Find Laws Find Lawyers Free Legal Forms USA State Laws
Laws-info.com » Cases » Illinois » 5th District Appellate » 2003 » Clark v. Tap Pharmaceutical Products, Inc.
Clark v. Tap Pharmaceutical Products, Inc.
State: Illinois
Court: 5th District Appellate
Docket No: 5-02-0101 Rel
Case Date: 09/19/2003
Decision filed 09/19/03. 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.

NO. 5-02-0101

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


ACIE C. CLARK, Individually and on ) Appeal from the
Behalf of All Others Similarly Situated, ) Circuit Court of
) Williamson County.
                 Plaintiff-Appellee, )
)
v. ) No. 01-L-132
)
TAP PHARMACEUTICAL PRODUCTS,  )
INC., TAP PHARMACEUTICALS, INC., and )
ABBOTT LABORATORIES, INC., ) Honorable
) Phillip G. Palmer,
               Defendants-Appellants.  ) Judge, presiding.


PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

The defendants, TAP Pharmaceutical Products, Inc., Tap Pharmaceuticals, Inc., andAbbott Laboratories, Inc., appeal the circuit court's order denying the defendants' motion totransfer venue from Williamson County to Lake County on the grounds of forum nonconveniens. We affirm the circuit court's decision.

FACTS

Plaintiff class representative Acie C. Clark filed a class action complaint inWilliamson County alleging unjust enrichment and violation of the Illinois Consumer Fraudand Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2000)). Clark assertedthat as a result of the defendants' fraudulent marketing and sales scheme, he, along withthousands of individuals and entities who had paid copayment or deductible amounts forbeneficiaries under Medicare, overpaid for the prescription drug Lupron, which is used totreat prostate cancer.

Clark alleged that Medicare reimbursement has historically relied on the "averagewholesale price" published in Redbook, a pharmaceutical publication. Medicare reimbursesmedical providers 80% of the allowable amount, and the Medicare beneficiary pays theremaining 20%, referred to as the copayment amount. Clark contends that the defendantswrongfully supplied Redbook with an inflated "average wholesale price," i.e., that the pricesthe defendants charged private-sector purchasers for Lupron were significantly less than theprice published in Redbook and relied upon by Medicare. Clark asserts that the defendants'fraudulent scheme induced medical providers to purchase, prescribe, and administer Lupronat a low cost, bill Medicare at the inflated cost, and earn a profit from the difference. Clarkasserts that as a result of the defendants' wrongful inflation scheme, Clark and thosesimilarly situated substantially overpaid all or a part of their 20% copayments for Lupron.

On November 18, 2001, the defendants moved to transfer this case from WilliamsonCounty to Lake County on the ground of forum non conveniens. Barbara Tolbert, managerof customer services/trade relations with TAP Pharmaceuticals, Inc., in an attached affidavit,asserted that TAP Pharmaceutical Products, Inc., is a Delaware corporation with its principalplace of business in Lake County, Illinois. Tolbert further asserted that TAPPharmaceuticals, Inc., is a subsidiary of TAP Pharmaceutical Products, Inc.; it is a Delawarecorporation; and it also has its principal place of business in Lake County, Illinois. Tolbertcontended that, to the best of her knowledge, the potential witnesses and documentsregarding the pricing of Lupron were located in Lake County, Illinois.

Also attached to the defendants' motion was a statistical summary of the Illinoiscourts, revealing that in 1999 the average time to a jury verdict in Williamson County was33.5 months and the average time to a jury verdict in Lake County was 23 months. Administrative Office of the Illinois Courts, 1999 Annual Report of the Illinois Courts,Statistical Summary 53, 55. The defendants also attached a map indicating that between1993 and 2001 approximately 73% of Illinois sales of Lupron occurred in northern Illinois,20% in central Illinois, and 7% in southern Illinois, with less than 1% occurring inWilliamson County.

Clark asserted that between 1999 and 2001, he received and paid for Lupron inWilliamson County through Clark's Williamson County physician. Clark explained that nourologists were located in Pulaski County, Clark's county of residence. Clark alleged thatthe defendants sold Lupron directly to physicians, retailers, wholesalers, health carefacilities, and government agencies throughout the nation; that the defendants' marketingagents personally met with doctors in northwest Iowa, Massachusetts, and Maine toperpetrate their scheme; and that the United States government had investigated the schemenationwide. Clark attached his affidavit, asserting that he is 82, has health problems, andhas limited financial means, which would make it difficult for him to attend a trial in LakeCounty, Illinois. In a deposition on December 27, 2001, Clark testified that he has visitedhis wife's children in Chicago two or three times a year, with each visit lasting one or twodays.

On January 7, 2002, the circuit court denied the defendants' motion to transfer.

On February 6, 2002, the defendants timely filed their petition for leave to appealpursuant to Supreme Court Rule 306(a) (166 Ill. 2d R. 306(a)). We dismissed the petition,but the Illinois Supreme Court reinstated it on October 2, 2002 (Clark v. TAPPharmaceutical Products, Inc., 201 Ill. 2d 562, 776 N.E.2d 237 (2002)). Following theremand, we granted the defendants' petition on October 28, 2002.

ANALYSIS

Forum non conveniens is an equitable doctrine founded in considerations offundamental fairness and sensible and effective judicial administration and allows a circuitcourt to decline jurisdiction in the exceptional case where a trial in another forum withproper jurisdiction and venue would better serve the ends of justice. First American Bankv. Guerine, 198 Ill. 2d 511, 515 (2002). "The trial court is vested with considerablediscretion in its determination of whether transfer is warranted on the basis of forum nonconveniens principles." Peile v. Skelgas, Inc., 163 Ill. 2d 323, 336 (1994). We will reversethe trial court's decision only if the court abused its discretion, i.e., if it acted arbitrarily,failed to employ conscientious judgment, or ignored recognized principles of law. Peile,163 Ill. 2d at 336; Roberts v. Illinois Power Co., 311 Ill. App. 3d 458, 461 (2000).

In resolving forum non conveniens questions, the circuit court must balance private-interest factors affecting the convenience of the parties and public-interest factors affectingthe administration of the court. Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 223-24(1987). Private-interest factors include the convenience of the parties; the relative ease ofaccess to sources of testimonial, documentary, and real evidence; and all other practicalconsiderations that make the trial of a case easy, expeditious, and inexpensive-for example,the availability of compulsory process to secure the attendance of unwilling witnesses, thecost to obtain the attendance of willing witnesses, and the ability to view the premises (ifappropriate). First American Bank, 198 Ill. 2d at 516; Peile, 163 Ill. 2d at 337. Public-interest factors include having localized controversies decided in the local forum,administrative concerns, including the congestion of court dockets, and the imposition ofjury duty upon residents of a county with little connection to the litigation. Peile, 163 Ill.2d at 337. "The doctrine of forum non conveniens is a flexible one which requiresevaluation of the total circumstances rather than concentration on any single factor." Peile,163 Ill. 2d at 336-37.

The burden is on a defendant to show that the relevant factors strongly favortransferring the cause to another forum. Golden Rule Insurance Co. v. Olson, 233 Ill. App.3d 760, 767 (1992). A defendant must show that the plaintiff's chosen forum is notconvenient to the defendant and that another forum is more convenient to all the parties. First American Bank, 198 Ill. 2d at 518. We recognize that convenience, the touchstone ofthe forum non conveniens doctrine, has a different meaning today because we are connectedby interstate highways, bustling airways, telecommunications, and the World Wide Web. First American Bank, 198 Ill. 2d at 525.

A plaintiff has a substantial interest in choosing the forum where his rights will bevindicated, and unless the public- and private-interest factors weigh strongly in favor of atransfer, the plaintiff's choice of forum should rarely be disturbed. First American Bank,198 Ill. 2d at 517; Peile, 163 Ill. 2d at 337; Cook v. General Electric Co., 146 Ill. 2d 548,557 (1992). The Illinois Supreme Court has recently reiterated that the plaintiff's choice ofthe county that is the situs of the injury should be accorded deference because the litigationhas the aspect of a localized controversy, i.e., being decided at home. Dawdy v. UnionPacific R.R. Co., No. 93710 (August 21, 2003); see also Peile, 163 Ill. 2d at 337; Brummettv. Wepfer Marine, Inc., 111 Ill. 2d 495, 501 (1986) (even though the case had no connectionwith the forum county other than that the plaintiff was injured there, the case had asignificant factual connection with the forum and had the aspect of a localized controversywith a local interest in having the controversy decided at home). "In most instances, theplaintiff's initial choice of forum will prevail, provided venue is proper and theinconvenience factors attached to such forum do not greatly outweigh the plaintiff'ssubstantial right to try the case in the chosen forum." Peile, 163 Ill. 2d at 335-36.

Although Clark is a resident of Pulaski County, as opposed to Williamson County,he has alleged that he incurred an injury, by paying allegedly inflated medical expenses forLupron, through his Williamson County physician in Williamson County. Clark filed hisclass action complaint against the defendants in the forum where he had incurred an injury,and the circuit court did not err in deferring to Clark's choice of forum, even though the casewas filed as a nationwide class action. See Hayes v. Fireman's Fund Mortgage Corp., 272Ill. App. 3d 271, 279 (1995).

Private-Interest Factors

In a class action case, we consider the relevant forum non conveniens factors in lightof the identity, number, and location of potential class members, rather than limiting theinquiry to the named class representatives, and we consider the location and availability ofdocumentary and physical evidence on a classwide basis. Gridley v. State Farm MutualAutomobile Insurance Co., 329 Ill. App. 3d 422, 427 (2002), appeal allowed, 201 Ill. 2d566, 786 N.E.2d 183 (2002). Even in class actions, however, when potential trial witnessesare scattered throughout the country and throughout several counties in Illinois, includingthe plaintiff's chosen forum, and no single forum enjoys a predominant connection to thelitigation, the balance of factors must strongly favor a transfer before the plaintiff can bedeprived of his chosen forum. First American Bank, 198 Ill. 2d at 526; Gridley, 329 Ill.App. 3d at 428. "[I]ntrastate transfer is appropriate only when the litigation has 'no practicalconnection' (Peile, 163 Ill. 2d at 336), no nexus, with the plaintiff's chosen forum." FirstAmerican Bank, 198 Ill. 2d at 521.

The defendants argue that because the documentary and testimonial evidence islocated at their principal places of business in Lake County, the private-interest factors favorthe defendants.

Documentary evidence generally can be transported with ease and at little expense(Japax, Inc. v. Sodick Co., 186 Ill. App. 3d 656, 667 (1989)), and the defendants failed tospecify what relevant documents are located in Lake County. The defendants' mapconcerning 1993 through 2001 Lupron sales in Illinois revealed that potential witnessesand/or class members, the Lupron recipients who were billed either at the inflated price orat the lower private-sector price, the physicians who billed for Lupron, and the documentsregarding such invoices are scattered throughout Illinois, including the plaintiff's chosenforum. Although the defendants also argue, as indicated by Tolbert's affidavit, that themajority of potential witnesses are located at the defendants' principal places of business inLake County, the defendants, whose burden it is to show that the relevant factors stronglyfavor transfer, fail to indicate how the testimony of these witnesses would impact thedefense or whether or not their depositions could be used successfully at the trial (seeSchoon v. Hill, 207 Ill. App. 3d 601, 608 (1990)).

Clark's physician, who billed Lupron at the allegedly inflated price, is located inWilliamson County, as are the records concerning Clark's medical services and the billingand payment thereof. Although Clark and his wife testified via deposition that they travelto Chicago a few times a year, we nevertheless recognize that Clark is 82 years old, that heis not in good health, and that traveling to Lake County for a lengthy jury trial would beburdensome for him.

The private-interest factors do not strongly favor a transfer to Lake County.

Public-Interest Factors

It is in the best interest of the public that when a dispute arises over a product that ispurchased locally, the best interests of justice are served by resolving that dispute in localcourts. Golden Rule Insurance Co. v. Manasherov, 200 Ill. App. 3d 961, 967-68 (1990). Clark purchased his Lupron medication through a Williamson County physician inWilliamson County, incurring injuries from the allegedly inflated cost of Lupron inWilliamson County. Although Clark's claim has developed into a class action suit involvingdata from parties throughout the state, and possibly throughout the country, it neverthelesshas the aspect of a localized controversy with a local interest in having the controversydecided at home. See Brummett, 111 Ill. 2d at 501.

The defendants are correct in asserting that the relative average times from the filingof the case to a jury verdict in Lake County and Williamson County are approximately 23months in Lake and 33.5 months in Williamson. However, "[w]hile [the] expediency ofobtaining a trial date is a relevant consideration, it is the least significant of thepublic[-]interest factors." Kwasniewski v. Schaid, 153 Ill. 2d 550, 555 (1992).

Not only is Clark's physician from Williamson County, but so are other potential classmembers relevant to the instant controversy, as indicated by the defendants' map regardingthe sales of Lupron in Illinois. Although, as the defendants note, the more populousnorthern Illinois, including Lake County, is the residence for a greater number of Illinoismembers of the proposed class, we do not discount the interests of Lupron recipients inWilliamson County when determining whether the residents of Williamson County, fromwhich the jury pool is chosen, are connected to the litigation. The public-interest factors donot strongly favor a transfer to Lake County.

The doctrine of forum non conveniens does not mandate a transfer of venue basedupon a defendant's showing of criteria that connect the case with other possible venues thatthe plaintiff might have selected. Walker v. American River Transportation, 277 Ill. App.3d 87, 89 (1996). The case sub judice is a consumer fraud action brought on behalf of anationwide class that numbers in the thousands and that includes not only individuals butthird-party payors, such as insurance companies. The parties, witnesses, and documents arescattered throughout the country and throughout several counties in Illinois, including theplaintiff's chosen forum, no single forum enjoys a predominant connection to the litigation,and the balance of private- and public-interest factors does not strongly favor a transfer toLake County. See First American Bank, 198 Ill. 2d at 526; Gridley, 329 Ill. App. 3d at 428. Therefore, we decline to deprive the plaintiff of his chosen forum. See First AmericanBank, 198 Ill. 2d at 521; Peile, 163 Ill. 2d at 336.

Although the circuit court failed to set forth the reasons underlying its refusal totransfer, the record supports the circuit court's decision with the facts that the plaintiff'schoice of forum is the situs of the alleged injury and the plaintiff is an 82-year-old man whosuffers health problems. The defendants' arguments of inconvenience do not compare to theplaintiff's choice of forum nearer his home. This is clearly not a case of forum-shopping. Accordingly, we find that the circuit court did not abuse its discretion in denying thedefendants' motion to transfer. See Peile, 163 Ill. 2d at 326.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the circuit court of WilliamsonCounty.

Affirmed.

WELCH and CHAPMAN, JJ., concur.

 

NO. 5-02-0101

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


ACIE C. CLARK, Individually and on ) Appeal from the
Behalf of All Others Similarly Situated, ) Circuit Court of
) Williamson County.
                 Plaintiff-Appellee, )
)
v. ) No. 01-L-132
)
TAP PHARMACEUTICAL PRODUCTS,  )
INC., TAP PHARMACEUTICALS, INC., and )
ABBOTT LABORATORIES, INC., ) Honorable
) Phillip G. Palmer,
               Defendants-Appellants.  ) Judge, presiding.

Opinion Filed: September 19, 2003


Justices: Honorable Terrence J. Hopkins, P.J.

Honorable Thomas M. Welch, J., and

Honorable Melissa A. Chapman, J.,

Concur


Attorneys Joshua T. Buchman, McDermott Will & Emery, 227 West Monroe Street, Chicago,

for IL 60606; Daniel E. Reidy, Tina M. Tabacchi, Anastasia Katinas, Jones Day,

Appellants 77 West Wacker Drive, Chicago, IL 60601


Attorneys Robert M. Foote, Craig S. Mielke, Foote, Myers, Mielke & Flowers,LLC,

for 416 South Second Street, Geneva, IL 60134; H. Barry Wesley, Barrett,

Appellee Twomey, Broom, Hughes & Wesley, 100 N. Illinois Avenue, P.O. Box 3747,

Carbondale, IL 62902-3747


Illinois Law

Illinois State Laws
Illinois Tax
Illinois Court
Illinois Labor Laws
    > Minimum Wage in Illinois
Illinois Agencies
    > Illinois DMV

Comments

Tips