Giacomo v. Carson

2021 IL App (5th) 210040-U

• Court: Appellate Court of Illinois
• Decided: September 9, 2021
• Docket: 5-21-0040
• Status: Unpublished

Opinion

2021 IL App (5th) 210040-U NOTICE NOTICE Decision filed 09/09/21. The This order was filed under text of this decision may be NO. 5-21-0040 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

AMY GIACOMO and NICHOLAS GIACOMO, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) St. Clair County. ) v. ) No. 19-L-906 ) DEBRA CARSON, M.D., and HEARTLAND WOMEN’S ) HEALTHCARE, LTD., ) Honorable ) Heinz M. Rudolf, Defendants-Appellees. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Welch and Vaughan concurred in the judgment.

ORDER

¶1 Held: The circuit court did not abuse its discretion in transferring the plaintiffs’ medical malpractice case to the county in which the medical malpractice occurred, based on the doctrine of forum non conveniens, because a reasonable trial judge could find that the relevant private and public interest factors strongly favored transfer.

¶2 The plaintiffs, Amy Giacomo and Nicholas Giacomo, appeal the January 14, 2021, order

of the circuit court of St. Clair County that granted the motion of the defendants, Debra Carson,

M.D., and Heartland Women’s Healthcare, Ltd. (Heartland), to transfer the plaintiffs’ medical

malpractice complaint to Marion County, based on the doctrine of forum non conveniens. For the

following reasons, we affirm.

1 ¶3 BACKGROUND

¶4 On December 16, 2019, the plaintiffs, who are Perry County residents, filed a medical

malpractice complaint in the circuit court of St. Clair County. According to the complaint, Dr.

Carson provided a gynecological exam at Heartland’s facility in Perry County, and thereafter

recommended a total laparoscopic hysterectomy for Mrs. Giacomo. The complaint further

alleges that Dr. Carson attempted to perform this procedure on Mrs. Giacomo at St. Mary’s

Hospital in Centralia (Marion County). The complaint alleges that Dr. Carson was negligent in

attempting the procedure because it was contraindicated due to Mrs. Giacomo’s prior

gynecological history, and that she performed the procedure negligently, causing damage to Mrs.

Giacomo’s left ureter, right ureter, vaginal cuff, and rectum, and resulting in a pelvic abscess and

the development of sepsis. Mrs. Giacomo requests damages from Dr. Carson, and Heartland on a

theory of agency, to compensate her for the injuries and subsequent treatment. Mr. Giacomo

seeks damages for loss of consortium.

¶5 On March 23, 2020, the defendants filed a motion to dismiss this cause or transfer to

Marion County pursuant to the doctrine of forum non conveniens. According to the motion, none

of the medical malpractice at issue took place in St. Clair County, none of Mrs. Giacomo’s

subsequent treatment occurred in St. Clair County, and none of Mrs. Giacomo’s subsequent

treating providers practice medicine or reside in St. Clair County. The motion sought transfer of

this cause to Marion County, where the alleged malpractice occurred, and which is closer to

Jefferson County, which is where the majority of Mrs. Giacomo’s follow-up care occurred.

¶6 The defendants attached the affidavit of defense counsel to its motion. Defense counsel

presented an overview of pertinent medical records “to avoid filing confidential medical records

and for the sole purpose of providing factual information pertinent to the forum non conveniens

2 issue.” According to this overview, which contains facts that the plaintiffs do not dispute, Mrs.

Giacomo underwent a surgical procedure at St. Mary’s Hospital in Centralia (Marion County) on

December 19, 2017. Surgery was performed by Dr. Debra Carson and Dr. Elisabeth Beyer-

Nolen, both employees of Heartland Women’s Healthcare who were working at that location. A

complication occurred during the procedure, prompting a request for a consult by Dr. Joe

Barrientos. That consult occurred at St. Mary’s Hospital on the same date.

¶7 Mrs. Giacomo was promptly transferred to Good Samaritan Hospital in Mt. Vernon

(Jefferson County) and came under the care of Dr. Jeffrey Larson, who performed a surgical

procedure that same date. Mrs. Giacomo was discharged from the hospital but readmitted to

Good Samaritan Hospital on December 25, 2017, where another surgery was performed by Dr.

Jeffrey Larson and Dr. Tatiana Ramirez. Mrs. Giacomo was readmitted to Good Samaritan

Hospital on January 10, 2018, and had follow-up visits there as well. A third surgery was

performed at Good Samaritan Hospital by Dr. Larson and Dr. Ramirez on May 11, 2018.

Defense counsel also averred in this affidavit that he had not been provided with, or seen, any

records indicating that Mrs. Giacomo received medical care in St. Clair County for the

conditions giving rise to this litigation.

¶8 The defendants filed a page from the “Annual Report of the Illinois Courts: Statistical

Summary- 2018” in support of their motion to transfer, as well as an affidavit of defense counsel

who obtained the report. According to this information, St. Clair County reported 12 jury

verdicts in 2018 with an average time lapse between the date of filing and the date of verdict of

52.7 months. Jefferson County reported three verdicts with an average time lapse between the

date of filing and date of verdict of 16.3 months. Marion County reported no jury verdicts.

3 ¶9 The plaintiffs filed a response to the motion to transfer and attached the affidavit of Dr.

Joel Kwan Barrientos, a urologist on the staff at St. Mary’s Hospital in Centralia (Marion

County), who provided the following testimony. On December 19, 2017, he was contacted by

Dr. Carson, who informed him that, during Mrs. Giacomo’s laparoscopic hysterectomy, Dr.

Carson became concerned that there may have been damage to Mrs. Giacomo’s ureter. Dr.

Barrientos recommended that she come under the care of Dr. Larson, and she was transferred to

Good Samaritan Hospital in Mt. Vernon (Jefferson County). Dr. Barrientos concluded his

affidavit by stating that he is on the staff at St. Mary’s Hospital in Centralia (Marion County) and

resides in Centralia (Marion County). However, if this case were to be tried in St. Clair County,

he would, if requested, appear and provide testimony.

¶ 10 The plaintiffs also provided the affidavit of Mrs. Giacomo, who averred that she resides

in Perry County and works there. She also works part-time in Nashville (Washington County),

and she was first treated by Dr. Carson at Washington County Hospital in Nashville. Nashville is

50 miles from Belleville (St. Clair County). Her husband works in Coulterville (Randolph

County), which is 46 miles from Belleville. Mrs. Giacomo stated in her affidavit that Belleville

(St. Clair County) is more convenient for her and her husband than Salem (Marion County)

because, among other reasons, Belleville and St. Louis are natural destinations for shopping,

dining, and other interests and they are frequently traveling in the direction of Belleville, making

it more convenient to litigate this case in St. Clair County.

¶ 11 The plaintiffs also attached a printout from Heartland’s web site showing that it has

locations in St. Clair County, as well as many other counties in southern Illinois. The plaintiffs

provided an excerpt of the deposition of Dr. Carson, in which Dr. Carson testified that Dr. Beyer-

Nolen resides in Marion (Williamson County) and Dr. Barrientos resides in Centralia (Marion

4 County). Dr. Carson testified that she lives in St. Clair County, and it would not be inconvenient

to her personally to try a case in St. Clair County. The plaintiffs also provided an excerpt of the

deposition of Dr. Larson, who testified regarding his treatment of Mrs. Giacomo’s ureteral

injuries in Mt. Vernon (Jefferson County). He testified that, at the time of the deposition, he

resided in Quincy (Adams County) but was planning to relocate to Greenville, South Carolina,

later that month. Dr. Larson testified that his colleague, Dr. Ramirez, who also performed

treatment on Mrs. Giacomo in Mt. Vernon, had relocated, possibly to St. Louis.

¶ 12 The circuit court held a hearing on the defendants’ motion to dismiss or transfer on

December 17, 2020. At oral argument, counsel for the plaintiffs represented to the court that Dr.

Ramirez is now in Decatur (Macon County). On January 14, 2021, the circuit court entered a

detailed written order granting the defendants’ motion to transfer. The circuit court began its

analysis by noting that while the plaintiffs’ choice of forum is entitled to deference, it is to be

accorded less deference than typically afforded a plaintiff who files suit in the county of her

residence or the forum which gave rise to the litigation. With that level of deference in mind the

circuit court analyzed the relevant private and public interest factors in turn. As to the private

interest factors, the circuit court found that the convenience of the parties did not favor either St.

Clair or Marion County, but that the relative ease of access to sources of testimonial,

documentary, and real evidence strongly favors Marion County, because most of the witnesses

reside in Marion, or neighboring Jefferson, County.

¶ 13 As to the public interest factors, the circuit court noted that there had been no evidence or

testimony that Mrs. Giacomo received any medical care related to the occurrence, or any

subsequent medical care, in St. Clair County. The circuit court found that, conversely, the

citizens of Marion County have a strong public interest in the medical care provided in their

5 community. The circuit court found it insignificant that Heartland maintains an office and

medical facilities in St. Clair County because those facilities and offices were not related to this

litigation. Thus, the circuit court found that the public interest factor of the unfairness of

imposing jury duty upon residents of a county with no connection to the litigation strongly favors

transfer to Marion County. As to administrative considerations, the circuit court acknowledged

the statistics but found that such statistics do not adequately address readiness on the part of the

court. Accordingly, the circuit court found this factor did not favor transfer. However, because it

found most of the public and private interest factors strongly favored transfer to Marion County,

the circuit court concluded that such transfer was proper. The plaintiffs filed a petition for leave

to appeal the circuit court’s order pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Oct. 1,

2020), which this court granted.

¶ 14 ANALYSIS

¶ 15 We recently set forth the well-established standards for our review of an order granting or

denying a motion to transfer for forum non conveniens as follows:

“ ‘ “ ‘A trial court’s decision on a forum non conveniens motion will be reversed only if it

can be shown that the trial court abused its discretion in balancing the various factors at

issue.’ Gridley v. State Farm Mutual Automobile Insurance Co., 217 Ill. 2d 158, 169

(2005). A circuit court abuses its discretion where no reasonable person would take its

adopted view. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).

‘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). The doctrine

permits the circuit court to decline jurisdiction over a case when trial in another forum

6 would better serve the ends of justice. Id. If jurisdiction is so declined, the case must be

dismissed because the circuit court lacks the authority to transfer it. Fennell v. Illinois

Central R.R. Co., 2012 IL 113812, ¶ 13. ‘The dismissal is conditioned on the plaintiff

timely filing the action in the other forum; and the defendant accepting service of process

from that court, and waiving any available statute of limitations defense.’ Id.; see also Ill.

S. Ct. R. 187(c)(2) (eff. Jan. 4, 2013). ‘Each forum non conveniens case must be

considered as unique on its facts.’ Langenhorst, 219 Ill. 2d at 443. ‘Every request for

transfer based upon forum non conveniens must be decided pursuant to an

“individualized, case-by-case consideration of convenience and fairness.” ’ Gridley, 217

Ill. 2d at 168 (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).

In determining whether to grant or deny a motion to dismiss on the basis of

forum non conveniens, the circuit court must balance private interest factors affecting the

litigants and public interest factors affecting the administration of the courts. Dawdy, 207

Ill. 2d at 172. The private interest factors include the convenience of the parties; the

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

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

cost of obtaining the attendance of willing witnesses; the possibility of viewing the

premises, if appropriate; and all other practical considerations that make a trial easy,

expeditious, and inexpensive. Id. The public interest factors include the interest in having

local controversies decided locally, the administrative difficulties caused when litigation

is handled in congested venues instead of being handled at its origin, and the unfairness

of imposing jury duty upon residents of a county with no connection to the litigation. Id.

at 173.

7 The defendant has the burden of showing that the balance of the relevant public

and private interest factors strongly favors a dismissal and transfer (id.), and the circuit

court must evaluate the totality of the circumstances when determining whether that

burden has been met (Fennell, 2012 IL 113812, ¶ 17). The relevant factors are not

weighed against each other, and no single factor should be emphasized. Langenhorst, 219

Ill. 2d at 443-44.

‘An additional consideration under the forum non conveniens doctrine is

deference to the plaintiff’s choice of forum.’ Dawdy, 207 Ill. 2d at 173. It is generally

assumed that the plaintiff’s choice of forum is convenient, and unless the balance of the

relevant factors strongly favor a dismissal, the plaintiff’s choice should rarely be

disturbed. Id. ‘However, when the plaintiff is foreign to the chosen forum and when the

action giving rise to the litigation did not occur in the chosen forum, the plaintiff’s choice

of forum is accorded less deference.’ Fennell, 2012 IL 113812, ¶ 18. Moreover, when the

plaintiff is foreign to the chosen forum and the action that gives rise to the litigation did

not occur in the chosen forum, ‘it is reasonable to conclude that the plaintiff engaged in

forum shopping to suit his individual interests, a strategy contrary to the purposes behind

the venue rules.’ (Internal quotation marks omitted.) Dawdy, 207 Ill. 2d at 174. ‘A

plaintiff’s right to choose a forum “cannot be permitted to override the public interest in,

and need for, an orderly, efficiently operated judicial system.” ’ Id. at 175 (quoting

Espinosa v. Norfolk & Western Ry. Co., 86 Ill. 2d 111, 123 (1981)).” ’ ” Wylie v.

Schaefer, 2021 IL App (5th) 200425, ¶ 14 (quoting Kuhn v. Nicol, 2020 IL App (5th)

190225, ¶ 11, quoting Shaw v. Haas, 2019 IL App (5th) 180588, ¶¶ 15-19).

8 ¶ 16 Here, we cannot say that the circuit court abused its discretion in granting the defendants’

motion to transfer because a reasonable person could conclude, as the circuit court did, that the

balance of the private and public interest factors strongly favors a trial in Marion County, where

the plaintiffs’ cause of action arose, rather than St. Clair County. In their petition for leave to

appeal, the plaintiffs present an alternative analysis of the public and private interest factors from

the one employed by the circuit court. However, a showing that an alternative conclusion could

be made based on the factors is not tantamount to a showing that no reasonable person could

conclude that transfer was proper as the circuit court did. We find the circuit court’s detailed,

written order to be within the bounds of reason, which is the standard of our review. Moreover,

the plaintiffs do not cite to any case law, and this court is aware of none, where an abuse of

discretion was found in granting a motion to transfer based on forum non conveniens where

transfer was made to the forum in which the cause of action arose. This court cannot find an

abuse of discretion on these facts.

¶ 17 We reject the plaintiffs’ argument that the defendants must prove that the plaintiff’s

chosen venue is inconvenient to the defendants before the circuit court can move forward with

evaluating the public and private interest factors set forth above, as the convenience of the parties

is but one factor to be considered. See id. (outlining the private and public interest factors and

listing the convenience of the parties as one relevant private interest factor). To the extent that

the cases cited by the plaintiffs so hold, they have been overruled by subsequent cases as we

have set forth above. The plaintiffs cite to Langenhorst v. Norfolk Southern Ry. Co. (219 Ill. 2d

430, 450 (2006)) in support of their argument that the inconvenience to the defendants is, in

essence, a threshold determination that must be made before addressing the factors. However, the

9 Langenhorst court’s discussion of the convenience of the parties was made as part of its

assessment of the private interest factors, not as a threshold matter. See id.

¶ 18 Finally, the plaintiffs attempt to distinguish this case from recent cases in which this court

found an abuse of discretion for the circuit court to deny a motion to transfer to the county where

the alleged medical malpractice occurred. See id. However, it is a logical fallacy to conclude that

because this case differs in some respects from those in which we have found that the circuit

court abused its discretion in refusing to transfer to the county in which the medical malpractice

arose, it necessarily follows that the circuit court abused its discretion in ordering this case

transferred to the county where the malpractice arose. Such an argument gives no credence to our

standard of review.

¶ 19 CONCLUSION

¶ 20 For the foregoing reasons, the January 14, 2021, order of the circuit court of St. Clair

County that granted the defendants’ motion to transfer the plaintiffs’ medical malpractice

complaint to Marion County, based on the doctrine of forum non conveniens, is affirmed.

¶ 21 Affirmed.