Milton v. Boeing Co.

2023 IL App (1st) 220647, 241 N.E.3d 958

• Court: Appellate Court of Illinois
• Decided: February 3, 2023
• Docket: 1-22-0647
• Status: Published

Opinion

2023 IL App (1st) 220647 No. 1-22-0647 Opinion filed February 3, 2023

SIXTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

CYNTHIA MILTON, DEMITRIOS ) Appeal from the Circuit Court MAVROGIORGOS-SPENCER, and ) of Cook County. AMANDA CALVERT, ) ) Plaintiffs-Appellees, ) ) v. ) No. 2020 L 001093 ) THE BOEING COMPANY, ) The Honorable ) Daniel A. Trevino, Defendant-Appellant. ) Judge, presiding.

JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion. Justice C.A. Walker concurred in the judgment and opinion. Justice Tailor specially concurred, with opinion.

OPINION

¶1 This is a permissive interlocutory appeal with only one issue: whether the trial court

abused its discretion when it denied defendant the Boeing Company’s (Boeing)

forum non conveniens motion. As Boeing acknowledges, it faces a high burden on this appeal.

To obtain a reversal, it must show that no rational person could take the view taken by the trial

court. Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006). For the following

reasons, we cannot make such a finding and affirm. No. 1-22-0647

¶2 BACKGROUND

¶3 Almost three years ago, on January 28, 2020, plaintiffs filed a complaint alleging that

“the cabin air on Boeing’s commercial aircraft (with the exception of the Boeing 787

Dreamliner) can become contaminated with toxins and cause acute and chronic injuries to

flight crew and passengers.” The complaint alleged that “Boeing airplanes, other than the 787

Dreamliner, use a ‘bleed air’ system where outside air is pulled into—and then ‘bled’ off—the

airplane’s engines before entering the cabin.” The alleged result of this system is that the “air

can become contaminated by heated jet engine oil, hydraulic fluid and other contaminants or

toxic by-products of such chemicals.” The complaint alleged that Boeing has been aware of

this problem “[f]or decades.”

¶4 With respect to these three plaintiffs, the complaint alleged that plaintiffs Cynthia

Milton, Demetrios Mavrogiorgos-Spencer and Amanda Calvert were working as flight

attendants on a Boeing model 767-300 aircraft, operated by Delta Airlines, on flight 87 from

Frankfort, Germany to Detroit, Michigan. The plane was manufactured and designed by

Boeing. During the flight, a contaminated air event occurred, causing a number of the crew

and passengers to become ill. The captain diverted the flight and landed the plane in Iqaluit,

Canada. Emergency personnel evaluated and treated a number of people and took plaintiff

Milton off the plane. As the flight continued to Detroit, several flight attendants continued to

experience acute symptoms. The three plaintiffs alleged that they suffered, and continue to

suffer, from short and long-term health effects, including nausea, confusion, pain, fatigue and

other symptoms.

¶5 All three plaintiffs are U.S. citizens and reside in the United States. Milton resides in

Kihei, Hawaii; Mavrogiorgos-Spencer resides in San Diego, California; and Calvert resides in

2 No. 1-22-0647

Lewisville, Texas. The 2020 complaint alleged that Boeing is a Delaware corporation with its

principal place of business and corporate headquarters in Chicago. 1 The complaint alleged

counts for, among other things, (1) strict liability and design defect, (2) strict liability and

defect in warnings and instructions, (3) negligence, and (4) fraud.

¶6 As detailed below, this case was vigorously litigated by all parties for a year and a half

before Boeing filed its forum non conveniens motion. First, on February 27, 2020, the parties

filed an agreed motion to consolidate for discovery the instant case (the Milton case) with

another pending case filed by Linda Verboom Curry and Allen Cheung against Boeing (the

Curry case). Like the Milton case, the Curry case was filed in January 2020 and alleged that

the plaintiffs, who were also flight attendants, suffered a contaminated air event aboard a

Boeing aircraft. The Curry complaint, which is part of the appellate record before us, alleged

that their flight, operated by United Airlines, departed on January 19, 2018, from Amsterdam,

Holland, heading to Newark, New Jersey. A number of flight crew and passengers became ill,

and several flight attendants needed to be put on oxygen, including the two Curry plaintiffs.

As a result, the captain returned the plane to Amsterdam, where a number of the flight crew

and passengers received medical evaluation and treatment. In the Curry case, as in the Milton

case, the flight-attendant plaintiffs were not residents of Illinois.

¶7 In support of the agreed motion to consolidate for discovery, the collective parties

argued to the trial court that, since the discovery was overlapping, consolidation of the two

actions, “pending in the same court, is appropriate in order to aid convenience and avoid

1 In a footnote in its appellate brief filed August 1, 2022, Boeing stated: “Boeing recently announced the relocation of its corporate headquarters to Virginian.” Responding, also in a footnote, plaintiffs stated in their appellate brief: “Boeing claims to have moved its headquarters to Arlington, Virginia. Boeing raised no argument below that Virginia is a more convenient forum ***. Nor does Boeing appear to make any such argument on appeal.” 3 No. 1-22-0647

expenditure of unnecessary judicial and party resources.” The motion was signed by the

attorneys for both Boeing and the plaintiffs in the instant case. On March 13, 2020, the trial

court granted their joint motion to consolidate for discovery purposes only.

¶8 On May 25, 2020, Boeing filed motions in federal district court to remove both the

instant case and the Curry case to federal court. 2 After filing in federal district court, Boeing

filed a motion to dismiss plaintiffs’ fraud and res ipsa loquitor claims in the instant case.

Plaintiffs in the instant case filed a motion to remand to state court, arguing that Boeing’s

removal was untimely, that Boeing waived its right to remove, and that the case was not

governed by federal law.

¶9 On August 12, 2020, the federal district court for the Northern District of Illinois filed

a 10-page written opinion in the instant case, concluding that Boeing’s motion was untimely.

The district court also found that it lacked jurisdiction over Boeing’s motion to dismiss, “as it

should be heard in the Circuit Court of Cook County.”

¶ 10 The district court noted that the party seeking removal bears the burden of establishing

the propriety of the removal and any doubts should be resolved in favor of the plaintiffs’ choice

of state court. The district court observed: “Boeing waited four months, filing appearances in

state court, consolidating the instant case with another, and filing an extension to answer before

removing to this Court based off information that was solely in their possession.” Denying the

motion, the district court found that Boeing’s “removal was purely gamesmanship.”

¶ 11 Following the remand to the circuit court of Cook County, Boeing filed a motion for

entry of its proposed case management order, with a trial-ready date of January 27, 2023.

2 Regarding the Curry case, plaintiffs noted in their response in opposition to Boeing’s forum non conveniens motion in the circuit court that the Curry case was not remanded by the federal court to the state court. 4 No. 1-22-0647

Boeing’s proposed order called for completion of written discovery by October 15, 2021,

depositions by February 11, 2022, and expert discovery by September 9, 2022. Boeing’s order

included April 30, 2021, as a deadline for its filing of a responsive pleading that, Boeing

explained, was “meant to provide time for Plaintiffs to file an amended Complaint.” For their

part, plaintiffs proposed a much shorter schedule, asserting that Boeing needed to respond to

their existing complaint, as filed. Under plaintiffs’ schedule, the case would have been trial-

ready by May 15, 2022. Plaintiffs observed that this was not “the parties’ first rodeo,” that

Boeing and plaintiffs’ counsel had litigated contaminated cabin air cases for years, and that the

relevant information did not have to be created but merely updated and supplemented.

Plaintiffs argued that “Boeing’s desire to stretch this case into 2023 is unwarranted and

unnecessary.”

¶ 12 On November 10, 2020, the trial court entered a case management order with a

contemplated trial-ready date of August 17, 2022, three months after plaintiffs proposed date

and five months before Boeing’s proposed date. Written discovery was to be completed by

July 30, 2021. On December 14, 2020, Boeing sought and received an agreed protective order

to protect its proprietary information and trade secrets, as well as plaintiffs’ personal

information.

¶ 13 On February 16, 2021, Boeing moved to dismiss two counts in plaintiffs’ complaint

which alleged fraud and res ipsa loquitur. Before Boeing’s partial dismissal motion was

decided, the plaintiff in Benincore v. Boeing Co., No. 2020-L-012676 (Cir. Ct. Cook County),

moved on March 31 to consolidate his case with the instant case. Like plaintiffs in the case at

bar, the plaintiff in Benincore was bringing a contaminated cabin air case regarding a Boeing

5 No. 1-22-0647

aircraft. Unlike the instant case, the Benincore complaint also named Honeywell International,

Inc. (Honeywell), because Honeywell had designed parts for the Boeing aircraft.

¶ 14 On April 19, 2021, the trial court denied Boeing’s motion in the instant case to dismiss

two counts of the complaint. The court also ordered Boeing to answer or otherwise plead by

May 5, 2021.

¶ 15 On April 28, 2021, plaintiffs in the instant case objected to consolidation of their case

with the Benincore case. Their objection began: “Justice delayed is justice denied.” Boeing,

likewise, objected to consolidation. On May 5, 2021, 3 the trial court ordered the Benincore

case consolidated with the instant case, since both cases “deal with the ‘Bleed Air System’ on

Boeing commercial aircraft and alleged injuries to flight crew as the result of exposure to

contaminated air.” The trial court observed that the instant case was “previously consolidated

with Verboom v. Boeing, 20 L 695, which was removed to Federal Court.” “Verboom” is

actually the Curry case which we discussed above. (The lead plaintiff’s last name is Curry,

with a middle name of Verboom.) However, on May 20, 2021, the trial court reconsidered and

denied consolidation with the Benincore case. Although the trial court denied consolidation, it

did transfer the Benincore case to the same circuit judge who was handling the instant case,

since the two cases were “related.” Also on May 20, 2021, the trial court granted Benincore

and Honeywell’s joint motion, filed May 4, to dismiss Honeywell due to a settlement between

them, which left Boeing as the sole defendant in the Benincore case (similar to the instant

case).

3 A notation at the top of the document states that it was filed on May 5, 2021, while the document is stamped at the bottom “Mar 10 2021.” However, the date is not relevant to our issues and is provided only to establish a relative timeline. 6 No. 1-22-0647

¶ 16 After a year and a half of vigorous litigation in Illinois, Boeing filed its

forum non conveniens motion on May 17, 2021, arguing, among other things, that the State of

Washington was an “easier” forum for it to litigate this case in, that Illinois was inconvenient

for its employee-witnesses, and that only a Washington court could compel its retired

employees to appear. On June 17, 2021, plaintiffs responded, noting, among other things:

“There is no dispute that Boeing’s headquarters is in Chicago, Illinois.” Plaintiffs observed

that “three other similar toxic cabin air lawsuits—Woods v. Boeing, Weiland v. Boeing, and

Curry v. Boeing, all of which involved exclusively out-of-state plaintiffs—were or are being

litigated and prepared for trial in Illinois, without any claim by Boeing” that Chicago is

inconvenient. Plaintiffs alleged that discovery in the instant case was “already well underway.”

In its reply filed July 9, 2021, Boeing argued, among other things, that “Plaintiffs’ accusations

of ‘gamesmanship’ and ‘delay’ are irrelevant.” Regarding its headquarters, Boeing

acknowledged that it had “moved its corporate headquarters to Chicago in 2001.”

¶ 17 On July 9, 2021, plaintiffs moved to compel Boeing to produce documents requested a

year earlier. Plaintiffs claimed that Boeing had responded with objections and responses, but

no documents. On July 16, 2021, Boeing moved to extend the case management schedule. On

July 21, 2021, the trial court entered a case management order with a contemplated trial

readiness date of December 14, 2022, or four months after the last contemplated trial ready

date. On September 22, 2021, the trial court entered an agreed order denying plaintiffs’ motion

to compel without prejudice.

¶ 18 After almost a year of briefing, including multiple motions to supplement with

additional authority and replies to those motions, the trial court issued a written order on April

7, 2022, which denied Boeing’s forum non conveniens motion “for the reasons stated on the

7 No. 1-22-0647

record of April 5, 2022.” At the hearing, Boeing did not argue that its corporate headquarters

had moved from Chicago; but rather that the location of a corporate headquarters was not a

significant factor. Boeing argued, among other things, that “the discovery that [has] already

been conducted in the case can travel with the case” if transferred. Boeing noted that, in another

contaminated cabin air case against Boeing pending in Illinois circuit court, “a significant

portion of the testimony will be presented through video testimony because the witnesses aren’t

here.” Boeing argued that there was no connection between this litigation and the State of

Illinois, in that there were no documents, witnesses or relevant events that occurred here.

¶ 19 In response, plaintiffs argued:

“Trial starts in ten days [in the other pending case] in front of Judge Senechalle.

Every witness from Boeing is already done, completed their evidence depositions by

video, and that’s it. Those depositions of all those witnesses are going to be used in this

case and every other bleed air case against Boeing by stipulation, and Boeing has said

they will not produce these witnesses again in any other case. And that’s by

agreement.”

Plaintiffs explained that “we have an agreement that everything,” other than five witnesses,

was to be “all done, all by video evidence depositions.”

¶ 20 Plaintiffs offered to stipulate that they would not seek live testimony, other than “the

five people who are going to testify who work for Boeing” and who are going to testify “in the

case that’s going to be pending here in ten days.” Of those five people, plaintiffs argued that

two of them are corporate representatives and one of those two was Boeing’s expert. Of the

remaining three, plaintiffs argued that they were already coming to testify in Illinois in the

other case with “no complaint whatsoever.” Plaintiffs noted the absence of any affidavits from

8 No. 1-22-0647

any allegedly inconvenienced witness. The trial court noted plaintiffs’ offer of stipulation for

the record.

¶ 21 Plaintiffs noted that the federal district court had found Boeing’s motion for removal

to be pure gamesmanship and that Boeing’s forum non conveniens motion was filed a year and

a half after plaintiffs’ complaint. Plaintiffs argued that Boeing was in default for failing to file

an answer between August 12, 2020, when the case returned to the circuit court, and November

20, 2020, when a new case management order was filed. Plaintiffs argued that, during that

time, Boeing filed neither an answer nor a motion for an extension, and that Boeing never filed

subsequently to vacate the default that occurred during those months, pursuant to Illinois

Supreme Court Rule 183 (eff. Feb. 16, 2011), which permits a party to file to extend time for

pleading, even after the time has expired.

¶ 22 Plaintiffs argued that Boeing’s corporate headquarters were in Chicago and, thus, this

is “where the decisions were made whether to place a sensor, place a filter, do something to

prevent these bleed air events that were well-known since the 1950’s.” Plaintiffs also argued

that the board of directors’ meetings were here.

¶ 23 In terms of a speedy resolution, plaintiffs argued that, in Cook County, the last case

management order had a trial readiness date in 2022, whereas in Washington state the case

would “have to get to the back of the line.”

¶ 24 As for an interest in settling things locally, plaintiffs argued that this court had

previously held, specifically with respect to Boeing, that Illinois residents have an interest in

resolving defective products claims against defendant corporations, particularly when that

corporation was headquartered here. Vivas v. Boeing Co., 392 Ill. App. 3d 644, 661 (2009).

9 No. 1-22-0647

¶ 25 Before Boeing responded, the trial court ruled that, to the extent that plaintiffs were

arguing a technical default by Boeing, the issue was not before the trial court at that time and

that the court was “not making any determination on that.”

¶ 26 Boeing responded that, currently, there was no stipulation in the instant case to use the

existing evidence depositions at trial and that Boeing had to fly in more than six Boeing

witnesses for a trial “coming up this month” in Chicago in a similar case. Boeing noted that

there was not a single witness testifying in that other case who was from Chicago.

¶ 27 Before ruling, the trial court asked if there was an agreement to use the evidence

depositions, which had already been taken in other related cases, at the trial in the instant case.

Plaintiffs said yes, and Boeing said no. Plaintiffs’ counsel stated:

“Judge, a bulk of these depositions were taken in the original group of cases that Boeing

settled right before trial. By the agreement of the Boeing’s counsel with us [(the lawyers

representing the various plaintiffs)], those original depositions apply to all of the

subsequent cases. So, there was probably close to 50 depositions taken originally that

are substantive, that are on all the liability issues that apply to the [instant] Milton case.”

¶ 28 However, Boeing argued that it had not yet consented to use the already existing

evidence depositions of its employees as their trial testimony in this particular case. Boeing

argued: “It’s up to us, your Honor, to decide whether we want our witnesses to participate ***

in person.” Boeing noted that it was up to it to decide what was “more convenient” and also

more effective for a jury.

¶ 29 The trial court then issued the following ruling. First, the trial court found that plaintiffs

were entitled to “less deference” because they were not Illinois residents but that the burden

was still on Boeing to show that the factors favored transfer. As to the first private-interest

10 No. 1-22-0647

factor, the trial court found that the testimony of Boeing’s Washington employees “would

likely be by way of video—video testimony” and, thus, the convenience of the parties weighed

only slightly in favor of transfer. The trial court noted that, while every forum non conveniens

case must be considered unique on its facts, “if related litigation is pending in the forum, this

can make it convenient for a party to litigate another suit there.”

¶ 30 As to the second factor, the trial court found that the relative ease of access to evidence

was neutral in light of the ready “access to video link depositions for discovery purposes” in

this particular case. As to the third and fourth factors, the court found that it “hasn’t been

provided a lot of information” about either unwilling witnesses or the cost of obtaining witness

attendance. Thus, it found that these factors were also neutral. As to the fifth factor, which the

court characterized as viewing the premises, the trial court found: “It’s not likely that you’re

going to have a jury go visit the plane itself.” Thus, this factor was neutral too.

¶ 31 The trial court turned next to the public factors, which include deciding localized

controversies locally and avoiding the unfairness of imposing expenses and a burden on a

county with no connection to the litigation. The court observed that “this is a products case,”

and that the people of Cook County certainly have a connection to, and an interest in, safe

aircraft and safe air travel. Tallying up the factors, the court found only one private interest

factor slightly favored dismissal and this was not enough to support dismissal on

forum non conveniens grounds.

¶ 32 On May 9, 2022, Boeing petitioned this court for leave to appeal the trial court’s denial.

On the same day, May 9, the trial court entered an agreed case management order with a trial

ready date of June 30, 2023. On June 16, 2022, the appellate court granted Boeing’s petition

for leave to file an interlocutory appeal pursuant to Illinois Supreme Court Rule 306(a)(2) (eff.

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Oct. 1, 2020) (authorizing permissive interlocutory appeals from denials of

forum non conveniens motions). This appeal followed.

¶ 33 ANALYSIS

¶ 34 With a forum non conveniens motion, the issue for an appellate court is not what we

would have done in the first instance—that is irrelevant. Vivas, 392 Ill. App. 3d at 657. The

sole issue for us is whether the trial court abused its discretion in its ruling. See Langenhorst,

219 Ill. 2d at 441-42. An abuse of discretion occurs when no reasonable person could take the

view that the trial court took, and we cannot find that here. Langenhorst, 219 Ill. 2d at 442.

¶ 35 As we explain in more detail below, in a case where the product that allegedly caused

the injury is regularly utilized in Cook County, where plaintiffs chose this forum, where

defendant as movant has the burden of proof and has not submitted any affidavits from

witnesses averring that they would be unwilling to travel here or that testimony here would be

difficult for them, where a large percentage of the contemplated witnesses are defendant’s

present or retired employees, where computers and the Internet make the distribution of

documents easy anywhere, where we cannot find that the trial court abused its discretion in

finding a high likelihood in this particular case that most of the witnesses would testify by way

of video, where both parties are represented by law firms in Chicago; where defendant’s

headquarters was here until defendant chose to relocate it in the midst of litigation, where

defendant appeared to have no difficulties vigorously litigating this case for a year and in Cook

County prior to filing its motion, and where the case would take a lot longer to resolve if the

parties had to start all over in a different forum, we cannot find that the trial court abused its

discretion in denying Boeing’s forum non conveniens motion.

¶ 36 I. Standard of Review

12 No. 1-22-0647

¶ 37 “Forum non conveniens is an equitable doctrine founded in considerations of

fundamental fairness and the sensible and effective administration of justice.” Langenhorst,

219 Ill. 2d at 441 (citing Vinson v. Allstate, 144 Ill. 2d 306, 310 (1991)). “This doctrine allows

a trial court to decline jurisdiction when trial in another forum ‘would better serve the ends of

justice.’ ” Langenhorst, 219 Ill. 2d at 441 (quoting Vinson, 144 Ill. 2d at 310).

“Forum non conveniens is applicable when the choice is between interstate forums as well as

when the choice is between intrastate forums,” such as in the case at bar. Glass v. DOT

Transportation, Inc., 393 Ill. App. 3d 829, 832 (2009).

¶ 38 The discretion afforded a trial court in ruling on a forum non conveniens motion is

“considerable.” Langenhorst, 219 Ill. 2d at 441. As a result, “[w]e will reverse the circuit

court’s decision only if defendants have shown that the circuit court abused its discretion in

balancing the relevant factors.” Langenhorst, 219 Ill. 2d at 442 (citing Dawdy v. Union Pacific

R.R. Co., 207 Ill. 2d 167, 176-77 (2003)). “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 (citing Dawdy, 207 Ill. 2d at 177); Glass, 393 Ill. App.

3d at 832.

¶ 39 “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.” Vivas, 392 Ill. App. 3d at 657; see also Hefner v. Owens-Corning Fiberglas Corp.,

276 Ill. App. 3d 1099, 1103 (1995) (“the question on review is not whether the appellate court

agrees with the circuit court’s denial of a forum non conveniens motion, but whether the circuit

court ‘acted arbitrarily, without employing conscientious judgment *** [and] exceeded the

bounds of reason’ ” (quoting Mowen v. Illinois Valley Supply Co., 257 Ill. App. 3d 712, 714

13 No. 1-22-0647

(1994))). In addition, “we may affirm a trial court’s forum non conveniens order on any basis

found in the record.” Ruch v. Padgett, 2015 IL App (1st) 142972, ¶ 40.

¶ 40 When reviewing the trial court’s decision, we must also keep in mind that the burden

is always on the movant to show that the relevant factors strongly favor a transfer. Koss Corp.

v. Sachdeva, 2012 IL App (1st) 120379, ¶ 106 (the burden is on the movant to show a transfer

is strongly favored); Erwin v. Motorola, Inc., 408 Ill. App. 3d 261, 275 (2011) (the burden is

on the movant to show a transfer is strongly favored); Woodward v. Bridgestone/Firestone,

Inc., 368 Ill. App. 3d 827, 833 (2006) (“[t]he burden is on a defendant to show that the relevant

factors strongly favor the defendant’s choice of forum”).

¶ 41 II. Plaintiffs’ Choice of Forum

¶ 42 “Before weighing the relevant factors, a court must first decide how much deference to

give to a plaintiff’s choice of forum.” Vivas, 392 Ill. App. 3d at 657 (citing Langenhorst, 219

Ill. 2d at 448 (the supreme court determined the appropriate amount of deference before

weighing the relevant factors)).

¶ 43 It is “ ‘assumed on a forum non conveniens motion that the plaintiff’s chosen forum is

a proper venue for the action.’ ” Lagenhorst, 219 Ill. 2d at 448 (quoting Dawdy, 207 Ill. 2d at

182). “Plaintiff’s choice of forum is entitled to substantial deference.” Lagenhorst, 219 Ill. 2d

at 448; First American Bank v. Guerine, 198 Ill. 2d 511, 521 (2002) (“the battle over forum

begins with the plaintiff’s choice already in the lead”). However, when neither the plaintiffs’

residence nor the site of the injury is located in the chosen forum, the plaintiffs’ choice is

“entitled to somewhat less deference.” (Emphasis in original.) Langenhorst, 219 Ill. 2d at 448;

Guerine, 198 Ill. 2d at 517. While “ ‘the deference to be accorded to a plaintiff regarding his

choice of forum is less when the plaintiff chooses a forum other than where he resides ***

14 No. 1-22-0647

nonetheless the deference to be accorded is only less, as opposed to none.’ ” (Emphases in

original and internal quotation marks omitted.) Langenhorst, 219 Ill. 2d at 448 (quoting

Guerine, 198 Ill. 2d at 518). Thus, the trial court did not abuse its discretion in finding that

plaintiffs’ choice of Cook County was entitled to deference, although less deference than if

they lived or were present here.

¶ 44 III. Private Interest Factors

¶ 45 When a court considers a forum non conveniens motion, the Illinois Supreme Court

found that it must consider both “the private and public interest factors.” Langenhorst, 219 Ill.

2d at 443; Dawdy, 207 Ill. 2d at 172-73; see also Vivas, 392 Ill. App. 3d at 658. “[N]o single

factor is controlling.” Erwin, 408 Ill. App. 3d at 274 (citing Langenhorst, 219 Ill. 2d at 443).

¶ 46 First, we consider the private interest factors, which are “ ‘(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); Dawdy,

207 Ill. 2d at 172; see also Vivas, 392 Ill. App. 3d at 658.

¶ 47 A. Convenience to the Parties

¶ 48 The trial court did not abuse its discretion by finding that the convenience to the parties

weighed “slightly” in favor of dismissal.” 4

¶ 49 With respect to this factor, “the defendant must show that the plaintiff’s chosen forum

is inconvenient to the defendant.” (Emphasis added.) Langenhorst, 219 Ill. 2d at 450; Vivas,

392 Ill. App. 3d at 658. In other words, “one party cannot argue the other party’s convenience.”

4 The trial court found, “as to the convenience of the parties factor, that favors Boeing ever so slightly.” 15 No. 1-22-0647

Ruch, 2015 IL App (1st) 142972, ¶ 51; Susman v. North Star Trust Co., 2015 IL App (1st)

142789, ¶ 27.

¶ 50 In the case at bar, Boeing’s forum non conveniens motion is based largely on facts that

Boeing has known since the complaint was filed—namely, the residence of plaintiffs and the

location of its own witness-employees. However, instead of filing a forum non conveniens

motion, Boeing filed a motion to consolidate discovery with another Illinois case. After

successfully obtaining discovery consolidation in state court, Boeing then tried to remove the

case to an Illinois federal court. Boeing did not argue to the federal court that litigation in

Illinois was inconvenient. Instead, Boeing filed a substantive motion, arguing for dismissal of

certain counts. The federal court labeled Boeing’s maneuvers as mere “gamesmanship,” held

that its removal attempt was untimely, and found that its substantive motion “should be heard

in the Circuit Court of Cook County.”

¶ 51 We are in accord with our colleagues on the federal bench and find that Boeing cannot

be heard to protest regarding the alleged inconvenience of an Illinois forum for itself and its

employee-witnesses when it has chosen to litigate here, in this very same case, for years prior.

¶ 52 However, even if we were to disregard the gamesmanship factor entirely, we would

still have to find that the trial court did not abuse its discretion by finding that the convenience

of the parties “weighed only slightly in favor of transfer.” The trial court found that the

likelihood was high in this particular case that the testimony of Boeing’s Washington

employees would be by way of video testimony. Although Boeing argued that it had not yet

consented to use the already existing evidence depositions of its employees as their trial

testimony in this particular case, Boeing observed: “It’s up to us, your Honor, to decide whether

we want our witnesses to participate *** in person.” Boeing noted that it was up to it to decide

16 No. 1-22-0647

what was “more convenient” for it and also more effective for a jury. As Boeing itself noted,

its convenience was in its own hands. As a result, we cannot find that the trial court abused its

discretion in finding that the convenience of the parties only slightly favored transfer.

¶ 53 B. Ease of Access to Evidence

¶ 54 The next factor is the relative ease of access to sources of testimonial, documentary,

and real evidence. Langenhorst, 219 Ill. 2d at 443 (citing Guerine, 198 Ill. 2d at 516); Dawdy,

¶ 55 First, we consider the testimonial evidence. On the one hand, plaintiffs have not

identified a single witness who lives in Illinois. On the other hand, Boeing has the burden of

proof, and they have not submitted the affidavit of a single witness who says that testifying in

Chicago would be difficult. Boeing did not even provide an affidavit from one of its own

employees, to whom it presumably has ready access. Michael Sinnet is a good example of the

witness issues in this case. During the hearing before the trial court, Boeing identified Michael

Sinnett, its vice president of product development, as the person who had “the final say” on

“budgetary decisions concerning technological development projects concerning air quality,

including converters and sensors,” and Boeing argued that he was in the State of Washington.

In response, plaintiffs noted that Sinnett was still employed with Boeing and was “voluntarily

coming in as a corporate rep and an expert” in another cabin air contamination case being tried

in Chicago. Boeing did not dispute that assertion when given the opportunity at the hearing to

reply specifically to it. In addition, as we noted above, the trial court found the likelihood high

in this particular case that a number of witnesses’ testimony would be by video. For all these

reasons, we cannot find that the trial court abused its discretion in finding that Boeing had

failed to carry its burden to show that the ease of testimonial evidence favored transfer.

17 No. 1-22-0647

¶ 56 Next we consider documentary evidence. The trial court found, in general, that modern

technology has rendered access to proof a less significant factor. In fact, this court has

previously found that “the location of documents, records and photographs has become a less

significant factor in forum non conveniens analysis in the modern age of e-mail, Internet,

telefax, copying machines and world-wide delivery services, since they can now be easily

copied and sent.” Vivas, 392 Ill. App. 3d at 659; see also Erwin, 408 Ill. App. 3d at 281 (“it

has become well recognized by our courts that given our current state of technology ***

documentary evidence can be copied and transported easily and inexpensively”); Woodward,

368 Ill. App. 3d at 834 (“the location of documents is not significant because documents can

be transported with ease and at little expense”); Glass, 393 Ill. App. 3d at 836-37 (“there should

be little difficulty encountered in securing documentary evidence, given that current

technology allows documents to be copied and transported easily and inexpensively”);

Ammerman v. Raymond Corp., 379 Ill. App. 3d 878, 890 (2008) (“the location of documentary

evidence has become less significant because today’s technology allows documents to be

copied and transported easily and inexpensively”). Boeing argued to the trial court that “the

discovery that [has] already been conducted in the case can travel with the case” if transferred

to the state of Washington. The same is true in reverse.

¶ 57 Thus, we cannot find that the trial court abused its discretion in finding that the relative

ease of access to proof did not favor transfer.

¶ 58 C. Practical Problems

¶ 59 The last private interest factor is a consideration of “ ‘all other practical problems that

make trial of a case easy, expeditious, and inexpensive.’ ” Langenhorst, 219 Ill. 2d at 443

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(quoting Guerine, 198 Ill. 2d at 516); Dawdy, 207 Ill. 2d at 172; see also Vivas, 392 Ill. App.

3d at 658.

¶ 60 The trial court found that this factor, often “characterized as viewing the premises,” did

not apply here because “this doesn’t involve premises.” In addition, the court found “[i]t’s not

likely that you’re going to have a jury go visit the plane itself.” Thus, the court found that any

“viewing” factor was “neutral.”

¶ 61 While little weight should be accorded to the location of attorneys on a

forum non conveniens motion, “a court may still consider it in the forum non conveniens

analysis.” Vivas, 392 Ill. App. 3d at 660; see also Dawdy, 207 Ill. 2d at 179 (“a court may

consider this factor”); Erwin, 408 Ill. App. 3d at 281 (this court “note[d]” that both plaintiff

and defendant’s counsel “maintain offices in Cook County”); Woodward, 368 Ill. App. 3d at

835 (“We also note that the defendants’ counsel of record have offices in Illinois. Although

not a significant factor, we may consider it in our analysis.”). While the trial court found this

factor “neutral,” we observe that both parties are represented by Chicago firms.

¶ 62 To the extent that travel is required, we note that Chicago has “two major airports,”

located in the middle of the country, with numerous direct flights per day to most places in the

United States. Malloy v. DuPage Gynecology, S.C., 2021 IL App (1st) 192102, ¶ 66 (although

“not a significant factor,” the appellate court noted the presence of Cook County’s two major

airports when evaluating the “practical problems” factor).

¶ 63 In sum, we cannot find that the trial court abused its discretion in finding that the

consideration of the practical problems was a “neutral” factor.

¶ 64 IV. Public Interest Factors

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¶ 65 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

Guerine, 198 Ill. 2d at 516-17); Gridley v. State Farm Mutual Automobile Insurance Co., 217

Ill. 2d 158, 170 (2005); Dawdy, 207 Ill. 2d at 173; see also Vivas, 392 Ill. App. 3d at 660.

¶ 66 First, we consider the respective forums’ interests in deciding these controversies and

the fairness of imposing jury duty on the forums’ residents. In Langenhorst, our supreme court

affirmed a trial court’s decision not to transfer a case from St. Clair County to Clinton County,

which was the scene of the railway accident at issue. Langenhorst, 219 Ill. 2d at 451, 454. In

considering the respective forums’ interest, the court observed that St. Clair County had as

much interest in the controversy as Clinton County, because “this same railway line” involved

in the accident “bisects all of St. Clair County.” Langenhorst, 219 Ill. 2d at 451. In Malloy,

2021 IL App (1st) 192102, ¶ 70, this court found that what was true in Langenhorst was

“equally true here, where the product at issue is regularly prescribed and distributed throughout

Cook County.” Similarly, what was true in Langenhorst and Malloy is equally true here, where

the product at issue is utilized regularly in Cook County, at two of the major airports in the

country. See Vivas, 392 Ill. App. 3d at 661 (this court has previously held, specifically with

respect to Boeing, that Illinois residents had an interest in resolving defective products claims

against defendant corporations, particularly when that corporation was headquartered here).

We cannot find that the trial court abused its discretion in finding that “the people of Cook

County” have an interest in the safety of “aircraft and air travel.”

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¶ 67 Lastly, we must consider “the administrative difficulties presented by adding litigation

to already congested court dockets.” Langenhorst, 219 Ill. 2d at 443-44 (citing Guerine, 198

Ill. 2d at 516-17). “[C]ourt congestion is a relatively insignificant factor, especially where the

record does not show the other forum would resolve the case more quickly.” Guerine, 198 Ill.

2d at 517. As the trial court found, forcing this case to start all over again in another forum

after a year and a half of litigation in Illinois would only delay its resolution further.

¶ 68 For all the foregoing reasons, we cannot find that the trial court abused its discretion in

finding that the public and private factors did not require dismissal. We find that the trial court

properly balanced the private and public interest factors and did not abuse its discretion when

it denied Boeing’s motion to dismiss based on forum non conveniens. Other than the costs and

burden of travel, Boeing did not provide evidence of inconvenience.

¶ 69 CONCLUSION

¶ 70 After carefully considering and weighing every factor in the forum non conveniens

doctrine, we cannot find that the trial court abused its discretion by denying defendants’

forum non conveniens motion. Thus, we must affirm the trial court’s order and remand for

further proceedings consistent with this opinion.

¶ 71 Affirmed.

¶ 72 JUSTICE TAILOR, specially concurring:

¶ 73 I concur that the circuit court did not abuse its discretion when it denied Boeing’s

motion to dismiss under the doctrine of forum non conveniens. I write separately to explain my

disagreement with the majority’s analysis of the convenience factor and why I would affirm

nonetheless.

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¶ 74 Unlike most forum non conveniens appeals that reach us before any witnesses have

been deposed, here, because of a number of similar cases with overlapping witnesses, most, if

not all, witnesses in this case have already been deposed remotely. Thus, what remains of the

convenience factor relates primarily to trial. The trial court acknowledged that the

overwhelming number of potential Boeing trial witnesses reside in Washington state and that

neither party identified any Illinois-based trial witnesses. According to the record, 64 of 89

potential Boeing fact witnesses and 19 of 26 Boeing document custodian witnesses reside in

Washington state. None of the remaining witnesses are from Illinois. Despite the number of

potential witnesses from Washington state, the trial court found that the testimony of Boeing’s

witnesses at trial “would likely be by way of video,” a finding to which the majority acquiesces.

This finding was pure speculation and, therefore, an abuse of discretion. The record does not

reflect any agreement or stipulation between the parties that Boeing’s Washington-based

employee witnesses would testify at trial either remotely or by way of evidence deposition.

The majority observes that Boeing’s convenience was “in its own hands” because it could

agree with plaintiffs to present its witnesses exclusively by video. Supra ¶ 52. I disagree. Trial

witnesses typically appear in person, and a party has the right to determine for itself how best

to present its witnesses at trial. The convenience factor may not be discounted, as the majority

does here, simply by virtue of the availability of remote or video trial testimony. Nor does the

trial court’s finding account for the plaintiffs’ right to demand that Boeing’s employees testify

at trial in person. See Ill. S. Ct. R. 237(b) (eff. Oct. 1, 2021) (litigant retains power to demand

that “an officer, director, or employee of a party” appear at trial and to specify “whether the

person shall appear in person or remotely”). I also note that although a trial court has discretion

to permit remote trial testimony under Illinois Supreme Court Rule 241 (eff. May 22, 2020), it

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can only do so for good cause and after it considers the various factors set forth in the comment

to the Rule. Here, neither party moved for the trial court to allow remote testimony under Rule

241, nor did the trial court enter any such order. Thus, there is no basis in the record to support

the trial court’s finding that trial testimony of Boeing’s Washington-based employee witnesses

“would likely be by way of video.”

¶ 75 Disregarding the trial court’s unfounded assumption undermines its conclusion that the

convenience factor only slightly favors Boeing. In the absence of an order to the contrary, it is

Boeing’s prerogative to decide whether it will present its witnesses in person at trial or agree

with the plaintiffs to present its witnesses remotely, and there is no basis to assume that all of

Boeing’s witnesses will testify remotely. Thus, in my view, the convenience factor does more

than “slightly” favor Boeing; rather, it favors—if not strongly favors—Boeing because neither

party has identified any Illinois-based trial witnesses, and the large majority of Boeing’s trial

witnesses are Washington-based. The plaintiffs’ claim that certain financial decisions relating

to its claim were made at Boeing’s headquarters in Chicago is irrelevant for purposes of the

convenience factor where plaintiffs have not identified any Illinois-based witnesses that it may

call to testify at trial.

¶ 76 Nevertheless, I agree that the trial court did not abuse its discretion in denying Boeing’s

motion to dismiss. In my view, however much the convenience factor favors Boeing, Boeing’s

convenience is far outweighed by its inequitable conduct in this case. “ ‘Forum non conveniens

is an equitable doctrine founded in considerations of fundamental fairness and the sensible and

effective administration of justice.’ ” Supra ¶ 37 (quoting Langenhorst, 219 Ill. 2d at 441,

citing Vinson, 144 Ill. 2d at 310). “[E]ach forum non conveniens case is unique and must be

considered on its own facts.” Fennell v. Illinois Central R.R. Co., 2012 IL 113812, ¶ 21. As

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such, general equitable considerations inform our analysis. See Wakehouse v. Goodyear Tire

& Rubber Co., 353 Ill. App. 3d 346, 352-53 (2004) (holding that general principles of

fundamental fairness and sensible and effective administration of justice embedded in the

doctrine of forum non conveniens preclude the refiling of a case in the same state where the

case was previously dismissed on forum non conveniens and another state was found more

convenient).

¶ 77 The equitable maxim informing my view of this case is that “ ‘[h]e who seeks equity

must do equity.’ ” Horney v. City of Springfield, 12 Ill. 2d 427, 433 (1957). This equitable

maxim “expresses the governing principle that every action of a court of equity *** must be

in accordance with conscience and good faith.” Id. Boeing, in my judgment, is not entitled to

equitable relief of dismissal under the forum non conveniens doctrine because it acted

inequitably in the first instance. Boeing removed this case to the United States District Court

for the Northern District of Illinois based on admiralty jurisdiction and, at the same time,

moved to dismiss two counts in the complaint. In granting plaintiffs’ motion to remand the

case to the circuit court of Cook County, the federal district judge found that Boeing’s removal

to federal court was “purely gamesmanship.” Milton v. The Boeing Co., No. 1:20-CV-3089,

slip op. at 10 (N.D. Ill. Aug. 12, 2020). Under 28 U.S.C. § 1446(b)(1), a defendant has 30 days

from the time of service to remove a case, and Boeing removed this case four months after it

was served. In the interim, Boeing filed its appearance in the circuit court of Cook County,

moved to extend its time to answer, and entered an agreed order to consolidate this case with

another similar case pending against it the circuit court of Cook County for discovery purposes

as an aid to convenience. When the plaintiffs here challenged Boeing’s removal of this case to

federal court, Boeing, relying on Walker v. Trailer Transit, Inc., 727 F.3d 819, 821 (7th Cir.

24 No. 1-22-0647

2013), argued that the 30-day clock did not accrue until its “receipt of a pleading or other paper

that affirmatively and unambiguously reveals that the case is or has become removable.” The

federal district court determined that Boeing’s removal was untimely because the 30-day

period to remove accrued at the time of service where the possibility of admiralty jurisdiction

appeared on the face of the complaint. She found implausible Boeing’s explanation that it could

not have known if admiralty jurisdiction was available because it did not know the precise

location of the transatlantic flight at the time of the incident that gave rise to the plaintiffs’

claims here. Moreover, she found that Boeing’s conduct “[was] too far removed from ***

fundamental fairness to be tenable” where it filed an appearance in the circuit court of Cook

County, consolidated this case with another, and filed an extension to answer before removing

this case four months later. Milton, slip op. at 9.

¶ 78 With that background, I return to the equitable maxim, “he who seeks equity must do

equity.” After remand, Boeing moved the circuit court to exercise its equitable power to

dismiss this case based on the doctrine of forum non conveniens. Yet, as the federal district

court’s judgment makes abundantly clear, Boeing did not do equity when it removed this case

to federal court. Rather, Boeing engaged in “gamesmanship” and conduct that was “too far

removed from *** fundamental fairness to be tenable” where the complaint “on its face

provided sufficient notice since it clearly pertained to a transatlantic flight” (id. at 7, 9-10), and

Boeing filed an appearance, sought an extension of time to answer, and agreed to consolidate

this case with another for discovery purposes as an aid to convenience (id. at 9). Moreover, as

the majority notes, after Boeing removed this case to the federal district court in Chicago, it

did not move to transfer venue to a federal district court in Washington state. I find it

incongruous for Boeing to claim inconvenience when it is before a state court sitting in Cook

25 No. 1-22-0647

County but not when it is before a federal district court sitting a mere four city blocks from the

state court. This, to me, exposes Boeing’s convenience argument for the pretext that it is. Cf.

Wagner v. Eagle Food Centers, Inc., 398 Ill. App. 3d 354, 360, 364 (2010) (evidence of forum

shopping informs forum non conveniens analysis). In my view, the trial court did not abuse its

discretion in denying Boeing’s motion to dismiss because, in seeking equity from the circuit

court, Boeing did not do equity when it forced the plaintiffs to litigate a removal to federal

court grounded in gamesmanship. Under these circumstances, the plaintiffs should not now be

compelled to litigate their claim against Boeing in a third forum in an endless war of attrition.

26 No. 1-22-0647

Milton v. Boeing Co., 2023 IL App (1st) 220647

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 20-L-1093; the Hon. Daniel A. Trevino, Judge, presiding.

Attorneys Dan K. Webb, Linda T. Coberly, and Joseph L. Motto, of Winston for & Strawn LLP, and Kathleen A. Stetsko, of Perkins Coie LLP, Appellant: both of Chicago, and Todd W. Rosencrans (pro hac vice) and Christopher Ledford (pro hac vice), of Perkins Coie LLP, of Seattle, Washington, for appellant.

Attorneys Joseph A. Power, Jr., and Kathryn L. Conway, of Power Rogers, for LLP, of Chicago, and Zoe Littlepage, Rainey Booth, and T. Appellee: Matthew Leckman, of Littlepage Booth Leckman, of Houston, Texas, for appellees.