Illinois Appellate Court Grants Defendants’ Intrastate Rule 187(b) Motion to Dismiss for Re-Filing in Winnebago County Court
In a Rule 23(e) opinion, a First District appellate court reversed the trial court and granted the defendants’ rule 187(b) motion to dismiss pursuant to the doctrine of forum non conveniens. See Rohl v. Borg Warner Corporation, 2017 IL App (1st) 162398-U.
The decedent, Irvin Rohl, worked as a laborer, heavy equipment operator, and mechanic. During his deposition, Mr. Rohl testified that he attended an automotive and diesel trade school in Cook County for about 6 months. He also stated that he worked in Evansville, Indiana; Freeport, Illinois; and Rockford, Illinois (in Winnebago County). He worked in Winnebago County for approximately 46 years. When asked whether he was exposed to asbestos during his time at the Cook County trade school, he stated: “No. Not sure.” The record also showed that: (1) the plaintiffs had lived in Winnebago County for their entire adult lives; (2) all relevant co-workers lived in Winnebago County; (3) all of the plaintiffs’ surviving children resided in Winnebago County; and (4) the majority of the decedent’s medical providers were located in Winnebago County. The only medical provider located outside of Winnebago County was the Mayo Clinic in Scottsdale, Arizona. There was no evidence that the decedent had ever received medical treatment in Cook County. At the trial level, the circuit court denied the defendants’ motion to dismiss. The court specifically stated that Irvin Rohl had attended trade school in Cook County in the late 1940s, where he had allegedly been exposed to asbestos. On appeal, the court reversed.
First, the appellate court noted that there was insufficient evidence that the decedent had ever been exposed to asbestos in Cook County. Specifically, the court stated that: "[t]he evidence reveals that during Irvin’s six months in trade school in Chicago, he denied any exposure to asbestos, or was at best unsure whether exposure occurred. These equivocal statements are insufficient to establish that Irvin’s injury occurred in Cook County."
Second, the court noted that the majority of the private- and public-interest factors also favored dismissal for re-filing in Winnebago County. Of note, the court held that the defendants were not required to obtain affidavits from the decedent’s co-workers explicitly stating that it would be more convenient for them to testify in Winnebago County than in Cook County. Rather, the court noted that fact to be “obvious.” The court also stated that while the ease of access to documentary evidence is a less significant factor given the rise of computer technology and Internet access, many of Irvin’s employment records predated computer technology. As such, this factor may well remain important in asbestos cases alleging exposure asbestos, which typically predate computerization. The court also re-affirmed the importance of the possibility of viewing the site of the alleged injury.
Finally, the court specifically stated that Cook County did not have a particular interest in seeing the case tried within its borders, and that accordingly it would be unfair to impose the burdens of jury duty upon its citizens. Although the plaintiffs had argued that “hundreds, perhaps thousands” of Cook County residents had likely come into contact with defendants’ asbestos-containing products, the court held that such a contention was mere speculation that was insufficient to establish a “significant factual connection” to Cook County. Thus, there was no evidence that rendered this case a local controversy.
Although this case was published pursuant to Illinois Supreme Court Rule 23, it nonetheless provides defense attorneys with a firm basis to challenge the plaintiff's choice of forum when it bears little or no connection to the fact of the case at issue, and should be an effective tool to help combat forum shopping.
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