Skip to content Defense Counsel Beware of Forum Non Conveniens Trend


Search Publications

July 2015

Defense Counsel Beware of Forum Non Conveniens Trend

Asbestos litigation continues to present numerous challenges for defendants not only in Madison County, but throughout the State of Illinois.  Illinois has long been known as a plaintiff-friendly jurisdiction, a label reinforced with numerous rulings denying motions to dismiss under forum non conveniens despite plaintiffs having little to no connections with Illinois.

Madison County, Illinois is a coveted jurisdiction for asbestos plaintiffs, irrespective of where the plaintiffs reside or where their exposure occurred.  This jurisdiction has long been considered a clearing house for asbestos cases, due in part to the expedited trial processes in place, which allow plaintiffs’ attorneys to dispose of numerous cases during one trial setting.  Forum non conveniens was a doctrine traditionally used to combat forum shopping; however, recent rulings have greatly diminished the impact of this doctrine in Illinois.

In 2012, the Illinois Supreme Court evaluated the statute governing forum non conveniens and reaffirmed the longstanding requirement of analyzing all "relevant private and public interest factors” in assessing whether a case should be dismissed under this statute.  See Fennell v. Ill. Cent. R.R. Co., 2012 IL 113812, ¶ 24, 987 N.E.2d 355 (reversing the Illinois Appellate Court's decision and affirming the trial court's denial of defendant's motion to dismiss for forum non conveniens).  The Fennell case involved a plaintiff that did not reside in Illinois and the cause of action did not arise in Illinois.  Id. at 362.  In fact, the plaintiff resided in Mississippi while the defendant maintained offices in Tennessee and the plaintiff never worked in Illinois nor was he exposed to any asbestos containing products in Illinois.  Id.  The Fennell court criticized the trial court for failing to engage in the appropriate public and private factor interest analysis in determining whether the defendant had sufficiently met his burden to establish that a foreign jurisdiction was more convenient to all parties.  Id. at 361.  The Fennell court emphasized that each forum non conveniens case must be treated as unique and considered on its own facts.  The 2012 Fennell opinion initially brought relief to defendants within the asbestos world, as it indicated a change in direction from the “open door” policy in Madison County.

Despite this apparent 'win' for defendants, the Fennell decision did not alter the burden of proof that must be met by the moving party in order to dismiss an action for forum non conveniens.  It continues to be the defendant's burden "of showing that the plaintiff's chosen forum is inconvenient to the defendant and another forum is more convenient to all parties.Fennell, supra, citing Langenhorst v. Norfolk S. Ry. Co., 219 Ill. 2d 430, 444, 848 N.E.2d 927 (2006) (emphasis added).  It is this standard that Illinois trial courts in Madison County have found to be most important, and have since relied on it as a quasi-loophole away from the Fennell decision. 

In 2014 in Madison County, there were four such cases where a judge denied defendants' motions to dismiss under the doctrine of forum non conveniens, relying solely on the Langenhorst language that the moving defendant still needed to establish that an alternative jurisdiction was convenient to all parties, including plaintiff and co-defendants.  See Murphy v. CBS Corp. (Case No. 12-L-1141); Beacher (Brown) v. American Biltrite Co. (Case No. 12-L-1392); Warden v. Caterpillar, Inc. (Case No. 12-L-1065); Hunt (Munsey-Hunt) v. 84 Lumber Co. (Case No. 12-L-1140).  The plaintiffs in these cases all bore little, if any, connections to Madison County.  Specifically, the plaintiffs were not local to Madison County and sustained no exposure to asbestos in Madison County. Despite the lack of connections to Madison County, the judge denied all three motions to dismiss for forum non conveniens.  The language in each of these decisions is identical and claims that, in each case, the moving parties failed to prove that an alternative jurisdiction would be more convenient for all parties. All four of these decisions were appealed but, not surprisingly, they were resolved out of court and the appeals were dismissed.

Regrettably, this trend has continued into 2015 where the judge most recently rendered another opinion denying defendant's motion to dismiss for forum non conveniens in Bald v. Ace Sprinkler Co. (Case No. 14-L-1448).  Similar to the motions to dismiss presented and ruled upon in 2014, defense counsel in the Bald case argued that throughout Plaintiff's life after the Navy, he was employed and resided in Detroit, Michigan.  Currently, Plaintiff resides in Florida.  According to Bald's discovery deposition, Bald never resided nor worked in Madison County, Illinois or anywhere in the state of Illinois, a similar trait amongst many asbestos plaintiffs.  Despite these facts, the judge--similar to previous orders--denied Defendants' motion on the basis that Defendants' motion failed to plead that the recommended jurisdiction of Michigan would be convenient to all parties.  In fact, the judge used the same language in the Bald order, as he has for all previous rulings regarding motions to dismiss under the doctrine of forum non conveniens.  Unfortunately, until the appellate courts become involved, there will be no change in these rulings and Madison County will continue to be open for business for plaintiffs from all corners of the country.


Environmental/Toxic Tort

J. Hayes Ryan

Environmental/Toxic Tort