Kuhn v. Nichol

2020 IL App (5th) 190225-U

Opinion

NOTICE 2020 IL App (5th) 190225-U NOTICE Decision filed 04/27/20. The This order was filed under text of this decision may be NO. 5-19-0225 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party 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 ________________________________________________________________________

MICHAEL KUHN and JUDY KUHN, ) Appeal from the ) Circuit Court of Plaintiffs-Appellees, ) St. Clair County. ) v. ) No. 18-L-379 ) RICHARD E. NICHOL, M.D.; ROBERT J. ) MARSHALL, M.D.; INFINITY-MEDS, LLP; and ) ST. JOSEPH’S HOSPITAL, BREESE, OF THE ) HOSPITAL SISTERS OF THE THIRD ORDER OF ) ST. FRANCIS, ) ) Defendants ) Honorable ) Heinz M. Rudolf, (Richard E. Nichol, M.D., Defendant-Appellant). ) Judge, presiding. ________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Overstreet and Boie concurred in the judgment.

ORDER

¶1 Held: The circuit court’s order denying the defendant’s motion to transfer for forum non conveniens was an abuse of discretion where proposed transfer was to county where alleged malpractice occurred and plaintiffs resided, and only evidence identified by the plaintiffs as located outside that county concerned the plaintiffs’ postoccurrence treatment and acquaintances the plaintiffs identified as having knowledge of the plaintiffs’ condition before and after the occurrence.

1 ¶2 The defendant, Richard E. Nichol, M.D., appeals the May 7, 2019, order of the

circuit court of St. Clair County, which denied his motion to transfer this cause to Clinton

County on the basis of forum non conveniens. For the following reasons, we reverse and

remand with directions that the circuit court transfer this cause to Clinton County.

¶3 FACTS

¶4 On May 30, 2018, the plaintiffs, Michael Kuhn and Judy Kuhn, filed a complaint in

the circuit court of St. Clair County, alleging a cause of action for medical malpractice

against St. Joseph’s Hospital, Breese, of the Hospital Sisters of the Third Order of

St. Francis (St. Joseph’s) and Infinity-Meds, LLP (Infinity), as well as Richard E. Nichol,

M.D., and Robert J. Marshall, M.D. 1 The complaint alleges that St. Joseph’s and Infinity’s

employees, Dr. Nichol and Dr. Marshall, negligently failed to timely diagnose and treat

Michael’s stroke, causing Michael debilitating injury. On July 31, 2018, St. Joseph’s filed

a motion to transfer venue to Clinton County on the grounds of forum non conveniens.

¶5 According to St. Joseph’s motion to transfer, the plaintiffs are residents of Clinton

County, the alleged medical malpractice occurred in Clinton County, and all pertinent

records regarding the events surrounding the plaintiffs’ allegations of medical malpractice

are in Clinton County. St. Joseph’s argued that because the plaintiffs’ cause of action had

no connection to St. Clair County, the relevant private and public interest factors strongly

favor transfer to Clinton County. In support of its motion, St. Joseph’s attached the “Annual

1 Originally, the complaint named Midwest Emergency Department Services, Inc., as a defendant. However, on July 9, 2018, the circuit court granted the plaintiffs’ motion to amend the complaint by interlineation to substitute Infinity as the correct defendant. 2 Report of the Illinois Courts Statistical Summary-2016,” which indicates that in calendar

year 2016, 100 civil cases were filed in Clinton County, one of which was terminated by

verdict. As of 2016, the average time between the filing of a civil case and a verdict in

Clinton County was 60.2 months. In contrast, 2925 cases were filed in St. Clair County, 12

of which were terminated by verdict. As of 2016, the average time between the filing of a

civil case and a verdict in St. Clair County was 66.9 months.

¶6 On August 2, 2018, Infinity filed a motion to join St. Joseph’s motion to transfer

this case to Clinton County. On August 21, 2018, in lieu of a response addressing the

arguments set forth in the motions to transfer, the plaintiffs filed the affidavit of their

counsel “in opposition to the motion to transfer.” According to the affidavit, “in fact there

is a good deal of evidence located in St. Clair County.” The affidavit identified medical

professionals who the affidavit indicated “are actively treating [the] plaintiff” at medical

facilities in Belleville and O’Fallon, located in St. Clair County. The affidavit then states

that, “in addition, [the] plaintiff has several lay witnesses who would have relevant

information about [the] plaintiff’s condition both before and after the stroke, and how [the]

defendants[’] alleged negligence has affected him and those individuals are all located in

St. Clair County.” The affidavit then contains a list of 25 names.

¶7 On September 19, 2018, the circuit court held a hearing on St. Joseph’s and

Infinity’s motion to transfer. On September 21, 2018, the circuit court entered an order

denying the motion to transfer. On October 10, 2018, St. Joseph’s filed a supplement to its

motion to transfer, attaching the medical record of Michael’s admission into St. Joseph’s

during the time of the alleged medical malpractice, as well as the affidavit of the division 3 director of risk management for Hospital Sisters Health System, of which St. Joseph’s is a

part. According to this affidavit, based on information and belief, the following individuals

referenced in the medical record reside in Clinton County: (1) Dr. Arnel Garcia (primary

care medicine); (2) Dr. David Neighbors (primary care medicine); (3) Dr. Brett Prywitch

(radiology); (4) Elizabeth Terry (registered nurse); (5) Geralyn Stock (clerk); and

(6) Veronica Hung (ECG technician). In addition, the affidavit states that St. Joseph’s is a

not-for-profit corporation with its exclusive place of business in Clinton County and

operates a hospital in Clinton County. The affidavit further states that its medical records,

department records, and imaging studies are maintained in Clinton County. Finally, the

affidavit states that Hospital Sisters Health System is based in Springfield, Illinois, and

St. Joseph’s is a separate legal entity with its own board of directors.

¶8 On October 12, 2018, St. Joseph’s filed a second supplement to its motion to

transfer, attaching information from the web site for the ambulance service that transferred

Michael to the hospital following his stroke. The information shows that the ambulance

service is in Clinton County. On December 12, 2018, this court granted St. Joseph’s and

Infinity’s petition for leave to appeal the circuit court’s September 21, 2018, order denying

their motion to transfer, and that appeal was docketed in this court as case number 5-18-

0501.

¶9 On March 4, 2019, having recently been served with the complaint, Dr. Nichol filed

his own motion to transfer the case to Clinton County based on forum non conveniens.

Dr. Nichol attached his affidavit to the motion. In his affidavit, Dr. Nichol attested that his

care and treatment of Michael took place at St. Joseph’s in Clinton County, and none of 4 Michael’s treatment occurred in St. Clair County. Further, Dr. Nichol averred that he

resides in Madison County and worked in Clinton County at the time of his treatment of

Michael. Dr. Nichol’s affidavit concluded that participating in a trial in St. Clair County

would be personally and professionally inconvenient to him, and that a trial in Clinton

County would be more convenient. Dr. Nichol also attached the medical records from

St. Joseph’s under seal, as well as the information on the ambulance service and the

Statistical Summary of the Illinois Courts from 2016, to his motion to transfer.

¶ 10 On March 18, 2019, St. Joseph’s and Infinity filed a motion to stay their appeal

pending the circuit court’s ruling on Dr. Nichol’s motion to transfer. On April 3, 2019, this

court entered an order staying the appeal in 5-18-0501. On May 7, 2019, the circuit court

entered an order denying Dr. Nichol’s motion to transfer. On June 5, 2019, Dr. Nichol filed

a petition for leave to appeal, which this court granted on August 21, 2019.

¶ 11 ANALYSIS

¶ 12 This court recently set forth, in detail, the standards to be employed by the circuit

court, and by this court on review, when the issue is whether to transfer a cause based on

the doctrine of forum non conveniens set forth in Illinois Supreme Court Rule 187(c)(2)

(eff. Jan. 4, 2013):

“ ‘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

5 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 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, 6 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.

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 7 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)).” Shaw v. Haas, 2019 IL

App (5th) 180588, ¶¶ 15-19.

¶ 13 Here, as in Shaw, the circuit court abused its discretion by denying Dr. Nichol’s

motion to transfer on the basis of forum non conveniens because, “although we

acknowledge [the plaintiffs’] right to choose the forum, a balance of the relevant factors

strongly favors a transfer to [Clinton] County (see Gridley, 217 Ill. 2d at 169) and the

record shows that a trial in [Clinton] County would better serve the ends of justice, as well

as the convenience of the parties (see Dawdy, 207 Ill. 2d at 177).” Shaw, 2019 IL App (5th)

180588, ¶ 20. Beginning with the private interest factors, and specifically the relative ease

of access to sources of evidence, the alleged medical malpractice occurred at St. Joseph’s

Hospital in Clinton County. The ambulance service that transported Michael to the hospital

is also in Clinton County, as well as Michael’s primary physician, who Michael visited

earlier the day of the alleged malpractice. The record contains the name of another primary

care physician in Clinton County, and other employees of St. Joseph’s with relevant

knowledge as well. As such, all medical personnel and records surrounding the plaintiffs’

allegations of medical malpractice are in Clinton County. 8 ¶ 14 We recognize that the plaintiffs’ counsel’s affidavit in opposition to the motion to

transfer sets forth that the medical professionals providing rehabilitation services to

Michael following his stroke are in St. Clair County, as well as 25 “lay witnesses who

would have relevant information about [the] plaintiff’s condition both before and after the

stroke.” The supreme court has cautioned us, however, not to give undue weight to the fact

that treating doctors have an office in the plaintiffs’ chosen forum. Bland v. Norfolk &

Western Ry Co., 116 Ill. 2d 217, 227 (1987). This is because because to do so “would allow

a plaintiff to easily frustrate the forum non conveniens principle by selecting as a witness a

treating physician or expert in what would, in reality, be an inconvenient forum.” Id. We

find the same treatment should be afforded the plaintiffs’ counsel’s list of 25 lay witnesses

who are acquainted with Michael, especially where counsel does not provide an

explanation of why there are not lay witnesses in Clinton County, the county of the

plaintiffs’ residence, who could provide identical testimony. Accordingly, despite the

plaintiffs’ counsel’s efforts to point to evidence that may be located in St. Clair County,

we find that the factor of relative ease of access to sources of evidence favors transfer.

¶ 15 Regarding the convenience of the parties, the plaintiffs reside in Clinton County. A

trial in Clinton County would be convenient for them, although the defendants may not

prevail by arguing that St. Clair County is inconvenient for them. Shaw, 2019 IL App (5th)

180588, ¶ 26. The defendants all either reside or work in Clinton County. While we

recognize that St. Clair County is adjacent to Clinton County, the supreme court has

rejected the contention that a trial in an adjacent county is unquestionably convenient for a

defendant. Id. (citing Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 180 (2003)). We 9 find that the private interest factors of convenience to the parties and ease of access to

sources of evidence both weigh in favor of Clinton County because the plaintiffs sustained

their injuries there and the witnesses are on the whole closer to Clinton County. See id.

¶ 16 “The next private interest factor is the possibility of viewing the premises, if

appropriate.” Id. ¶ 27. While we recognize a viewing of the premises is unlikely in a

medical malpractice case, if the circuit court were to decide that such a viewing would be

appropriate, that would occur at St. Joseph’s in Clinton County. Although Clinton County

is adjacent to St. Clair County, “it would not be rational for a jury of St. Clair County

residents to travel to [Clinton] County to view the *** site.” Id. (citing Dawdy, 207 Ill. 2d

at 179). “Moreover, viewing the premises would arguably be more expeditious if the trial

were in [Clinton] County.” Id. Accordingly, although relatively insignificant, this private

interest factor also weighs in favor of Clinton County over St. Clair County. Neither party

points to any other practical considerations that make a trial easy, expeditious, and

inexpensive. Viewing the private interest factors as a whole, we find that such factors favor

Clinton County over St. Clair County.

¶ 17 Turning to the public interest factors, which include court congestion and judicial

administration, imposing jury duty on residents of a community that is not related to the

litigation, and the local interest in local controversies, we find that such factors strongly

support Clinton County as the appropriate forum to try this case. See id. ¶ 29 (citing Dawdy,

207 Ill. 2d at 180). In Shaw we recognized that, while court congestion in and of itself is

relatively insignificant if no other relevant factors are in favor of transfer, it is nevertheless

appropriate to consider it in the plaintiffs’ chosen forum. Id. (citing Dawdy, 207 Ill. 2d at 10 181). Here, like in Shaw, there are other factors that favor transfer, and accordingly, court

congestion is not insignificant. See id. The Illinois Courts Statistical Summary 2016, which

is part of the record and detailed in relevant part above, illustrates that the public interest

factor of docket congestion strongly favors a trial in Clinton County.

¶ 18 Another public interest factor is the local interest in local controversies. See Shaw,

2019 IL App (5th) 180588, ¶ 32. The plaintiffs contend that St. Clair County has an interest

in this controversy because St. Joseph’s has a registered agent in St. Clair County and

Infinity does business in St. Clair County. We disagree. Although these defendants have

business ties to St. Clair County that are sufficient to establish venue there, any business

transactions that are unrelated to the instant case are insignificant for purposes of forum

non conveniens. See id. In contrast, the plaintiffs reside in Clinton County and the alleged

medical malpractice and circumstances related thereto occurred in Clinton County. As

such, this is a controversy local to Clinton County that would be of interest to the citizens

of Clinton County who rely on the defendants for their medical treatment. See Gundlach

v. Lind, 353 Ill. App. 3d 677, 683 (2004).

¶ 19 Based on the foregoing, it would not be unfair to burden the citizens of Clinton

County with jury duty in this case. See Shaw, 2019 IL App (5th) 180588, ¶ 33. In contrast,

St. Clair County residents should not be burdened with jury duty when the action neither

arose there nor has any relation to that county. See id. (citing Dawdy, 207 Ill. 2d at 183).

Accordingly, the public interest factors strongly favor transfer.

¶ 20 Finally, we acknowledge that the plaintiffs’ choice of forum is entitled to some

deference. Id. ¶ 34. However, they are foreign to their chosen forum because they reside in 11 Clinton County and the action giving rise to this litigation did not occur in their chosen

forum, but in Clinton County. Accordingly, their choice of forum is accorded less

deference. Id. (citing Fennell, 2012 IL 113182, ¶ 18). Here, where the balance of the private

and public interest factors strongly favors dismissal, it is an abuse of discretion to allow

deference to the plaintiffs’ choice to outweigh all other considerations. See id.

¶ 21 CONCLUSION

¶ 22 For the foregoing reasons, we reverse the May 7, 2019, order of the circuit court of

St. Clair County and remand with directions that the circuit court grant Dr. Nichol’s motion

and transfer this cause to Clinton County.

¶ 23 Reversed and remanded with directions.