Rule 23 order filed 2020 IL App (5th) 190225 April 27, 2020. Motion to publish granted NO. 5-19-0225 June 4, 2020. IN THE
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. NICOL, 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. Nicol, M.D., Defendant-Appellant). ) Judge, presiding. ______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court, with opinion. Justices Overstreet and Boie concurred in the judgment and opinion.
OPINION
¶1 The defendant, Richard E. Nicol, 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.
¶2 FACTS
¶3 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
1 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. Nicol, M.D., and Robert J.
Marshall, M.D. 1 The complaint alleges that St. Joseph’s and Infinity’s employees, Dr. Nicol 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.
¶4 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 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.
¶5 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
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 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, “[i]n 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.
¶6 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 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 Hund (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.
¶7 On October 12, 2018, St. Joseph’s filed a second supplement to its motion to transfer,
attaching information from the website for the ambulance service that transferred Michael to the
3 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 No. 5-18-0501.
¶8 On March 4, 2019, having recently been served with the complaint, Dr. Nicol filed his own
motion to transfer the case to Clinton County based on forum non conveniens. Dr. Nicol attached
his affidavit to the motion. In his affidavit, Dr. Nicol attested that his care and treatment of Michael
took place at St. Joseph’s in Clinton County, and none of Michael’s treatment occurred in St. Clair
County. Further, Dr. Nicol averred that he resides in Madison County and worked in Clinton
County at the time of his treatment of Michael. Dr. Nicol’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. Nicol 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.
¶9 On March 18, 2019, St. Joseph’s and Infinity filed a motion to stay their appeal pending
the circuit court’s ruling on Dr. Nicol’s motion to transfer. On April 3, 2019, this court entered an
order staying the appeal in No. 5-18-0501. On May 7, 2019, the circuit court entered an order
denying Dr. Nicol’s motion to transfer. On June 5, 2019, Dr. Nicol filed a petition for leave to
appeal, which this court granted on August 21, 2019.
¶ 10 ANALYSIS
¶ 11 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):
4 “ ‘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 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
5 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.
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
6 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.
¶ 12 Here, as in Shaw, the circuit court abused its discretion by denying Dr. Nicol’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.
¶ 13 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
7 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.
¶ 14 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 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.
¶ 15 “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 ***
8 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.
¶ 16 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 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.
¶ 17 Another public interest factor is the local interest in local controversies. See id. ¶ 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
9 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).
¶ 18 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.
¶ 19 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 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 113812, ¶ 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.
¶ 20 CONCLUSION
¶ 21 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. Nicol’s motion and transfer this
cause to Clinton County.
¶ 22 Reversed and remanded with directions.
10 2020 IL App (5th) 190225 NO. 5-19-0225 IN THE 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. NICOL, 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. Nicol, M.D., Defendant-Appellant). ) Judge, presiding. ______________________________________________________________________________
Rule 23 Order Filed: April 27, 2020 Motion to Publish Granted: June 4, 2020 Opinion Filed: June 4, 2020 ______________________________________________________________________________
Justices: Honorable James R. Moore, J.
Honorable David K. Overstreet, J., and Honorable Mark M. Boie, J. Concur ______________________________________________________________________________
Attorneys Craig L. Unrath, Heyl, Royster, Voelker & Allen, P.C., 300 Hamilton for Blvd., P.O. Box 6199, Peoria, IL 61601-6199; Richard K. Hunsaker, Appellant Martha E. Ravenhill, Heyl, Royster, Voelker, & Allen, P.C., 701 Market Street, Suite 1505, St. Louis, MO 63101 (for Richard E. Nicol, M.D.)
Michael J. Nester, Chi-yong Throckmartin, Jason M. Gourley, Donovan Rose Nester, P.C., 15 North 1st Street, Suite A, Belleville, IL 62220 (for St. Joseph’s Hospital, Breese, of the Hospital Sisters of the Third Order of St. Francis)
William P. Hardy, Hinshaw & Culbertson, LLP, 400 South Ninth Street, Suite 200, Springfield, IL 62701-1908; Madelyn J. Lamb, Hinshaw & Culbertson, LLP, 521 W. Main Street, Suite 300, Belleville, IL 62222 (for Infinity-Meds, LLP) ______________________________________________________________________________
Attorneys Thomas Q. Keefe, Jr., Kelly T. Crosby, Keefe, Keefe & Unsell, P.C., for 6 Executive Woods Court, Belleville, IL 62226 Appellee ______________________________________________________________________________