McGinty v. Norfolk Southern

SUPREME COURT CASES

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State: Illinois

Court: 5th District Appellate

Docket No: 5-04-0683 NRel

Case Date: 10/20/2005

NOTICE

Decision filed 11/3/05. The text ofthis decision may be changed orcorrected prior to the filing of aPetition for Rehearing or thedisposition of the same.

NO. 5-04-0683

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

_______________________________________________________________________

PATRICK K. McGINTY, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Madison County.

)

v. ) No. 03-L-1446

)

NORFOLK SOUTHERN RAILWAY )

COMPANY, ) Honorable

) A. A. Matoesian,

Defendant-Appellant. ) Judge, presiding.

_______________________________________________________________________

JUSTICE McGLYNN delivered the opinion of the court:

Norfolk Southern Railway Company (Norfolk Southern) appeals from the trial court'sSeptember 29, 2004, denial of its motion to dismiss on the basis of interstate forum nonconveniens. On December 2, 2004, we granted Norfolk Southern's petition for leave toappeal pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)). There is nodispute that venue in Madison County, Illinois, is proper, because Norfolk Southern doesbusiness in Madison County. See 45 U.S.C. §56 (2000). On appeal, Norfolk Southernargues that there is no connection between the claim filed and Madison County, Illinois, andthat, therefore, under the doctrine of interstate forum non conveniens, the claim should havebeen dismissed.

The plaintiff, Patrick K. McGinty (McGinty), alleges repetitive-trauma injuries to hisback, neck, shoulders, and knees. He claims that these injuries occurred over the 30-yearduration of his employment with Norfolk Southern, for whom he worked as alaborer/machinist and special agent. McGinty filed his claim in Madison County circuitcourt pursuant to provisions of the Federal Employers' Liability Act (45 U.S.C. §51 et seq.(2000)).

McGinty resides in Liberty, Missouri, a community close to Kansas City. At no timeduring his Norfolk Southern employment did McGinty live in Madison County or anywhereelse in Illinois. McGinty alleges that there was a brief period of time during which heperformed Norfolk Southern work in Madison County. In essence, McGinty claims thatbecause his injuries are of a repetitive type and because he did work at least some period oftime in Madison County, at least some of his injuries occurred in Madison County. Duringhis deposition, McGinty was unable to specifically tie his injuries to any one accident,incident, or other reportable condition that occurred during his Madison County employment. In his 30-year employment history, McGinty worked out of Moberly, Missouri,Wentzville, Missouri, St. Louis, Missouri, and Kansas City, Missouri. The Madison Countywork took place during the time frame when McGinty worked out of St. Louis, Missouri,and, while not specified, did take place more than 15 years ago. Neither party has anywitnesses located in Madison County, or anywhere else in Illinois. All of McGinty's treatingphysicians or other healthcare providers are located in the Kansas City, Missouri, area. Healleged that the pain and/or physical problems with which he suffered were not present whenhe worked out of St. Louis, Missouri, but did show up over, approximately, the last 13-yearperiod when he worked out of Kansas City.

Norfolk Southern filed its forum non conveniens motion seeking to have the casedismissed, arguing that the case would be more properly filed in Jackson County, Missouri. The trial court's September 29, 2004, order denying the motion simply states, "The motionis hereby denied." No rationale for the denial was included in the order.

The only issue on appeal is whether or not the trial court erred in reaching itsconclusion that allows the case to proceed in Madison County. On appeal from an ordergranting or denying a motion to dismiss, we must determine whether or not the trial courtabused its discretion. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 176-77, 797 N.E.2d687, 696 (2003); Ferguson v. Bill Berger Associates, Inc., 302 Ill. App. 3d 61, 70, 704N.E.2d 830, 836-37 (1998).

Forum non conveniens is essentially an equitable doctrine. Bland v. Norfolk &Western Ry. Co., 116 Ill. 2d 217, 223, 506 N.E.2d 1291, 1294 (1987). The doctrinepresumes that there is more than one appropriate forum relative to jurisdiction and venue. Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 364, 456 N.E.2d 98, 100 (1983). Thetrial court retains discretionary power to decline the exercise of jurisdiction and to direct thelawsuit to an alternative forum that would more appropriately serve the parties' convenience. Washington v. Illinois Power Co., 144 Ill. 2d 395, 399, 581 N.E.2d 644, 645 (1991). Theconvenience of the parties is at the heart of the doctrine. Hefner v. Owens-Corning FiberglasCorp., 276 Ill. App. 3d 1099, 1101, 659 N.E.2d 448, 451 (1995).

The doctrine of forum non conveniens is applicable on both an intrastate basis and aninterstate basis. Dawdy, 207 Ill. 2d at 176, 797 N.E.2d at 696. The identical concerns ofconvenience and fairness apply to both types of forum non conveniens situations.

To determine if the doctrine of forum non conveniens applies, a court must balanceprivate-interest factors affecting the convenience of the litigants and public-interest factorsimpacting the court's administration. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 91 L.Ed. 1055, 1062-63, 67 S. Ct. 839, 843 (1947). The balancing analysis requires an evaluationof the relevant factors in their entirety rather than an emphasis on any single factor. Peilev. Skelgas, Inc., 163 Ill. 2d 323, 336-37, 645 N.E.2d 184, 190 (1994).

Private-interest factors include the "relative ease of access to sources of proof;availability of compulsory process for attendance of unwilling, and the cost of obtainingattendance of willing, witnesses; possibility of view of premises, if view would beappropriate to the action; and all other practical problems that make trial of a case easy,expeditious[,] and inexpensive." Gulf Oil Corp., 330 U.S. at 508, 91 L. Ed. at 1062, 67 S.Ct. at 843. Some of the other private-interest factors taken into consideration include theresidence of the plaintiff (Peile, 163 Ill. 2d at 337-38, 645 N.E.2d at 191) and the complexityof the litigation. Mowen v. Illinois Valley Supply Co., 257 Ill. App. 3d 712, 717, 629 N.E.2d176, 180 (1994).

Public-interest factors include court congestion, an interest in having "localizedcontroversies decided at home," and the burden of jury duty upon local citizens in anunrelated forum. Gulf Oil Corp., 330 U.S. at 509, 91 L. Ed. at 1063, 67 S. Ct. at 843.

In Peile v. Skelgas, Inc., the Illinois Supreme Court restated its position that forumnon conveniens remains a viable doctrine, and it reiterated the importance of a flexibleconsideration of the private- and public-interest factors. Peile, 163 Ill. 2d at 336-37, 645N.E.2d at 190-91. While the court confirmed that the plaintiff's choice is entitled tosubstantial deference, the court noted that the right is seriously diminished when the forumselected is not his or her county of residence and where the forum is not the situs of theinjury. Peile, 163 Ill. 2d at 337-38, 645 N.E.2d at 191. No single interest factor should beaccorded primary or conclusive emphasis. Dawdy, 207 Ill. 2d at 180, 797 N.E.2d at 698(citing Jones v. Searle Laboratories, 93 Ill. 2d 366, 373, 444 N.E.2d 157, 160 (1982)). Affording major significance to any one of the factors would result in a weakening of theflexibility of the forum non conveniens doctrine. Dawdy, 207 Ill. 2d at 180, 797 N.E.2d at698 (relying on Bland, 116 Ill. 2d at 227, 506 N.E.2d at 1295 (relying on Piper Aircraft Co.v. Reyno, 454 U.S. 235, 249-50, 70 L. Ed. 2d 419, 432, 102 S. Ct. 252, 263 (1981))). Allof the factors must be weighed in their entirety. Dawdy, 207 Ill. 2d at 175-76, 797 N.E.2dat 695 (relying on Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 107-08,554 N.E.2d 209, 212 (1990)).

"In considering an interstate forum non conveniens motion filed in a suit pending inan Illinois court, the focus is on Illinois's connections with the litigation and whether theapplicable public- and private-interest factors favor Illinois or an appropriate forum inanother state." (Emphasis omitted.) Skidmore v. Gateway Western Ry. Co., 333 Ill. App. 3d947, 950, 776 N.E.2d 333, 336 (2002).

In 2002, the Illinois Supreme Court reaffirmed the doctrine of forum non conveniensin First American Bank v. Guerine, 198 Ill. 2d 511, 764 N.E.2d 54 (2002). Rather thanweighing each factor in determining whether a case should be dismissed, Guerine, which wasan intrastate forum case, required an approach in which the court "evaluate[s] the totalcircumstances of the case," in order to determine if the defendant has proven that the balanceof factors strongly favors a transfer. Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59.

This case turns on the repetitive nature of McGinty's injuries in that, theoretically atleast, some part of his overall injury occurred in Madison County. Madison County wouldnot be the only appropriate forum, however. Following McGinty's argument, any countywhere he worked throughout the entirety of his railroad career would be proper. Theplaintiff's choice of forum is entitled to great deference, and although the deference issomewhat minimized due to the fact that he does not reside in that county, McGinty arguesthat his choice should still be granted great deference because the injury "occurred" inMadison County.

Norfolk Southern counters with the argument that merely working in Madison Countyfor a short period of time is insufficient to warrant maintaining the case in Madison County. Norfolk Southern distinguishes cases where an actual injury or accident occurred in MadisonCounty, arguing that because McGinty cannot point to one precise incident in MadisonCounty, his injury essentially could not have occurred there. See Brummett v. WepferMarine, Inc., 111 Ill. 2d 495, 490 N.E.2d 694 (1986) (the plaintiff suffered a traumatic fallwhile the vessel on which he worked was docked at Lock Number 26 near Alton, Illinois);Peterson v. Monsanto Co., 181 Ill. App. 3d 677, 537 N.E.2d 1030 (1989) (where a chemicalexposure occurred within Madison County, Illinois); Weaver v. Midwest Towing, Inc., 116Ill. 2d 279, 507 N.E.2d 838 (1987) (injuries resulting from a continuous benzine gasexposure over a short period of time while working on a vessel traveling the upperMississippi River to and including passage through the Alton Lock and Dam system inMadison County, Illinois).

As stated above, this case turns on an acceptance of the theory that a repetitive injuryover the span of an entire career fixes venue and forum in any county that the employeeperformed so much as one minute of work. If we accept this theory, as the trial court did,then no matter how remote in time the employment at issue was, the "injury" occurred inMadison County. We believe that this stretches the bounds of the forum non conveniensdoctrine and cannot, at least in this situation, be solely utilized to fix Madison County as anappropriate forum. In a typical injury case where the location of the injury is the forumchosen by the plaintiff, the connection between the county and the injury is significant. Thesite of the injury and the county's interest in the outcome of the litigation are naturally tied,and complete deference to the plaintiff's choice is virtually automatic, because there is apresumption that the choice is convenient because the litigation is being decided in its homecounty. Skidmore, 333 Ill. App. 3d at 956, 776 N.E.2d at 340. We understand that, bydefinition, a repetitive trauma is an injury that occurs over and over again. We are unwilling,however, to equate a repetitive injury to that of a one-time incident, injury, or exposure thatmore directly ties an injury to a particular county. If we equated the two types of injuries,any truck driver with a repetitive injury could claim Madison County as a convenient forumsimply because there are many interstate highways that run through the county and the truckdriver at some point in time drove on one of those highways. We will not afford this typeof repetitive injury the same deference as accidents and exposures that solely occur inMadison County. To hold otherwise could promote unfavored forum-shopping. Dawdy, 207Ill. 2d at 173-75, 797 N.E.2d at 694-95.

Because McGinty does not remember much of anything relative to his MadisonCounty work history, and due to the nonspecific repetitiveness of the injury and itsremoteness in time–more than 15 years ago–we will only afford slight deference to hischoice of forum on the basis of the injury situs. Other factual situations may warrantdifferent treatment, but this injury's connection with Madison County is simply too tenuousto receive automatic deference.

We will briefly discuss the relevant private- and public-interest factors.

In this case, the private-interest factors involving the relative ease of access to sourcesof proof and the availability and cost of obtaining willing and unwilling witnesses can bediscussed together. Neither of these private-interest factors favors Madison County. Noneof the potential witnesses resides in Madison County, or anywhere near Madison County. McGinty and his wife both reside near Kansas City, Missouri. All of McGinty's coworkersreside in or near Kansas City. Seven listed doctors and other medical providers all live andwork in and around Kansas City. The employees of McGinty's janitorial business all livenear Kansas City. Jackson County, Missouri, is the location of these witnesses, and JacksonCounty is approximately 265 miles from Madison County, Illinois. The reality is that therewould be no "ease of access" to these witnesses, and the cost to bring many or all of themto a trial in Madison County would be quite high.

We must address the possibility of a view of the premises, however remote thatlikelihood is. Dawdy, 207 Ill. 2d at 178-79, 797 N.E.2d at 697. In this situation, a view ofthe premises could conceivably include whatever location in Madison County whereMcGinty was occasionally sent to work when he worked out of the St. Louis railroad yard. However, because the injury alleged is a repetitive one with no specific accident site, it isjust as likely that a view could be arranged at any of the Missouri locations where McGintyworked. Any view, if ordered by the trial court, would necessarily be representative of thetype of work in which McGinty engaged over the many years of his employment, and not thesite of a discrete incident. Consequently, this factor does not support McGinty's forumchoice over Jackson County, Missouri.

The only other private-interest factor referenced by McGinty's attorneys favoring theMadison County forum choice was the location of the attorneys' offices–in Madison Countyand neighboring St. Clair County, Illinois. As the Illinois Supreme Court stated, "While acourt may consider this factor, 'little weight should be accorded it.' " Dawdy, 207 Ill. 2d at179, 797 N.E.2d at 697 (quoting Boner v. Peabody Coal Co., 142 Ill. 2d 523, 534, 568N.E.2d 883, 888 (1991)). So, although it may be entitled to very little weight, this factordoes favor Madison County.

Turning to the public-interest factors, we conclude that the court-congestion factorweighs in favor of Jackson County, Missouri, in that the average time for a trial to proceedfrom filing to verdict in Madison County was 28.9 months, while the average time in JacksonCounty, Missouri, was approximately 12 months. Administrative Office of the IllinoisCourts, 2002 Annual Report of the Illinois Courts, Statistical Summary 53; Office of StateCourts Administrator, 2002 Annual Report Supplement 180 (Missouri).

To the extent that a part of the repetitive injury occurred in Madison County, then thecitizens of Madison County would have a very slight interest in deciding the controversy. Given the lack of any other connection to the county, we are unable to say that merelyoccasionally working in Madison County more than 15 years ago vests the citizens ofMadison County with more than a modest interest in the controversy's outcome. We findthat in this particular factual situation, jury duty would impose a burden upon the citizensof Madison County.

Evaluating the factors in their totality, we are unable to reach the same conclusion that the trial court reached. We conclude that the factors strongly favor Jackson County,Missouri, over Illinois. Accordingly, we find that the trial court abused its discretion indenying Norfolk Southern's motion to dismiss.

For the foregoing reasons, the judgment of the circuit court of Madison County ishereby reversed, and the cause is dismissed.

Reversed; cause dismissed.

WELCH, J., concurs.

PRESIDING JUSTICE DONOVAN, dissenting:

I respectfully dissent. Although the majority has accurately recited the relevantpublic- and private-interest factors to be considered in a forum non conveniens analysis, itsapplication in this case is troubling.

In its decision, the majority recognizes that this case presents an interstate forum nonconveniens issue, but it proceeds to conduct an intrastate type of analysis, weighing therelative advantages and obstacles to litigating this case in Madison County, Illinois, versusJackson County, Missouri. When addressing an interstate forum non conveniens motion, thecourt and the litigants are instructed to focus on Illinois's connections with the litigation andwhether the relevant factors favor Illinois over another state. Kwasniewski v. Schaid, 153 Ill.2d 550, 607 N.E.2d 214 (1992); Lambert v. Goodyear Tire & Rubber Co., 332 Ill. App. 3d373, 377-78, 773 N.E.2d 133, 137 (2002) (citing 3 R. Michael, Illinois Practice §14.1(1989)). In this case, we should consider whether Illinois has any connections with thelitigation and whether Missouri is an available forum that can better serve the convenienceof the litigants and promote the ends of justice. Dawdy v. Union Pacific R.R. Co., 207 Ill.2d 167, 172, 797 N.E.2d 687, 693 (2003).

More troubling is the majority's decision to "afford slight deference" to the plaintiff'schoice of a forum based on its analysis of "the injury situs." Slip op. at 7. The majorityconcludes that the plaintiff's choice of forum should be afforded slight deference becauseeach of his injuries is a cumulative-effects injury rather than "a one-time incident, injury, orexposure that more directly ties [the] injury to a particular county" and because the plaintiffwas unable to recall a specific incident or trauma that occurred in Madison County. Slip op.at 6. The majority's pronouncement creates a previously unrecognized subfactor which isill-defined and will likely invite a new wave of the type of litigation quagmire that JusticeWilliam Lewis warned about in Peile v. Skelgas, Inc., 242 Ill. App. 3d 500, 522, 610 N.E.2d813, 829 (1993) (Lewis, J., specially concurring). Armed with this decision, adversaries willengage in endless battles over additional forms of minutiae, namely: (1) estimates andsupposition regarding the frequency, the severity, and the significance of the trauma sufferedby a railroad worker at a given location that is necessary to constitute a bona fide "injurysitus" and (2) what range of deference (slight, moderate, substantial) is properly afforded tothe chosen forum based on each cumulative-trauma case.

By definition, the cumulative-effects injuries suffered by laborers result from a seriesof microtraumas with a gradual and often imperceptible onset of symptoms that eventuallylead to dysfunction. See generally Peoria County Belwood Nursing Home v. IndustrialComm'n, 115 Ill. 2d 524, 505 N.E.2d 1026 (1987) (the recognition of a compensableaccidental injury where a worker's physical structure gives way under the repetitive stressesof work-related tasks). Therefore, that the plaintiff in this case is unable to point to onespecific incident or injury that occurred in Illinois should be of no surprise. In reviewing therecord, I found no indication that the plaintiff described the occurrence of a specifictraumatic event in Missouri either. Nevertheless, the record does show that the plaintiff wasassigned to the Luther yard in St. Louis, Missouri, for more than a year, and while there, hespent a significant amount of time patrolling and surveilling the railroad's properties andassets in Illinois. The plaintiff testified that while working in and near Illinois yards, he wasexposed to uneven ballasts, uneven terrain, and holes in the yards that were not visible dueto poor lighting and that he twisted his knees while walking in those conditions. Theplaintiff also testified that he was required to pull himself up on railcars in order to inspectthem and that these conditions contributed to his shoulder injuries. For purposes of a forumnon conveniens analysis, the plaintiff's testimony is sufficient to show that his injuries weresustained, in part, during his work in Illinois. Accordingly, the plaintiff's chosen forum isentitled to substantial deference. Dawdy, 207 Ill. 2d at 173, 797 N.E.2d at 694; FirstAmerican Bank v. Guerine, 198 Ill. 2d 511, 517-18, 764 N.E.2d 54, 59 (2002); Brummett v.Wepfer Marine, Inc., 111 Ill. 2d 495, 499-500, 490 N.E.2d 694, 697 (1986).

Before the plaintiff can be deprived of his chosen forum, the balance of the public- and private-interest factors must strongly favor a dismissal of the pending case on thegrounds that Missouri can better serve the parties and promote the ends of justice. Guerine,198 Ill. 2d at 518, 764 N.E.2d at 59. The plaintiff is a Missouri resident. The railroad is nota resident of Missouri or Illinois, but it does have personal and real property in both states,and it regularly conducts business in both states. According to the record, all of theplaintiff's medical treatment was rendered in Missouri. Due to the demands of theirprofession, medical providers rarely testify live at a trial. Realistically, whether this case istried in Missouri or Illinois, it is probable that the medical testimony will be presentedthrough evidence depositions or video depositions. On this record, it is difficult to discernthe existence and the residence of occurrence witnesses who might be called to testify. Neither party specifically named any occurrence witnesses. In its motion, the railroad namedtwo supervisors who might be called, and it asserted that any witnesses (coworkers) to theplaintiff's work activities "would be located" in Missouri near the locations where theplaintiff worked. In making this assertion, the railroad fails to account for those coworkerswho worked with the plaintiff in Illinois for more than a year. Even if the assertion isaccepted, I note that the railroad has given no assurances that the supervisors and theunidentified coworkers are permanently stationed in Missouri or that they will be present inMissouri at the time of the trial, and given the transitory nature of the work, it isunreasonable to assume that would be the case. Further, there is no evidence in the recordto indicate that coworkers could not be temporarily assigned, without undue hardship, to therailroad's Metro East facilities at the time of the trial. In short, the railroad has not shownthat the witnesses and documents necessary to the trial of the controversy can be moreconveniently produced in Missouri. See Brummett, 111 Ill. 2d at 504, 490 N.E.2d at 699; Weaver v. Midwest Towing, Inc., 116 Ill. 2d 279, 289, 507 N.E.2d 838, 842 (1987). Further,the supervisors and any necessary coworkers can be propounded by means of a Rule 237(b)notice (166 Ill. 2d R. 237(b)). Although live testimony is usually preferred, advances intechnology have made sophisticated video-deposition presentations an acceptable, thoughadmittedly not equal, alternative where professional and lay witnesses are unavailable. Thecircuit courts in Missouri or Illinois, upon proper petition, have the authority to issuesubpoenas to compel its citizens to appear for a deposition that may be used in a sister state'slegal proceedings. See Mo. Rs. Civ. P. R. 57.08 (2002); 166 Ill. 2d R. 204(b). Assumingthat the conditions have not changed in the railroad yards, a representative view of thepremises could be had in either Illinois or Missouri, because the allegations regarding theunsafe working conditions are consistent and not dependent on the particular work site. Though it is not particularly weighty, it bears mentioning that the counsel of record haveoffices in Illinois.

The citizens of Missouri and Illinois appear to have equal interests in ensuring thatboth parties receive a fair trial. The citizens of each state share an interest in seeing thatcorporate guests who conduct business in their respective states behave responsibly. If aworker is injured in Illinois as a result of the alleged negligence of its corporate guest, thecitizens of Illinois have an interest in deciding the controversy and in awarding faircompensation should the allegations prove true. The same would be true of the citizens ofMissouri. Consequently, jury duty would not impose a burden on the respective citizens ofeither state. As to the court congestion, my colleagues have chosen to compare MadisonCounty with only one possible venue in Missouri. It appears that St. Louis, Missouri, wouldbe another available forum, and there is no information on the congestion of that court'sdocket. I would further note that the oft-cited "average delay" statistic may be a misleadingmeasure because the number tells us nothing about the types and the complexities of thecases on the docket and the number of judges and jurors available to try additional cases.

After considering the totality of the circumstances, I conclude that the railroad has notmet its burden to show that private- and public-interest factors strongly favor a Missouriforum over an Illinois forum. The circuit court did not abuse its discretion in denying therailroad's motion to dismiss this action.

For the foregoing reasons, I respectfully dissent.