Illinois Supreme Court Returns Asbestos Litigation to Mississippi Court; Fennell v. IL Central Railroad Co.

In 2002, the Illinois Central Railroad was sued in the State of Mississippi where plaintiff Walter Fennell lived. The lawsuit alleged that he and others were exposed to asbestos when working for the railroad. After discovery was completed in 2006, the trial court in Mississippi dismissed the case without prejudice. The plaintiff, instead of re-filing in Mississippi, filed the lawsuit in the Circuit Court of St. Clair County, Ill., in 2009.

Again after discovery had been conducted, the defendant, Illinois Central Railroad, moved the court to dismiss the case under the interstate doctrine of forum non conveniens. The St. Clair County circuit court judge denied that motion and the case was appealed to the Illinois Appellate Court, which also affirmed the trial judge’s decision. This occurred in 2010. The case was then appealed to the Illinois Supreme Court.

The Illinois Supreme Court ruled that the citizens of St. Clair County should not be asked to bear the burden of this lawsuit because the vast majority of the identified witnesses, treating physicians and some of the plaintiffs were residing in Mississippi and not in Illinois.

The Supreme Court stated that the defendant’s motion to dismiss the case in favor of the Mississippi forum should have been granted. The case was returned to the Circuit Court for entry of dismissal. There was one dissenting opinion filed by the Supreme Court.

The original lawsuit, which was filed in October 2002, along with Mr. Fennell were 80 additional named plaintiffs. The case was brought under the Federal Employers’ Liability Act (FELA) (45 U.S.C. §§51-60 (2000). The case was brought originally in Jefferson County, Miss. The plaintiffs sought recovery because of their exposure to asbestos and asbestos-containing products while they were employed by the defendant railroad. The claim under FELA cited a violation of the Locomotive Inspection Act (49 U.S.C. §§20701-20703 (2000)). Mr. Fennell resided in Hazlehurst, Miss. He had been employed by the defendant as a brakeman, conductor and engineer during his lengthy employment at Illinois Central. During discovery, it was revealed that Mr. Fennell had not been exposed to asbestos in Illinois.

The doctrine of forum non conveniens assumes that there is more than one forum with the power to hear the case. Gridley v. State Farm Mutual Automobile Insurance Co., 217 Ill.2d 158, 169 (2005). The doctrine permits the court to decline jurisdiction even though it may have proper jurisdiction over the subject matter and the parties, if it appears that another forum can better serve the convenience of the parties. Gridley, 217 Ill.2d at 169.

Forum non conveniens is applicable in both in-state and out-of-state cases. That means that the doctrine could be applied where the choice between forums is in different states as well as within a state. In an interstate forum non conveniens matter like this, the action must be dismissed because the Illinois Circuit Court does not have the power to transfer the case to another state. Ill.S.Ct.R 187(c)(2) (eff. Aug. 1, 1986).

The Supreme Court’s decision considered all of the fundamental fairness and sensible judicial administration principles contained within it. The court discussed private interest factors affecting litigants and public interest factors affecting court administration. The court went on to state that in determining whether the doctrine of forum non conveniens would be applicable, the trial court must balance public and private interest factors. Gridley, 217 Ill.2d at 169-70.

The Illinois Supreme Court stated that the circuit court and appellate court chose not to recognize several private and public interest factors in its analysis in making a decision about forum. The court went on to state that the circuit court abused its discretion in denying the defendant’s forum non conveniens motion to dismiss for the following reasons.

“Initially, the circuit court failed to recognize that plaintiff originally filed his action in a Mississippi circuit court, and the action was dismissed without prejudice. However, instead of refiling in his first choice of forum, plaintiff refiled in an Illinois court. Nothing in the record suggests that the parties’ ability to conduct discovery and engage in other pretrial matters was unduly hampered by proceeding in the Mississippi circuit court. Based on this circumstance alone, the circuit court of St. Clair County should have accorded diminished deference in its forum non conveniens analysis to what was plaintiff’s second choice of forum.” See Peile v. Skelgas, Inc.., 163 Ill. 2d 323, 344 (1994).

In addition, the court went on to discuss the private interest factors, including the fact that the plaintiff resides less than 25 miles from the court in Copiah County, Miss., but more than 530 miles from the courthouse in St. Clair County.

In summary, the weight of the private interest factors favors Mississippi. The weight of the public interest factors greatly favors Mississippi. In the plaintiff’s choice of forum, it was also significant that the plaintiff first chose Mississippi over Illinois as the favored forum. It was held that the circuit court abused its discretion in denying defendant’s forum non conveniens motion to dismiss in favor of a Mississippi forum.

Walter Fennell v. IL Central Railroad Company 2012 IL 113812 (Dec. 28, 2012).

Kreisman Law Offices has been handling injury cases, car accidents, truck crashes, nursing home abuse cases and medical negligence matters for individuals and families for more than 36 years, in and around Chicago, Cook County and its surrounding areas, including Rolling Meadows, Chicago (Bridgeport), Chicago (Chinatown), Maywood, Crestwood, Forest Park, Harvey, Hickory Hills, Chicago (Albany Park), Palatine, Roscoe Village and Itasca, Ill.

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