Our preview of the September term of the Illinois Supreme Court continues with Fennell v. Illinois Central Railroad Company [pdf], a case which may clarify the standards limiting the ability of a plaintiff – or sometimes, a plaintiff’s counsel — to shop for what he or she perceives to be a friendly forum.

Fennell is an action for personal injuries allegedly received as a result of exposure to asbestos, diesel exhaust, sand, environmental tobacco smoke, and toxic dusts, fumes and gases during plaintiff’s thirty-seven year employment with the defendant railroad. Plaintiff filed a putative class action suit in 2002 in Pike County, Mississippi. After the Mississippi court dismissed the action without prejudice, plaintiff re-filed in St. Clair County, Illinois pursuant to the Federal Employers’ Liability Act ("FELA") and the Locomotive Boiler Inspection Act.

The defendant moved to dismiss based upon forum non conveniens. On the surface, it would seem that the defendant had a point: (1) the plaintiff was a lifelong resident of Mississippi who worked out of the defendant’s Jackson, Mississippi facility; (2) the plaintiff did not claim to have received any kind of injury in Illinois, let alone in St. Clair County; and (3) numerous potential witnesses lived in Mississippi, including thirteen potential witnesses identified by the plaintiff. The defendant also pointed to the affidavit of its risk mitigation manager for occupational disease claims, who testified that he and several other company representatives lived in or near Memphis, and would find it substantially more convenient to travel to Copiah Co., Mississippi for trial than to St. Clair Co., Illinois.

The plaintiff responded that defendant was represented by a St. Clair County law firm which served as a regional counsel, representing the defendant in cases in Illinois, Mississippi, Louisiana and Tennessee. As a result — at least according to the plaintiff — defense counsel had amassed considerable evidence which was now located in counsel’s office, in St. Clair County. Plaintiff also pointed to two defense representatives he intended to call, one of whom lived in Illinois and the other in Memphis, as well as an expert witness who resided in Chicago. The Circuit Court denied the motion to dismiss, and the defendant appealed.

The Appellate Court affirmed. The defendant did not plan to call anyone from Mississippi for the trial, the Court concluded, and Memphis — the home of several of the defendant’s representatives — was an equally long drive, regardless of whether one was headed for Copiah County or St. Clair County. The Court acknowledged that several individuals in the case resided in Mississippi, but pointed out that the defendant could not get a change of forum based on the plaintiff’s potential inconvenience. The Court also emphasized the plaintiff’s allegation that documentary evidence was sitting in defense counsel’s office in St. Clair County.

Leave to appeal was likely granted in Fennell to resolve a conflict with the recent decision in Laverty v. CSX Transportation, Inc. — a decision rendered by the same District of the Appellate Court that decided Fennell (Illinois has no intra-District stare decisis, so Laverty did not automatically govern Fennell. Like Fennell, Laverty was a FELA case. Like Fennell, Laverty involved no clear connection to Illinois — the plaintiff was a resident of Texas who resided in Michigan and Ohio while working for the defendant railroad. Like Fennell, none of the purported injury occurred in Illinois in Laverty. The Appellate Court ultimately refused to follow Laverty on the grounds that there, none of the potential witnesses lived in Illinois. Justice Thomas Welch dissented, arguing that a controversy between a non-Illinois plaintiff and a non-Illinois defendant about alleged injuries which occurred outside of Illinois had no business being tried in an Illinois court.

Fennellwill be argued at the 9:30 am session of the Court on Wednesday, September 19, 2012. Join us back here tomorrow for a preview of the argument in Mashal v. City of Chicago.