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Fennell v. Illinois Central Railroad Co.

Supreme Court of Illinois

December 28, 2012



         Where a Mississippi plaintiff who complained of exposure to asbestos had worked for the Illinois Central Railroad in Mississippi, Louisiana, Tennessee, and Alabama and filed an FELA action against the railroad in Illinois, in which it did business and had offices, it was an abuse of discretion to deny a defense motion to dismiss under the interstate doctrine of forum non conveniens where most of the witnesses were in Mississippi, even though it was argued that defendant’s attorneys in Illinois had voluminous documents concerning defendant’s knowledge about asbestos.

          Rehearing denied April 18, 2013

         Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Lloyd A. Cueto, Judge, presiding.

          Thomas R. Peters, Michael C. Hermann and Kenneth L. Halvachs, of Boyle Brasher LLC, of Belleville, for appellant.

          William P. Gavin, of Belleville, and J. Timothy Eaton and Jonathan B. Amarilio, of Shefsky & Froelich Ltd., of Chicago, for appellee.

          Herbert L. Zarov, Richard F. Bulger and Gary A. Isaac, of Mayer Brown LLP, of Chicago, for amici curiae Certainteed Corporation et al.

          Brad A. Elward, of Heyl, Royster, Voelker & Allen, of Peoria, for amicus curiae Illinois Defense Trial Counsel.

          Robert A. Clifford, of Chicago (Robert P. Sheridan, of counsel), for amicus curiae Illinois Trial Lawyers Association.

          JUSTICE FREEMAN delivered the judgment of the court, with opinion. Justices Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.



         ¶ 1 The circuit court of St. Clair County denied the motion of defendant, Illinois Central Railroad Company, to dismiss a personal injury suit of plaintiff, William Fennell, based on interstate forum non conveniens. A divided panel of the appellate court affirmed. 2012 IL App (5th) 100504. This court allowed defendant's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010). We now reverse the judgment of the appellate court and the order of the circuit court, and remand the cause to the circuit court with directions to dismiss the action in accordance with our Rule 187(c)(2) (Ill. S.Ct. R. 187(c)(2) (eff. Aug. 1, 1986)).

         ¶ 2 I. BACKGROUND

         ¶ 3 In October 2002, plaintiff, with over 80 additional named plaintiffs, brought an action under the Federal Employers' Liability Act (FELA) (45 U.S.C. §§ 51-60 (2000)) against defendant in the circuit court of Jefferson County, Mississippi. Plaintiffs sought recovery for personal injuries they allegedly sustained as a result of exposure to "asbestos and asbestos-containing products" while employed by defendant. Plaintiffs alleged negligence under FELA and a violation of the Locomotive Inspection Act (49 U.S.C. §§ 20701-20703 (2000) (LIA, formerly known as Boiler Inspection Act)).

         ¶ 4 In 2004, plaintiff answered a set of defendant's interrogatories as follows. Plaintiff resided in Hazlehurst, Mississippi. Since 1970, plaintiff was employed by defendant as a brakeman, conductor, and engineer. Plaintiff stated that he was exposed to asbestos by working in defendant's facilities, and by working around and riding in defendant's diesel engines, box cars, and cabooses. Significantly, defendant's Interrogatory 21 asked plaintiff whether his employment with defendant "ever require[d] him to work in Jefferson County, Mississippi." Plaintiff answered that "in his duties with [defendant] he did work in Jefferson County and did work with and/or around asbestos and asbestos containing products." Defendant's Interrogatory 22 asked plaintiff to "identify by specific location (city, county, state)" where he was allegedly exposed to asbestos. Plaintiff answered that it was "impossible with complete accuracy to recount at this time each specific location" of his exposure to asbestos. Plaintiff concluded his answer by stating: "This interrogatory will be supplemented." In 2006, on defendant's motion, a Mississippi circuit court dismissed this consolidated action without prejudice.

         ¶ 5 In January 2009, plaintiff filed the instant complaint in the circuit court of St. Clair County, Illinois. Plaintiff again alleged negligence under FELA and a violation of LIA. Plaintiff alleged that he was employed by defendant from 1970 until 2007. During the course of his employment with defendant, plaintiff's required work "caused him to be exposed to asbestos, diesel exhaust, sand, environmental tobacco smoke, toxic dusts, gases, and fumes which caused him to suffer permanent injuries to his lungs."

         ¶ 6 Defendant propounded substantially the same set of interrogatories for the Illinois action as for the Mississippi action; plaintiff answered them in November 2009. Defendant's Interrogatory 21 asked plaintiff: "did your duties ever require you to work in St. Clair County, Illinois?" He answered, in full: "Plaintiff has been to Mobile, Alabama[;] New Orleans, Louisiana[;] and Memphis, Tennessee. Plaintiff became an engineer in 1988. Engineer School in Homewood, Illinois for one month." Defendant's Interrogatory 22 again asked plaintiff to identify the specific locations where he was exposed to the substances alleged in his complaint. His full answer: "Plaintiff was mostly in and out of Jackson, Mississippi to Gulfport, Louisiana, and McComb[, ] Mississippi."

         ¶ 7 In May 2010, defendant filed a motion to dismiss the action pursuant to the interstate branch of the doctrine of forum non conveniens. See Ill. S.Ct. R. 187 (eff. Aug. 1, 1986). Defendant contended that Mississippi and not Illinois was the most convenient forum to try this case. The circuit court denied defendant's motion to dismiss. The appellate court granted defendant's petition for leave to appeal (Ill. S.Ct. R. 306(a)(2) (eff. Feb. 26, 2010)), and a divided panel of that court affirmed. 2012 IL App (5th) 100504. Justice Welch dissented, concluding as follows: "It is difficult, if not impossible, to find any nexus to Illinois, let alone to St. Clair County, in a forum non conveniens setting." Id. ¶ 47 (Welch, J., dissenting).

         ¶ 8 Defendant appeals to this court. We granted the Illinois Association of Defense Trial Counsel leave to submit an amicus curiae brief in support of defendant. We granted Certainteed Corporation; Exxon Mobil Corporation; Ford Motor Company; General Electric Company; Riley Stoker Corporation; Rockwell Automation, Inc.; 3M Company; and Union Carbide Corporation leave to submit an amici curiae brief in support of defendant. We also granted the Illinois Trial Lawyers Association leave to submit an amicus curiae brief in support of plaintiff. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010). Additional pertinent background will be discussed in the context of our analysis of the issues.

         ¶ 9 II. ANALYSIS

         ¶ 10 Plaintiff alleges negligence under FELA, which applies to interstate railroads in their capacity as employers. See Koehler v. Illinois Central Gulf R.R. Co., 109 Ill.2d 473, 476 (1985). Preempting state tort remedies, FELA provides a statutory cause of action sounding in negligence for railroad employees' workplace injuries. Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 165 (2007) (quoting 45 U.S.C. § 51 (2000)).[1] Federal and state courts exercise concurrent jurisdiction under FELA. 45 U.S.C. § 56 (2000). The permission granted by Congress to bring FELA claims in state courts may be exercised in any state in which the carrier is found doing business. See Miles v. Illinois Central R.R. Co., 315 U.S. 698, 702, 705 (1942). In the case at bar, it is undisputed that defendant does business in Mississippi and Illinois, among other states. Thus, FELA confers jurisdiction on both Mississippi and Illinois.

         ¶ 11 A. Forum Non Conveniens Principles

         ¶ 12 However, defendant contends that plaintiff's FELA action should be dismissed as forum non conveniens in favor of a Mississippi forum. The doctrine of forum non conveniens assumes that there is more than one forum with the power to hear the case. Gridley v. State Farm Mutual Automobile Insurance Co., 217 Ill.2d 158, 169 (2005); Foster v. Chicago & North Western Transportation Co., 102 Ill.2d 378, 381-82 (1984). The doctrine allows a court to decline jurisdiction of a case, even though it may have proper jurisdiction over the subject matter and the parties, if it appears that another forum can better serve the convenience of the parties and the ends of justice. Gridley, 217 Ill.2d at 169; Vinson v. Allstate, 144 Ill.2d 306, 310 (1991). Illinois courts can apply the doctrine of forum non conveniens to FELA cases. Missouri ex rel. Southern Ry. Co. v. Mayfield, 340 U.S. 1, 5 (1950); Foster, 102 Ill.2d at 383.

         ¶ 13 Forum non conveniens is applicable on both an interstate and intrastate basis. In other words, the doctrine may be applied not only where the choice is between forums in different states, but also where the choice is between forums in the same state. The same considerations of convenience and fairness apply in deciding the question of the forum for trial. Dawdy v. Union Pacific R.R. Co., 207 Ill.2d 167, 176 (2003) (collecting cases). Specifically, the focus of interstate forum non conveniens, at issue in the case at bar, is whether the case is being litigated in the most appropriate state. See Eads v. Consolidated R. Corp., 365 Ill.App.3d 19, 25 (2006); 3 Richard A. Michael, Illinois Practice § 14:1, at 220 (2d ed. 2011). In granting an interstate forum non conveniens motion, the action must be dismissed because an Illinois circuit court lacks the power to transfer the action to the court of another state. 3 Richard A. Michael, Illinois Practice § 14:1, at 220 (2d ed. 2011). The dismissal is conditioned on the plaintiff timely filing the action in the other forum; and the defendant accepting service of process from that court, and waiving any available statute of limitations defense. Ill. S.Ct. R. 187(c)(2) (eff. Aug. 1, 1986).[2]

         ¶ 14 "The doctrine of forum non conveniens is founded in considerations of fundamental fairness and sensible and effective judicial administration." Gridley, 217 Ill.2d at 169. Although the doctrine has a long history, its general application crystalized following Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). Wieser v. Missouri Pacific R.R. Co., 98 Ill.2d 359, 365 (1983). Illinois courts employ the analytical framework of Gulf Oil in forum non conveniens cases. See, e.g., Satkowiak v. Chesapeake & Ohio Ry. Co., 106 Ill.2d 224, 228 (1985); Foster, 102 Ill.2d at 381-82; Jones v. Searle Laboratories, 93 Ill.2d 366, 372-73 (1982).

         ¶ 15 In Gulf Oil, the Court discussed private interest factors affecting the litigants and public interest factors affecting court administration. 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. Gulf Oil, 330 U.S. at 508-09; Gridley, 217 Ill.2d at 170 (quoting First American Bank v. Guerine, 198 Ill.2d 511, 516 (2002)); Vinson, 144 Ill.2d at 310.

         ¶ 16 The relevant public interest factors include: the administrative difficulties caused when litigation is handled in congested venues instead of being handled at its origin; the unfairness of imposing jury duty upon residents of a community with no connection to the litigation; and the interest in having local controversies decided locally. Gulf Oil, 330 U.S. at 508-09; Vinson, 144 Ill.2d at 311.

         ¶ 17 In determining whether the doctrine of forum non conveniens applies, the circuit court must balance the public and private interest factors. Gridley, 217 Ill.2d at 169-70; Vinson, 144 Ill.2d at 310. The court does not weigh the private interest factors against the public interest factors. Rather, the court must evaluate the total circumstances of the case in determining whether the balance of factors strongly favors dismissal. See Gridley, 217 Ill.2d at 170 (citing Guerine, 198 Ill.2d at 518). " 'If central emphasis were placed on any one factor, the forum non conveniens doctrine would ...

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