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ILLINOIS LAW UPDATE
The Illinois Fourth District Appellate Court recently issued another forum non conveniens opinion in Baugher v. R.J. Reynolds Tobacco Company, et al., 2016 IL App 150663-U (4th District) NO. 4-15-0663, essentially upholding the trial court’s denial of the defendants’ request for a change of forum. The court first pointed out that there was one defendant Owens-Illinois which operated in McLean County, IL, albeit that defendant was named only in the conspiracy count which defendant argued had no merit. The appellate court also noted that the lower court determined that the location of the witnesses had little impact on the analysis because their presence could be procured through subpoena and travel expenses reimbursed. The court also pointed out that the lower court relied on the fact that documents can be obtained easily nowadays given the available technology and that it would be very difficult to find a forum convenient for everyone in the case.
In upholding the lower court’s ruling, the appellate court looked to the private and public factors analysis set forth in the Langenhorst v. Norfolk Southern Ry. Co., 219 Ill.2d 430, 443-44, 848 N.E.2d 927, 935 (2006) (quoting First American Bank v. Guerine, 198 Ill.2d 511, 516, 764 N.E.2d 54, 58 (2002). Regarding the private factors, the court held that the defendant failed to provide any allegations, affidavits or evidence demonstrating that McLean County was inconvenient or that Mercer or Rock Island County were more convenient to the defendant. The court also pointed out that the majority of the co-defendants in this case did not pursue a change of forum. The court held that the defendant did not bring forth any evidence indicating its access to witnesses was in any way diminished or that those witnesses would be inconvenienced by traveling to McLean County for trial. The court did acknowledge that the viewing of the plant at issue by the jury was a fact that clearly weighed in favor of transfer. However, the court also stated that the viewing was not an insurmountable obstacle, reasoning that viewing the property is only a portion of what we are to consider under the access to testimonial, documentary and real evidence. The court further stated that because the McLean County court has had the case since 2014, a transfer at this juncture would actually increase the costs of litigation and delay a resolution of the matter, notwithstanding the fact that the moving defendant had only been brought into the case as of January 2015 and moved to transfer within 90 days of that filing. Based on the above, the court held that defendant failed to demonstrate that a transfer would make the trial easier, more expeditious and less expensive.
Moving to the public factors, the court held that the conspiracy count created a nexus between McLean County and this cause of action which was sufficient to demonstrate some local interest in the outcome. The court further held that even though jurors in Mercer and Rock Island Counties certainly have more connection and interest in this litigation than McLean County, they cannot overlook the conspiracy count which involves a McLean County defendant. Still further, the court stated that Mercer County never handled a trial case before with a verdict potential this big and even though Rock Island would theoretically be able to try the case faster, McLean County has had the case in its possession longer. Finally, the court held that the trial court is in the best position to determine the congestion of its own docket. The court then went on to distinguish the case law on which defendant relied and ultimately held that the trial court did not abuse its discretion in denying defendant’s motion to transfer due to forum non conveniens.