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Walter Fennell v. Illinois Central Railroad Company

January 3, 2012

WALTER FENNELL,
PLAINTIFF-APPELLEE,
v.
ILLINOIS CENTRAL RAILROAD COMPANY,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County. No. 09-L-19 Honorable Lloyd A. Cueto, Judge, presiding.

The opinion of the court was delivered by: Justices: Honorable Melissa A. Chapman, J.

NOTICE

Decision filed 01/03/12.

The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

JUSTICE CHAPMAN delivered the judgment of the court, with opinion.

Presiding Justice Donovan concurred in the judgment and opinion. Justice Welch dissented, with opinion.

OPINION

¶ 1 The defendant, Illinois Central Railroad Company, appeals a trial court order denying its motion to dismiss the plaintiff's complaint in favor of a Mississippi forum. The defendant argues that the court abused its discretion. We affirm.

¶ 2 The plaintiff, Walter Fennell, worked in various capacities for the defendant from 1970 until 2007. In his complaint, he alleges that he suffers from respiratory ailments as a result of exposure to asbestos, diesel exhaust, sand, environmental tobacco smoke, and toxic dusts, fumes, and gases. He alleges that this exposure occurred throughout the course of his 37-year career with the defendant. The plaintiff resides in Hazelhurst, Mississippi, located in Copiah County. While working for the defendant, he was based at its facility in Jackson, Mississippi, which is in Hinds County. He worked on trains that ran "mostly in and out of Jackson, Mississippi, to Gulfport, Louisiana, and McComb, Mississippi." He also alleges that he "went to Memphis, Tennessee, Mobile, Alabama, and New Orleans" and attended engineering school in Homewood, Illinois.

¶ 3 In 2002, the plaintiff and 84 other plaintiffs filed an action against the defendant in Pike County, Mississippi. All 85 plaintiffs lived in Mississippi or Louisiana and were current or former employees of the defendant. The allegations in that litigation were essentially the same as the allegations in the case before us. In June 2006, the Mississippi trial court granted a motion to dismiss filed by the defendant. The court dismissed the action without prejudice. The record in this appeal does not reveal the basis for the defendant's motion to dismiss the Mississippi action.

¶ 4 In 2009, the plaintiff filed the instant lawsuit in St. Clair County, Illinois. He brought his claims under the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (2000)) and the Locomotive Boiler Inspection Act (49 U.S.C. § 20701 et seq. (2000)). As previously stated, he alleged that he developed respiratory ailments as a result of exposure to asbestos and other toxic substances over the course of his employment with the defendant.

¶ 5 The defendant filed a motion to dismiss on the basis of interstate forum non conveniens. The defendant argued in its motion, as it does in this appeal, that trial in the plaintiff's home county of Copiah County, Mississippi, would be more convenient for all parties. The defendant argued that dismissal in favor of a Mississippi forum was warranted because (1) the plaintiff was a lifelong resident of Mississippi who worked out of the defendant's Jackson, Mississippi, facility, (2) the plaintiff did not allege that any part of his injury occurred in St. Clair County or elsewhere in Illinois, (3) numerous potential witnesses lived in Mississippi, and (4) trial in Copiah County, Mississippi, would be more convenient for the defendant's representatives most likely to testify or attend the trial, who were based at its facility in Memphis, Tennessee.

¶ 6 In support of its motion, the defendant attached interrogatories in which the plaintiff identified 13 individuals who were at least potential witnesses, all of whom live in Mississippi. These individuals include the plaintiff's wife and three adult children, four physicians who had treated the plaintiff, and five of his co-workers. We note that the plaintiff identified these individuals in response to questions asking him to identify family members, treating physicians, and co-workers. It is unclear how many of these individuals the plaintiff intends to call as witnesses. We further note that the defendant has not alleged that it intends to call any of these individuals as witnesses.

¶ 7 The defendant also attached the affidavit of Charles Garrett, the defendant's risk mitigation manager for occupational disease claims. Garrett stated that he and several other Illinois Central representatives likely to attend the trial or testify live in or near Memphis, Tennessee. He stated that it would be a hardship for these employees to travel to Belleville for a St. Clair County trial and that it would be "substantially more convenient" for them to travel to Copiah County, Mississippi. He did not identify any witnesses or representatives likely to attend the trial other than himself, and he did not elaborate on the reasons travel to Copiah County would be more convenient. As we will discuss in more detail later, the two counties are nearly the same distance from Memphis.

¶ 8 The plaintiff filed a response to the defendant's motion to dismiss. The plaintiff pointed out that the defendant was represented in this lawsuit by a Belleville law firm that had previously represented it in similar litigation in Illinois, Mississippi, Louisiana, and Tennessee. The plaintiff emphasized that, as a result of this representation, the defendant's counsel had collected numerous items of evidence that would be relevant in this case. This evidence--consisting of documents and tangible items--was voluminous and was stored in the Belleville offices of the defendant's counsel. In support of these allegations, the plaintiff attached photographs of some of the evidence involved and an affidavit in which his own attorney stated that he had represented other former employees of the defendant in numerous prior actions in which the same Belleville law firm had represented the defendant.

¶ 9 In addition, the plaintiff identified two witnesses that he intends to call, both of whom are employees of the defendant. Specifically, he intends to call Lyndle Burton, the defendant's manager of industrial hygiene, and Charles Garrett, the defendant's risk mitigation manager for occupational disease claims. Garrett, as previously noted, is a resident of Memphis, Tennessee. Burton is a resident of Joliet, Illinois. The plaintiff also identified Dr. Alvin Schonfield as an expert witness. Dr. Schonfield resides in Chicago, Illinois.

¶ 10 The court denied the defendant's motion to dismiss in a written order. The court expressly found that the St. Clair County court would be a convenient forum because

(1) "almost 80 years of relevant evidence" is located "just five miles from the St. Clair County Courthouse," (2) Burton and Garrett, whose testimony would be important to the plaintiff, could be compelled to testify if the trial were held in Illinois but not if it were held in Mississippi, (3) St. Clair County is closer and more convenient for the plaintiff's expert witness from Chicago, and (4) the citizens of St. Clair County have an interest in litigation involving asbestos and other toxic substances in railcars that travel throughout the country. In addition, the court found as follows: "St. Clair County no longer has congested trial dockets. In fact, there are so few trials that as a matter of policy in Courtroom ...


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