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Joseph Erwin, Jr., A Minor By His Mother, and Next v. Motorola

March 4, 2011


Appeal from the Circuit Court of Cook County,Illinois, Law Division.Honorable Elizabeth M. Budzinski Judge Presiding. No. 08 L 010824

The opinion of the court was delivered by: Presiding Justice Fitzgerald Smith

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.

Justices Joseph Gordon and Howse concurred in the judgment and opinion.


The plaintiffs, Joseph Erwin Jr., a minor, by his mother and next friend, Tina Erwin, and Andrew Garrison, a minor, by his mother and next friend, Leslie Garrison, brought an action in the circuit court of Cook County against the defendant, Motorola, Inc. (hereinafter Motorola), alleging that they suffered birth defects as a result of their parents' exposure to certain hazardous chemicals (namely, ethylene glycol ethers) during their employment in Motorola's semiconductor industry "clean rooms" in Texas and Arizona.

Motorola moved to dismiss on the grounds of forum non conveniens in favor of an action in Travis County, Texas. The circuit court of Cook County denied Motorola's motion to dismiss the case in Illinois and transfer venue to Texas. Motorola then petitioned this court for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Sept. 1, 2006). On appeal, Motorola contends that the circuit court's order denying Motorola's request to dismiss the action in Illinois and transfer it to Texas should be reversed because the private and public interest factors used in forum non conveniens analysis strongly support the conclusion that the case should be tried in Texas, rather than Illinois. For the reasons that follow, we affirm the decision of the circuit court.


We initially note that because this is an interlocutory appeal taken pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Sept. 1, 2006)*fn1 Motorola was required to attach a "supporting record" to its petition for leave to appeal (Ill. S. Ct. R. 306(c) (eff. Sept. 1, 2006)),*fn2 authenticated either by a certificate of the circuit court clerk or "by the affidavit of the attorney or party filing it" (see Ill. S. Ct. R. 328 (eff. Feb. 1, 1994).*fn3 In the case at bar, the supporting record was authenticated by an attorney's affidavit. After the petition for leave to appeal was granted, this court did not order Motorola to file a record, as permitted by Supreme Court Rule 306(h) (eff. Sept. 1, 2006); and no party to the appeal requested that additional portions of the record be prepared, as permitted by Supreme Court Rule 306(f) (Ill. S. Ct. 306(f) (eff. Sept. 1, 2006)). Accordingly, this appeal proceeded based solely on the supporting record filed by Motorola with its petition for leave to appeal. That supporting record reveals the following pertinent facts and procedural history.

A. The Plaintiffs' Complaint

On September 30, 2008, Tina Erwin and Leslie Garrison, the mothers of the two minor plaintiffs, Joseph Erwin, Jr., and Andrew Garrison, filed a three-count complaint in the circuit court of Cook County on behalf of their sons, alleging: (1) negligence (2) strict liability, and (3) willful and wanton misconduct against Motorola for the injuries allegedly sustained by their sons, in utero, as a result of their respective parents' exposure to defective, unsafe, and abnormally dangerous chemicals (including, but not limited to, ethylene glycol ethers) while working in the "clean rooms" of Motorola's semiconductor manufacturing plants.

The complaint alleged that from 1993 to 1998, Joseph Erwin, Jr.'s mother, Tina Erwin, worked in a "clean room," at Motorola's Phoenix, Arizona, semiconductor manufacturing facility, while his father, Joseph Erwin, Sr., worked at that same facility from 1992 to 2003. Similarly, the complaint alleged that Andrew Garrison's mother, Leslie Garrison, worked in a "clean room" at Motorola's Austin, Texas, semiconductor manufacturing facility from 1995 to 1998, while his father Thomas Garrison worked in the same facility from 1995 to 2002. Plaintiff Joseph Erwin, Jr., was born on September 5, 1997, while plaintiff Andrew Garrison was born on January 5, 1998. Both were born with serious and debilitating birth defects.

The complaint further alleged that since 1993, Motorola, from its headquarters in Schaumburg, Illinois, repeatedly approved the use of reproductively toxic compounds in "clean rooms," used in the manufacture and assembly of its semiconductor devices (such as computer "chips" "wafers" and "boards") at its various facilities, despite its knowledge of the defective, unsafe and unreasonably dangerous nature of such chemicals, and without any warning to its employees or any protective measures taken to ensure the safety of those employees. In addition, the complaint alleged that Motorola intentionally, willfully or with a reckless disregard for the safety of its employees ignored and concealed the health hazards posed by these chemicals and, in fact, made express and implied warranties and representations that the chemicals were safe.

The complaint specifically alleged that Motorola, from its headquarters in Illinois, knew of the dangers posed by these hazardous chemicals. According to the complaint, beginning in the late 1970s, the Semiconductor Industry Association, a trade organization for the entire semiconductor industry (hereinafter SIA) repeatedly advised its members, including Motorola,*fn4 of the reproductive hazards associated with occupational exposures to certain hazardous chemicals used in the manufacture of semiconductor chips in "clean rooms." Second, in 1981 the California branch of the Occupational Safety and Health Administration (hereinafter OSHA) specifically issued warnings about the potential reproductive harms associated with exposures to ethylene glycol ethers, which, at that time, were being used pervasively in the semiconductor manufacturing process. Third, in that same time period, several chemical manufacturers and suppliers, including but not limited to Union Carbide Corporation, repeatedly issued warnings to their customers in the semiconductor industry, including Motorola, of the risks of birth defects associated with exposure to ethylene glycol ethers used in "clean rooms." Fourth, in 1981 Bryan Hardin, an official of the National Institute of OSHA personally warned corporate health and safety representatives of the semiconductor industry, including those in Motorola, of the reproductive hazards of ethylene glycol ethers. Fifth, in the mid 1980s, with the knowledge, support and funding of the semiconductor industry, including Motorola, the SIA undertook a comprehensive study investigating the reproductive hazards of working in the semiconductor industry, documenting (both in the interim reports and the final report published in1992) an increased risk of birth defects to semiconductor workers exposed to ethylene glycol ethers.*fn5

Sixth, in 1998, a well publicized epidemiology study of semiconductor manufacturing workers was published documenting a statistically significant increase in the incidence of adverse reproductive outcomes of workers exposed to chemicals used in the manufacture of semiconductor chips. Seventh, in 1984, chemical manufacturer Hoechst Celanese undertook to develop less reproductively toxic process chemicals to be substituted in the manufacturing process of semiconductor chips and beginning in 1985 actively promoted and marketed these products as a safer alternative to the semiconductor industry, including Motorola. Eight, in 1986, the semiconductor manufacturer International Business Machines (IBM), through the Johns Hopkins University, initiated an extensive and well-publicized retrospective and prospective epidemiological study involving hundreds of its semiconductor manufacturing workers, further documenting the serious reproductive harms resulting from occupational exposures to chemicals in the semiconductor manufacturing plants.*fn6

The complaint further alleged that despite this knowledge, from its headquarters in Schaumburg, Illinois, Motorola maintained the use of its "clean rooms," knowing that they were built without ventilation systems that could protect the workers from inhalation or skin exposure to any liquids, vapors, gases or fumes arising from the hazardous chemicals. In addition, the complaint alleged that any "protective" gear worn by the workers in the "clean rooms" was configured solely for the protection of the manufactured computer "chips," rather than for the protection of the workers. Based upon the aforementioned, the plaintiffs contended that their in utero exposure to the hazardous chemicals while their parents were working in Motorola's "clean rooms" caused their birth defects.

B. Motorola's Motion to Dismiss and Limited Discovery

After the plaintiffs filed their complaint, on November 7, 2008, Motorola moved to dismiss the case on the basis of forum non conveniens, contending that Illinois was an inconvenient forum and that instead the case should be transferred to Travis County, Texas. The circuit court subsequently permitted limited discovery solely for the purpose of determining the appropriateness of Cook County, Illinois, as the proper forum for the plaintiffs' action. In the course of that somewhat cumbersome and hotly contested discovery process, during which the parties reluctantly exchanged answers to interrogatories, document requests, and affidavits, as well as deposed two witnesses, the following information was disclosed to the circuit court.

The parties agreed that at all relevant times to this litigation, Motorola maintained and continues to maintain its headquarters in Schaumburg, Illinois. It was further agreed that none of the plaintiffs ever resided or worked in Illinois, nor currently reside or work in this state.*fn7 Rather, plaintiff Joseph Erwin, Jr., and his parents resided, worked and continue to reside and work in Phoenix, Arizona, while plaintiff Andrew Garrison and his parents, resided, worked and continued to reside and work in Austin, Texas. It was further undisputed that neither of the plaintiffs nor any of their parents were ever treated for their injuries in Illinois; rather plaintiff Garrison and his parents had been treated by doctors and hospitals exclusively in Texas, while plaintiff Erwin, Jr., and his parents had sought treatment in both Arizona and Texas.*fn8

During the forum non conveniens discovery, the parties hotly disputed whether it was local personnel at Motorola's Texas and Arizona facilities, or corporate personnel at Motorola's headquarters in Illinois, who were responsible for generating, implementing and overseeing environmental health and safety protocols in Motorola's "clean rooms." The following contested facts were presented to the trial court. Through an affidavit, Joseph Erwin, Sr., the plaintiff Joseph Erwin, Jr.'s father, stated that from 1992 to 2000 he worked at Motorola's Phoenix, Arizona, semiconductor fabrication facility, first as an operator, then as a production supervisor, and finally a master production analyst. Erwin was subsequently transferred to Motorola's Austin, Texas, semiconductor fabrication facility where he worked as an information technology project manager until 2003. Erwin testified that while he was employed at Motorola's Phoenix and Austin facilities, senior mangers and operational managers frequently traveled to Motorola's corporate headquarters in Schaumburg, Illinois, to discuss management, operations, and planning. According to Erwin, "the basic procedures for manufacturing the semiconductor chips, were developed in Schaumburg, Illinois." In addition, all protocols and information regarding employee safety came from Motorola in Schaumburg. Erwin also averred that it would not be inconvenient for him to travel to Cook County, Illinois.

Next, in her affidavit, Leslie Garrison, the mother of plaintiff Andrew Garrison, stated that from 1995 to 1998 she worked in the assembly line of Motorola's Austin, Texas semiconductor manufacturing plant. According to Garrison, while she worked in the Austin plant, from time to time, Motorola employees who reported directly to Motorola's corporate headquarters near Chicago would come to the Austin plant to perform air testing in the semiconductor facilities.*fn9

She and her co-workers at the Austin facility were never told the results of these tests, nor were they warned about the dangers of ethylene glycol ethers present in the facility.

In addition, in his affidavit, David Manning, Sr., testified that he worked for Motorola from 1969 to 1998 (with the exception of four years between 1974 to 1978). Manning initially worked at Motorola's Phoenix, Arizona, facility, but then in 1978 moved to Austin, Texas, to work at Motorola's recently constructed semiconductor fabrication facility. Manning averred that given his 26 1/2 years of experience working for Motorola he is "very familiar with [Motorola's] corporate structure, and decision making process." Manning testified that Motorola's headquarters in Schaumburg was "solely and directly" responsible for policy, decisions and precautions regarding health, and safety, industrial hygiene and OSHA ...

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