Black v. Help at Home, LLC

2023 IL App (1st) 220802-U

• Court: Appellate Court of Illinois
• Decided: February 15, 2023
• Docket: 1-22-0802
• Status: Unpublished

Opinion

2023 IL App (1st) 220802-U

SECOND DIVISION February 15, 2023

No. 1-22-0802

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

JESSICA BLACK, as Administrator for the Estate ) Appeal from the Circuit Court of Decedent, PARIS CHANELLE JOHNSON, ) of Cook County. ) Petitioner-Appellant, ) ) v. ) No. 2020 L 001863 ) HELP AT HOME, LLC (d/b/a Oxford HealthCare) ) and STATEWIDE HEALTHCARE SERVICES, ) LLC (d/b/a Oxford HealthCare), ) The Honorable ) Preston Jones, Jr., Respondents-Appellees. ) Judge Presiding. ____________________________________________________________________________

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Ellis and Cobbs concurred in the judgment.

ORDER

HELD: While petitioner has a substantial right in her choice of forum, and although she alleged institutional as opposed to medical negligence thus perhaps rendering residency and situs of injury less important than usual in a forum non conveniens determination, the trial court did not abuse its discretion in granting respondents’ motion to transfer this cause where its consideration of all this and its balancing of the relevant private and public interest factors was appropriate based on the particular facts presented. No. 1-22-0802

¶1 Following the filing of a first amended complaint at law in Cook County, Illinois, by

petitioner-appellant Jessica Black, as Administrator for the Estate of Decedent, Paris

Chanelle Johnson (petitioner), respondents-appellees Help At Home, LLC (d/b/a Oxford

HealthCare) and Statewide Healthcare Services, LLC (d/b/a Oxford HealthCare)

(respondents or as named) filed a motion to dismiss pursuant to forum non conveniens. The

trial court granted respondents’ motion and transferred the instant cause to the circuit court of

Panola County, Mississippi. Petitioner appeals, contending that the court erred in balancing

the factors involved in this transfer determination. 1 She asks that we reverse the court’s

decision and remand. For the following reasons, we affirm.

¶2 BACKGROUND

¶3 The facts herein are taken from the record on appeal. 2

¶4 Paris Chanelle Johnson (Paris) was born on June 6, 2016 at Merit Health Northwest

Hospital in Mississippi to petitioner, her mother, who at all times relevant herein, lived in

Como, Panola County, Mississippi. Paris was born with congenital central hypoventilation

1 Petitioner filed her appeal pursuant to Illinois Supreme Court Rule 306(a)(2). Ill. S. Ct. R. 306(a)(2) (eff. Oct. 1, 2020). 2 In her reply brief on appeal, petitioner included, essentially, a motion to strike respondents’ citations to a portion of the record that was sealed pursuant to petitioner’s request, urging that we disregard respondents’ statement of facts and various sections of their argument in their response brief. Petitioner argued that the citations were to a page in the record that is a “placeholder for exhibits that were filed in the trial court under seal and not made part of the supporting record on appeal,” noting that said “placeholder” was labeled “Exhibit 3 Medical Records To Be Filed Under Seal.” We allowed respondents to file a response. Thereafter, petitioner twice attempted to supplement the record; both times, this Court denied her motion, as she failed to follow proper procedure required for the filing of a supplemental record. Petitioner then filed a third motion to supplement the record, and the Court allowed her motion, as that supplemental record was, finally, properly presented and filed. That supplemental record, as described by petitioner herself, contains “certain medical records *** which were submitted to the trial court as Exhibit 3 *** and discussed in the surreply of Appellees.” We have reviewed the supplemental record, which consists of 9 pages, including some medical records of decedent. Accordingly, then, it would seem to this Court that any dispute petitioner had when urging the striking of respondents’ brief has been resolved, as petitioner has now supplemented the record with the medical records that were presumably at issue. Ultimately, and regardless of any debate, we note here that we have thoroughly reviewed the entire record on appeal and our decision is based solely on what has been properly presented before this Court. 2 No. 1-22-0802

syndrome (Haddad Syndrome), which, in part, causes severe sleep apnea and requires a

tracheostomy and the attachment of the patient to a ventilator while sleeping. Days after her

birth, Paris was transferred to LeBonheur Children’s Hospital in Memphis, Tennessee, where

she remained until February 2018, approximately the first 20 months of her life. Upon

discharge, Paris went to live at her home with petitioner, as well as Paris’ grandmother, in

Mississippi. Petitioner hired home health services from Oxford HealthCare in Mississippi to

monitor Paris while she slept, and several different nurses from Oxford attended to her care.

Approximately one month later, on March 24, 2018, Louise Hibbler, a 76-year-old home

health nurse from Oxford HealthCare who resides in Mississippi, was assigned to monitor

Paris. That evening, an incident happened involving Paris’ ventilator which resulted in Paris

failing to receive proper oxygenation and suffering an anoxic brain injury and acidosis. Paris

was taken by ambulance to a local Mississippi hospital and then transported again to nearby

LeBonheur in Tennessee, where she later died on May 29, 2018.

¶5 Petitioner filed a six-count complaint in Cook County, Illinois, which she later amended,

against respondents. Therein, she alleged that Paris was a client of respondents “through

their Oxford HealthCare brand.” She also asserted that Hibbler was an employee of

respondent Help At Home, LLC “and/or” respondent Statewide Healthcare Services, LLC,

both of which were doing business as Oxford HealthCare. According to petitioner’s

amended complaint, Help At Home is a limited liability company with its principal office in

Chicago; Statewide, though a Mississippi limited liability company, has its principal office in

the same suite as Help At Home; and both did business as Oxford HealthCare in Mississippi,

with Help At Home overseeing the activities and employees in Mississippi from its

3 No. 1-22-0802

centralized administration in Chicago. Petitioner alleged that Hibbler, who had been

assigned to monitor Paris before the incident at issue, had asked “her employer” that it not

reassign her to care for Paris again except as a “last resort,” but that Hibbler was assigned

again to Paris on the night in question, whereupon she failed to properly intervene when the

ventilator’s alarm went off, thereby causing Paris’ death. The first three counts focused on

Help At Home, with count I asserting negligence (wrongful death), count II asserting

vicarious liability (wrongful death), and count III asserting a survival action; the remaining

three counts (counts IV, V, and VI) asserted the same causes of action against Statewide.

¶6 Respondent Help At Home filed a motion to dismiss the three counts against it, pursuant

to section 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West

2020)). It argued that there was no employment relationship between it and Hibbler,

insisting Hibbler was an employee of Oxford HealthCare and it did not share any relationship

with Oxford, including clients, contracts, supervisors or employees. It further argued that it

was a separate and distinct entity from Statewide, and while Statewide did business in

Mississippi, it (Help At Home) did not. Help At Home’s motion was accompanied by the

affidavit of Joel Davis, who claimed to be the chief operating officer and general counsel for

Statewide. Therein, Davis stated that Statewide does business as Oxford, its principal

operations are in Mississippi, and it conducts business only in Mississippi and Alabama. He

further described that Statewide and Help At Home are “sister companies,” but that Help At

Home does not own or operate Oxford and the two (Statewide and Help At Home) maintain

distinct services in different states, such as contracts, territories, licensing, and separate

4 No. 1-22-0802

employees, operations, accounts, books and records. Davis stated that Hibbler was employed

by Oxford.

¶7 Davis was later deposed. During his testimony, he expressed confusion over his actual

job title and which entity he worked for directly, Help At Home or Statewide. He also

intimated that perhaps both respondents had a payroll system in common, that some of their

higher-level employees reported to the same chief executive officer and performed similar

duties for both companies at the same time, and that lower-level employees for both

companies might share the same handbook. Based on this, petitioner argued that Help At

Home and Statewide/Oxford are “a single enterprise” and that, just as Statewide, it was

“clear and unambiguous that Help At Home LLC operates in Mississippi.”

¶8 The trial court denied Help At Home’s motion to dismiss. It determined that the issue

was whether Help At Home and Statewide/Oxford were one entity, namely, whether they

were sufficiently intertwined. Pursuant to Davis’ deposition, which it called “confusing and

vague,” and other relevant documents showing some “intricate involvement” between the

two, the court concluded that “there is a genuine issue of material fact at this stage” as to the

nature of their relationship and whether Statewide/Oxford was, potentially, a “sister company

or a subsidiary” of Help At Home so that the latter could potentially be responsible for

Hibbler’s conduct as an employee. Thus, it could not dismiss Help At Home from the suit.

¶9 Subsequently, respondents filed a joint motion to dismiss pursuant to the doctrine of

forum non conveniens. In it, they argued that the cause’s connection to Cook County was

tenuous at best and that the matter should proceed in Mississippi. They pointed to several

facts, including that petitioner lives in Mississippi, as did the victim and the only other

5 No. 1-22-0802

people present at the time of the incident, namely, Hibbler and Paris’ grandmother; Paris was

treated in a Mississippi hospital and transferred to a southern Tennessee hospital close

thereto; both these hospitals treated her before the incident for the vast majority of her life;

emergency services were provided to Paris in Mississippi and Tennessee following the

incident; Hibbler’s immediate supervisors and other Oxford nurses who provided home

health care to Paris were all in Mississippi; and Oxford, from where petitioner hired home

health care for Paris, had its primary offices in Mississippi. In response, petitioner argued

that all of Oxford’s policies and procedures, including hiring, retention of employees,

payroll, benefits, and employee policies, were promulgated in Chicago at Help At Home’s

corporate headquarters, and that its act of reassigning Hibbler to Paris’ care despite Hibbler’s

expressed desire not to be except as a last resort led to Paris’ death.

¶ 10 The trial court granted respondents’ joint motion. At the outset of its lengthy order, the

court noted that the burden was on respondents to show that petitioner’s choice of forum was

somehow inconvenient to them and that their choice would be more convenient for everyone.

It also noted that it was required to examine the totality of the circumstances when evaluating

all relevant forum factors. Before doing so, it considered what deference to afford

petitioner’s choice of forum. Noting that petitioner “does not reside in Cook County and the

accident did not occur there,” it concluded that her choice of forum should be “afforded

minimum deference.” Thereafter, the court examined the forum factors. With respect to the

private factors, it found the first, convenience of the parties, to be neutral because, though

petitioner chose Cook County and Help At Home has its principal office there, “there is an

open question regarding the amount of control Help at Home exercises over” Statewide/

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Oxford, as it had found during the motion to dismiss. Next, it found that the factors of

relative ease of access to evidence and other practical problems that make trial easy,

expeditious and inexpensive both favored Mississippi. Regarding the former, it cited the

majority of medical providers are in Mississippi and southern Tennessee (closer to

Mississippi than Cook County), as are Hibbler and Paris’ relevant family members, while the

only witnesses in Illinois are a few corporate representatives; regarding the latter, more

potential witnesses were in Mississippi for the sake of compulsory process and the cost of

obtaining attendance, as would be any chance at viewing the premises of the incident. Then,

in considering the pertinent public factors, it determined that the factor of deciding localized

controversies locally favored Mississippi, since, again, this cause involved a Mississippi

resident injured in Mississippi. It found that the factor of unfairness of imposing expense and

burden on a county with little connection to the litigation favored Mississippi as well,

concluding that while Cook County residents might have some interest since Help At Home

has its principal office there, the factor as a whole favored transfer. And, it found the third

public factor of administrative difficulties to be neutral, since neither Mississippi nor

Tennessee publishes court congestion data comparable to Illinois’ annual reports. The court

held that, when “[t]aken as a whole, the factors *** strongly favor transfer” and, accordingly,

it dismissed the cause and transferred it to the circuit court of Panola County, Mississippi.

¶ 11 Petitioner then appeared in our Court seeking leave to appeal pursuant to Illinois

Supreme Court Rule 306(a)(2). See Ill. S. Ct. R. 306(a)(2) (eff. Oct. 1, 2020). We granted

her petition and now address her appeal.

¶ 12 ANALYSIS

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¶ 13 Petitioner contends that the trial court incorrectly transferred this cause to Mississippi.

She insists that it failed to consider the falsities in Davis’ affidavit, thereby rendering its

determination “incomplete,” and that it afforded her forum choice an inappropriate amount of

deference. Then, she argues that the court did not weigh the forum factors properly, as the

cause’s ties to Cook County are significant and mandate a Cook County forum.

¶ 14 It is well established that the standard of review with respect to a determination of a

forum non conveniens motion is abuse of discretion. See Fennell v. Illinois Central R.R. Co.,

2012 IL 113812, ¶ 21; accord Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442

(2006); Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003); Susman v. North Star

Trust Co., 2015 IL App (1st) 142789, ¶ 18. Accordingly, on review, we may reverse the

circuit court’s determination only if it can be shown that the court abused its discretion in

balancing the relevant forum factors. See Langenhorst, 219 Ill. 2d at 442; Dawdy, 207 Ill. 2d

at 177. As the most deferential standard, an abuse of discretion occurs only when no

reasonable person would take the view adopted by the trial court. See Susman, 2015 IL App

(1st) 142789, ¶ 18. In other words, we will not, and cannot, disturb the actions of the trial

court in determining the propriety of a transfer motion unless they are “clearly against logic.”

Miranda v. Walsh Group, Ltd., 2013 IL App (1st) 122674, ¶ 16. The question before us is

not whether we agree with the court’s determination, but whether the court “acted arbitrarily,

without employing conscientious judgment, or whether, in view of all the circumstances, it

exceeded the bounds of reason and ignored recognized principles of law so that substantial

prejudice resulted.” State Farm Fire & Casualty Co. v. Leverton, 314 Ill. App. 3d 1080,

1083 (2000); see also Susman, 2015 IL App (1st) 142789, ¶ 18, quoting Vivas v. The Boeing

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Co., 392 Ill. App. 3d 644, 657 (2009) (“ ‘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’ ”); Ruch v. Padgett, 2015 IL App (1st) 142972, ¶¶ 36,

38-40 (explaining that abuse standard for forum non conveniens review means reversal may

only occur if the trial court abused its discretion in balancing the relevant factors, that an

abuse in balancing occurs only where no reasonable person would take the view of the trial

court, and that a reviewing court “may affirm a trial court's forum non conveniens order on

any basis found in the record”).

¶ 15 Also well-established are the legal principles and considerations surrounding forum non

conveniens motions. These motions rest in the equitable doctrine which considers

fundamental fairness with respect to the sensible and effective administration of justice. See

Fennell, 2012 IL 113812, ¶ 12; Ruch, 2015 IL App (1st) 142972, ¶ 37. Essentially, it allows

a trial court, which otherwise has proper jurisdiction over a cause, to decline jurisdiction and

transfer it to another forum after a determination that the other forum would be better suited

to hear it. See Fennell, 2012 IL 113812, ¶ 12; Ruch, 2015 IL App (1st) 142972, ¶ 37. Such a

determination involves the balancing of several factors.

¶ 16 I. Deference to Choice of Forum

¶ 17 Before these factors may even be considered, however, the trial court must first

determine how much weight to give a plaintiff’s chosen forum. See Fennell, 2012 IL

1138112, ¶ 18; accord Ruch, 2015 IL App (1st) 142972, ¶ 37 (this consideration is primary

before the evaluation of any other relevant factors). The plaintiff has a substantial interest in

choosing the forum and, generally, her choice “should rarely be disturbed.” Langenhorst,

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219 Ill. 2d at 442. Accordingly, it has been said that “the battle over forum begins with the

plaintiff's choice already in the lead.” First American Bank v. Guerine, 198 Ill. 2d 511, 521

(2002). This is particularly true when the plaintiff chooses a forum that is her home

residence or the site of the accident or injury that is the subject of the litigation. See

Langenhorst, 219 Ill. 2d at 442. Yet, the plaintiff's choice is not always entitled to the same

weight or consideration in all cases. See Fennell, 2012 IL 113812, ¶ 18 (citing Dawdy, 207

Ill. 2d at 173). For example, when she chooses a foreign forum–one that is not her residence

or the location of the accident or injury–her choice is afforded only some deference. See

Ruch, 2015 IL App (1st) 142972, ¶ 43; see also Fennell, 2012 IL 113812, ¶ 18 (citing

Dawdy, 207 Ill. 2d at 173). While this is not the same as no deference, it is considerably less

than if she had chosen her home forum or the site of incident or injury. See Ruch, 2015 IL

App (1st) 142972, ¶ 45 (citing Glass v. DOT Transportation, Inc., 393 Ill. App. 3d 829, 834

(2009)); see also Fennell, 2012 IL 113812, ¶ 12.

¶ 18 At the outset of her appeal, petitioner contends that the trial court failed to afford her

choice of forum the required deference to which it was entitled. Her attack is two-fold. First,

she challenges the court’s reliance on the typically-significant considerations of residence

and situs of injury. Her claim in this regard is that the court misconstrued the relevance of

these, as her cause of action does not allege medical malpractice involving what took place in

Mississippi but, rather, corporate negligence originating from actions taken in Illinois that led

to Paris’ wrongful death. Additionally, she challenges the standard the court employed in

making its determination of deference, claiming it improperly reduced the amount owed and

then used an inappropriate standard. We address her latter claim first.

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¶ 19 A. Trial Court’s “Standard”

¶ 20 In her brief, petitioner notes a portion of the trial court’s order wherein, while considering

the deference to give her choice of forum, it stated:

“When a plaintiff’s home forum is chosen, it is reasonable to assume that the

choice is convenient. Guerine, 198 Ill. 2d at 517. However, when the plaintiff

chooses a forum other than the one where he resides, that choice is accorded less

deference. See Langenhorst, 219 Ill. 2d at 448. Even less deference is afforded when

the injury did not occur in the chosen forum. Because [petitioner] does not reside in

Cook County and the accident did not occur here, [her] venue choice of Cook County

is afforded minimum deference.”

From this, petitioner insists that the court “appeared to reduce the amount of deference owed

to [her] choice of forum twice”—once after noting that she and Paris did not reside in Illinois

and then “even less deference” after noting that Paris’ death did not occur here. She also

asserts that the court’s use of the phrase “ ‘minimum deference’ forms no part of the forum

non conveniens vernacular in Illinois” and thus shows it did not consider her choice properly.

Petitioner is correct that the Langenhorst standard is universally used by our courts. Again, it

states that when a plaintiff chooses a forum that is not her residence or the site of the injury,

her choice is entitled to “somewhat less deference.” Langenhorst, 219 Ill. 2d at 448.

(Emphasis in original.) In describing what that means, the supreme court explained, via a

quote from Guerine, which in turn shortened a quote from Elling v. State Farm Mutual

Automobile Ins. Co., that “ ‘ “[W]hile the deference to be accorded to a plaintiff regarding his

choice of forum is less when the plaintiff chooses a forum other than where he resides * * *

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nonetheless the deference to be accorded is only less, as opposed to none.” ’ ” (Emphasis in

original.) Langenhorst, 219 Ill. 2d at 448, quoting Guerine, 198 Ill d at 521, quoting Elling,

291 Ill. App. 3d 311, 318 (1997). The missing portion of that quote is important for our

purposes here. That is, while the facts in both Guerine and Langenhorst concerned only the

residences of the plaintiffs, Elling’s full quote makes clear that not only a foreign residence,

but also a foreign situs of injury, reduces the “lead,” or initial deference, a plaintiff’s choice

of forum would otherwise have. Elling’s full quote reads:

“[W]hile the deference to be accorded to a plaintiff regarding his choice of forum

is less when the plaintiff chooses a forum other than where he resides or where the

injury occurred, nonetheless the deference to be accorded is only less, as opposed to

none.” (Italics in original, underline added.) 291 Ill. App. 3d at 318.

¶ 21 We focus on this to show that we can understand petitioner’s concern with what the trial

court wrote in its order. However, while we may understand it, we do not agree that it rises

to an abuse of discretion so as to cause prejudice and merit our disturbance of its ultimate

forum determination. In our view, while some of the court’s comments could be concerning

in that they do not track black letter forum non conveniens principles, they were nothing

more than misstatements and no indication that the court considered anything improperly

when determining the amount of initial deference to assign petitioner’s choice of forum.

¶ 22 First, as for petitioner’s “double reduction” claim, while the court’s statement that a

forum choice that is not a plaintiff’s residence deserves less deference was correct, we admit

that its statement in the sentence immediately following that, i.e., “Even less deference is

afforded when the injury did not occur in the chosen forum,” does not track the language of

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Langenhorst or Elling. One could potentially argue that the court used the word “even” to

mean “in addition,” such that it intended to say foreign residence reduces deference and, in

addition, foreign situs of injury reduces deference. However, that is a stretch in light of the

language it chose to use. An interpretation similar to petitioner’s, namely, that foreign

residence reduces deference and foreign situs of injury reduces deference even more or even

further, is much more apparent. If this were the trial court’s thinking, it would be mistaken.

¶ 23 However, when it made those statements, the court was summarizing quotations from

Langenhorst. It did so correctly in the first sentence regarding foreign residence and cited

Langenhorst, but then, admittedly, used the “even less” language in the following sentence

regarding foreign situs (and, interestingly, did not provide a citation). Had the court exactly

tracked the language used in Langenhorst/Elling, there would be no concern here.

¶ 24 But, what is more significant than the court’s (poor) word choice is the crux of its

deference determination, which does not come until after all this, in the last sentence of the

paragraph. There, it stated, “Because [petitioner] does not reside in Cook County and the

accident did not occur here, [her] venue choice of Cook County is afforded minimum

deference.” From this, it is clear that the trial court considered both foreign residence and

foreign situs together, and that these, together, afforded her choice of forum less deference

than the substantial deference it otherwise would have had, had residence and situs been

local. Such consideration by the trial court of both residence and situs is, pursuant to Elling,

correct. In spite of what it said earlier, at the time of its actual determination, there is no

indication that the court considered residence first, made a determination to reduce deference,

and then considered situs and determined a further, or second/double, reduction was in order.

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While petitioner would like us to infer this, we do not, as it did not use such words, or any

similar quantifiable amount or percentage of deference reduction when it made its

determination. As inartful as the court’s lead-up to its determination was, there is no explicit

indication that it improperly reduced its deference twice-over when it made its determination.

¶ 25 Petitioner also challenges the court’s use of the phrase, “minimum deference.” Of

course, once again, we would not be dealing with any of this had the court used, exactly, the

Langenhorst standard; there is much to be said about uniformity in the law. However, again,

we believe this to be nothing more than a misstatement and, even if it were more, it did rise

to an abuse of discretion.

¶ 26 The key to the Langenhorst standard is what we have consistently repeated: when a

plaintiff chooses a forum that is not her residence or the site of the injury, her choice is

entitled to “somewhat less deference” than it would have had had these factors been local.

Langenhorst, 219 Ill. 2d at 448. What does “somewhat less deference” mean? Again, it

means, simply, “ ‘less, as opposed to none.’ ” Langenhorst, 219 Ill. 2d at 448, quoting

Guerine, 198 Ill 2d at 521. There is no quantifier here, for example, five-fold less or 30%

less. It is logical, then, that as long as there is some deference afforded to the plaintiff’s

choice, less (of course) than the substantial amount given to plaintiffs who do choose a forum

within their residence or the situs of injury, but not none, the Langenhorst standard is met.

See, e.g., Malloy v. DuPage Gynecology, S.C., 2021 IL App (1st) 192102, ¶ 48; Decker v.

Union Pacific RR Co., 2016 IL App (5th) 150116, ¶ 19. When a court gives less deference,

that does not mean that it gives no deference. See, e.g., Taylor v. Lemans Corp., 2013 IL

App (1st) 130033, ¶ 18.

14 No. 1-22-0802

¶ 27 Based on this, we conclude that the trial court’s use of the phrase “minimum deference”

here, while admittedly not part of the Illinois forum non conveniens legal vernacular, did not

render its determination of how much deference to initially afford petitioner’s choice of

forum improper. Contrary to any insinuation by petitioner, the trial court did not give it “no

deference” or even “next to no deference.” The court simply gave it less, which is in

accordance with the standard. “Minimum” is much more akin to “somewhat less” than it is

to “none.” The point is, the court recognized that, because petitioner initially chose a forum

that was neither her/the decedent’s residence nor the situs of injury, her choice could not be

afforded the substantial deference it would have otherwise received. It further recognized

that it still owed her choice deference, but in a lesser amount. That it used the phrase

“minimum deference” as opposed to “somewhat less deference” is, essentially, semantics—

less, or “minimum,” properly indicates less than substantial but not none, and that is what

Langenhorst requires.

¶ 28 B. Cause of Action

¶ 29 The other portion of petitioner’s challenge to the trial court’s initial determination of

deference to afford her choice of forum rests, as she says, in the particular cause of action.

She challenges the court’s reliance on the typically-significant considerations of residence

and situs of injury. She claims that the court should never have found these to even be

relevant because her cause of action does not allege a medical malpractice claim against

Hibbler or her immediate employer, Oxford (who are in Mississippi). Rather, she reaffirms

that she asserted a corporate negligence action, namely, that respondents’ negligent conduct

of reassigning Hibbler to monitor Paris after she asked not to be was the act that led to Paris’

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death, that this act was undertaken in Illinois pursuant to respondents’ Illinois-based

employment policies and, thus, that her residence or the situs of injury are not important to an

initial consideration of the amount of deference to be afforded her choice of forum. In this

regard, petitioner potentially has a valid point.

¶ 30 Petitioner’s complaint is somewhat unique here because it is not the typical medical

malpractice or medical negligence claim. She is not suing Hibbler or anyone who provided

Paris directly with medical treatment or home health care, per se. Her claim is one of

institutional negligence. While Paris’ medical care (or lack thereof) occurred in Mississippi,

the cause of action petitioner raises against respondents involves their procedures, including

employment policies, as corporations—corporations that admittedly share an address in Cook

County. It is of no consequence that, at this point in the litigation process, petitioner’s claims

as to respondents’ involvement might only be vague; she was not required to prove up her

entire case on a forum non conveniens motion. See Koss Corp. v. Sachdeva, 2012 IL App

(1st) 120379, ¶ 100 (such a motion is only at a preliminary discovery stage). Accordingly,

given the facts that were pled in her complaint, it very well may be that the usual

considerations of residence and the situs of injury lack relevance and perhaps should not play

a large role in a trial court’s consideration of the amount of initial deference to give her

choice of forum.

¶ 31 On the other hand, we must note that while petitioner characterizes her complaint as

institutional negligence, it cannot be denied that her claims involve wrongful death. The

counts in her amended complaint against both respondents state as much; she labels them, in

fact, “wrongful death.” Our law states that in a wrongful death case, “it is the decedent’s

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residence at the time of death that is of significance” in a forum non conveniens analysis.

Bradbury v. St. Mary’s Hospital of Kankakee, 273 Ill. App. 3d 555, 560 (1995). Moreover,

where a plaintiff sues in a representative capacity on behalf of a decedent, as petitioner does

here, the decedent’s county of residence “is entitled to substantial deference.” Schwalbach v.

Millikin Kappa Sigma Corp., 363 Ill. App. 3d 926, 933 (2005). Taking these principles into

account, then, and contrary to petitioner’s insistence, residence and situs of injury perhaps

should very well remain substantial considerations here.

¶ 32 Ultimately, in consideration of all this, our conclusion with regard to any potential

impropriety that may have occurred in the trial court’s determination of how much initial

deference it was to afford petitioner’s choice of forum is this: if any impropriety did occur, it

was, in the grand scheme of things, inconsequential. Rather, what is clearly certain is that,

again, the court did give petitioner’s choice some deference—it was not substantial, but it

was not none or next to none. And, what is most important of all is that “ ‘deference to the

plaintiff’s choice of forum is but one factor, along with other relevant private and public

interest factors, to be considered in the balancing process.’ ” Grachen v. Zarecki, 200 Ill.

App. 3d 336, 342 (1990), quoting Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill.

2d 101, 108 (1990). Accordingly, whatever the determination as to initial forum deference,

our analysis does not end here, as a transfer of forum may still be appropriate if the private

and public factors, viewed in totality along with the deference consideration, outweigh the

plaintiff’s substantial interests and instead strongly favor a defendant’s suggested transfer.

See Grachen, 200 Ill. App. 3d at 342, citing Griffith, 136 Ill 2d at 108; see also Ruch, 2015

IL App (1st) 142972, ¶¶ 38-40 (we may affirm transfer order on any basis in record).

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¶ 33 Accordingly, and just as the parties do, we now turn to those factors.

¶ 34 II. Private and Public Interest Factors

¶ 35 After the trial court considers the plaintiff’s choice of forum, it then evaluates the private

and public interest factors involved in forum non conveniens determinations. The private

interest factors include: the convenience of the parties; the relative ease of access to

testimonial, documentary and real evidence; the availability of compulsory process to secure

the attendance of unwilling witnesses; the costs to secure the attendance of willing witnesses;

the possibility of viewing the site where the accident occurred, if appropriate; and all other

practical considerations that make a trial easy, expeditious and inexpensive. See Fennell,

2012 IL 113812, ¶ 21. The public interest factors 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. See Fennell, 2012 IL 113812, ¶ 21. A court must consider all of these private and

public interest factors. See Ruch, 2015 IL App (1st) 142972, ¶ 48; accord Fennell, 2012 IL

113812, ¶ 17. It must not place too much emphasis on any one factor, nor is it to weigh them

against each other. See Langenhorst, 219 Ill. 2d at 443-44; accord Dawdy, 207 Ill. 2d at 175-

76. Rather, it must balance all of them together and view them within the totality of the

circumstances presented, as each forum non conveniens case is unique on its own facts. See

Langenhorst, 219 Ill. 2d at 443-44 (“court must evaluate the total circumstances of the

case”); accord Fennell, 2012 IL 113812, ¶ 24.

18 No. 1-22-0802

¶ 36 The burden is on the defendant to show that the relevant private and public interest

factors “ ‘strongly favor’ ” its choice of forum and merit disturbing the plaintiff's initial

choice. Langenhorst, 219 Ill. 2d at 444, quoting Griffith, 136 Ill. 2d at 107; accord Fennell,

2012 IL 113812, ¶ 17. Notably, the defendant cannot simply claim that the choice of forum

is inconvenient to the plaintiff. Langenhorst, 219 Ill. 2d at 44. Instead, it must prove that the

balance of factors strongly favors transfer, i.e., that the plaintiff's chosen forum is

inconvenient to the defendant and that another forum is more convenient to all parties. See

Fennell, 2012 IL 113812, ¶ 20; Langenhorst, 219 Ill. 2d at 444. “Although this is a difficult

standard for a defendant to meet, ‘it does not foreclose legitimate transfers when the balance

of factors strongly favors litigation in another forum.’ ” (Emphasis in original.) Langenhorst,

219 Ill. 2d at 443, quoting Guerine, 198 Ill. 2d at 521.

¶ 37 Petitioner begins with the first private factor and asserts that the trial court erred in

finding the convenience of the parties did not favor Cook County. She claims that, based on

Davis’ false affidavit which the court inappropriately ignored, and its prior determination on

the motion to dismiss that respondents were one entity located and doing business in Illinois,

this factor “strongly weighs against transfer.” However, as she wholly mischaracterizes the

record, we disagree.

¶ 38 The trial court did not find that convenience of the parties favored or disfavored transfer

of this cause. Instead, it found that this factor was “neutral” and did not weigh strongly

either for or against transfer. We do not find that the trial court abused its discretion in

making this neutral determination. Contrary to petitioner’s insistence, it never determined

that respondents were one entity doing business in Cook County at any point in the litigation.

19 No. 1-22-0802

Rather, in direct opposition, the record shows that the court specifically found there was a

genuine issue of fact as to the nature of the relationship between respondents and which of

them controlled Oxford’s employment policies or decisions—the crux of petitioner’s

amended complaint. Because of this very reason, the court could not grant Help At Home’s

motion to dismiss. Moreover, the court did not, as petitioner asserts, ignore Davis’ affidavit.

Instead, the court agreed during its denial of Help At Home’s motion to dismiss that Davis’

subsequent deposition testimony was vague and confusing in comparison to the affidavit he

provided earlier. It was because of this very reason, the court stated, that it could not grant

the motion. Later, during its evaluation of the convenience factor in the instant forum

motion, the court revisited all this to note that while Help At Home has a principal office in

Cook County, Statewide appears to be based in Mississippi where it operates Oxford, from

which petitioner hired Hibbler, and there remains “an open question” regarding the amount

of control Help At Home exercises over Statewide per the inconsistencies in Davis’

testimony. Accordingly, while the court could not say Cook County was inconvenient to

petitioner as that was her choice, it likewise could not say that the mere fact that Help At

Home has a corporate office in Cook County, without more, mandated a Cook County forum.

See Dawdy, 207 Ill. 2d at 182 (merely conducting business in a county does not necessarily

affect the issue of forum non conveniens, nor does the presence of a corporate defendant's

registered agent; this “is not a dispositive factor” and a court is “to look beyond the criteria of

venue when it considers the relative convenience of a forum”); accord Smith v. Jewel Food

Stores, Inc., 374 Ill. App. 3d 31, 34-35 (2007). This, combined with the open question of

how intertwined respondents are, if at all, does not propel the forum non conveniens issue

20 No. 1-22-0802

strongly either way. Therefore, we cannot say that the trial court’s determination that

convenience of the parties was a neutral factor was unreasonable.

¶ 39 Next, petitioner asserts that the trial court erred in concluding that the second private

factor, relative ease of access to evidence, favored transfer. She insists that, because this is a

corporate negligence action, the “critical witnesses” are in Illinois where the decision to

reassign Hibbler took place, and not in Mississippi which accounts only for Paris’ treaters,

who are “far less importan[t]” since medical negligence is not being alleged.

¶ 40 In examining this factor, the trial court, citing Ruch, 2015 IL App (1st) 142972, ¶¶ 61,

commented that in today’s technological age, document transfer is instantaneous and occurs

at the touch of a button, thereby shifting the focus of ease of access away from real and

demonstrative evidence and more toward the availability of testimonial evidence. Then, after

pointing out that neither party had supplied a complete list of prospective witnesses, it noted

that the majority of witnesses involved in this matter, including all those who provided

medical treatment, as well as decedent, her family, and Hibbler, were all in or closer to

Mississippi, while “[t]he only potential witnesses with ties to Cook County are corporate

representatives for” respondents. “Taken as a whole,” it determined this factor favored

transfer.

¶ 41 We agree with the trial court that, when all the circumstances presented are considered

together, relative ease of evidence favors transfer. Again, we understand petitioner’s

characterization of this suit as a corporate negligence case. And, we acknowledge that

perhaps some of respondents’ corporate executives or higher-level employees who may be

able to provide evidence germane to the instant cause are located in Cook County. However,

21 No. 1-22-0802

it cannot be denied that Hibbler’s actions and Paris’ medical condition and treatment will

necessarily take a prominent position on the legal stage along with respondents’ employment

policies as this cause proceeds. This is true for many reasons. First, petitioner herself in her

very complaint consistently refers to the negligent acts and omissions of Hibbler in

monitoring Paris’ ventilator as “the cause” of Paris’ death. Clearly, what happened on the

night of the incident, which directly involved Hibbler, a 76-year-old Mississippi resident,

will be critical. Next, petitioner admits she hired Hibbler through Oxford, which operates

and has its primary office in Mississippi. Also, she repeatedly references Hibbler’s “request”

for reassignment and its alleged refusal as an additional reason for Paris’ death. With the

connection between respondents, and Oxford as bound therein, still an open question,

particularly as to the management of employees and employment policies, it is safe to say

evidence with respect to both Oxford and, again, Hibbler (i.e., whom she spoke to, what her

request was, was it honored, etc.) will be fundamental components of this litigation.

Moreover, it would be incredulous to think that, if this cause continues to advance, Paris’

medical care, both prior to the specific incident at issue and in response to it, will not be of

great importance, as well. Paris was treated from birth for the condition that, directly or

indirectly, led to her death, first by doctors at Merit Health Northwest Hospital in

Mississippi, next by doctors a LeBonheur Children’s Hospital in Tennessee, then at home

(again in Mississippi) by the many Oxford home health care nurses who rotated on a daily

basis as evidenced by the supplemental record, and finally, again, by doctors at LeBonheur.

In addition, the ventilator that Paris used on the night of incident was located at her home in

Mississippi, she was rendered emergency aid by paramedics in Mississippi, and she was

22 No. 1-22-0802

transported first to a hospital in Mississippi and then one in Tennessee, where she died.

Taking into account all these considerations, it was in no way unreasonable for the trial court

to conclude that the relative ease of evidence factor favors a Mississippi forum in this cause.

¶ 42 With respect to the remaining private forum factor of other practical problems that make

trial easy, expeditious and inexpensive, petitioner asserts that the trial court “did not duly

weigh” each of the considerations involved (specifically, the compulsory process of

unwilling witnesses, the cost of obtaining the attendance of willing witnesses, and viewing

the premises) before concluding they favored transfer, which “[n]o reasonable person based

on the record would have found.” However, after reviewing the court’s separate and

thorough analysis of each of these considerations, we disagree.

¶ 43 Regarding the compulsory process of unwilling witnesses, the court noted that should the

need to compel the testimony of a witness arise, Illinois, Mississippi and Tennessee have all

adopted the Uniform Interstate Depositions and Discovery Act, so the process of doing so

would largely be the same whether the cause remains in Cook County or is transferred; yet,

the fact more of the potential witnesses in the matter are located closer to Mississippi, this

consideration tipped toward favoring transfer. We do not find this determination amounted

to an abuse of discretion. Petitioner claims that the court incorrectly substituted the same

considerations it used to determine the ease of access factor to this one and speculated as to

potential witnesses. However, simply because the court applied similar reasoning gleaned

from one factor to another does not mean that it did not afford each factor its own weight

under the circumstances. Besides, the court did not mention the Uniform Interstate

Depositions and Discovery Act when addressing the ease of access factor, clearly

23 No. 1-22-0802

demonstrating that it did, indeed, weigh the compulsory process factor somewhat differently.

Additionally, while petitioner cites case law stating that courts are not to speculate about a

witness’ unwillingness to testify at trial where potential witnesses have yet to be identified,

“we know of no rule that bars a trial court from inferring the relative convenience of

alternative forums, based on its knowledge of their residence and workplace.” Koss Corp.,

2012 IL App (1st) 120379, ¶ 106, ¶¶ 107-08 (holding that trial court did not abuse its

discretion where it considered the inconvenience of forum transfer to witnesses residing in

Wisconsin who might testify but were not yet named at point of forum motion, since “[o]ur

supreme court has held that it is not necessary for ‘defendants seeking forum non conveniens

dismissal [to] submit affidavits identifying the witnesses they would call and the testimony

they would provide if the trial were held in the alternate forum.’ ” (Quoting Piper Aircraft

Co. v. Reyno, 454 U.S. 235, 258-59 (1981))).

¶ 44 Next, regarding the cost of obtaining the attendance of willing witnesses, petitioner

claims the trial court erred in finding this consideration favored transfer because the advent

of video conferencing and technology can be used to cut said cost. This is true; the trial court

acknowledged this in its decision, and our court has often done so as well. See Ruch, 2015

IL App (1st) 142972, ¶ 61 (due to advancements in technology, “this factor is much less

significant than it used to be”). However, petitioner’s argument is a double-edged sword, as

costs can be cut in this regard on both sides. Additionally, the court also reflected, again, on

the convenience to the parties and the relative ease of access to evidence, finding that

Mississippi “appears to be a more convenient forum for the potential witnesses identified so

far” when it comes to the cost of obtaining their attendance. Though consideration of this

24 No. 1-22-0802

factor may be less significant today, it does not deserve zero consideration, and the

consideration the court here gave it was not at all an abuse of discretion.

¶ 45 Finally, regarding the viewing of the premises, petitioner claims the court erred in

determining this favored transfer since this is a corporate negligence case and the premises

where Paris suffered the injury “are immaterial.” However, as the trial court pointed out, our

supreme court has repeatedly acknowledged that the possibility of having a jury viewing the

premises of an injury “is an important consideration in ruling on a forum motion.” Fennell,

2012 IL 113812, ¶ 37; Moore v. Chicago & North Western Transportation Co., 99 Ill. 2d 73,

80 (1983). Moreover, this has nothing to do with the necessity or likelihood of viewing the

premises but, rather, simply the possibility of doing so, and this consideration is left most

specifically to the discretion of the trial court. See Ruch, 2015 IL App (1st) 142972, ¶ 70.

While it may eventually prove true that there is no need for a jury to visit Paris’ home to

decide this case, the court was not required to make that determination during this forum

motion. It was only required to consider the possibility of it, and it found it would be

unreasonable to ask a Cook County jury to travel to Mississippi to do so, should the need

arise. Based on the circumstances, we do not find this to be improper.

¶ 46 We now turn to the public interest factors. Instead of addressing these separately or

specifically, petitioner asserts only that this cause of action “has significant connections to

Illinois” and, therefore, there is “a paramount interest in deciding the controversy locally.”

Her argument, which appears at the end of her brief on appeal, is cursory and relatively scant

of support. While we understand petitioner’s argument and we do not discount that there is a

connection between this cause and Illinois, we cannot forget that the essence of a forum non

25 No. 1-22-0802

conveniens motion, as we mentioned at the outset herein, is not a question of whether one

proposed forum has proper and legal jurisdiction and the other does not; rather, the question

is which one of two proper forums both possessing legal jurisdiction is better suited to hear

the matter. See Fennell, 2012 IL 113812, ¶ 12; Ruch, 2015 IL App (1st) 142972, ¶ 37. In

the instant cause, the trial court determined the first public interest factor of deciding

localized controversies locally favored transfer, as a Mississippi decedent’s physical injury

took place in Mississippi. While one of the several corporations involved in the suit

maintains an office in Chicago and makes this jurisdiction a legally proper one, that the court

found the also-proper jurisdiction of Mississippi was more appropriate for the reasons it

stated was not unreasonable, especially in light of all the circumstances presented.

Additionally, and again, this suit involves a Mississippi resident suing on behalf of another

Mississippi resident for the effects an incident had on her as her daughter, and it cannot be

denied that it is based on claims of negligence not only concerning employment decisions

potentially made in Cook County but also, as specifically alleged by petitioner herself in her

amended complaint, claims of negligence concerning the specific actions of Hibbler, a

Mississippi resident hired through Oxford, a company doing business in Mississippi.

¶ 47 With this in mind, the trial court found that the next public interest factor, the unfairness

of imposing expense and burden on a county with little connection to the litigation, also

weighed in favor of transfer. The court did recognize that “Cook County residents have

some interest in the controversy given” that Help At Home does have a Chicago office, but it

considered all the circumstances involved to conclude “as a whole this factor favors

transfer.” Clearly, the court thoughtfully examined the connection this litigation has with

26 No. 1-22-0802

each of these two forums, along with the fairness of imposing it on one as opposed to the

other. That the court determined these considerations, on the whole, favored Mississippi, is

not at all illogical.

¶ 48 The final public interest factor is the administrative difficulties caused by adding

litigation to already congested court dockets rather than resolving the case at its origin. In

the instant cause, the trial court found this factor to be neutral, since neither Mississippi nor

Tennessee publish the same data regarding court congestion in their jurisdictions as does

Illinois. Obviously, in determining that “a direct comparison * * * is not possible in this

case,” the court properly found this factor to be neutral.

¶ 49 Accordingly, with the trial court having found, via thorough and proper examination, that

two of the three public interest factors supported transfer, we cannot conclude, in light of the

record before us, that no reasonable person would adopt the same reasoning. Just as with the

private interest factors, the trial court did not abuse its discretion. Rather, the court properly

conducted the balance test of private and public interest factors while clearly affording

petitioner’s choice of forum some deference, as it was required to do under the circumstances

presented. The pendulum of the forum non conveniens test simply swung in a direction

petitioner was not expecting.

¶ 50 Petitioner concludes her brief on appeal by stating, ultimately, that the trial court erred in

finding that respondents carried their burden of demonstrating that this cause should be

transferred. We are mindful of the fact that a defendant is not relieved of its burden to show

that the chosen forum is inconvenient to it and another is more convenient to all the parties

simply because the chosen venue has little or no connection to the cause. See Dykstra v. A.P.

27 No. 1-22-0802

Green Industries, Inc., 326 Ill. App. 3d 489, 496 (2001). But we believe, just as the trial

court here did, that respondents did make this showing based on the evidence presented,

which we have already discussed at length. See Koss Corp., 2012 IL App (1st) 120379, ¶¶

106-07 (trial court may make inferences in this regard based on evidence presented). In the

end, when all of the relevant private and public interest factors are viewed in their totality,

they strongly favor transfer to Mississippi, which can better serve the convenience of the

parties and the ends of justice with respect to the instant cause. We therefore find that the

trial court did not abuse its discretion in granting respondents’ motion to transfer pursuant to

forum non conveniens.

¶ 51 CONCLUSION

¶ 52 Accordingly, for all the foregoing reasons, we affirm the judgement of the trial court.

¶ 53 Affirmed.