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Laws-info.com » Cases » Illinois » 5th District Appellate » 2001 » Dykstra v. A.P. Green Industries, Inc.
Dykstra v. A.P. Green Industries, Inc.
State: Illinois
Court: 5th District Appellate
Docket No: 5-01-0112 Rel
Case Date: 12/11/2001
                 NOTICE
Decision filed 12/11/01.  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. 5-01-0112

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


CORNELIUS C. DYKSTRA, 

         Plaintiff-Appellee,

v. 

A.P. GREEN INDUSTRIES, INC., A.W. CHESTERTON, INC., 
ABEX CORPORATION, as Predecessor to the PNEUMO ABEX
CORPORATION, AC&S, INC., ALLIED SIGNAL, INC., as a
Successor Corporation to ALLIED CORPORATION and Successor 
in Interest to NORTH AMERICAN REFRACTORIES COMPANY 
and BENDIX, ARMSTRONG WORLD INDUSTRIES, INC.,
BONDEX INTERNATIONAL, BRAUER SUPPLY COMPANY, 
CAFCO, INC., a Division of ISOLATEK INTERNATIONAL, 
COMBUSTION ENGINEERING, INC., CORHART 
REFRACTORIES, DELCO-MORAINE, a Division of GENERAL 
MOTORS CORPORATION, SURABLA MANUFACTURING
COMPANY, FIBREBOARD CORPORATION, FLEXITALLIC 
GASKET CO., INC., THE FLINTKOTE COMPANY, FOSTER 
WHEELER ENERGY CORPORATION, GAF CORPORATION, GARLOCK, INC., GENERAL ELECTRIC COMPANY,GENERAL
GASKET CORPORATION, GENERAL REFRACTORIES
COMPANY, GEORGIA-PACIFIC CORPORATION, GRIMES AEROSPACE COMPANY, d/b/a SURFACE COMBUSTION,HARBISON-WALKER REFRACTORIES, INDUSTRIAL
HOLDINGS CORPORATION, f/k/a THE CARBONDUM
CORPORATION, INGERSOLL-RAND COMPANY, J.P.
BUSHNELL PACKING, JOHN CRANE, INC., KAISER
REFRACTORIES, a Division of KAISER ALUMINUM &
CHEMICAL CORPORATION, METROPOLITAN LIFE 
INSURANCE COMPANY, MINNESOTA MINING & MANUFACTURING COMPANY, NORTH AMERICAN
REFRACTORIES COMPANY, OWENS-ILLINOIS, INC., 
PLIBRICO COMPANY, RAPID AMERICAN CORPORATION, 
as Successor in Interest to PHILIP CAREY CORPORATION,
RILEY STOKER CORPORATION, SAGER CORPORATION, SIDENER SUPPLY COMPANY, SPRINKMANN SONSCORPORATION OF ILLINOIS, STANDARD INSULATION, 
INC., T & N, p.l.c., THERMIC REFRACTORIES, INC., a/k/a
MORGAN CRUCIBLE COMPANY, UNIROYAL, INC., 
VIACOM, INC., as Successor by Merger to CBS CORPORATION, 
f/k/a WESTINGHOUSE ELECTRIC CORPORATION, UNITED 
STATES GYPSUM COMPANY, W.R. GRACE & CO., and 
YOUNG INSULATION GROUP OF ST. LOUIS, INC., 

          Defendants, 

and 

BURNS INTERNATIONAL SECURITY CORPORATION, f/k/a
BORG-WARNER and BORG-WARNER CORPORATION,
CERTAIN-TEED CORPORATION, PFIZER, INC., QUIGLEY
COMPANY, INC., and UNION CARBIDE CORPORATION, 

          Defendants-Appellants.

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Appeal from the
Circuit Court of
Madison County.

No. 00-L-1235















































Honorable
Nicholas G. Byron,
Judge, presiding.



JUSTICE GOLDENHERSH delivered the opinion of the court:

The instant litigation arises out of the choice of forum selected by Cornelius C.Dykstra (plaintiff) for his lawsuit against numerous asbestos manufacturers, sellers, anddistributors. Burns International Security Corp., formerly known as Borg-Warner and Borg-Warner Corp. (Burns), Gasket Holdings, Inc., formerly known as Flexitallic GasketCompany, Inc. (Flexitallic), Certain-Teed Corp. (Certain-Teed), Pfizer, Inc. (Pfizer), QuigleyCompany, Inc. (Quigley), T&N, p.l.c. (T&N), United States Gypsum Company, and UnionCarbide Corp. (Union Carbide) filed this interlocutory appeal pursuant to Supreme CourtRule 306(a)(2) (166 Ill. 2d R. 306(a)(2)), contending that the trial court's denial of themotion to dismiss or transfer venue under the doctrines of interstate forum non conveniensor intrastate forum non conveniens was an abuse of discretion because there are no tiesbetween plaintiff and Madison County. United States Gypsum Company was originally partof the group of the defendants actively challenging plaintiff's choice of forum, but it wassevered from this appeal when it filed for bankruptcy protection. During oral argument onthis matter, Flexitallic and T&N were also severed from this appeal when it was learned thatthey, too, had filed for bankruptcy protection. For the following reasons, we affirm the orderof the circuit court of Madison County.

BACKGROUND

On December 5, 2000, plaintiff filed the instant litigation against more than 50defendants. He claimed that he was exposed to asbestos-containing products which weremanufactured, sold, and/or distributed by said defendants. Plaintiff suffers from malignantmesothelioma, a rapidly spreading and inevitably fatal cancer. Because plaintiff is notexpected to live long, he also filed a motion to expedite the trial. On January 12, 2001, thetrial court granted plaintiff's motion to expedite the trial and set a trial date of May 7, 2001.

On January 29, 2001, AC&S, Inc. (AC&S), filed a motion to dismiss or transfervenue, requesting that the case be transferred to Cook County or dismissed and refiled inIndiana, on the grounds of forum non conveniens. Not even half of the original defendantsjoined this motion. In support of the motion to dismiss or transfer venue, the movingdefendants pointed to plaintiff's answers to interrogatories and to plaintiff's deposition, inwhich plaintiff stated that he was exposed to asbestos in Cook County, Illinois, and LakeCounty, Indiana, only. Plaintiff identified his coworkers, all of whom reside in Indiana,except for his son, James, who resides in Minnesota. Plaintiff identified his treatingphysicians, all of whom practice in either Chicago or Indiana.

On February 22, 2001, a hearing was held on the motion. The instant matter washeard, along with three other similar motions concerning Illinois asbestos plaintiffs. Themovants proceeded solely under the theory that the instant case has no factual connectionto Madison County. They failed to offer any evidence concerning the convenience, costs,or experience of either Cook County, Illinois, or Lake County, Indiana, in dealing withasbestos litigation. Defense counsel who argued the motion alleged that Cook County couldtry this case within six months of a transfer, possibly even three or four months, but he failedto offer any affidavits from court administrators. He simply alleged that someone from hislaw firm had made inquiries to certain courts. The movants did not offer any evidence asto why it would be more convenient for them to try the case in Cook County rather than inMadison County. While the trial court was aware that Cook County has an asbestos docket,neither the trial court nor the parties knew if Lake County, Indiana, had a similar court. Thedefense attorney admitted that no one had "done any investigation as to the Indiana court'sability to hear this [case] upon transfer."

On the other hand, plaintiff asked the trial court to take judicial notice of numerousfactors that make Madison County an efficient forum in which to try an asbestos case.Plaintiff supplied the trial court with statistical evidence that it takes eight months longer toget a case to trial in Cook County than it does in Madison County. Plaintiff pointed out thatMadison County has established procedures for processing asbestos litigation quickly andefficiently, including a standing order that came about through the collaboration of plaintiff'sattorneys, defense attorneys, and the circuit court, as well as a central records depository,which contains all the documentation necessary for the liability phase of an asbestos trial. After hearing all the evidence and arguments of the parties, the trial court noted thatit had "serious reservations about the Indiana resident." The trial court stated that if it couldbe certain that plaintiff would receive a fair and speedy trial within 60 to 90 days, it wouldtransfer the case to Indiana, but because no such evidence had been presented, the trial courtdenied the motion to dismiss or transfer venue, specifically relying on Hefner v. Owens-Corning Fiberglas Corp., 276 Ill. App. 3d 1099, 659 N.E.2d 448 (1995). Defense counselasked the trial court to take plaintiff's case under advisement for five to seven days to givethe movants time to get an affidavit from Cook County or Lake County or both. The trialcourt directed defense counsel to obtain an affidavit and then file a motion to reconsider. The movants failed to obtain said affidavit and failed to file a motion to reconsider.

AC&S immediately filed a petition for leave to appeal to this court pursuant toSupreme Court Rule 306(a)(2) and a motion for a supervisory order with our supreme courtpursuant to Supreme Court Rule 383 (155 Ill. 2d R. 383). North American RefractoriesCompany and Allied-Signal, Inc., joined in that appeal. On March 15, 2001, our supremecourt entered a supervisory order directing us to allow the interlocutory appeal in this case,which it later declared applicable to all the defendants. AC&S, North American RefractoriesCompany, and Allied-Signal, Inc., later withdrew their appeal. The record here indicatesthat the only defendants actively appealing are Burns, Certain-Teed, Pfizer, Quigley, andUnion Carbide (defendants).

ANALYSIS

On appeal, defendants contend that the trial court abused its discretion when it deniedthe motion to dismiss or transfer venue under the doctrine of forum non conveniens because Madison County has no connection to this litigation. Defendants note that plaintiff is a nota resident of Madison County, never received treatment in Madison County, and was notexposed to asbestos in Madison County. Defendants insist that no reasonable person wouldconclude that this case should be filed in Madison County. We disagree.

The doctrine of forum non conveniens presupposes the existence of more than oneforum having jurisdiction and venue. It is well-settled that a plaintiff has a substantial rightin selecting the forum in which to commence his or her cause of action. Peile v. SkelgasInc., 163 Ill. 2d 323, 337, 645 N.E.2d 184, 191 (1994). If the plaintiff does not reside in thecounty where he filed suit or if the accident did not occur in the county where he filed suit,his choice of forum is given less deference. Whirlpool Corp. v. Certain Underwriters atLloyd's London, 295 Ill. App. 3d 828, 836-37, 692 N.E.2d 1229, 1235-36 (1998). However,it is important to remember that less deference is not synonymous with no deference. Regardless of the deference given to the plaintiff's right to select a forum, the defendant stillbears the burden of showing that the plaintiff's chosen forum is inconvenient to thedefendant and that another forum is more convenient to all the parties. Whirlpool Corp., 295Ill. App. 3d at 837, 692 N.E.2d at 1236. The standard of review is whether the trial courtabused its discretion in denying the defendant's motion to dismiss or transfer on the basis offorum non conveniens. Peile, 163 Ill. 2d at 336, 645 N.E.2d at 190.

In determining whether a defendant has met its burden to show that the plaintiff'schosen forum is inconvenient and another forum is more convenient, a court is to considerseveral private- and public-interest factors. The analysis is the same in both interstate andintrastate situations. Turner v. Jarden, 275 Ill. App. 3d 890, 894-95, 656 N.E.2d 1125, 1128(1995). Private-interest factors include: "(1) the relative ease of access to sources of proof,(2) the accessibility of witnesses, (3) the possibility of a jury view of the premises, and (4)all other practical problems that make a trial of a case easy, expeditious, and inexpensive." Roberts v. Illinois Power Co., 311 Ill. App. 3d 458, 460-61, 723 N.E.2d 1180, 1182 (2000). Public-interest factors include the following: "(1) having localized controversies decidedin the local forum, (2) the administrative concerns, including the congestion of courtdockets, and (3) the imposition of jury duty upon *** a county with little or no connectionto the litigation." Roberts, 311 Ill. App. 3d at 461, 723 N.E.2d at 1182. In order to transferthe cause of action from the forum of the plaintiff's choice, a defendant must show that therelevant factors strongly favor transfer. Roberts, 311 Ill. App. 3d at 461, 723 N.E.2d at1182.

In Hefner v. Owens-Corning Fiberglas Corp., 276 Ill. App. 3d 1099, 659 N.E.2d 448(1995), this court addressed similar circumstances. While defendants recognize theapplicability of Hefner to the instant case, they contend that Hefner "is logically flawed andshould be discarded." Defendants cite to supervisory orders entered by our supreme courtthat ordered cases transferred from Madison County, in support of their allegation that thetrial judge in the instant case has unique views on forum non conveniens law that runcontrary to established rulings. However, the record here reflects that the trial judge handledthe matter appropriately.

There were four separate cases before the trial court in which AC&S sought a transferor a dismissal on the basis on forum non conveniens. The attorney for AC&S explained thathe could argue all four matters simultaneously but that each case was "a little bit different." The trial court specifically stated that it wanted to know what the differences were becausethose differences could affect the ruling. The trial judge stated, "I'm not saying, you know,I would deny your motion[,] because I think there are some situations where forum nonconveniens is certainly an appropriate motion." The trial court was cognizant that each casemust be considered separately and that it must balance the private-interest factors affectingthe convenience of the parties and the public-interest factors affecting the court'sadministration.

A review of Hefner shows that it is precedent that controls our decision in this case,and we are unconvinced by defendants' arguments to the contrary. In Hefner, the plaintiffsuffered from mesothelioma and brought a products liability action in Madison Countyagainst the manufacturer of asbestos-containing products to which he had been exposed. The manufacturer filed a motion to transfer the action under the doctrine of forum nonconveniens. The trial court denied the motion. As in the instant case, the plaintiff neverlived or worked in Madison County, he was not exposed to asbestos in Madison County, andmost potential witnesses were not from Madison County. Hefner, 276 Ill. App. 3d at 1100-01, 659 N.E.2d at 451. Specifically, the plaintiff's asbestos exposure occurred in MassacCounty, his family physician's office was located in Massac County, and the plaintiff livedin Pulaski County, which is adjacent to Massac County. All physicians treating theplaintiff's mesothelioma were located in Paducah, Kentucky, and most expert witnesses werelocated out of state. Hefner, 276 Ill. App. 3d at 1101, 659 N.E.2d at 451.

In denying the manufacturer's motion to transfer, the Hefner court specifically statedas follows:

"While the county where the injury occurred generally has a strong interest inthe outcome of litigation, this general rule does not necessarily apply to casesinvolving complex products liability issues. [Citation.] The trial court noted that dueto the nature of asbestos litigation, this case is not truly connected to any one countyand has nationwide implications." Hefner, 276 Ill. App. 3d at 1106, 659 N.E.2d at454.

In Hefner, this court applied the public- and private-interest factors, specifically noting thatbecause of their locations, virtually all of the manufacturer's witnesses would be required totravel to court regardless of the venue (276 Ill. App. 3d at 1104, 659 N.E.2d at 453) and thatMadison County had special procedures established for asbestos cases and could conducta more expeditious trial (Hefner, 276 Ill. App. 3d at 1105-06, 659 N.E.2d at 454). TheHefner court concluded that considering the supreme court's continued emphasis that aplaintiff's choice of forum should be granted deference, the manufacturer did not sustain itsburden and the trial court did not abuse its discretion by denying the manufacturer's motionto transfer under the doctrine of forum non conveniens. Hefner, 276 Ill. App. 3d at 1108,659 N.E.2d at 455.

In the instant case, private-interest factors justify remaining in Madison County anddo not strongly favor Cook County, Illinois, or Lake County, Indiana. First, the accessibilityto witnesses and sources of proof are similar to those in Hefner. The fact that some ofplaintiff's treating physicians reside in Cook County, Illinois, or Lake County, Indiana, inno way significantly credits defendants' burden of showing either of these counties to be amore convenient forum. Plaintiff's coworkers are listed as potential witnesses, but the recorddoes not include the addresses of these witnesses and, therefore, lacks support that thesewitnesses actually reside in Lake County, Indiana. The record is also devoid of evidencethat any of these witnesses would actually be called at the trial. Many experts would beutilized by the parties, and most would be required to travel to court regardless of the venue. Second, given the fact that plaintiff's alleged exposure to asbestos occurred over a period ofyears beginning in 1947 while he worked as a carpenter at various locations throughoutIllinois and Indiana, it is fair to assume that the sites have been altered and that a view wouldnot be helpful to the jury. Finally, the trial court properly considered Madison County'sability to try an asbestos case in an expeditious and easy manner.

In Hefner, this court recognized Madison County's established "administrative planand special procedures to swiftly handle and try asbestos cases," including "the availabilityof records at the Madison County Central Records Depository." Hefner, 276 Ill. App. 3dat 1105, 659 N.E.2d at 454. Here, plaintiff provided the trial court with statistical datacompiled by the Administrative Office of the Illinois Courts and an array of informationconcerning the ability of the Madison County courts to handle the complexity of asbestoslitigation. Defendants failed to present evidence that either Cook County, Illinois, or LakeCounty, Indiana, could try the matter with the same expediency or ease as Madison County.

With regard to the public-interest factors, defendants rely most heavily on the fact thatMadison County has no connection to this case. However, defendants did not assert that thiswas an improper venue but, rather, filed a motion to dismiss or transfer on the basis of forumnon conveniens. The fact that Madison County has little to no connection to this controversydoes not relieve defendants of the burden of showing that this forum is inconvenient and thatanother forum is convenient to all the parties. See Whirlpool Corp., 295 Ill. App. 3d at 837,692 N.E.2d at 1236. The trial court did not believe that this case would unduly burden thecitizens of Madison County, and it was in a better position than this court to assess this case'sburden on its docket. See Hefner, 276 Ill. App. 3d at 1106, 659 N.E.2d at 454. The trialcourt specifically stated, with regard to the Madison County docket, "[I]f we havecongestion, it's certainly not asbestos [cases]." Moreover, as previously pointed out, becauseof the nature of asbestos litigation, this controversy is not truly connected to any one countybut has nationwide implications. Hefner, 276 Ill. App. 3d at 1106, 659 N.E.2d at 454.

A plaintiff's right to choose a forum is a substantial one, and that choice should rarelybe disturbed. Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 106, 554N.E.2d 209, 211 (1990). Plaintiff was allegedly exposed to asbestos in Illinois and shouldnot be denied access to Illinois's courts. Plaintiff suffers from an inevitably fatal disease andhas a right to testify at the trial. As plaintiff pointed out, five of the defendants in this caseare Illinois corporations who are not appealing the trial court's ruling on the issue of forumnon conveniens. The burden was on defendants to show why Madison County wasinconvenient and why another forum was significantly more convenient. The record hereshows that defendants did virtually nothing in this regard. Furthermore, defendants havefailed to convince us that the Hefner court's analysis was defective or that the interests ofjustice require transfer. Accordingly, in light of this court's ruling in Hefner, we cannot saythat the trial court abused its discretion in denying defendants' motion to dismiss or transferunder the doctrines of interstate forum non conveniens or intrastate forum non conveniens. For the foregoing reasons, the order of the circuit court of Madison County is herebyaffirmed.

Affirmed.

MAAG, P.J., and HOPKINS, J., concur.

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