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Burns v. A.P. Green Industries, Inc.
State: Illinois
Court: 5th District Appellate
Docket No: 5-00-0548 Rel
Case Date: 12/26/2001

Rule 23 Order filed
October 9, 2001;
Motion to publish granted
December 26, 2001.

NO. 5-00-0548

IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT


CAREN BURNS,

     Plaintiff-Appellee,

v.

A.P. GREEN INDUSTRIES, INC.; A.P. GREEN
SERVICES, INC.; AC AND S, INC.; ARMSTRONG
WORLD INDUSTRIES, INC.; JOHN CRANE, INC.; DAP,
INC.; FIBREBOARD CORPORATION; GAF
CORPORATION; GENERAL REFRACTORIES
COMPANY; HARBISON-WALKER REFRACTORIES
COMPANY; HARCROS CHEMICALS, INC., as Successor-
in-Interest to Thompson-Hayward Chemical Company;
KAISER REFRACTORIES, A Division of Kaiser
Aluminum & Chemical Corporation; KELLY-MOORE
PAINT COMPANY, INC.; McKESSON CHEMICAL
COMPANY; ASBESTOS MANAGEMENT
CORPORATION, d/b/a NATIONAL GYPSUM
COMPANY; OWENS-CORNING FIBERGLAS
CORPORATION; OWENS-ILLINOIS, INC.; RAPID
AMERICAN CORPORATION, as Successor-in-Interest
to Philip Carey Corporation; SPRINKMANN SONS
CORPORATION OF ILLINOIS; THE SYNKOLOID
COMPANY; W.R. GRACE & COMPANY; and
METROPOLITAN LIFE INSURANCE COMPANY,

     Defendants,

and

R.T. VANDERBILT COMPANY, INC.; BONDEX
INTERNATIONAL, INC.; CERTAINTEED
CORPORATION; PFIZER, INC.; PROKO INDUSTRIES,
INC.; RPM, INC., Individually and as Successor-in-Interest 
to The Reardon Company and Successor-in-Interest to
Republican Powered Metals; T & N; UNION CARBIDE
CORPORATION; UNITED STATES GYPSUM 
COMPANY; PLC; and GEORGIA-PACIFIC
CORPORATION, 

     Defendants-Appellants.

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Appeal from the
Circuit Court of
Madison County.


No. 00-L-456



































Honorable
Nicholas G. Byron,
Judge, presiding.



JUSTICE HOPKINS delivered the opinion of the court:

Various defendants appeal the trial court's order denying their motions to transfer thecase of Howard Burns, now deceased, and Caren Burns, from Madison County, Illinois, toShelby County, Illinois, pursuant to the intrastate doctrine of forum non conveniens, underSupreme Court Rule 187 (134 Ill. 2d R. 187). The only issue raised on appeal is whetherthe trial court abused its discretion when it denied the defendants' motions. We reverse thetrial court's order, and pursuant to our powers under Supreme Court Rule 366(a)(5) (155 Ill.2d R. 366(a)(5)), we remand this case and order that it be transferred to Shelby County.

FACTS

Howard was employed at Moweaqua High School in Moweaqua, Shelby County,Illinois, as an industrial arts teacher during the school year and for construction andmaintenance work during the summer months from 1951 to 1986. While workingconstruction and maintenance at the high school and also while building his own home,Howard was exposed to asbestos-containing products. Howard's home was also inMoweaqua, Shelby County, Illinois. On April 10, 2000, Howard was diagnosed with mesothelioma, a rapidly progressing, terminal, asbestos-induced disease. Howard filed hiscomplaint for negligence, wilful and wanton conduct, and conspiracy, and his wife, Caren,filed her complaint for loss of consortium on May 17, 2000, in Madison County, Illinois. Howard never worked in Madison County. Howard's treating physicians were in SangamonCounty, Illinois, and in Cook County, Illinois. The plaintiffs filed a motion for animmediate setting for trial on May 24, 2000, citing Howard's rapidly deteriorating health. The court granted the motion on July 7, 2000, and set the trial date for December 4, 2000.

Fourteen defendants filed motions to transfer this case from Madison County toShelby County under Rule 187. While acknowledging that jurisdiction and venue wereproper in Madison County, the defendants contended that there was no connection betweenthis case and Madison County. The plaintiffs objected to the defendants' motions, claimingthat their right to select a forum is a substantial right and that the defendants did not meettheir burden of showing that the factors strongly favored transfer. A hearing on thedefendants' motions was held on August 11, 2000. At the hearing, the plaintiffs argued thatShelby County is a rural county and that it is unable to accommodate "all of the peoplecoming into town for a trial of this matter." Counsel stated: "There is no airport in ShelbyCounty. *** There is not even an interstate[,] to my knowledge[,] close to the county seat. It is a very inconvenient place to have this, inconvenient for all of the parties." The plaintiffsalso advised the court that Howard had a very short life expectancy. Counsel asserted: "Itcertainly would be inconvenient to [Howard] to have this trial conducted at a time after hisdeath. The only way that I can see to get it done during his life expectancy is to do it in thiscourt." The defendants' argument to the trial court was that Howard worked and lived inShelby County for at least 36 years, that his exposure to asbestos was in Shelby County, andthat the two witnesses named in Howard's deposition both live in Shelby County.

The trial court stated at the hearing at the end of the parties' arguments on themotions: "If [Howard] make[s] it to December, we'll give him a trial. If he doesn't make ituntil December, the case is transferred." The court went on to state at the hearing: "This ismy preliminary position. If there is [sic] some other factors, fine. Under the circumstances,the Court would ignore any other factors and considerations given that this man's lifeexpectancy is so short. I want to give him his day in court even if it is Madison County." The trial court's written order, entered on August 11, 2000, denying the defendants' motionsto transfer stated in pertinent part as follows:

"1) In consideration of [Howard's] shortened life expectancy[,] Defendants' Motionis denied and trial is set on 12/4/2000[.]

2) If [Howard] should die prior to 12/4/2000[,] this Court shall re[]considerDefendants' Motion to Transfer."

The defendants filed a petition for leave to appeal the trial court's denial of theirmotions, pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)), and this courtgranted the defendants leave to appeal.

ANALYSIS

The principles of law pertaining to the review of a trial court's ruling on a motion totransfer under the doctrine of intrastate forum non conveniens are well-established. Amotion for transfer under the doctrine of forum non conveniens presupposes that jurisdictionand venue are proper in more than one county. Peile v. Skelgas, 163 Ill. 2d 323 (1994). Thedoctrine allows a court to decline to exercise its jurisdiction over a case when it appears thatanother forum with jurisdiction may be more convenient. Bland v. Norfolk & Western Ry.Co., 116 Ill. 2d 217 (1987). The doctrine applies on an intrastate basis as well as on aninterstate basis. Bland, 116 Ill. 2d at 224. A trial court's decision on a motion to transfer isa matter left to the sound discretion of the trial court, and the trial court's determination willnot be overturned on review unless the court has abused its discretion. Peile, 163 Ill. 2d at336.

The doctrine of forum non conveniens is a flexible one dependent on an evaluationof the total circumstances without concentration on any single factor. Peile, 163 Ill. 2d at336-37. One of the factors to be considered is that a plaintiff's right to select the forum isa substantial one; however, if the plaintiff is not a resident of the chosen forum or the countyselected is not the situs of the injury, a plaintiff's choice of forum is given less deference. Peile, 163 Ill. 2d at 337-38. In addition, a court must consider the private-interest factorsand the public-interest factors. Peile, 163 Ill. 2d at 337. The private-interest factors includethe relative ease of access to sources of proof, the accessibility of witnesses, the possibilityof a jury view of the premises, and any other practical problems that make the trial of a caseeasy, expeditious, and inexpensive. Peile, 163 Ill. 2d at 337. An ability to try a case in anexpeditious manner has also been recognized as a private-interest factor. Hefner v. Owens-Corning Fiberglas Corp., 276 Ill. App. 3d 1099 (1995). The public-interest factors includehaving localized controversies decided in a local forum, administrative concerns, andimposing jury duty on residents of a county with little connection to the litigation. Peile,163 Ill. 2d at 337.

In the case sub judice, the trial court focused on one factor-providing Howard withan expeditious trial-and failed to consider any other factor involved in deciding a motionto transfer under the doctrine of forum non conveniens. The record reflects that the trialcourt was aware that it should consider the other factors but that the court was choosing to"ignore" any other factors. The failure to consider all of the factors and focusing on onlyone factor was an abuse of the trial court's discretion.

The discovery in this case indicated that Howard and his wife were not residents ofMadison County but that they lived in Shelby County. Howard had never worked inMadison County. Howard's exposure to asbestos was either from products used at work inShelby County or from products used in the construction of his home, again in ShelbyCounty. Howard's treating physicians were not in Madison County. Howard's namedwitnesses who would testify as to the products used by Howard were in Shelby County. Theexpert witnesses listed by both the plaintiffs and the defendants are located all over theUnited States and, in some instances, outside of this country. Although the record does notindicate where any of the defendants' places of business are, the defendants haveacknowledged that jurisdiction and venue are proper in Madison County. However, thisfactor is not sufficient to support bringing suit in Madison County. See Bland, 116 Ill. 2dat 226.

Because Howard's exposure to asbestos was at the local high school, the local interestin this case would be in Shelby County. The statistics reported by the Illinois SupremeCourt in its annual report of 1998 indicate that Madison County is a more congested courtthan Shelby County. There is an insufficient connection between Madison County and thiscase to justify imposing jury duty on the citizens of Madison County. Thus, whenconsidering the private-interest and public-interest factors involved, it is clear that the mostconvenient forum for this case is Shelby County.

CONCLUSION

Because the trial court abused its discretion in denying the defendants' motions totransfer under the doctrine of forum non conveniens and because the private-interest andpublic-interest factors weigh strongly in favor of a transfer from Madison County to ShelbyCounty, we reverse the trial court's denial of the defendants' motions to transfer. Additionally, pursuant to our powers granted under Supreme Court Rule 366(a)(5), weremand this case with directions that the trial court enter an order transferring this case toShelby County, Illinois.

Reversed; cause remanded with directions.

MAAG, P.J., and GOLDENHERSH, J., concur.

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