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The Illinois Appellate Court's Decision Curtails the Ability of Defendants to Invoke the Forum Non Conveniens Doctrine in Product Liability Cases

October 21, 2013Victoria ShoemakerRelated Practice Areas: Civil Rights Litigation & Correctional Healthcare

In legal theory, the doctrine of forum non conveniens refers to the discretionary power of the court to dismiss or transfer a case even though jurisdiction and venue are proper when it would serve the convenience of the parties and the ends of justice. First Nat. Bank v. Guerine, 198 Ill. 2d 511, 515 (2002). The doctrine is an equitable one that assumes the existence of more than one forum with jurisdiction over the parties and subject matter of the case. Id. It can be used by defendants in order to prevent plaintiffs from choosing an inconvenient forum as a means of strategy or harassment. Id. at 516.

A decision to dismiss on the basis of forum non conveniens is committed to a trial court’s discretion. While an order of the circuit court allowing or denying a motion to dismiss on the grounds of forum non conveniens is the basis for an immediate appellate review under Illinois Supreme Court Rule 306(a)(2) (allowing interlocutory appeal by permission), overturning a decision committed to a trial court’s discretion in Illinois is virtually impossible because on appeal, forum non conveniens decisions are evaluated using an abuse of discretion standard.

In a recent ruling, Taylor v. Lemans Corporation, 2013 IL App (1st Dist.) 130033 (October 15, 2013) Cook Co., 2d Div., the Illinois Appellate Court applied the intrastate forum non conveniens jurisprudence developed in First American Bank v. Guerine, 198 Ill. 2d 511 (2002), Dawdy v. Union Pacific Railroad Co., 207 Ill. 2d 167 (2003), and Langenhorst v Norfolk Southern Railway Co., 219 Ill. 2d 430 (2006), rulings of the Illinois Supreme Court. In Taylor, defendants Lemans Corporation, Moose Racing, Parts Unlimited, and Gibbs Motor Corporation appealed from the order of the circuit court denying their motion to transfer plaintiff’s product liability lawsuit filed in Cook County to Bureau County where the motorcross bicycle accident occurred on the grounds of forum non conveniens. The appellate court affirmed the circuit court’s decision, holding that where primary issue is product liability, location of accident is less significant due to general interest in resolving a claim as to allegedly defective product, including in counties where companies conduct business. It further held that the Internet access and computer technology render location of documentary evidence secondary to other interests. The Taylor decision suggests further restriction of the doctrine in product liability cases. The decision may have a wide-reaching impact not only on personal injury lawsuits but also pharmaceutical litigation and toxic tort actions filed in Illinois by weakening the ability of defendants sued in Illinois to invoke the forum non conveniens doctrine against “forum shopping” and move cases out of counties that have little or no connection with the claims that are being asserted.

In Taylor, the plaintiff was a resident of Fulton County. While riding the bike, he performed a jump and upon landing the front tire blew out causing him to fall and suffer an injury. This accident occurred in Bureau County. The plaintiff was taken to the hospital in Bureau County for immediate treatment, and his treating physician immediately after the accident practiced in Bureau County as well. The majority of his subsequent treatment took place in Peoria County. The bike was stored in DuPage County. The witnesses resided in Bureau County and Fulton County. Three defendants were Wisconsin corporations with their principal place of business in Wisconsin, with dealers located in Cook County. Defendant Gibbs Motor Corporation was an Illinois corporation with its principal place of business in Whiteside County.

Defendants argued that Bureau County was a more appropriate forum because (1) the accident occurred there and the inspection of premises would be easier if the case was litigated in that County; (2) the plaintiff was treated by medical personnel there and the expected medical witnesses resided either in Bureau or Fulton County; (3) it was also more convenient for the eyewitnesses, all of whom resided either in Fulton or Bureau County; (4) Bureau County had a greater interest in a trial involving an accident that occurred on its motorbike course; and (5) Bureau County’s docket was substantially less congested than Cook County’s docket.

The plaintiff argued that (1) Cook County was more convenient for defendants and their counsel from Cook County; (2) medical evidence was easily available regardless of its locations; (3) a site visit to the motorbike course was unnecessary in a case alleging product liability claims; and (4) Cook County had a general interest in resolving a claim involving an allegedly defective product that can be purchased in at least 18 locations throughout Cook County.

The trial court acknowledged that the plaintiff’s choice of forum was given less deference as Cook County was not his place of residence, nor was it the location of the accident; nonetheless, the trial court ruled that the plaintiff’s choice of forum prevailed. The court determined that defendants failed to show that Cook County was inconvenient to defendants because Wisconsin defendants were located approximately the same distance from Cook County as from Bureau County; the witnesses were scattered among various counties and did not submit any affidavits stating that plaintiff’s chosen forum was inconvenient to them; the bike was stored in DuPage County which is next to Cook County; and since it was a product liability action, a site visit was unnecessary.

On appeal, defendants argued that the trial court gave undue deference to plaintiff’s choice of forum and incorrectly required them to show that each factor of the balancing test used to determine forum non conveniens strongly favored a transfer. The appellate court emphasized that the trial court should exercise its authority to decline jurisdiction “only in exceptional circumstances when the interests of justice require a trial in a more convenient forum. Langenhorst, 219 Ill. 2d at 441 (emphasis in original). It conducted an unequal balancing test, explaining that plaintiff’s choice of forum would prevail unless inconvenience factors associated with the chosen forum greatly outweighed plaintiff’s substantial right to choose the forum.

The appellate court analyzed the forum non conveniens issue by weighing both public and private interest factors. In Illinois, the relevant private interest factors include “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.” Dawdy, 207 Ill. 2d at 172. The relevant public interest factors include “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 of litigation, and the interest in having local controversies decided locally.” Id. at 173. Furthermore, since the determination of a forum non conveniens motion lies within the sound discretion of the trial court, the Illinois appellate court can only reverse if it found that the trial court had abused its discretion in balancing the relevant factors.

The appellate court determined that the private interest factors did not strongly favor a transfer to Bureau County. When applying the relevant criteria, it noted that none of the parties resided in Cook County or Bureau County. While defendant Gibbs was located only 56.6 miles from the Bureau County but nearly 132 miles from Cook County, the appellate court explained that defendants failed to provide an affidavit stating that Cook County would be inconvenient for defendants Gibbs. As for access to sources of testimonial, documentary, and real evidence, defendants once again did not obtain affidavits from any witnesses stating that Cook County would be inconvenient. The court emphasized that computer technology and Internet access rendered the location of documentary evidence less significant.

The court found that Bureau Country prevailed based on the following public interest factors: interest in deciding controversies locally, the unfairness of imposing trial expense on residents of a forum that has little connection to the litigation, and the possibility of the site inspection. However, the court reasoned that because the plaintiff’s complaint centers on product liability claims, the location of the accident is less significant because any local interest is largely supplanted by a more general interest in resolving a claim concerning an allegedly defective product. It explained that on the contrary, Cook County has an interest in resolving a controversy concerning the sale of an allegedly defective product by companies conducting business in its forum. Accordingly, the appellate court concluded that defendants had not sufficiently shown that Cook County was inconvenient to then and that Bureau County was more convenient to all parties.

As for defendants’ arguments, the appellate court disagreed with defendants’ contention that the trial court erred in applying the balancing test by allegedly requiring defendants to prove that each relevant private and public interest factor strongly weighed in their favor instead of analyzing the totality of circumstances. The decision explained that the trial court was merely evaluating the strength of each factor but considered the totality of the circumstances. Notably, the appellate court pointed out that the defendants did not provide transcripts of the hearing on their motion to transfer. Therefore, the appellate court presumed that the trial court had sufficient factual basis for its holdings and resolved any doubts associated with the incomplete record against defendants.

Motions to transfer based on forum non conveniens are becoming increasingly difficult to prevail on for defendants, particularly in the product liability cases. The Taylor decision has further curtailed the availability of arguments pertaining to the private interest factors to defendants. It diminished the importance of the accident location and decreased the significance of having access to evidence, thereby further shifting the already-unequal balancing test in favor of plaintiff. Therefore, it is vitally important that defendants bolster their chances by attaching to their motions all supporting documentation and being prepared to submit a complete record on appeal.

There are two lessons to be learned from Taylor. First, given the broad discretion the trial court has in determining a motion to transfer on forum non conveniens and the standard of review, it is essential that defendants submit all supporting affidavits at the trial court level instead of hoping for taking a second stab on appeal. In Taylor, both trial and appellate courts have repeatedly emphasized that defendants did not obtain any affidavits from defendant and witnesses stating that the plaintiff’s choice of forum was inconvenient to them. It has become clear that failure to submit pertinent affidavits will impede defendants’ chances at intrastate transfer on forum non conveniens grounds. Second, defendants must obtain a transcript of the hearing on their motion to transfer in anticipation of a possible appeal as this will provide a glimpse into the trial court’s analysis. This is important because any doubt associated with the incomplete records is resolved against the appellants. Accordingly, in order to strengthen defendants’ chances of prevailing on an appeal from an order denying a motion to dismiss on the ground of forum non conveniens defendants must provide appellate courts with complete records, including affidavits of parties and witnesses regarding inconvenience of a plaintiff’s forum and convenience of another county and a transcript of the proceeding demonstrating trial court’s decision-making process.