cook County contacts cited by the plaintiff because the location of plaintiff's
treating physicians, whose conduct was not at issue in the case, was given “undue weight,” and
the location of experts was not relevant because they were “testifying at defendants’ request.”
Czarnecki, 339 Ill. App. 3d at 510-11, 791 N.E.2d at 170.
We further held that plaintiff's original decision to file in Will County, his voluntary
dismissal on the brink of trial, and the subsequent filing of a nearly identical claim in Cook County
strongly implied that plaintiff was engaging in impermissible forum shopping. Czarnecki, 339 Ill.
App. 3d at 509, 791 N.E.2d at 169. As we stated, “plaintiff’s action was originally filed in Will
County and proceeded there for roughly four years. During that time, there is no evidence that
plaintiff did not consider Will County to be a convenient and appropriate forum.” Czarnecki, 339
Ill. App. 3d at 511, 791 N.E.2d at 170.
In Wagner v. Eagle Food Centers, Inc., 398 Ill. App. 3d 354, 925 N.E.2d 243 (2010), we
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likewise held that the trial court erred in denying the defendant grocery store and product
manufacturer's motion to dismiss or transfer based on forum non conveniens where the private
and public interest factors strongly favored return of case to initial forum and granting the motion
was necessary to keep the plaintiffs from forum shopping. The plaintiffs, an injured party and his
wife, had sued the defendants based on the injured party’s slip-and-fall at the Eagle grocery store
in Will County, but then voluntarily dismissed their claims and refiled them in Cook County.
Wagner, 398 Ill. App. 3d at 355, 925 N.E.2d at 245. Plaintiffs had amended their complaint
seven times over the almost seven years that the case was pending in Will County to add
allegations that the substance plaintiff slipped on was Tilex, a product manufactured by Clorox,
that the bottle was defective, and that Clorox and Eagle were acting in concert. Wagner, 398 Ill.
App. 3d at 355, 925 N.E.2d at 245.
In analyzing the public interest and private interest factors, we found that the fact that
plaintiffs litigated their initial action in Will County for a number of years suggested that Will
County was a convenient forum for them, and at no time during those seven years was there any
evidence that the plaintiffs did not consider Will County to be a convenient and appropriate
forum. Wagner, 398 Ill. App. 3d at 362, 925 N.E.2d at 251. Conversely, it was clear that Will
County would be more convenient for the witnesses that defendants identified as having
knowledge of the incident, who resided in Will County and provided affidavits stating that it
would be inconvenient to travel to Cook County for trial. Wagner, 398 Ill. App. 3d at 363, 925
N.E.2d at 251.
See also Certain Underwriters at Lloyd’s, London v. Illinois Central R.R. Co., 329 Ill.
181-09-2463
App. 3d 189, 198-99, 768 N.E.2d 779, 787-88 (2002) (held the trial court erred in not changing
venue under the doctrine of forum non conveniens where the insurers filed suit in Lake County,
which had little or no nexus to the controversy, but defendant railroad was headquartered in Cook
County, and two of the contaminated sites at issue were located in Cook County, and where we
questioned the plaintiffs’ motivation for choosing Lake County as the forum); Franklin v. FMC
Corp., 150 Ill. App. 3d 343, 348-49, 501 N.E.2d 887, 890-91 (1986) (held the trial court abused
its discretion in denying a forum non conveniens motion to transfer where the mere residence of
defendant corporate offices and registered agents in Cook County provided no connection to the
subject matter of the litigation; the accident occurred in Vermilion County; the machinery which
caused the injury was located in Vermilion County; the primary treatment occurred there; and the
bulk of the witnesses lived in or near Vermilion County).
Similarly, in the case sub judice, plaintiff originally filed her action in McHenry County,
where the case remained pending for two years, and plaintiff at no time indicated an
inconvenience in her chosen forum. All treatment of decedent occurred in McHenry County. The
bulk of the occurrence witnesses for decedent’s treatment are in McHenry County. Defendant
Atadero resides in McHenry County. Plaintiff relies on nothing other than the technical residence
of Sherman Hospital in Cook County based on the location of two facilities totally unrelated to
this case and the residence of several other damage witnesses in Cook County. Defendant’s
presence in Cook County for venue purposes does not establish a connection with this action for
forum non conveniens purposes. We also do not give undue weight to the residence of several
damage witnesses in Cook County, when other damage witnesses are in other counties and most
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of the key witnesses regarding the treatment of decedent at issue in her wrongful death claim are
in McHenry County. The lack of any real connection to Cook County is patent. In short, the
present case presents just such an instance suggesting forum shopping that our supreme court has
expressly held should not be permitted. The trial court abused its discretion in denying
defendants’ motion.
Further, we are of the opinion that directing the trial court to transfer the case to McHenry
County, rather than merely dismissing the action in Cook County, is the proper disposition. See
Wakehouse v. Goodyear Tire & Rubber Co., 353 Ill. App. 3d 346, 354, 818 N.E.2d 1269, 1277
(2004) (affirmed the circuit court's dismissal of a suit on interstate forum non conveniens grounds
barred refiling of the suit in another Illinois county; allowing refiling would have promoted forum
shopping). The case should be transferred back to McHenry County, where plaintiff initially
chose to bring her action.
CONCLUSION
For the foregoing reasons, we reverse the trial court’s denial of defendant’s motion and
remand the matter to the circuit court with directions to transfer the action to McHenry County.
Reversed and remanded.
FITZGERALD SMITH, P.J., with HOWSE, J., concur.
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1-09-2463
Plea se Use
REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Following (Front Sheet to be Attached to Each Case)
Form:
PAULA BRUCE, SPECIAL ADMINISTRATOR OF THE ESTATE OF MICHAEL BRUCE,
Complete
TITLE DECEASED,
of Case
Plaintiff-Appellant,
v.
ARSENIO D. ATADER, M.D., INDIVIDUALLY, ET AL.,
Defendants-Appellees.
Docket No.
COURT 1-09-2463
Appellate Court of Illinois
First District, FIFTH Division
Opinion
Filed November 12, 2010
(Give month, day and year)
JUSTICES JUSTICE TOOMIN delivered the opinion of the court:
FITZGERALD SMITH, P.J., with HOWSE, J., concur [s]
dissent[s]
APPEAL from
the Circuit Ct. of Lower Court and Trial Judge(s) in form indicated in the margin:
Cook County,
Chancery Div.
The Honorable Elizabeth Budzinski, Judge Presiding.
Indicate if attorney represents APPELLANTS or APPELLEES and include
For
APPELLANTS, attorneys of counsel. Indicate the word NONE if not represented.
John Doe, of
Chicago. Plaintiff-Appellee, Steven M. Levin
Margaret P. Battersby
For Levin & Perconti
APPELLEES,
Smith and Smith
325 N LaSalle Street, Suite 450
of Chicago, Chicago, IL 60654
Joseph Brown,
(of Counsel)
Defendants-Appellants, Rick L. Hammond
Also add
attorneys for Phillip E. Wand
third-party Gummerson & Rausch, LLC
appellants or 101 South Benton Street, Suite 201
appellees. Woodstock, IL 60098
815/337-7700
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1-09-2463
HUGH C. GRIFFIN
Anna M. Loftus
Hall Prangle & Schoonveld, LLC
200 South Wacker Drive, Suite 3300
Chicago, IL 60606
Kay L. Schichtel
Nicole M. Clarke
Leanne Moore
Swanson Martin & Bell, LLP
330 North Wabash Avenue, Suite 3300
Chicago, IL 60611
312/321-9100
22