2015 IL App (1st) 142972
No. 1-14-2972
Opinion filed September 11, 2015
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
MELINDA RUCH, as the Administrator ) Appeal from the Circuit Court
for the Estate of Kenneth L. Kazort, ) of Cook County.
Deceased, )
)
Plaintiff-Appellant, )
)
v. ) No. 13 L 014527
)
JOHN PADGETT and ADVANCED ) The Honorable
DISPOSAL SERVICES SOLID WASTE ) Eileen Mary Brewer,
MIDWEST, L.L.C., d/b/a Advanced ) Judge, presiding.
Disposal, )
)
Defendants-Appellees. )
JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices McBride and Palmer concurred in the judgment and opinion.
OPINION
No. 14-2972
¶1 Plaintiff Melinda Ruch brought this lawsuit as the administrator for the
estate of Kenneth L. Kazort. Ruch alleged that Kazort died as the result of a
motor vehicle collision on October 24, 2013, between his vehicle and a garbage
truck driven by defendant John Padgett, who was employed by defendant
Advanced Disposal Services Solid Waste Midwest, L.L.C. (Advanced
Disposal).
¶2 Defendants then moved the trial court, pursuant to the doctrine of forum
non conveniens, to transfer the case from Cook County, which is not plaintiff's
home forum, to Boone County, where the motor vehicle accident occurred. The
trial court granted defendants' motion but permitted plaintiff to choose whether
the case would be transferred to Boone County or Winnebago County, where a
number of the witnesses live and where plaintiff both lives and works.
¶3 On this interlocutory appeal, plaintiff Ruch appeals the trial court's grant
of defendants' forum non conveniens motion, and defendants ask that we affirm.
For the following reasons, we cannot find that the trial court abused its
discretion and thus must affirm.
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No. 14-2972
¶4 BACKGROUND
¶5 I. Complaint
¶6 Plaintiff filed this action in Cook County on December 27, 2013, alleging
negligence by both John Padgett, the driver of the garbage truck, and Advanced
Disposal, his employer.
¶7 Plaintiff alleges that on October 24, 2013, at 11 a.m. Kenneth Kazort was
traveling south on Russelville Road in Belvidere, Illinois. The parties agree
that this location is in Boone County.
¶8 Plaintiff further alleges that, at this time, defendant Padgett was
employed as a garbage truck operator by Advanced Disposal, and was
operating, by himself, a large Mack, front-lift garbage truck. The truck was
designed for front-fork loading and unloading of large trash receptacles. In
order to drive away from a residence that he had serviced, Padgett reversed the
Advanced Disposal garbage truck in a private driveway and headed in an
easterly direction onto Russelville Road.
¶9 Plaintiff alleges that, without warning, the garbage truck crossed into
Kazort's lane of travel as Kazort was heading south on Russelville Road. The
back end of the garbage truck was then in the path of Kazort's vehicle.
Numerous large trees, a recreational vehicle (RV), vegetation and other foliage
located near the scene of the crash obscured Kazort's view of the driveway and
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No. 14-2972
defendant Padgett's view of oncoming traffic. As a result of the ensuing
collision, Kazort suffered severe injuries and died.
¶ 10 Defendant John Padgett declined to answer plaintiff's complaint based on
the fifth amendment to the United States Constitution. U.S. Const. amend. VX.
¶ 11 Defendant Advanced Disposal admitted in its answer that Padgett is a
resident of Winnebago County, that Padgett was employed by it as a garbage
truck operator at the time of the accident and that he was acting in the scope of
his employment. Defendant admitted upon information and belief that Kazort
died as a result of the collision between the two vehicles.
¶ 12 II. Forum Non Conveniens Motion
¶ 13 A. Defendant's Motion
¶ 14 On May 20, 2014, defendants Advanced Disposal and Padgett moved the
trial court to transfer the action from Cook County to Boone County.
¶ 15 In its motion, defendants stated that the decedent had lived in Boone
County and that defendant Padgett lives in Winnebago County and was working
for Advanced Disposal in Boone County on the day of the accident. In
addition, representatives of the Boone County sheriff's department and coroner's
office investigated the accident. The decedent's son and only beneficiary
resides in Winnebago County with his mother, who is the administrator of
decedent's estate. Plaintiff's lead counsel is a Missouri law firm with an office in
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Chicago, and she also retained a local law firm in Sycamore, Illinois, which is
in De Kalb County, a county adjacent to Boone County. Defendant included a
table based on the 2012 statistics from the annual report of the Illinois courts,
which showed that over 21,000 cases were filed in the law division of Cook
County seeking over $50,000, while just 44 such cases were filed in Boone
County. 1 Plaintiff does not dispute these facts.
¶ 16 In an interrogatory response, defendants also listed, as a potential Boone
County witness, the customer whom defendant Padgett serviced prior to the
accident, and who could be called to testify about the upkeep and maintenance
of the property. Defendants' interrogatory response also stated that the
"[b]usiness records for Boone County customers are kept in the Davis Junction,
Illinois ADS facility," which is in Ogle County.
¶ 17 B. Plaintiff's Response
¶ 18 In plaintiff's response to defendant's motion, plaintiff stated that her
damages expert, Dr. Stan Smith, is from Cook County and her reconstruction
expert, Dr. Mariusz Ziejewsk, is from Fargo, North Dakota. She also stated that
1
As we mention infra ¶ 21, plaintiff argued in her response to the trial court
that the time lapse between filing and verdict is more significant than the number
of cases filed, and that, in 2012, the time lapse for law jury verdicts over $50,000
averaged 36.1 months in Cook County and 56 months in Boone County. However,
as plaintiff later acknowledged in her brief to this court, this same time lapse in
2013 was still 36 months for Cook County but had dropped to only 22 months for
Boone County.
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decedent's vehicle was stored in McHenry County, while the subject truck was
stored in Ogle County. While arguing that the landowner could alter the
accident site by trimming foliage or cutting down trees, plaintiff did not allege
that had actually happened.
¶ 19 Plaintiff attached an exhibit which she entitled "Table of Witnesses and
Exhibits," which listed the likely witnesses and exhibits and where they were
"locat[ed]." Except for plaintiff Melinda Ruch, the table lists the witness'
"location" rather than his or her residence or workplace. According to
plaintiff's list, there is not a single witness or piece of evidence located in Cook
County, except for plaintiff's economic expert, Stan Smith. Plaintiff's list of
likely witnesses and exhibits includes "police, paramedics" from Boone and
Winnebago Counties, and the Boone County coroner. Since neither side has
identified a witness to the accident,2 plaintiff listed "scene witnesses'
residences" as "unknown."
¶ 20 Plaintiff also submitted affidavits, which were almost identical, from
nine3 witnesses who stated that they would be willing to provide a videotaped
2
Plaintiff's brief to this court states that "there are no eyewitnesses to the
crash."
3
Plaintiff's response stated that it attached affidavits from 10 witnesses, but
there are only 9 affidavits attached. The tenth affidavit appears by itself, at the end
of the appellate record. Similar to the other nine, the tenth affidavit states that the
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No. 14-2972
deposition in Boone or adjacent McHenry and Winnebago Counties, and would
be willing to appear at a trial in Cook County "if the need arose" and that
appearing at a trial in Cook County "would not pose an undue hardship or
inconvenience to myself or my family." The witnesses stated that their
affidavits were based on the "understand[ing] that [he or she] will be
reimbursed to the fullest extent permitted by law for traveling to attend a trial in
Cook County." The affidavits did not state the source of the affiants' source of
knowledge about the underlying facts or whether Boone County would be more
convenient.
¶ 21 Plaintiff also attached statistics from the annual report of the
Administrative Office of the Illinois Courts which showed that, in 2012, for law
jury verdicts over $50,000, Cook County averaged 36.1 months between the
date of filing and the date of verdict, while in Boone County the time lapse
between filing and the date of verdict was 56 months.
¶ 22 On July 16, 2014, the trial court granted plaintiff's motion to attach the
affidavit of Illinois State Trooper Marsha Banfe to plaintiff's response to
defendant's motion. Plaintiff's motion stated that Banfe was "involved in the
downloading of information from the decedent's car." Banfe's affidavit was
worded similarly to the other witness affidavits submitted by plaintiff and it
affiant is willing to appear for a videotaped deposition in Du Page County and that
it would not be an "undue" hardship for her to testify at a trial in Cook County.
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No. 14-2972
stated that Banfe would appear for deposition in Du Page County and that a trial
in Cook County "would not pose an undue hardship or inconvenience to myself
or to my family."
¶ 23 C. Trial Court's Ruling
¶ 24 On September 2, 2014, at the hearing on the motion, defendants stated,
with respect to the affidavits submitted by plaintiff, "we don't know what it is
they're going to talk about," and plaintiff, who was given an opportunity to
respond, did not respond to that issue.
¶ 25 The trial court gave its ruling orally from the bench, stating:
"I am granting defendant's motion to dismiss in this case. The case
should be transferred to Boone County where the accident occurred and
the majority of witnesses reside or to Winnebago where the beneficiary
resides and also the defendant Padgett.
Plaintiff's reliance of [sic] Defendant Advanced Disposal is only
relevant to venue. Yes, the Cook County court can assert jurisdiction.
However, this case is primarily a wrongful death case for a car accident
that happened in Boone County.
The alleged negligence and injury occurred in Boone. There is no
reasonable connection between the accident and Cook County.
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Looking at the totality of circumstances, the situation strongly merits
transfer. Here, a foreign plaintiff filed in Cook, and the connection is
always the accident [sic], are in different jurisdictions, thus the plaintiff's
choice deserves little weight.
And the Court should grant a forum non conveniens motion where the
facts indicate that the plaintiff is engaged in forum shopping.
Further, the Court rejects plaintiff's attempt to place witnesses in Cook
based on an expert witness. If the Court were to consider an expert
witness as a factor against transfer, such decision would cut against
forum non conveniens precedent and use of a [Rule] 187 4 motion to deter
and prevent forum shopping."
¶ 26 With respect to whether the case would be transferred to Boone or
Winnebago County, the trial court ruled: "This is going to be the decision of
the plaintiff on where to file."
¶ 27 On September 2, 2014, the trial court issued a written order which stated
in full:
"This case coming on to be heard on the motion to dismiss and
transfer pursuant to forum non conveniens, due notice having been given,
and the court fully advised in the premises,
4
Ill. S. Ct. R. 187 (eff. Jan. 4, 2013).
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No. 14-2972
It is hereby ordered that this case is dismissed here in Cook County
and transferred to Boone County or Winnebago County in accordance
with the court's oral remarks during the hearing."
¶ 28 This court granted plaintiff's petition for leave to appeal on December 12,
2014, and this appeal followed.
¶ 29 ANALYSIS
¶ 30 In this interlocutory appeal, plaintiff appeals the trial court's grant of
defendants' forum non conveniens motion to transfer the case from Cook
County. After carefully reviewing all the forum non conveniens factors, we
cannot conclude that the trial court abused its discretion by granting defendants'
motion to transfer to Boone County, and plaintiff does not complain that the
court gave her the additional option of choosing her home forum, Winnebago
County. For the following reasons, we affirm.
¶ 31 I. Interlocutory Appeal
¶ 32 Defendants moved the trial court pursuant to Illinois Supreme Court Rule
187 (eff. Jan. 4, 2013) to transfer this case from Cook County to Boone County.
Rule 187(a) provides: "A motion to dismiss or transfer the action under the
doctrine of forum non conveniens must be filed by a party not later than 90 days
after the last day allowed for the filing of that party's answer." Ill. S. Ct. R.
187(a) (eff. Jan. 4, 2013). If the trial court orders an "[i]ntrastate transfer of
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action," the "clerk of the court from which a transfer is granted to another
circuit court in this State on the ground of forum non conveniens shall
immediately certify and transmit to the clerk of the court to which the transfer is
ordered the originals of all documents filed in the case together with copies of
all orders entered therein." Ill. S. Ct. R. 187(c)(1) (eff. Jan. 4, 2013). The rule
further provides: "The clerk of the court to which the transfer is ordered shall
file the documents and transcript transmitted to him or her and docket the case,
and the action shall proceed and be determined as if it had originated in that
court." Ill. S. Ct. R. 187(c)(1) (eff. Jan. 4, 2013).
¶ 33 Since this case involved an intrastate transfer, this appeal is an
interlocutory appeal pursuant to Illinois Supreme Court Rule 306 (eff. July 1,
2014). Rule 306 permits a party to petition the appellate court for leave to
appeal "an order of the circuit court allowing or denying a motion to dismiss on
the grounds of forum non conveniens, or from an order of the circuit court
allowing or denying a motion to transfer a case to another county within this
State on such grounds." Ill. S. Ct. R. 306(a)(2) (eff. July 1, 2014). On December
12, 2014, this court granted plaintiff's petition for leave to appeal, and this
appeal followed.
¶ 34 Illinois Supreme Court Rule 306(c)(1) (eff. July, 1, 2014) requires the
petition to be accompanied by a supporting record, as that term is defined by
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Illinois Supreme Court Rule 328 (eff. Feb. 1, 1994). Rule 328 permits a
"supporting record" to be authenticated either by a certificate of the circuit court
clerk or "by the affidavit of the attorney or party filing it." Ill. S. Ct. R. 328
(eff. Feb. 1, 1994). In the case at bar, the supporting record was authenticated
by an attorney's affidavit. After the petition was granted, this court did not order
plaintiff to file a record, as permitted by Illinois Supreme Court Rule 306(c)(6)
(eff. July 1, 2014). Defendants then filed a response to the petition but chose
not to file a supplementary supporting record, as permitted by Illinois Supreme
Court Rule 306(c)(2) (eff. July 1, 2014). Thus, the record in this appeal
consists of the supporting record filed by plaintiff.
¶ 35 II. Standard of Review
¶ 36 The standard of review for a forum non conveniens decision is abuse of
discretion. Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441
(2006).
¶ 37 "Forum non conveniens is an equitable doctrine founded in
considerations of fundamental fairness and the sensible and effective
administration of justice." Langenhorst, 219 Ill. 2d at 441 (citing Vinson v.
Allstate, 144 Ill. 2d 306, 310 (1991)). "This doctrine allows a trial court to
decline jurisdiction when trial in another forum 'would better serve the ends of
justice.' " Langenhorst, 219 Ill. 2d at 441 (quoting Vinson,
144 Ill. 2d at 310).
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"Forum non conveniens is applicable when the choice is between interstate
forums as well as when the choice is between intrastate forums," such as in the
case at bar. Glass v. DOT Transportation, Inc., 393 Ill. App. 3d 829, 832
(2009).
¶ 38 "A trial court is afforded considerable discretion in ruling on a forum non
conveniens motion." Langenhorst, 219 Ill. 2d at 441. "We will reverse the
circuit court's decision only if defendants have shown that the circuit court
abused its discretion in balancing the relevant factors." Langenhorst, 219 Ill. 2d
at 442 (citing Dawdy v. Union Pacific R.R. Co.,
207 Ill. 2d 167, 176-77 (2003)).
"A circuit court abuses its discretion in balancing the relevant factors only
where no reasonable person would take the view adopted by the circuit court."
Langenhorst, 219 Ill. 2d at 442 (citing Dawdy,
207 Ill. 2d at 177); Glass,
393
Ill. App. 3d at 832.
¶ 39 Both parties agree that we must apply an abuse-of-discretion standard of
review. "The issue, then, is not what decision we would have reached if we
were reviewing the facts on a clean slate, but whether the trial court acted in a
way that no reasonable person would." Vivas v. Boeing Co., 392 Ill. App. 3d
644, 657 (2009).
¶ 40 Plaintiff claims in her brief to this court that "the trial court did not
engage in any analysis of the public and private factors" (emphasis in original)
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No. 14-2972
required in a forum non conveniens analysis. When an appellate court reviews a
trial court's forum non conveniens order, "[t]he issue is not the detail of the
underlying order, but whether the circuit court abused its discretion." Estate of
Rath v. Abbott Laboratories, Inc., 2012 IL App (5th) 100096, ¶ 23. This court
has previously stated that it is not "aware of any authority[] supporting the
proposition that a circuit court's ruling on a forum non conveniens motion must
be reversed solely for an inadequate record of its analysis." Landmark
American Insurance Co. v. NIP Group, Inc., 2011 IL App (1st) 101155, ¶ 52.
As a result, we may affirm a trial court's forum non conveniens order on any
basis found in the record. Estate of Rath, 2012 IL App (5th) 100096, ¶ 43
(Spomer, J., specially concurring) (agreeing with the majority that a reviewing
court may affirm a forum non conveniens order "on any basis in the record").
¶ 41 III. Plaintiff's Choice of Forum
¶ 42 "Before weighing the relevant factors, a court must first decide how
much deference to give to a plaintiff's choice of forum." Vivas, 392 Ill. App. 3d
at 657 (citing Langenhorst,
219 Ill. 2d at 448 (the supreme court determined the
appropriate amount of deference before weighing the relevant factors)).
¶ 43 Normally, the plaintiff's choice of forum is a substantial factor in
deciding a forum non conveniens motion. Dawdy, 207 Ill. 2d at 172; Vivas,
392
Ill. App. 3d at 657. However, where the plaintiff chooses a forum other than
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No. 14-2972
where she resides, her choice is not entitled to the same weight. Dawdy, 207 Ill.
2d at 173-76; Vivas,
392 Ill. App. 3d at 657.
¶ 44 Plaintiff argues that, although she did not choose her home forum, her
choice is entitled to substantial deference and she cites in support First
American Bank v. Guerine, 198 Ill. 2d 511, 517 (2002). In Guerine, our
supreme court explained: " 'When the home forum is chosen, it is reasonable to
assume that the choice is convenient. When the plaintiff is foreign to the forum
chosen, however, the assumption is much less reasonable and the plaintiff's
choice deserves less deference.' " Guerine, 198 Ill. 2d at 517 (quoting Wieser v.
Missouri Pacific Ry. Co., 98 Ill. 2d 359, 367 (1983)).
¶ 45 In Glass, this court stated: "While the deference to be accorded a
plaintiff as to his choice of forum is less when the plaintiff chooses a forum
other than where he resides, ' "the deference to be accorded is only less, as
opposed to none." ' " (Emphases in original.) Glass, 393 Ill. App. 3d at 834
(quoting Guerine, 198 Ill. 2d at 518, quoting Elling v. State Farm Mutual
Automobile Insurance Co., 291 Ill. App. 3d 311, 318 (1997)).
¶ 46 Thus, plaintiff's choice of a foreign forum receives "some deference" but
less deference than if she had chosen her home forum. Vivas, 392 Ill. App. 3d
at 657-58. In addition, the trial court did permit her some choice by allowing
her to select either Boone County or her home forum, Winnebago County.
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¶ 47 IV. Private Interest Factors
¶ 48 The Illinois Supreme Court has held that a court must consider both "the
private and public interest factors" in deciding a forum non conveniens motion.
Langenhorst, 219 Ill. 2d at 443; Dawdy,
207 Ill. 2d at 172-73; see also Vivas,
392 Ill. App. 3d at 658.
¶ 49 The private interest factors include: " '(1) the convenience of the parties;
(2) the relative ease of access to sources of testimonial, documentary, and real
evidence; and (3) all other practical problems that make trial of a case easy,
expeditious, and inexpensive.' " Langenhorst, 219 Ill. 2d at 443 (quoting
Guerine, 198 Ill. 2d at 516-17); Dawdy, 207 Ill. 2d at 172; see also Vivas,
392
Ill. App. 3d at 658.
¶ 50 A. Convenience of Parties
¶ 51 First, the convenience of the parties does not strongly favor either county.
Langenhorst, 219 Ill. 2d at 443. Since defendants sought the transfer to Boone
County, the convenience of defendants and the witnesses under their control
"fades as an issue." Susman v. North Star Trust Co., 2015 IL App (1st) 142789,
¶ 27. In her brief to this court, plaintiff, who resides in adjacent Winnebago
County, does not argue that Boone County is personally inconvenient for her. In
addition, the trial court permitted her to select her home forum, if she so
chooses. Instead of arguing her own inconvenience, plaintiff argues that
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No. 14-2972
defendants have "significant connections to Cook County." However, one party
cannot argue the other party's convenience. Vivas, 392 Ill. App. 3d at 658.5
Thus, the convenience of the parties does not strongly favor either Cook County
or Boone County.
¶ 52 B. Ease of Access to Evidence
¶ 53 Second, the relative ease of access to sources of testimonial, documentary
and real evidence does not indicate that the trial court abused its discretion.
Langenhorst, 219 Ill. 2d at 443.
¶ 54 1. Testimonial Evidence
¶ 55 The trial court did not abuse its discretion in concluding that access to
testimonial evidence favored Boone County when the majority of witnesses live
or work in Boone County and neighboring Winnebago, McHenry and Ogle
Counties, and none of the witness affidavits submitted by plaintiff stated that
Cook County would be more convenient.
¶ 56 According to plaintiff's own list of witnesses, not a single witness is
"locat[ed]" in Cook County, except one of her experts. In her brief to this court,
plaintiff argues that "one of Plaintiff's experts hails from Cook County and
most, if not all, of Plaintiff's other experts will be from states other than
5
As we discuss supra ¶ 19 and infra ¶ 56, not a single witness listed by
plaintiff is "locat[ed]" in Cook County, except for plaintiff's economic expert, Stan
Smith.
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No. 14-2972
Illinois." Plaintiff states that "Illinois precedent does recognize that the fact that
plaintiff's expert 'has an office in the plaintiff's chosen forum' is relevant to the
determination of a forum non conveniens motion.' (Emphasis in original.) See
Ammerman v. Raymond, 379 Ill. App. 3d 878, 890 (2008)." The quote, of
which plaintiff provided only a portion, states: "courts 'should be cautious …
not to give undue weight to the fact that a plaintiff's treating physician or expert
has an office in the plaintiff's chosen forum.' " (Emphasis in original.)
Ammerman, 379 Ill. App. 3d at 890 (quoting Bland v. Norfolk & Western Ry.
Co., 116 Ill. 2d 217, 227 (1987)).
¶ 57 Echoing the same concern expressed by this court in Ammerman, our
supreme court has stated that "courts are cautious not to give undue weight to
the fact that a plaintiff's expert witness maintains an office in the plaintiff's
chosen forum. To do so would allow a plaintiff to easily frustrate the forum
non conveniens principle by selecting an expert witness in what would actually
be an inconvenient forum." Fennell v. Illinois Central R.R. Co., 2012 IL
113812, ¶ 33; Bland v. Norfolk & Western Ry. Co.,
116 Ill. 2d 217, 227 (1987)
(listing several cases supporting this point).
¶ 58 Thus, we cannot find that the trial court abused its discretion in
concluding that the ease of access to testimonial evidence favored Boone
County.
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¶ 59 2. Documentary Evidence
¶ 60 Plaintiff does not dispute defendants' contention that many sources of
documentary proof are located in Boone County or nearby Winnebago and Ogle
Counties. For example, defendants stated in an interrogatory response that the
"[b]usiness records for Boone County customers are kept in the Davis Junction,
Illinois ADS facility," which is in Ogle County.
¶ 61 However, plaintiff is correct that this factor is much less significant than
it used to be. As this court has previously observed, "the location of documents,
records and photographs has become a less significant factor in forum non
conveniens analysis in the modern age of email, internet, telefax, copying
machines and world-wide delivery services, since they can now be easily
copied and sent." Vivas, 392 Ill. App. 3d at 659.
¶ 62 In addition, defendant Advanced Disposal, as a party, is under an
obligation to produce its employees and relevant documents, whether the suit
proceeds in Boone or Cook County. Susman, 2015 IL App (1st) 142789, ¶ 28.
Supreme Court Rule 201(b)(1) provides that "a party may obtain by discovery
full disclosure regarding any matter relevant to the subject matter involved in
the pending action, whether it relates to the claim or defense of the party
seeking disclosure or of any other party, including the existence, description,
nature, custody, custodian, and location of any documents or tangible things,
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No. 14-2972
and the identity and location of persons having knowledge of relevant facts."
Ill. S. Ct. R. 201 (eff. July 1, 2014). Supreme Court Rule 204 provides:
"Service of notice of the taking of the deposition of a party or person who is
currently an officer, director, or employee of a party is sufficient to require the
appearance of the deponent and the production of any documents or tangible
things listed in the notice." Ill. S. Ct. R. 204(a)(3) (eff. July 1, 2014). If a party
refuses to comply with discovery rules or orders, a court in either Cook County
or Boone County is fully empowered to enforce them. Ill. S. Ct. R. 219 (eff.
July 1, 2002) ("Consequences of Refusal to Comply with Rules or Order
Relating to Discovery or Pretrial Conferences").
¶ 63 Thus, ease of access to documentary evidence does not strongly favor
either forum.
¶ 64 3. Real Evidence
¶ 65 In her brief to this court, plaintiff states that "the only known items of
nondocumentary, tangible evidence are Decedent's vehicle, located in McHenry
County, and the truck" driven by defendant Padgett. In her brief to the trial
court, plaintiff stated that the truck was stored in Ogle County. Thus, the
location of real evidence could favor adjacent Boone County over more distant
Cook County, but the real evidence is probably not a factor. It would be a rare
instance for the vehicle to be viewed by the trier of fact when photographs are
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No. 14-2972
normally used for this purpose. Although our supreme court listed the location
of a defendant's vehicle as a consideration in a forum non conveniens case, it
was not a significant factor in the supreme court's analysis. Guerine, 198 Ill. 2d
at 524-25.
¶ 66 C. All Other Practical Problems
¶ 67 Third, consideration of " 'all other practical problems that make trial of a
case easy, expeditious, and inexpensive' " also does not indicate an abuse of
discretion by the trial court. Langenhorst, 219 Ill. 2d at 443 (quoting Guerine,
198 Ill. 2d at 516-17); Dawdy, 207 Ill. 2d at 172; see also Vivas,
392 Ill. App.
3d at 658.
¶ 68 As plaintiff correctly observes, unwilling witnesses can be compelled to
testify at trial in Boone County just like they can in any other Illinois county
pursuant to Illinois Supreme Court Rule 237(b) (eff. July 1, 2005) ("If the party
or person [subpoenaed] is a nonresident of the county, the court may order any
terms and conditions in connection with his or her appearance at the trial or
other evidentiary hearing that are just, including payment of his or her
reasonable expenses.").
¶ 69 Plaintiff argues that "Cook County is more convenient for purposes of
flights for out-of-state corporate representatives and other witnesses."
However, the only corporation in this case is defendant Advanced Disposal and,
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as we observed above, defendant, as a party, must produce its employees and
relevant documents, whether the suit proceeds in Boone or Cook County.
Susman, 2015 IL App (1st) 142789, ¶ 28. As for other witnesses, they will be
coming primarily from northern Illinois and will most likely be driving rather
than flying. Thus, proximity to O'Hare and Midway Airports is not as
compelling a consideration as plaintiff claims.
¶ 70 Defendants are correct that viewing the accident site will be an option if
the trial proceeds in Boone County. Regarding this issue, our supreme court
has stated:
"This convenience factor is not concerned with the necessity of viewing
the site of the injury, but rather is concerned with the possibility of
viewing the site, if appropriate. See Gulf Oil [Corp. v. Gilbert, 330 U.S.
501, 508, (1947)]. Adhering to Gulf Oil, this court has recognized that
'the possibility of having a jury view the scene of an accident is an
important consideration in ruling upon a forum non conveniens motion.'
(Emphasis added.) Moore [v. Chicago & North Western Transportation
Co., 99 Ill. 2d 73, 80 (1983)]. Further, the necessity or propriety of
viewing the scene is a decision left within the discretion of the trial court.
See Cook [v. General Electric Co., 146 Ill. 2d 548, 559 (1992)];
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No. 14-2972
Washington [v. Illinois Power Co., 144 Ill. 2d 395, 403 (1991)]."
(Emphasis in original and omitted). Dawdy, 207 Ill. 2d at 178-79.
See also Fennell, 2012 IL 113812, ¶ 37 ("This possibility [of viewing the
premises] is an important consideration in ruling on a forum non conveniens
motion.").
¶ 71 Thus, a consideration of all other practical problems favors Boone
County.
¶ 72 In sum, consideration of the private factors does not lead us to conclude
that the trial court abused its discretion, where the convenience of the parties
does not strongly favor either Cook or Boone County, and the ease of access to
proof and the other practical problems favor Boone County.
¶ 73 V. Public Interest Factors
¶ 74 When deciding a forum non conveniens motion, a court must also
consider the public interest factors. These factors include: "(1) the interest in
deciding controversies locally; (2) the unfairness of imposing trial expense and
the burden of jury duty on residents of a forum that has little connection to the
litigation; and (3) the administrative difficulties presented by adding litigation
to already congested court dockets." Langenhorst, 219 Ill. 2d at 443-44 (citing
Guerine, 198 Ill. 2d at 516-17); Gridley v. State Farm Mutual Automobile
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No. 14-2972
Insurance Co., 217 Ill. 2d 158, 170 (2005); Dawdy,
207 Ill. 2d at 173. See also
Vivas, 392 Ill. App. 3d at 660.
¶ 75 At the heart of this issue is an accident which occurred in Boone County.
The only connection between this case and Cook County is that defendant
Advanced Disposal also does business in Cook County. Thus, "the interest in
deciding controversies locally" and the fairness in imposing a burden and
expense on residents of a forum with a "connection to the litigation" favors
Boone County. Langenhorst, 219 Ill. 2d at 443-44.
¶ 76 Although "[c]ourt congestion is a relatively insignificant factor," it is still
a factor. Guerine, 198 Ill. 2d at 517. It would be hard to argue that Cook
County is not congested. Guerine, 198 Ill. 2d at 525 (observing that "Cook
County circuit court is more congested" than other Illinois county circuit
courts); Trent v. Caterpillar, Inc., 234 Ill. App. 3d 839, 846 (1992) ("the court
dockets in Cook County are congested"). According to the 2012 case statistics
from the annual report of the Illinois courts, over 21,000 cases were filed in the
law division of Cook County seeking over $50,000, while just 44 such cases
were filed in Boone County.
¶ 77 Although the average law jury verdict over $50,000 in 2012 had a shorter
time lapse between filing and verdict in Cook County than in Boone County,
this is the only number cited by the parties from the 2012 and 2013 annual
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No. 14-2972
reports that favors Cook County. Our supreme court has repeatedly directed us
to look to the annual report of the Administrative Office of the Illinois Courts
when assessing court congestion for a forum non conveniens motion and so, as
directed, we will take judicial notice of the annual reports. Dawdy v. Union
Pacific R.R. Co., 207 Ill. 2d 167, 181 (2003) ("This court has found the annual
report of the Administrative Office of the Illinois Courts (Annual Report) to be
a proper reference in assessing court congestion [for a forum non conveniens
motion]."); Washington v. Illinois Power Co., 144 Ill. 2d 395, 403 (1991) ("This
court has found the annual report of the Administrative Office of the Illinois
Courts to be a proper source of reference in assessing court congestion [for a
forum non conveniens motion]."). See also Cook v. General Electric Co., 146
Ill. 2d 548, 559 (1992) (relying on the Annual Report from the Administrative
Office of the Illinois Courts in order to determine relative court congestion
between two counties for a forum non conveniens motion); Ill. R. Evid. 201(d)
(eff. Jan. 1, 2011) ("A court shall take judicial notice if requested by a party and
supplied with the necessary information.").
¶ 78 As plaintiff observed in its brief to this court, the 2013 annual report of
the Illinois courts reveals that, while the average time lapse in Cook County
remained at 36 months in 2013, the average in Boone County dropped from 56
months in 2012 to only 22 months in 2013—or 14 months less than Cook
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No. 14-2972
County. When a county like Boone has so few cases, just a couple of complex
cases can skew its average atypically upward in any given year. In addition,
while Cook County had 438 law jury verdicts in 2013 that were over $50,000,
Boone County had just one. Although the average time lapse in 2012 could
favor Cook County, a review of all the public factors shows that the trial court
did not abuse its discretion by finding that these factors, when considered
together, favored Boone County.
¶ 79 CONCLUSION
¶ 80 After carefully reviewing all the forum non conveniens factors, we cannot
conclude that the trial court abused its discretion in granting defendants' motion
to transfer to Boone County, or alternatively Winnebago County, when neither
the private nor public factors favor Cook County and less deference is given to
plaintiff's choice of a foreign forum. In addition, consideration of (1) the
witnesses, (2) the viewing of the accident site and (3) the policy to decide such
controversies locally all favor Boone County. Neither plaintiff nor defendants
complain that the trial court gave plaintiff the additional option of choosing her
home forum of Winnebago County, so that issue is not before us. For the
foregoing reasons, we affirm.
¶ 81 Affirmed.
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