2014 IL App (1st) 140410 No. 1-14-0410 Fifth Division Modified opinion filed March 27, 2015 ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
) JANE DOE, ) ) Appeal from the Circuit Court Plaintiff-Appellee, ) of Cook County. ) v. ) No. 13 L 005649 ) INTERNATIONAL PSYCHOANALYTICAL ) The Honorable ASSOCIATION, ) Moira S. Johnson, ) Judge Presiding. Defendant-Appellant. ) ) ______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 BACKGROUND
¶2 I. Parties
¶3 The plaintiff is a Venezuela resident who was a patient of psychoanalyst Alicia Leisse de
Lustgarten (Ms. Leisse), who also lives and practices in Venezuela. At the time of the events
that led to the filing of this lawsuit, plaintiff was a postgraduate student in clinical
community psychology working as a clinical therapist at an agency dealing with abused
women in Venezuela. There is no evidence that she has ever been in Chicago or in the United
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¶4 The defendant is a not-for-profit corporation incorporated in England and Wales, with its
principal place of business in London, England. Its only contact with Illinois was a
conference that it held in Chicago in May 2009 for mental health providers where Ms.
Leisse, a member of the board of representatives of defendant, made a presentation and used
plaintiff’s unauthorized sensitive clinical material as an example, which defendant later
published on the defendant’s website in England without using plaintiff’s name.
¶5 II. Cause of Action
¶6 Plaintiff filed this action against defendant for intentional infliction of emotional distress,
negligent infliction of emotional distress, and tortious interference with prospective
economic advantage, claiming that as a direct result of the publication of plaintiff’s sensitive
clinical material, people in her community could easily identify her, causing her to withdraw
from her professional community and suffer mental distress and anguish, creating a diagnosis
of post-traumatic stress disorder.
¶7 III. Posture of Case in Illinois
¶8 After defendant filed a motion to dismiss based on forum non conveniens, seeking a
transfer to Venezuela, the circuit court denied the motion. Defendant then filed a petition for
leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Feb. 16, 2011), which
this court granted, and this interlocutory appeal follows.
¶9 ANALYSIS
¶ 10 This is an interlocutory appeal, taken pursuant to Supreme Court Rule 306. The rule
provides in relevant part:
“(a) *** A party may petition for leave to appeal to the Appellate Court from the
following orders of the trial court:
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***
(2) from an order of the circuit court allowing or denying a motion to dismiss on
the grounds of forum non conveniens ***.” Ill. S. Ct. R. 306(a)(2) (eff. Feb. 16,
2011).
This court granted defendant’s petition for leave to appeal the trial court’s denial of its forum
non conveniens motion.
¶ 11 I. Forum Non Conveniens Doctrine
¶ 12 Forum non conveniens is 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); Gridley v. State Farm Mutual
Automobile Insurance Co., 217 Ill. 2d 158, 169 (2005). This doctrine permits a trial court to
transfer a case when “trial in another forum ‘would better serve the ends of justice.’ ”
Langenhorst, 219 Ill. 2d at 441 (quoting Vinson v. Allstate, 144 Ill. 2d 306, 310 (1991));
Gridley, 217 Ill. 2d at 169.
¶ 13 The burden is on the party asking for the dismissal to show that the relevant factors
“ ‘strongly favor’ ” transfer. (Emphasis omitted.) Langenhorst, 219 Ill. 2d at 442 (quoting
Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 108 (1990)); Woodward v.
Bridgestone/Firestone, Inc., 368 Ill. App. 3d 827, 833 (2006) (in product liability case where
vehicle accident was in Australia with an Australian plaintiff, burden was on defendant to
show factors strongly favoring transfer to Australia); Ellis v. AAR Parts Trading, Inc., 357
Ill. App. 3d 723 (2005) (in product liability case where airplane crash was in the Philippines
with Philippine decedents, burden was on defendant to show factors strongly favoring
transfer to the Philippines).
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¶ 14 “A trial court is afforded considerable discretion in ruling on a forum non conveniens
motion.” Langenhorst, 219 Ill. 2d at 441. An appellate court will reverse a circuit court's
decision on a forum non conveniens motion only if the “defendants have shown that the
circuit court abused its discretion in balancing the relevant factors.” Langenhorst, 219 Ill. 2d
at 442; Gridley, 217 Ill. 2d at 169; Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 176-77
(2003). The Illinois Supreme Court has stated: “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; Gridley, 217 Ill. 2d at 169; Dawdy, 207
Ill. 2d at 177.
¶ 15 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. We find, in the case at bar, that a reasonable person could certainly have taken the
view adopted by the trial court.
¶ 16 II. Plaintiff’s Choice of Forum
¶ 17 Before weighing the relevant factors, a court must first decide how much deference to
give to a plaintiff's choice of forum. Langenhorst, 219 Ill. 2d at 448 (the supreme court
determined the appropriate amount of deference, before weighing the relevant factors).
¶ 18 In the case at bar, the trial court reasonably accorded some deference to plaintiffs' choice
of forum. Normally, the plaintiff's choice of forum is a “substantial” factor in deciding a
forum non conveniens motion. Dawdy, 207 Ill. 2d at 173; Griffith v. Mitsubishi Aircraft
International, Inc., 136 Ill. 2d 101, 106 (1990). However, the Illinois Supreme Court has
stated that where the plaintiff chooses a forum other than where she resides, her choice “is
not entitled to the same weight,” as the choice of her home forum. Dawdy, 207 Ill. 2d at 173-
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76; Gridley, 217 Ill. 2d at 170. In the case at bar, plaintiff is Venezuelan. Thus, her selection
of a foreign forum “deserves less deference.” Griffith, 136 Ill. 2d at 106 (citing Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 255-56 (1981)); Langenhorst, 219 Ill. 2d at 448; Gridley, 217 Ill.
2d at 170.
¶ 19 However, less deference is not the same as no deference. First American Bank v.
Guerine, 198 Ill. 2d 511, 518 (2002) (“ ‘the deference to be accorded is only less, as opposed
to none’ ” (emphases in original) (quoting Elling v. State Farm Mutual Automobile Insurance
Co., 291 Ill. App. 3d 311, 318 (1997))); Ellis v. AAR Parts Trading, Inc., 357 Ill. App. 3d
723, 741 (2005) (less deference “does not equal no deference”). See also Langenhorst, 219
Ill. 2d at 448 (plaintiff's choice of a foreign forum was “entitled to somewhat less deference”
(emphasis in original) (citing Guerine, 198 Ill. 2d at 517 (“somewhat less deference”))).
Thus, in the case at bar, the trial court reasonably accorded some deference to plaintiff's
choice of a forum.
¶ 20 III. Private Interest Factors
¶ 21 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; Gridley, 217 Ill. 2d at 170; Dawdy, 207 Ill. 2d at 172-73. 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); Gridley, 217 Ill. 2d at 170; Dawdy, 207 Ill. 2d at 172.
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¶ 22 A. Convenience of the Parties
¶ 23 Defendant failed to provide a single affidavit stating that it would be inconvenient to
litigate this matter in Cook County, Illinois, and that a Venezuelan court is much more
convenient. In the instant case, plaintiff resides in Venezuela but selects Illinois as her
designated forum. Defendant’s not-for-profit corporation is incorporated in both England and
Wales, with its principal place of business in London, England. Ms. Leisse, who is not a
party to this lawsuit, but who could be an important witness, resides in Venezuela.
Defendant’s employees who processed certain forms to defendant certifying that her
presentation did not include any sensitive clinical material are located in England.
Additionally, defendant’s employees who managed the website where the audio file from the
Chicago presentation was published are also located in England. Dr. Abel Feinstein, the chair
of defendant’s programme committee for the conference in Chicago, who ultimately
requested that the audio file be removed from defendant’s website, resides in Argentina.
¶ 24 The circuit court found that because Chicago was the site of where the tortious conduct
initiated, plaintiff’s choice of forum is convenient. To be perfectly correct, the tortious
conduct by defendant caused injury to plaintiff when it placed the sensitive material on its
website in England. However, the events that led up to the placement of the material on its
website did occur in Chicago where the sensitive matter was first published.
¶ 25 In addition, plaintiff’s damage witnesses would all probably be residing in Venezuela, but
that may not reflect on defendant’s burden of showing that the private and public interest
factors strongly favor transferring the action to Venezuela when defendant fails to file an
affidavit to show that it is likely to call those witnesses in its case in chief. As part of
defendant’s burden, it must show that plaintiff’s chosen forum is inconvenient to defendant
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and that another forum is more convenient to all parties. Defendant cannot merely assert that
plaintiff’s chosen forum is inconvenient to plaintiff. Guerine, 198 Ill. 2d at 518. Unless the
balance of factors strongly favors a defendant’s choice of forum, the plaintiff’s choice of
forum should rarely be disturbed. Langenhorst, 219 Ill. 2d at 444.
¶ 26 Defendant admits that its employees in England can give testimony in Illinois as easily as
Venezuela. Thus, there is no real inconvenience for defendant if this case remains in Cook
County, Illinois.
¶ 27 B. Ease of Access to Evidence
¶ 28 The second private factor, the relative ease of access to sources of testimonial,
documentary, and real evidence, also does not shift the balance of this forum non conveniens
analysis in favor of a Venezuela court.
¶ 29 This court acknowledges that when witnesses are scattered throughout several countries,
there may not be one predominant country and thus transfer should be denied. A trial court
does not abuse its discretion in denying a motion to transfer when most of the potential trial
witnesses are scattered and no single country enjoys a predominant connection to the
litigation. Ammerman v. Raymond Corp., 379 Ill. App. 3d 878, 886 (2008) (citing
Langenhorst, 219 Ill. 2d at 453). In this case, witnesses are scattered between Venezuela,
England, and Argentina.
¶ 30 C. All Other Practical Problems
¶ 31 The third private factor that the courts consider refers to all other practical problems,
which includes the process of securing unwilling witnesses. The defendant has provided no
affidavit to show that there is an unwilling witness who would be unwilling to appear or that
the unwilling witness could not be compelled to appear through the law of international
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treaties. Defendant argues that the parties will endure great expense in litigating the matter in
Cook County, Illinois, but does not show the court how that expense will diminish for
defendant if the case proceeded in Venezuela.
¶ 32 As for the compulsory process of unwilling witnesses and the cost of obtaining the
attendance of willing witnesses, these factors do not strongly favor dismissal in favor of
Venezuela. “If the case remains in Illinois, witnesses in [Venezuela] are not compelled to
come to the United States; and if the forum is changed to [Venezuela], American witnesses
[or witnesses from other countries] are not compelled to appear in [Venezuela].” Woodward,
368 Ill. App. 3d at 835 (“Venezuela” substituted for “Australia”); Ellis, 357 Ill. App. 3d at
743-44.
¶ 33 Similarly, while some of the documents and records may be in Venezuela, nonetheless,
the location of documents and records has become a less significant factor in forum non
conveniens analysis in the modern age of email, Internet, telefax, copying machines, and
worldwide delivery services, since they can now be easily copied and sent. Woodward, 368
Ill. App. 3d at 834.
¶ 34 Observing correctly that potential witnesses and evidence was scattered among different
countries, the trial court concluded that this factor did not tilt in favor of any one forum. We
cannot find that this conclusion was an abuse of discretion. Woodward, 368 Ill. App. 3d at
834 (where potential witnesses are “scattered among different forums,” no one forum can be
said to be more convenient); Ellis, 357 Ill. App. 3d at 747; Berbig v. Sears Roebuck & Co.,
378 Ill. App. 3d 185, 188 (2007).
¶ 35 Lastly, the court must consider all the other “ ‘practical problems that make trial of a case
easy, expeditious, and inexpensive.’ ” Langenhorst, 219 Ill. 2d at 443 (quoting Guerine, 198
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Ill. 2d at 516). Both plaintiff’s and defendant’s attorneys maintain offices in Cook County.
The Illinois Supreme Court has stated that while little weight should be accorded this factor,
a court may still consider it in the forum non conveniens analysis. Dawdy, 207 Ill. 2d at 179;
Woodward, 368 Ill. App. 3d at 836.
¶ 36 In sum, the private interest factors, when considered in light of all relevant facts and
evidence in the record, do not strongly weigh in favor of transfer to Venezuela. We now turn
to the relevant public interest factors in our forum non conveniens analysis.
¶ 37 IV. Public Interest Factors
¶ 38 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 First American Bank v. Guerine, 198 Ill. 2d 511, 516-17 (2002)); Gridley, 217 Ill. 2d
at 170; Dawdy, 207 Ill. 2d at 173.
¶ 39 The trial court evaluated the first two public factors together, which included the interest
in deciding the alleged controversy locally and the unfairness of imposing the expense of a
trial and the burden of jury duty on residents of a county with little connection to the
litigation. We will also decide these two public factors together. Defendant’s own “Code of
Ethical Principles” requires that all “psychoanalysts shall respect the confidentiality of their
patients’ information and documents.” In addition, all medical providers are subject to this
duty when in Illinois and Cook County jurors certainly have an interest in deciding abuses of
this duty. When the information was first presented by Ms. Leisse in Cook County and later
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published by defendant on its website in London, England, it became the interest of fair-
minded people. These types of cases are not localized because they have international
implications concerning a person’s right to privacy on matters disclosed to medical
providers.
¶ 40 Defendant claimed that the trial court erred by refusing to conduct an abbreviated choice-
of-law analysis and further claims that the substantive Venezuelan law would apply in this
case. We agree.
¶ 41 The Illinois Supreme Court set forth the rules for determining choice of law questions.
The court instructed that the reviewing court will apply the "most significant contacts" rule,
as the local law which has the most significant relationship with the occurrence and with he
parties. When we apply this to a multi-country defamation case, the country of most
significant relationship will usually be the country where the person allegedly defamed was
domiciled at the time. Ingersoll v. Klein, 46 Ill. 2d 42, 48 (1970). The same standard should
apply to the unauthorized publication of sensitive personal material.
¶ 42 This concept is based on the Restatement of the Law, Second, Conflicts of Law (1971),
§ 150(2), which states: "When a natural person claims that he has been defamed by an
aggregate communication, the state of most significant relationship will usually be the state
where the person was domiciled at the time, if the matter complained of was published in that
state." Applying this concept to multi-country publication of unauthorized sensitive material,
the place of the greatest potential injury to the reputation of the plaintiff will be the place
where plaintiff lives and works, which is Venezuela.
¶ 43 The need to apply the law of a foreign jurisdiction has been considered a significant
factor favoring dismissal of a suit on grounds of forum non conveniens. Moore v. Chicago &
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North Western Transportation Co., 99 Ill. 2d 73, 80 (1983). However, it is also a significant
factor that the publication of plaintiff's unauthorized sensitive clinical material first
originated in Illinois, which is a hub for international conventions and presentations. As such,
Illinois has a strong interest in maintaining some order in the manner in which those in
international conventions and presentations treat innocent people. Illinois also has a strong
interest in making sure that, especially in this century and in the future, concepts of fairness
and justice prevail in our communities and in our country. We know what a litigant can
expect in our courts, but know not what happens in the courts of other countries. Although
the administration of Venezuelan law in this case will not be easy for the trial court, our
experience dictates that our courts will do its best to provide both sides a fair and just trial.
¶ 44 Thus, we cannot find that the trial court's error by refusing to conduct an abbreviated
choice-of-law analysis, which finds that Venezuelan law should be applied, is enough to
dismiss this case for forum non conveniens or for this court to say that the trial court abused
its discretion.
¶ 45 Comparative congestion in the respective courts is not a factor in the issue before us.
Defendant offered no evidence that there is less congestion in Venezuelan courts; it has not
even named the specific forum in Venezuela that it believes should handle this case.
Woodward, 368 Ill. App. 3d at 836 (this factor received little weight where defendants
“offered no evidence” of less court congestion in their proposed forum); Berbig v. Sears
Roebuck & Co., 378 Ill. App. 3d 185, 189 (2007) (“court congestion is a relatively
insignificant factor, especially where the record does not show the other forum would resolve
the case more quickly”). In addition, our supreme court has held that “[w]hen deciding forum
non conveniens issues, the trial court is in the better position to assess the burdens on its own
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docket.” Langenhorst, 219 Ill. 2d at 451. Thus, we cannot find that the trial court abused its
discretion in giving this factor little weight.
¶ 46 V. Balancing the Factors
¶ 47 In deciding a forum non conveniens motion, the trial court “must balance the private and
public interest [] [factors].” Dawdy, 207 Ill. 2d at 172; Gridley, 217 Ill. 2d at 169-70. The
balancing should be done “without emphasizing any one factor.” Langenhorst, 219 Ill. 2d at
443; Gridley, 217 Ill. 2d at 169; Dawdy, 207 Ill. 2d at 180. “On review, the trial court's
decision will be reversed only if *** the court abused its discretion in balancing the relevant
factors.” Dawdy, 207 Ill. 2d at 176-77; Griffith, 136 Ill. 2d at 106.
¶ 48 In the case at bar, we find that the trial court did not abuse its discretion in balancing the
relevant factors. First, plaintiff’s choice of forum merited some deference, although she
chose a foreign forum. Second, the private and public interest factors did not weigh strongly
in favor of transfer. Langenhorst, 219 Ill. 2d at 433 (affirming the denial of a motion to
transfer the case to the accident site, even though plaintiff's chosen forum was neither the
accident site nor the site of her residence); Woodward, 368 Ill. App. 3d at 837-38 (affirming
denial of a motion to transfer product liability case, even though plaintiffs’ chosen forum was
neither the accident site nor the site of their residence); Ellis, 357 Ill. App. 3d at 748
(affirming denial of a motion to transfer product liability case, even though plaintiffs’ chosen
forum was neither the site of the airplane crash or the decedents’ residence).
¶ 49 CONCLUSION
¶ 50 For the foregoing reasons, we affirm the trial court’s order denying defendant’s motion to
dismiss on forum non conveniens grounds. As discussed above, defendant moved to dismiss
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only in favor of an action in Venezuela. We find that the trial court did not abuse its
discretion in finding that Venezuela was not a more convenient forum.
¶ 51 Since we find that the trial court did not abuse its discretion in denying defendant’s
motion on this basis, we do not decide whether Venezuela was an adequate available forum.
¶ 52 Affirmed.