Rule 23 order filed NO. 5-09-0043 August 20, 2010; Motion to publish granted IN THE September 15, 2010, corrected October 8, 2010. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
CLAUDIOUS LAVERTY, Individually and as ) Appeal from the Special Administrator of the Estate of ) Circuit Court of Thomas R. Laverty, Deceased, ) Madison County. ) Plaintiff-Appellee, ) ) v. ) No. 07-L-1036 ) CSX TRANSPORTATION, INC., ) ) Defendant-Appellant, ) ) and ) ) A.W. CHESTERTON, INC., ABEX CORPORATION, ALCO ) LOCOMOTIVE, INC., AMERICAN STANDARD, INC., ) AMETEK, INC., AQUA-CHEM , INC., BALDWIN ) LOCOMOTIVE SECURITIES CORPORATION, BEAZER EAST, ) INC., BONDEX INTERNATIONAL, INC., BORG-WARNER ) CORPORATION, BUDD COMPANY, CATERPILLAR, INC., ) CERTAIN-TEED CORPORATION, CONTINENTAL TEVES, ) INC., DAIMLER CHRYSLER CORPORATION, ENPRO ) INDUSTRIES, INC., FLEXO SUPPLY COMPANY, FORD ) MOTOR COMPANY, FOSTER WHEELER ENERGY ) CORPORATION, GARLOCK, INC., GENERAL ELECTRIC ) COMPANY, GENERAL MOTORS CORPORATION, ) GEORGIA-PACIFIC CORPORATION, GOODRICH ) CORPORATION, GOODYEAR TIRE & RUBBER COMPANY, ) GRIFFIN WHEEL COMPANY, HONEYW ELL ) INTERNATIONAL, INC., INDUSTRIAL HOLDINGS ) CORPORATION, INGERSOLL-RAND COMPANY, J.P. ) BUSHNELL PACKING, JOHN CRANE, INC., METROPOLITAN ) LIFE INSURANCE COMPANY, MINNESOTA MINING & ) MANUFACTURING COMPANY, NEW YORK AIR BRAKE ) CORPORATION, OWENS-ILLINOIS, INC., PECORA ) CORPORATION, RAILROAD FRICTION PRODUCTS ) CORPORATION, RAPID-AMERICAN CORPORATION, ) RILEY STOKER CORPORATION, ROCKW ELL ) AUTOMATION, INC., RPM, INC., SPRINKMANN SONS ) CORPORATION OF ILLINOIS, SPRINKM ANN SONS ) CORPORATION, T.H. AGRICULTURE & NUTRITION, L.L.C., )
1 UNION CARBIDE CORPORATION, VIACOM, INC., YOUNG ) GROUP LTD., and YOUNG INSULATIONAL GROUP OF ) ST. LOUIS, INC., ) Honorable ) Daniel J. Stack, Defendants. ) Judge, presiding. ________________________________________________________________________
JUSTICE W EXSTTEN delivered the opinion of the court:
The plaintiff, Claudious Laverty, individually and as the administrator of the estate
of her deceased husband, Thomas R. Laverty, filed a complaint in the circuit court of
Madison County against CSX Transportation, Inc. (CSX Transportation), and other
defendants, for willful and wanton conduct and negligence pursuant to the Federal
Employers' Liability Act (FELA) (45 U.S.C. §51 et seq. (2000)). CSX Transportation
appeals the circuit court's order denying its motion to dismiss on the grounds of forum non
conveniens. We reverse and remand with directions.
FACTS
In counts I, II, and VIII of her complaint, filed on December 4, 2007, the plaintiff
requested that a judgment be entered against CSX Transportation. The plaintiff alleged that,
during the course of Thomas's employment with CSX Transportation, he was exposed to and
inhaled, ingested, and absorbed asbestos fibers, causing his death from mesothelioma in
November 2007.
The plaintiff is a resident of Texas. Thomas also resided in Texas when he died and
had previously lived in Michigan and Ohio. Neither the plaintiff nor Thomas ever resided
in Illinois. Thomas was employed from 1940 through 1942 and from 1945 through 1979 as
a railway fireman and en gineer. In 1940, Thomas began working for Pere Marquette
Railroad in Michigan and was so employed in 1947, when the Chesapeake & Ohio Railway
purchased the Pere M arquette Railroad. The Chesapeake & Ohio Railway operated from
1869 until 1980, at which time it merged with Seaboard Coast Line Industries to become
CSX Transportation.
2 The record reveals that Thomas's surviving family members, who witnessed his
suffering and damages, reside in Texas and that approximately 20 of Thomas's treating
physicians, who treated him after he retired from the railroad and developed mesothelioma,
are located in Texas. It also reveals that Thomas worked in Ohio and Michigan, that his
railroad work was concentrated in and around Saginaw, Michigan, and that, during his
railroad career, he received medical care from Dr. H.E. Mayne and Dr. W illiam Underhill
in Michigan. He was never treated by a doctor in Illinois.
On February 27, 2008, CSX Transportation filed a motion to dismiss counts I, II, and
VIII of the plaintiff's complaint on the basis of forum non conveniens. In its motion, CSX
Transportation argued that Thomas worked for the Pere Marquette Railroad and the
Chesapeake & Ohio Railway from Saginaw, Michigan, and not from any location in Illinois.
CSX Transportation argued that neither the Pere Marquette Railroad nor the Chesapeake &
Ohio Railway operated tracks in Illinois but had only limited trackage rights running to
Chicago, Illinois, from Michigan or Indiana. CSX Transportation argued that no witnesses
and no treating physicians were located in Illinois.
CSX Transportation also argued that Thomas's alleged exposure as a railroad
employee would have occurred primarily in Michigan, that Thomas received medical care
in Michigan, and that the manager of field investigations, Raymond Sheahan III, was also
located in Michigan. CSX Transportation argued that it would be inconvenient for it to
defend the lawsuit in Madison County, Illinois, because the investigation of the plaintiff's
claims would occur in Michigan, the primary location of the alleged exposure, and because
all the identified medical-provider and coworker witnesses were located outside of Illinois.
On January 8, 2009, at the hearing on CSX Transportation's motion to dismiss on the
basis of interstate forum non conveniens, the plaintiff conceded that no witnesses were
located in Illinois and that Thomas had not been exposed to asbestos in Illinois. As of the
3 date of the hearing, 35 of the 38 codefendants who had entered their appearances in the case
had filed forum non conveniens motions. On January 9, 2009, the circuit court denied CSX
Transportation's motion to dismiss. On March 11, 2009, this court granted CSX
Transportation's timely petition for leave to appeal the circuit court's order.
ANALYSIS
CSX Transportation argues that the circuit court improperly denied its motions to
dismiss based on forum non conveniens. The defendant argues that the state of Illinois has
no connection to this litigation and that the facts warrant a dismissal of this case for refiling
in Michigan. We agree.
The Illinois venue statute provides that an "action must be commenced (1) in the
county of residence of any defendant who is joined in good faith and with probable cause
for the purpose of obtaining a judgment against him or her and not solely for the purpose of
fixing venue in that county[] or (2) in the county in which the transaction or some part
thereof occurred out of which the cause of action arose." 735 ILCS 5/2-101 (W est 2006).
Where, as here, more than one potential forum exists, the court may invoke the doctrine of
forum non conveniens to determine the most appropriate forum. Dawdy v. Union Pacific
R.R. Co., 207 Ill. 2d 167, 171 (2003).
"Forum non conveniens is an equitable doctrine 'founded in considerations of
fundamental fairness and sensible and effective judicial administration' [citation] [and]
allows a [circuit] court to decline jurisdiction in the exceptional case where trial in another
forum with proper jurisdiction and venue 'would better serve the ends of justice' [citation]."
First American Bank v. Guerine, 198 Ill. 2d 511, 515 (2002). The trial court is vested with
considerable discretion in determining whether to grant a forum non conveniens motion.
Peile v. Skelgas, Inc., 163 Ill. 2d 323, 336 (1994). We will reverse the trial court's decision
only if the court abused its discretion, i.e., if it acted arbitrarily, failed to employ
4 conscientious judgment, or ignored recognized principles of law. Peile, 163 Ill. 2d at 336;
Roberts v. Illinois Power Co., 311 Ill. App. 3d 458, 461 (2000).
The rationale underlying the doctrine of forum non conveniens "is as valid on an
intrastate [basis] as it is on an interstate basis." Torres v. Walsh, 98 Ill. 2d 338, 350 (1983).
"A plaintiff's 'home forum' for purposes of an interstate forum non conveniens motion is the
plaintiff's home State." Kwasniewski v. Schaid, 153 Ill. 2d 550, 553 (1992). Thus, in
addressing the issue of interstate forum non conveniens, we focus our inquiry on whether
Illinois is the appropriate state to litigate the controversy. Kwasniewski, 153 Ill. 2d at 553;
McGinty v. Norfolk Southern Ry Co., 362 Ill. App. 3d 934, 937 (2005).
In resolving forum non conveniens questions, the trial court must balance private-
interest factors affecting the convenience of the parties and public-interest factors affecting
the administration of the court. Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 223-24
(1987). Private-interest factors include the convenience of the parties, the relative ease of
access to sources of testimonial, documentary, and real evidence, and all other practical
considerations that make the trial of a case easy, expeditious, and inexpensive–for example,
the availability of compulsory process to secure the attendance of unwilling witnesses, the
cost to obtain the attendance of willing witnesses, and the ability to view the premises, if
appropriate. Guerine, 198 Ill. 2d at 516; Peile, 163 Ill. 2d at 337. Public-interest factors
include having localized controversies decided in the local forum, administrative concerns,
including the congestion of court dockets, and the imposition of jury duty upon residents of
a county or state with little connection to the litigation. Peile, 163 Ill. 2d at 337. We
recognize that convenience, the touchstone of the forum non conveniens doctrine, has a
different meaning today because "we are connected by interstate highways, bustling airways,
telecommunications, and the world wide web." Guerine, 198 Ill. 2d at 525.
"The doctrine of forum non conveniens is a flexible one[,] which requires evaluation
5 of the total circumstances rather than concentration on any single factor." Peile, 163 Ill. 2d
at 336-37. To warrant disturbing the plaintiff's choice, the burden is on the defendant to
show that relevant private- and public-interest factors strongly favor the defendant's choice
of forum. Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 444 (2006).
We give deference to the plaintiff's choice of forum because "[a] plaintiff's right to
select the forum is substantial." Dawdy, 207 Ill. 2d at 173. The plaintiff's choice of forum,
however, is not entitled to the same weight in all cases. Dawdy, 207 Ill. 2d at 173. When
the plaintiff chooses his home forum or the site of the accident or injury, it is reasonable to
assume that this choice is convenient because the litigation has the aspect of being decided
at home. Dawdy, 207 Ill. 2d at 173. A nonresident plaintiff's choice deserves less deference.
Dawdy, 207 Ill. 2d at 174.
In the present case, the plaintiff is a resident of Texas, and Thomas had been a
resident of Texas, Ohio, and Michigan. Neither the plaintiff nor the decedent had ever been
a resident of Illinois, and as conceded by the plaintiff, Thomas had not been exposed to
asbestos in Illinois. Accordingly, the plaintiff's choice of forum deserves less deference.
In addressing the private-interest factors affecting the convenience of the parties, we
note again that the site of exposure was not in Illinois. The plaintiff conceded that no
witness is located in Illinois. The plaintiff also concedes that Thomas was exposed to
asbestos in Saginaw, Michigan, and that coworker and medical-provider witnesses are
located in Michigan. Specifically, the record reveals that Thomas received medical care
during his railroad career from Dr. H.E. Mayne and Dr. William Underhill in Michigan and
that CSX Transportation identified Raymond Sheahan III, who is also located in Michigan,
as an employee witness with knowledge of the history and territory of the Pere Marquette
Railroad and the Chesapeake & Ohio Railway. Leo Norman, Thomas's coworker, also
resides in Michigan. The record reveals that additional medical providers are located in
6 Texas. As noted by CSX Transportation, these out-of-state witnesses are not subject to the
subpoena power of the Illinois courts.
The possibility of having the jury view the accident site is an important consideration
in ruling on a forum non conveniens motion. Dawdy, 207 Ill. 2d at 179. "This convenience
factor is not concerned with the necessity of viewing the site of the injury[] but rather is
concerned with the possibility of viewing the site, if appropriate." (Emphasis in original.)
Dawdy, 207 Ill. 2d at 178. Here, if the circuit court determines that viewing the accident site
is appropriate, the exposure did not occur in Illinois. It would be irrational for a jury
composed of Madison County, Illinois, residents to travel outside of Illinois to view the
injury site. See Dawdy, 207 Ill. 2d at 179. Such a viewing arguably could be accomplished
more expeditiously if the case were tried in Saginaw, Michigan. See Dawdy, 207 Ill. 2d at
179.
The plaintiff argues that CSX Transportation is not inconvenienced because it
maintains offices and trackage rights in Illinois. However, any connection between this
litigation and Illinois that is established by CSX Transportation traveling through and
conducting business in Illinois, although sufficient to fix venue, is not a significant factor for
forum non conveniens purposes. See Dawdy, 207 Ill. 2d at 182; Botello v. Illinois Central
R.R. Co., 348 Ill. App. 3d 445, 459 (2004) (a forum non conveniens motion causes a court
to look beyond the criterion of venue).
The plaintiff also argues that because only one of the defendants has sought a transfer
to Michigan, the circuit court properly refused to grant CSX Transportation's motion to
dismiss. However, the record clearly reveals that, at the time of the hearing on CSX
Transportation's motion to dismiss, almost all the defendants that had entered appearances
at that time filed motions to dismiss arguing, inter alia, that the cause should be dismissed
or transferred pursuant to the doctrine of forum non conveniens. W e reject the plaintiff's
7 argument.
At the hearing on the motion to dismiss, the plaintiff conceded that no witnesses were
located in Illinois. On appeal, the plaintiff suggests that she might have later identified an
expert witness who is located in Illinois. Upon appellate review, the appellant may only
refer to the record as it existed at the time the trial court ruled. See Rayner Covering
Systems, Inc. v. Danvers Farmers Elevator Co., 226 Ill. App. 3d 507, 509-10 (1992). Even
so, a plan to employ an expert witness located in a desired forum should be given little, if
any, consideration in a forum non conveniens analysis, since the plaintiff would thus be able
to circumvent the doctrine to select an inconvenient forum. See Bland, 116 Ill. 2d at 227;
DeVries v. Bankers Life Co., 128 Ill. App. 3d 647, 652-53 (1984).
Because the plaintiff resides outside of Illinois, the decedent resided outside of
Illinois, the alleged exposure occurred outside of Illinois, the identified witnesses, including
the treating physicians, are outside of Illinois and are not subject to Illinois subpoenas, and
a jury view of the injury site would occur outside of Illinois, the private-interest factors
weigh heavily in favor of a dismissal.
Again, "[t]he relevant public[-]interest factors include: the administrative difficulties
caused when litigation is handled in congested venues instead of being handled at its origin;
the unfairness of imposing jury duty upon residents of a county [or state] with no connection
to the litigation; and the interest in having local controversies decided locally." Dawdy, 207
Ill. 2d at 173.
The Annual Report of the Administrative Office of the Illinois Courts (Annual Report)
is a proper reference in assessing court congestion (see Dawdy, 207 Ill. 2d at 181). The
Annual Report reveals that the total civil cases pending in Madison County, Illinois, in 2007
equaled 15,709, including 2,194 jury actions seeking damages in excess of $50,000. In
contrast, the statistics for the Tenth Judicial Circuit Court of Saginaw County, M ichigan,
8 indicate that the total civil cases pending in Saginaw County, Michigan, in 2007 equaled 780.
This case involves asbestos product liability, which, by its nature, is not a localized
controversy. The exposure did not occur in Illinois, and the plaintiff and Thomas were at no
time residents of Illinois. Accordingly, the residents of Illinois should not be burdened with
jury duty given the fact that the action did not arise in, and has no relation to, their state. See
Dawdy, 207 Ill. 2d at 183.
The public interest requires that causes that are without significant factual connections
to particular forums be litigated in convenient forums to ensure that jurisdictions are not
unfairly burdened with litigation in which they have no interest or connection. See Botello,
348 Ill. App. 3d at 458. Here, Illinois has little or no interest in trying the action of a
nonresident whose claim arose outside of Illinois. See Dawdy, 207 Ill. 2d at 183. The courts
have a responsibility to protect finite judicial resources and the efficient functioning of their
judicial systems so that they are not impeded by nonresident litigation to the extent that their
availability to local citizens is diminished. See Botello, 348 Ill. App. 3d at 459 (relying on
Espinosa v. Norfolk & Western Ry. Co., 86 Ill. 2d 111, 121 (1981)). The public-interest
factors strongly favor a dismissal.
W e find this case similar to McGinty, 362 Ill. App. 3d at 939-40. In McGinty, the
railway company appealed to this court from the denial of its motion to dismiss on the
grounds of interstate forum non conveniens. The plaintiff alleged repetitive-trauma injuries
to his body and filed his claim pursuant to the FELA (45 U.S.C. §51 et seq. (2000)). The
plaintiff in McGinty at no time lived in M adison County or anywhere else in Illinois.
Although the plaintiff in McGinty worked at least some period of time in Madison County,
Illinois, and argued, therefore, that some part of his repetitive injury occurred in Madison
County, Illinois, this court rejected the plaintiff's argument, affording him only slight
deference to his choice of forum on the basis of the injury situs. McGinty, 362 Ill. App. 3d
9 at 939. This court held that because neither party had any witnesses or sources of proof
located in Madison County, Illinois, there was no ease of access to witnesses and the cost
to bring them to a trial in Madison County, Illinois, would be quite high. McGinty, 362 Ill.
App. 3d at 939. This court also held that merely occasionally working in Madison County,
Illinois, does not vest the citizens of Madison County, Illinois, with more than a modest
interest in the controversy's outcome. McGinty, 362 Ill. App. 3d at 940. This court
concluded that the circuit court abused its discretion in denying the forum non conveniens
motion to dismiss and reversed the decision in favor of a dismissal and a trial in Jackson
County, Missouri. McGinty, 362 Ill. App. 3d at 940.
Like McGinty, a dismissal here is appropriate. Although venue is proper in Madison
County, Illinois, because CSX Transportation conducts business in Madison County, Illinois,
the plaintiff conceded at the hearing that no witnesses were located in Illinois; thus, the ease
of access to witnesses and the cost to bring them to a trial in Illinois would be quite high.
See McGinty, 362 Ill. App. 3d at 939. Like McGinty, neither the plaintiff nor the decedent
was ever a resident of Illinois. Indeed, the circumstances supporting a dismissal in the
present case are even stronger than in McGinty because the plaintiff here has conceded that
no part of Thomas's injury occurred in Illinois.
Accordingly, applying the forum non conveniens factors to this case, we find that the
circuit court abused its discretion in denying CSX Transportation's motion to dismiss this
cause on the basis of forum non conveniens. W e cannot ignore the supreme court's
comments in Espinosa:
"Given the circumstances of this case involving a plaintiff residing and an
accident occurring hundreds of miles from Madison County, witnesses, none of whom
are subject to Illinois subpoenas and all but one of whom also live hundreds of miles
from the trial site, the availability of the Michigan courts and process, the additional
10 expense to defendant[,] and the added burden upon Madison County courts and
personnel, we have no doubt that denial of a motion to dismiss upon forum non
conveniens grounds would constitute an abuse of discretion." Espinosa, 86 Ill. 2d at
124-25.
Illinois has no connection to this case–the parties are not located here, the alleged
exposure did not occur here, and the witnesses are not located here. The record strongly
indicates that a trial in Michigan would better serve the convenience of the parties and the
ends of justice. See Dawdy, 207 Ill. 2d at 177. W e reverse the circuit court's order and
remand the cause with directions to dismiss the action upon the conditions enumerated in
Supreme Court Rule 187(c)(2) (134 Ill. 2d R. 187(c)(2) (a dismissal of an action under the
doctrine of forum non conveniens shall be upon the conditions that the defendant accept
service of process from the other forum and waive a statute-of-limitations defense)).
CONCLUSION
For the foregoing reasons, we reverse the judgment of the circuit court of Madison
County denying CSX Transportation's motion to dismiss on the grounds of forum non
conveniens, and we remand the cause to the circuit court with directions to the circuit court
to dismiss counts I, II, and VIII of the plaintiff's complaint.
Reversed; cause remanded with directions.
WELCH, J., concurs.
PRESIDING JUSTICE GOLDENHERSH, dissenting:
I respectfully dissent. As noted by the majority in its reference to Langenhorst v.
Norfolk Southern Ry. Co., 219 Ill. 2d 430, 444 (2006), "To warrant disturbing the plaintiff's
11 choice, the burden is on the defendant to show that relevant private- and public-interest
factors strongly favor the defendant's choice of forum" (slip op. at 6), and resolving that
question "requires evaluation of the total circumstances rather than concentration on any
single factor" (emphasis added) (Peile v. Skelgas, Inc., 163 Ill. 2d 323, 336-37 (1994)). The
approach of defendant, however, adopted as the approach by the majority in its disposition,
is a standard of showing substantial connection with Illinois and basing substantial reliance
on this court's interpretation of forum non conveniens in McGinty. McGinty, however, does
not choose an appropriate focus, as indicated by the Illinois Supreme Court and as pointed
out in Justice Donovan's persuasive dissent.
The burden of a movant in a forum non conveniens motion is to meet the burden of
showing that the alternative forum urged by the movant is substantially more convenient than
that chosen by the plaintiff. Whether that plaintiff is choosing his or her home forum or an
alternative forum, which choice is still given weight (admittedly less than if choosing one's
home forum), it does not shift the burden that the movant must meet. The record in this case
indicates that defendant CSX has failed to show that its choice of forum is substantially more
convenient. Defendant CSX also attempts to mold the issue before this court in terms of
whether forum non conveniens law applies to asbestos litigation in Madison County. This
is setting up a straw man, because forum non conveniens jurisprudence, as with all other
pronouncements of the supreme court, applies to all counties of the state of Illinois and all
matters in litigation in its particular subject area. The real question in this case is whether
defendant, the movant, has shown that the alternative forum is more convenient than that
chosen by plaintiff, and the record indicates that defendant has not met that burden.
Defendant also poses the jurisprudence on forum non conveniens as merely an affirmation
of Espinosa v. Norfolk & Western Ry. Co., 86 Ill. 2d 111 (1981). The subsequent supreme
court cases of Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167 (2003), First American Bank
12 v. Guerine, 198 Ill. 2d 511 (2002), and Langenhorst are substantially more than merely
affirmations of Espinosa and are not supportive of defendant's position.
Defendant CSX failed to meet its burden of proof as a movant in the circuit court of
Madison County and has failed to argue persuasively its view of applicable forum non
conveniens jurisprudence in Illinois. Accordingly, I would affirm the order of the circuit
court of Madison County.
Since my colleagues have decided to reverse, I respectfully dissent.
13 NO. 5-09-0043 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ___________________________________________________________________________________ CLAUDIOUS LAVERTY, Individually and as ) Appeal from the Special Administrator of the Estate of ) Circuit Court of Thomas R. Laverty, Deceased, ) Madison County. ) Plaintiff-Appellee, ) ) v. ) No. 07-L-1036 ) CSX TRANSPORTATION, INC., ) ) Defendant-Appellant, ) ) and ) ) A.W. CHESTERTON, INC., ABEX CORPORATION, ALCO ) LOCOMOTIVE, INC., AMERICAN STANDARD, INC., ) AMETEK, INC., AQUA-CHEM , INC., BALDWIN ) LOCOMOTIVE SECURITIES CORPORATION, BEAZER EAST, ) INC., BONDEX INTERNATIONAL, INC., BORG-WARNER ) CORPORATION, BUDD COMPANY, CATERPILLAR, INC., ) CERTAIN-TEED CORPORATION, CONTINENTAL TEVES, ) INC., DAIMLER CHRYSLER CORPORATION, ENPRO ) INDUSTRIES, INC., FLEXO SUPPLY COMPANY, FORD ) MOTOR COMPANY, FOSTER WHEELER ENERGY ) CORPORATION, GARLOCK, INC., GENERAL ELECTRIC ) COMPANY, GENERAL MOTORS CORPORATION, ) GEORGIA-PACIFIC CORPORATION, GOODRICH ) CORPORATION, GOODYEAR TIRE & RUBBER COMPANY, ) GRIFFIN WHEEL COMPANY, HONEYW ELL ) INTERNATIONAL, INC., INDUSTRIAL HOLDINGS ) CORPORATION, INGERSOLL-RAND COMPANY, J.P. ) BUSHNELL PACKING, JOHN CRANE, INC., METROPOLITAN ) LIFE INSURANCE COMPANY, MINNESOTA MINING & ) MANUFACTURING COMPANY, NEW YORK AIR BRAKE ) CORPORATION, OWENS-ILLINOIS, INC., PECORA ) CORPORATION, RAILROAD FRICTION PRODUCTS ) CORPORATION, RAPID-AMERICAN CORPORATION, ) RILEY STOKER CORPORATION, ROCKW ELL ) AUTOMATION, INC., RPM, INC., SPRINKMANN SONS ) CORPORATION OF ILLINOIS, SPRINKM ANN SONS ) CORPORATION, T.H. AGRICULTURE & NUTRITION, L.L.C., ) UNION CARBIDE CORPORATION, VIACOM, INC., YOUNG ) GROUP LTD., and YOUNG INSULATIONAL GROUP OF ) ST. LOUIS, INC., ) Honorable ) Daniel J. Stack, Defendants. ) Judge, presiding. ___________________________________________________________________________________ Rule 23 Order Filed: August 20, 2010 Motion to Publish Granted: September 15, 2010 Opinion Filed: September 15, 2010 ___________________________________________________________________________________ ___________________________________________________________________________________ Justices: Honorable James M. Wexstten, J. Honorable Thomas M . Welch, J., Concurring Honorable Richard P. Goldenhersh, P.J., Dissenting ___________________________________________________________________________________ Attorneys Kurt E. Reitz, Erick E. VanDorn, Heath H. Hooks, Thompson Coburn, LLP, 525 West for Main Street, P.O. Box 750, Belleville, IL 62222-0750 Appellant ___________________________________________________________________________________ Attorneys Michael R. Bilbrey, Robert B. Ramsey, Law Offices of M ichael R. Bilbrey, P.C., for 8724 Pin Oak Road, Edwardsville, IL 62025 Appellee ___________________________________________________________________________________