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Espinosa v. Norfolk & Western Ry. Co.

OPINION FILED SEPTEMBER 30, 1981.

JOSE A. ESPINOSA, APPELLEE,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, APPELLANT.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. William L. Beatty, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

This is an action for damages under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1976)) in which the sole issue before us is whether the trial judge's denial of defendant's motion to dismiss on forum non conveniens grounds constituted an abuse of discretion.

Plaintiff, Jose A. Espinosa, was employed by defendant, Norfolk and Western Railway Company, as a section foreman in its Melvindale, Michigan, yards. Melvindale is a Detroit suburb located some 530 miles from Edwardsville, the county seat of Madison County, Illinois. While so employed plaintiff was injured when his foot and leg went through planking covering the platform of a subsurface scale in the railroad yards. Plaintiff, who resided in the Detroit area, reported the injury to his supervisor and sought treatment from a medical group in Allen Park, Michigan, which served the railroad as the company doctors. Plaintiff was hospitalized twice while in their care, but his condition worsened. He was then referred by his union representative to an orthopedic specialist, Dr. George Schoedinger of St. Louis, Missouri. Dr. Schoedinger diagnosed a lumbar disc condition, performed surgery in St. Louis on plaintiff's low back and examined him periodically in his St. Louis office during the following 14 months.

The union representative also referred plaintiff to his present counsel, the regional attorney for the Brotherhood of Maintenance of Way Employees. Plaintiff's attorney offices in East Alton, Illinois, located in Madison County, and suit was filed against the railroad in that county. The railroad's motion to dismiss, predicated on forum non conveniens grounds, was denied, and its later motion to reconsider that ruling on the basis of additional facts was also denied. Subsequently, after requesting and receiving a response from plaintiff, this court denied a motion for leave to file an original action for a writ of mandamus to compel dismissal of the Madison County complaint. The case was thereafter tried, and both preceding and during trial the railroad unsuccessfully renewed its motions. The bench trial resulted in a $275,000 judgment for plaintiff. The railroad appealed to the appellate court, which affirmed (87 Ill. App.3d 1147), and we allowed its petition for leave to appeal.

Much evidence was submitted on the forum non conveniens issue in the form of affidavits, documents and testimony concerning the identity and place of residence of potential witnesses, the distance between the place of injury and place of filing suit, the cost of pretrial discovery trips to Michigan, the inconvenience and additional cost to the defendant in trying a case so far from the site of occurrence, and the condition of the court dockets in Madison County Several references to the "Wabash Hospital Association" appear in this record. Although it also appears that Dr. Schoedinger was an "Association doctor," and plaintiff testified that he was a member of the Association and that it paid part of his hospitalization costs, there is no explanation of the purpose, type or manner of operation of the Association. Consequently its relevance, if any, to the issue before us cannot be determined.

It was established that, except for Dr. Schoedinger, all occurrence and post-occurrence witnesses resided in the Detroit area, although one witness had since retired and moved to Michigan's upper peninsula, some 450 miles from Detroit. Of those witnesses, three of the five members of plaintiff's crew who were present on the date of the accident testified at trial. Two other employees, the supervisor and a building foreman, testified concerning the condition of the scale platform. These witnesses were required to travel from Michigan to Madison County for one or more days of the trial. Prior to the occurrence in question here, plaintiff had been treated for back problems by four Michigan doctors. Though it apparently was later determined that those problems were not related to the occurrence or plaintiff's current condition, the railroad's attorneys investigated that possibility by discovery and deposition. While the Michigan doctors were not called as witnesses, the evidence deposition of one doctor was offered and admitted. In the course of the investigation and discovery process defendant's Madison County counsel made five trips to Michigan and communicated by mail and telephone with Michigan residents. Cost figures were disputed, but defendant's attorney testified to out-of-pocket expenses for these trips aggregating over $1,400 and that a locally occurring case could be prepared in about one-half the time this case had required, thus substantially reducing defendant's legal expense.

Among the evidence relating to the claimed burden imposed upon the Madison County taxpayers and court system was defendant's exhibit No. 1 consisting of a list of FELA cases filed in that county during 1976, 1977 and 1978. Defendant's witness, Lyndia Glassgow, a St. Louis lawyer, testified that she had been employed by defendant to examine the records of the circuit clerk's office in Madison County and list selected FELA cases against railroads for those years, showing plaintiff's residence, place of injury, and lawyer so far as they could be ascertained from the record. Her resulting list showed a total of 438 such cases of which at least 156 involved injuries occurring outside the State of Illinois. In 83 of the 156 cases the plaintiffs resided in States other than Illinois. Of those cases involving both nonresident plaintiffs and non-Illinois places of injury, plaintiff's lawyer had filed 47. Several were from Mississippi, Texas and Ohio, although counsel for plaintiff testified that the Mississippi and Texas cases involved accidents occurring within three hundred miles of Madison County. He also testified that the greatest distance involved an injury occurring in Ohio, and that Detroit was the next most distant place of injury. He further testified that he was regional counsel for two railroad unions and could "sign up a case anywhere in the country," but his firm tried to limit itself to areas within 400 to 500 miles of the Alton airport. While not admitted to practice in Michigan, he and his firm members had, together with local counsel, filed and tried eight or nine cases there. Similarly, cases were filed and tried in other States, counsel testifying that the determining factor was the place where the significant medical treatment occurred. It was established by his testimony and an affidavit tendered as an exhibit that most of the cases his firm filed were settled, a few being transferred or dismissed. Only nine were tried to verdict during the three-year period of 1976-78.

This court has considered the doctrine of forum non conveniens with some frequency in recent years, and many of those cases have involved FELA actions. Plaintiff's argument that the States are precluded by the Federal Constitution and statutes from applying the doctrine to FELA cases has been repeatedly urged and rejected in this court. People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill.2d 515, 521, implicitly recognized the propriety of applying the doctrine in a proper case, and this court in Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill.2d 144, 159, in a decision unanimous on this point, expressly rejected the argument now made and held the doctrine could be applied by State courts> in FELA cases. Our later decisions are in accord (see, e.g., Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill.2d 1; People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill.2d 178), and we need not reconsider the issue here.

The railroad has its principal place of business in Virginia, and does business in Michigan and Illinois, among other States. Both States thus have jurisdiction under the FELA (45 U.S.C. § 56 (1976)), and available courts>, but forum non conveniens always assumes more than one forum with power to hear the case. (People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill.2d 90, 112, cert. denied (1979), 441 U.S. 932, 60 L.Ed.2d 660, 99 S.Ct. 2052.) The inquiry thus centers upon which of multiple forums is most convenient under the facts of the case. This court has described the doctrine in Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill.2d 511, 514:

"Forum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration. In the application of these basic considerations a court may decline jurisdiction of a case `even though it may have proper jurisdiction over all parties and the subject matter involved' (Whitney v. Madden (1948), 400 Ill. 185, 189, cert. denied, 335 U.S. 828, 93 L.Ed. 382, 69 S.Ct. 55), whenever it appears that there is another forum that can better `serve the convenience of the parties and the ends of justice.' (Lonergan v. Crucible Steel Co. of America (1967), 37 Ill.2d 599, 606.)"

The factors relevant to consideration of a forum non conveniens motion were reviewed in Giliberto, where we quoted at some length from Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L.Ed. 1055, 1062-63, 67 S.Ct. 839, 843:

"`If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. * * * The court will weigh relative advantages and obstacles to fair trial. 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 neccessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.

Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts> when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with ...


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