Adamian v. Balash

2024 IL App (1st) 231876

Opinion

2024 IL App (1st) 231876 Fourth Division Opinion filed October 17, 2024 No. 1-23-1876

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

) RACHAEL ADAMIAN and PAUL ADAMIAN, as ) Parents and Next Friends of Dylan Adamian, a Minor, ) Plaintiffs-Appellees, ) Appeal from the v. ) Circuit Court of Cook County. ) JENNIFER M. BALASH, M.D.; TRE MEDICAL, LTD.; ) No. 2022 L 004848 ADVOCATE GOOD SAMARITAN HOSPITAL; and ) ADVOCATE MEDICAL GROUP, ) The Honorable Robert F. Harris, ) Judge, presiding. Defendants ) (Advocate Good Samaritan Hospital and Advocate ) Medical Group, Defendants-Appellants). )

JUSTICE OCASIO delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Martin concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs Rachael and Paul Adamian, as parents and next friends of their son Dylan, sued

Advocate Good Samaritan Hospital and Advocate Medical Group (collectively, Advocate 1),

Jennifer M. Balash, M.D., and TRE Medical, Ltd., in the circuit court of Cook County for

professional negligence in connection with Dylan’s birth at Good Samaritan Hospital, which is in

Du Page County. Advocate moved to transfer the action to Du Page County under the doctrine of

forum non conveniens. The trial court denied the motion. We allowed Advocate’s petition for leave

1 Advocate Good Samaritan Hospital and Advocate Medical Group are both assumed names for the same business entity, Advocate Health and Hospitals Corporation. No. 1-23-1876

to appeal, and we now reverse and remand with instructions to grant the motion and transfer this

case to Du Page County.

¶2 I. BACKGROUND

¶3 This case arises from the alleged negligent medical care and treatment provided at TRE

Medical’s clinic and then at Good Samaritan Hospital before and during Dylan’s birth, care that

allegedly resulted in injuries to him. According to the complaint, Rachael went to TRE Medical

on the morning of July 30, 2019, complaining of recent abdominal trauma and decreased fetal

movement. She was seen by Dr. Balash, who is an obstetrician and gynecologist. Based on certain

tests, Dr. Balash decided to admit Rachael to Good Samaritan Hospital for delivery. Upon delivery,

which occurred six hours after Rachael was admitted to the hospital, Dylan was born pale,

hypertonic, and with low hemoglobin. The complaint alleged, in essence, that Dr. Balash and

medical personnel employed by Advocate should have recognized the need for an emergency

caesarian section and ordered one sooner than they did.

¶4 As noted, the underlying events in this case occurred at TRE Medical’s clinic and Good

Samaritan Hospital, which are both in Downers Grove, which is in Du Page County. Dr. Balash

lives in Western Springs, which is in Cook County, albeit slightly closer to the Du Page County

courthouse than the Richard J. Daley Center. Both now and at the time of the underlying events,

Dr. Balash did business in Du Page County, not Cook County. Advocate Health and Hospitals

Corporation, which is the entity that does business as both Advocate Good Samaritan Hospital and

Advocate Medical Group, is headquartered in Du Page County and its registered agent is likewise

located in Du Page County; however, through Advocate Medical Group, it operates seven hospitals

in Cook County. The Adamians live in Batavia, which is in Kane County. Between them, the parties

have identified more than three dozen potential witnesses. The majority of those witnesses either

live or work in Du Page County. A minority live or work in Kane County, and a smaller minority

live or work in Cook County. One potential witness, a doctor who was allegedly involved in

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Rachael’s care, lives in Cook County and maintains offices in Cook, Du Page, Kane, and Lake

Counties.

¶5 After the Adamians filed suit, Advocate moved to transfer the case to Du Page County,

pursuant to Illinois Supreme Court Rule 187 (eff. Jan. 1, 2018) and the doctrine of forum non

conveniens. The Adamians filed a response, Advocate filed a reply, and the court heard argument.

On the court’s order, the parties then filed additional briefs addressing where Advocate Health and

Hospitals Corporation was incorporated and where its principal place of business was located. On

September 14, 2023, the court denied the motion to transfer in a written order.

¶6 In its order, the court analyzed the applicable factors. Weighing in favor of transfer, it

found, were the interest in having a localized dispute decided locally; the convenience of the

parties, which “slightly” favored transfer because Advocate employees who might be called to

testify worked at Good Samaritan Hospital in Du Page County; and the possibility of viewing the

premises, although it was not “a significant consideration.” Weighing against transfer were the

Adamians’ choice of forum as plaintiffs, which was entitled to some deference, even though they

lived in Kane County; the relative administrative burdens, which would be greater in Du Page

County because its average time to verdict was 15 months longer than in Cook County; and the

practical consideration of all parties’ attorneys being based out of Cook County, although that

consideration was entitled to only “minimal weight.” The court found that all other factors were

neutral. Significantly, the court determined that the ease of access to sources of evidence favored

neither venue. It noted that documentary evidence was easily transmitted via e-mail or fax, and it

concluded that potential witnesses were “scattered amongst various counties,” including Cook

County, so as not to favor either forum. The court also determined that it was not unfair to impose

the expense of trial and the burden of jury duty on Cook County and its residents because one

defendant, Dr. Balash, was herself a resident of Cook County and another defendant, Advocate

Medical Group, operated hospitals in Cook County. Ultimately, finding that “the factors in their

totality do not strongly favor transfer,” the court denied the motion to transfer.

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¶7 Following the court’s denial of the transfer motion, Advocate sought leave to appeal, which

we allowed. 2 See Ill. S. Ct. R. 306(a)(2) (eff. Oct. 1, 2020).

¶8 II. ANALYSIS

¶9 On appeal, Advocate argues that the trial court erred when it denied the motion to transfer

to Du Page County based on forum non conveniens. The Illinois venue statute generally provides

that an action may be filed in any county that is either “the county of residence of any defendant

who is joined in good faith” or a “county in which the transaction or some part thereof occurred

out of which the cause of action arose.” 735 ILCS 5/2-101 (West 2020). Under the statute, multiple

counties can be, and often are, proper venues in which the plaintiff may file suit. Nevertheless, not

all proper forums are convenient ones, which gives rise to the doctrine of forum non conveniens,

an “equitable doctrine founded in considerations of fundamental fairness and the sensible and

effective administration of justice.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441

(2006). Under this doctrine, trial courts may “decline jurisdiction when trial in another forum

‘would better serve the ends of justice.’ ” Id. (quoting Vinson v. Allstate, 144 Ill. 2d 306, 310

(1991)).

¶ 10 “ ‘In most instances, the plaintiff’s initial choice of forum will prevail, provided venue is

proper and the inconvenience factors attached to such forum do not greatly outweigh the plaintiff’s

substantial right to try the case in the chosen forum.’ ” First American Bank v. Guerine, 198 Ill. 2d

511, 520 (2002) (quoting Peile v. Skelgas, Inc., 163 Ill. 2d 323, 335-36 (1994)). When plaintiffs

select their home forum or the one in which the underlying transaction or injury occurred, it is

reasonable to assume that their chosen forum is convenient for them. Dawdy v. Union Pacific R.R.

Co., 207 Ill. 2d 167, 173 (2003). “ ‘When the plaintiff is foreign, however, this assumption is much

less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that

the trial is convenient, a foreign plaintiff’s choice deserves less deference.’ ” Id. at 173-74 (quoting

2 Counsel for Dr. Balash and TRE Medical orally joined the motion to transfer in the circuit court, but neither party sought leave to appeal, and neither party has filed a brief.

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Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981) (plurality opinion)). Although “the

forum non conveniens standard remains difficult for defendants to meet, it does not foreclose

legitimate transfers when the balance of factors strongly favors litigation in another forum.”

Guerine, 198 Ill. 2d at 521. Those factors are set out in decisional law, and they reflect the private

and public interests at stake when deciding whether a case should be transferred based on

forum non conveniens. See Dawdy, 207 Ill. 2d at 172-74.

¶ 11 A motion to transfer based on forum non conveniens is addressed to the trial court’s

discretion, which is “considerable.” Langenhorst, 219 Ill. 2d at 441. Reviewing courts must defer

to the trial court’s decision unless it is shown to have “abused its discretion in balancing the

relevant factors,” which occurs “only where no reasonable person would take the view adopted by

the circuit court.” Id. at 442. In other words, the issue 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. The Boeing Co., 392 Ill. App. 3d 644, 657 (2009). Our job,

then, is not to ascertain what weight we would give the relevant factors, it is to assess only whether

the trial court’s balancing of the factors exceeded the bounds of reasonable disagreement.

¶ 12 Initially, the Adamians argue that we should affirm the denial of the motion to transfer

because the doctrine of forum non conveniens is “obsolete” with respect to intrastate transfers due

to modern technological advancements that have made it easier to travel and communicate and

enabled activities that are traditionally done in person, such as depositions and court proceedings,

to occur remotely via videoconference. To the extent that these developments bear on the factors

relevant to a forum non conveniens analysis, we agree that they should be taken into account.

However, we are not at liberty to deem the doctrine obsolete or alter its contours. For more than

40 years, the Illinois Supreme Court has held that the doctrine of forum non conveniens is

appropriately applied to both interstate and intrastate transfers. Torres v. Walsh, 98 Ill. 2d 338,

350-51 (1983). That includes transfers between adjacent counties. Dawdy, 207 Ill. 2d at 180. We

are bound by those decisions. People v. Artis, 232 Ill. 2d 156, 164 (2009). We decline to affirm on

the basis that the doctrine is obsolete.

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¶ 13 A. Deference to the Plaintiffs’ Choice of Venue

¶ 14 The initial question is the degree of deference that should be afforded to the Adamians’

choice to bring suit in Cook County. As the trial court recognized, because the Adamians live in

Kane County and the underlying events occurred in Du Page County, their choice of a foreign

venue “is entitled to somewhat less deference” than it otherwise would be. (Emphasis in original.)

Langenhorst, 219 Ill. 2d at 448. At the same time, less is not the same as none. Id. At a minimum,

the Adamians’ selection of Cook County indicates that they consider it to be a convenient forum.

See Guerine, 198 Ill. 2d at 518 (“The defendant cannot assert that the plaintiff’s chosen forum is

inconvenient to the plaintiff.”). Beyond that, their choice of Cook County is a factor that, like any

other factor, should be given its “ ‘proper deference or weight under the circumstances’ ” of this

particular case. Dawdy, 207 Ill. 2d at 176 (quoting Griffith v. Mitsubishi Aircraft International,

Inc., 136 Ill. 2d 101, 108 (1990)).

¶ 15 Here, the trial court found that the Adamians’ choice of venue was “entitled to some

deference.” Advocate argues that this was an abuse of discretion because a plaintiff’s choice to file

suit in a foreign forum makes it “ ‘reasonable to conclude that the plaintiff engaged in forum

shopping to suit his individual interests.’ ” Id. at 174 (quoting Certain Underwriters at Lloyds,

London v. Illinois Central R.R. Co., 329 Ill. App. 3d 189, 196 (2002)). That inference may be valid,

but it does not follow that the trial court was required to draw it. We cannot say that no reasonable

person could have afforded any deference to the Adamians’ choice of venue.

¶ 16 B. Private Interests

¶ 17 We next examine the private interest factors, which include “the convenience of the parties;

the relative ease of access to sources of testimonial, documentary, and real evidence; the

availability of compulsory process to secure attendance of unwilling witnesses; the cost to obtain

attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all

other practical considerations that make a trial easy, expeditious, and inexpensive.” Id. at 172. We

note at the outset that the practical differences between Cook County and Du Page County are, in

most respects, minimal. Regardless of where this case is litigated or tried, the lawyers will be the

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same, the evidence will be the same, and the witnesses will be the same. Transferring the case to

Du Page County would not make it any easier or harder for the lawyers to request discovery,

produce evidence, depose witnesses, and so forth.

¶ 18 As far as we can ascertain, apart from each party’s interest in securing a forum that is

favorable for their chances of success—which is not a proper consideration in a

forum non conveniens analysis (see id. at 175)—there are only three ways in which it might make

a material difference where the case is litigated and tried, all of them having to do with the relative

ease and convenience associated with attending in-court proceedings. The significance of these

factors, however, is diminished by the fact that Cook and Du Page Counties border one another

and are both part of the Chicago metropolitan area and linked by numerous public and private

transportation options. See Susman v. North Star Trust Co., 2015 IL App (1st) 142789, ¶ 31

(explaining that the connections between Lake and Cook Counties “reduces any practical

problems”).

¶ 19 First, it is clear that Du Page County is a more convenient forum for the parties. The

Du Page County courthouse is significantly closer to the Adamians’ residence. It is also

significantly closer to Good Samaritan Hospital, Advocate’s corporate headquarters, and TRE

Medical’s clinic—and, by extension, the place of work for those entities’ employees and for Dr.

Balash, who is the president of TRE Medical. Although Dr. Balash lives in Cook County, her home

in Western Springs, which borders Du Page County, is actually closer to the Du Page County

courthouse than it is to the Daley Center, and she attested in an affidavit that “it would be far more

convenient for [her] to testify in Du Page County.”

¶ 20 Second, it is clear that Du Page County is more convenient for nearly all potential witnesses

who might testify at trial. According to a list of treating physicians and potential independent

expert witnesses provided by the Adamians to Advocate, Dylan’s pediatrician and optometrist are

both located in Kane County, which is west of Du Page County. One of his pediatric neurologists

is in Du Page County, and the other is in Westchester, which is in western Cook County. All of his

various therapists are in either Du Page County or Kane County. The vast majority of potential

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occurrence witnesses listed by the parties either work at Good Samaritan Hospital or TRE Medical,

which are in Downers Grove (Du Page County), or work elsewhere but still live in Du Page

County. The doctor who is alleged in the complaint to have been negligent but not named as a

defendant lives in Chicago and evidently maintains offices in Downers Grove (Du Page County),

Park Ridge (Cook County), St. Charles (Kane County), and Libertyville (Lake County). The only

witnesses for whom the Daley Center might be significantly more convenient are the two who now

live out of state, and that is only because of the proximity of the area’s major airports to downtown

Chicago.

¶ 21 Third, there is one practical consideration that weighs in favor of Cook County, which is

that the attorneys of record all maintain offices in downtown Chicago, although counsel for

Advocate also has an office in Wheaton, just a short drive from the Du Page County courthouse.

But the convenience of counsel is a factor that should only be accorded “ ‘little weight.’ ” Dawdy,

207 Ill. 2d at 179 (quoting Boner v. Peabody Coal Co., 142 Ill. 2d 523, 534 (1991)).

¶ 22 With one significant exception, the trial court’s analysis of the private interest factors was

consistent with the foregoing analysis. It noted that the convenience of the parties favored Du Page

County and that the convenience of the lawyers favored Cook County but deserved only “minimal

weight.” Although the court found that the possibility of viewing the premises favored Du Page

County, it also recognized that the nature of the issues in this medical malpractice action meant

that proximity to the hospital was not “significant” from a practical standpoint. It also found that

the choice between Du Page and Cook Counties had no impact on the parties’ ability to conduct

discovery or the availability of compulsory process, which were both reasonable determinations.

¶ 23 We find, however, that the court took an unreasonable position when it failed to afford any

weight to the clear advantage Du Page County has over Cook County as to the convenience of

nonparty witnesses and the ease and cost of securing those witnesses’ attendance. The Illinois

Supreme Court has “held that where the potential trial witnesses are scattered among several

counties, including the plaintiff’s chosen forum, and no single county enjoys a predominant

connection to the litigation, the plaintiff may not be deprived of his or her chosen forum.” Id. at

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183-84 (citing Guerine, 198 Ill. 2d at 526). The trial court determined that this rule applied here

based on the fact that several potential witnesses had offices in Kane County, two had offices in

Cook County, one had an office in Lake County, and three lived in Cook County. The court’s

implicit finding that none of these counties had a predominant connection to the litigation was not

reasonable. By our count, the parties have disclosed 39 potential witnesses, in addition to the

Adamians and Dr. Balash. Of those, 27 either live or work in Du Page County. By contrast, only

11 live or work in Kane County, 5 in Cook County, and 1 in Lake County (the doctor who maintains

offices in all four counties). Percentagewise, that amounts to 69% of the witnesses who are in

Du Page County, 28% in Kane County, 13% in Cook County, and 3% in Lake County. 3 When it comes to the witnesses, Du Page County obviously predominates over the other counties generally

and over Cook County in particular. That fact is entitled to at least some weight, and the trial court’s

decision not to afford it any weight was not reasonable.

¶ 24 C. Public Interests

¶ 25 We now turn our attention to the public interests at stake in the forum non conveniens

analysis, which include “the interest in deciding controversies locally, the unfairness of imposing

the burden of jury duty on residents of a forum with little connection to the litigation, and the

administrative difficulties caused by adding litigation to already congested court dockets rather

than resolving the case at its origin.” Schuster v. Richards, 2018 IL App (1st) 171558, ¶ 22.

¶ 26 The interest in deciding this case locally strongly favors Du Page County. To be sure,

Du Page County is not the only county that can claim an interest in the case. Kane County can

claim an interest because its residents are the plaintiffs. Cook County can claim an interest because

two of its residents, Dr. Balash and Advocate Medical Group, are defendants. See 735 ILCS

5/2-102(a) (West 2020) (providing that, for the purpose of venue, corporations are deemed to reside

in “any county in which it has its registered office or other office or is doing business”). But all

Because some witnesses live in one county and work in another, the sum of these percentages 3

exceeds 100%.

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three corporate defendants are residents of Du Page County, so resident involvement is a wash.

What is decisive is that the alleged injuries all occurred in Du Page County, and “the location of

the accident resulting in the litigation is the most substantial factor in giving any county a local

interest.” Schuster, 2018 IL App (1st) 171558, ¶ 37 (citing Dawdy, 207 Ill. 2d at 183, and Peile,

163 Ill. 2d at 343). The trial court correctly found that this factor weighed in favor of transfer.

¶ 27 The interest in not putting the burden of jury duty on the residents of a county with little

connection to the litigation also favors Du Page County. Cook County can claim an interest in the

litigation in the sense that it involves some of its residents, but it otherwise has no connection to

the case. Again, the allegedly negligent acts took place in Du Page County. Their ongoing

consequences are being suffered in Kane County, where Dylan and his parents live. Cook County,

by contrast, has no connection beyond the happenstance that two parties reside there—one of them

through hospitals having nothing to do with this case. See Bruce v. Atadero, 405 Ill. App. 3d 318,

331 (2010) (“Defendant’s presence in Cook County for venue purposes does not establish a

connection with this action for forum non conveniens purposes.”). Despite the obviously stronger

connection that Du Page County has to this case relative to Cook County, the trial court found that

this factor was “neutral.” Reasonable people might disagree about how much weight to give it, but

this interest undeniably favors Du Page County. The trial court erred by finding that it did not favor

either county.

¶ 28 That leaves the administrative difficulties caused by litigating cases in an already congested

forum rather than where the dispute originated. Based on statistics showing that the time to verdict

in Du Page County is significantly longer than it is in Cook County, the trial court found that this

factor weighed against transfer. The interest at stake, though, is not administrative convenience as

such. “The concern underlying this factor is the desire to ensure that the availability of finite

judicial resources to the residents of a forum is not diminished by nonresident litigation.”

(Emphasis added.) Starr v. Presence Central & Suburban Hospitals Network, 2024 IL App (1st)

231120, ¶ 61 (citing Espinosa v. Norfolk & Western Ry. Co., 86 Ill. 2d 111, 121 (1981)). That

concern is most significant when a foreign plaintiff sues a foreign defendant over a foreign injury.

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E.g., Espinosa, 86 Ill. 2d at 113-14, 117, 120-25 (Michigan resident who was injured in Michigan

rail yard while employed by Virginia-based railroad that operated in several states, including

Illinois, brought suit in Madison County, Illinois). Here, the Adamians are residents of Kane

County, Dr. Balash is a resident of Cook County, Advocate is a resident of Cook County and

Du Page County, and TRE Medical is a resident of Du Page County. Whichever county this case

is litigated in, it will not be nonresident litigation. Under these circumstances, this factor cannot

weigh against transfer.

¶ 29 D. The Final Balance

¶ 30 In summary, the Adamians’ choice of Cook County as the forum in which to litigate this

case is entitled to some deference, but the degree of deference is diminished by the fact that they

are residents of Kane County. Although the private interests favor Du Page County, its proximity

to Cook County and the ample transportation connections between the two counties somewhat

limit the practical advantages of transfer. The public interests, however, overwhelmingly favor

transferring this matter to Du Page County. That is where Dr. Balash practices, that is where TRE

Medical and Good Samaritan Hospital operate, that is where all of the allegedly negligent acts

took place, and that is where Dylan was injured. Under any reasonable view, the private and public

interests at stake weigh so strongly in favor of transfer that they overcome the deference owed to

the Adamians’ decision to file suit in Cook County. The denial of the motion to transfer venue from

Cook County to Du Page County, based on the doctrine of forum non conveniens, was an abuse of

discretion. We therefore reverse and remand with directions to grant the motion and transfer this

action to Du Page County.

¶ 31 III. CONCLUSION

¶ 32 The trial court’s order denying the motion to transfer is reversed, and the cause is remanded

to the circuit court of Cook County with directions to grant the motion to transfer and effectuate

the transfer of this action to the circuit court of Du Page County.

¶ 33 Reversed and remanded with directions.

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Adamian v. Balash, 2024 IL App (1st) 231876

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2022-L- 004848; the Hon. Robert F. Harris, Judge, presiding.

Attorneys Matthew L. Johnson, David M. Macksey, and David F. Jasinski, for of Johnson & Bell, Ltd., of Chicago, for appellants. Appellant:

Attorneys Bradley Z. Schulman, of Napleton & Partners, of Chicago, and for Lynn D. Dowd, of Naperville, for appellees. Appellee:

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