Doe v. International Psychoanalytical Association

2014 IL App (1st) 140410

• Court: Appellate Court of Illinois
• Decided: January 22, 2015
• Docket: 1-14-0410
• Status: Unpublished

Opinion

2014 IL App (1st) 140410 No. 1-14-0410 Fifth Division December 31, 2014 ______________________________________________________________________________

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

States. No. 1-14-0410

¶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. There is no evidence that Venezuelan law recognizes any of

plaintiff’s causes of action.

¶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:

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“(a) *** A party may petition for leave to appeal to the Appellate Court from the

following orders of the trial court:

***

(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

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with Philippine decedents, burden was on defendant to show factors strongly favoring

transfer to the Philippines).

¶ 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

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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-

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 initiated 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.

¶ 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 Defendant claims that substantive Venezuelan law will apply in this case but provides no

authority for that proposition. Additionally, the trial court does not abuse its discretion in not

deciding choice-of-law determinations for the purpose of a forum non conveniens motion.

Erwin v. Motorola, Inc., 408 Ill. App. 3d 261, 283 (2011). Although choice-of-law issues are

a factor to be considered, they are not usually dispositive. Woodward, 368 Ill. App. 3d at 837.

The parties have not briefed that issue or cited authority to show what law applies, so that

factor was not taken into consideration.

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¶ 35 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).

¶ 36 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

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.

¶ 37 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.

¶ 38 IV. Public Interest Factors

¶ 39 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.

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¶ 40 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

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.

¶ 41 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

docket.” Langenhorst, 219 Ill. 2d at 451. Thus, we cannot find that the trial court abused its

discretion in giving this factor little weight.

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¶ 42 V. Balancing the Factors

¶ 43 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.

¶ 44 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).

¶ 45 CONCLUSION

¶ 46 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

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.

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¶ 47 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.

¶ 48 Affirmed.