Lung Cancer Case Transferred After Defendants Successfully Argue Forum Non Conveniens on Appeal Appellate Court of Illinois, June 13, 2017
Plaintiffs Irvin and Marlene Rohl brought this action against several defendants including Caterpillar and Navistar. The plaintiffs argued that Mr. Rohl’s lung cancer was caused by exposure to asbestos from brakes, gaskets, clutches, engines, and heavy duty equipment made by Caterpillar and Navistar.
At the trial level, the defendants moved to transfer the case from Cook County to Winnebago County on the doctrine of forum non conveniens. The court denied the motion after a finding that the plaintiff had attended trade school in Cook County in the late 1940s.
On appeal, the court took exception with the factual record relied upon by the trial court. The court started its analysis by delineating the elements of forum non conveniens. Essentially, the doctrine is a balancing test between public and private interests. “The private factors include 1) the convenience of the parties, 2) the relative ease of access to testimonial and documentary evidence, and 3) all other practical problems that make trial of a case “easy, expeditious and inexpensive,” while the public interest 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 with little connection to the litigation, and 3) the administrative difficulties presented by adding litigation to already congested court dockets.” The court noted that deference on the chosen forum is given to the plaintiff. However, that deference is eroded where the injury did not occur in that forum.
Here, the plaintiffs lived in Winnebago County their entire adult lives. Further, the plaintiff was not sure if he was exposed to asbestos at the trade school in Cook County. The plaintiff’s counsel took the position that any exposure above background contributed to the development of his lung cancer. However, the court noted that the equipment at the trade was new and clean by the plaintiff’s own account. Accordingly, there was no use of compressed air at the Cook County trade school. The defendants argued that the plaintiff’s spouse could not argue that its convenient for her to litigate in Cook County since she lived in Winnebago County. The defendants were not entitled to this argument according to the Court. On the other hand, the plaintiff did not argue why Winnebago would be inconvenient for her. Therefore, the convenience factor did not strongly favor either forum. However, the access to testimonial evidence clearly favored Winnebago County. Witnesses including family members, co-workers, and most treating physicians lived or worked in Winnebago County. Also, the court noted that the plaintiff’s employment and medical records were in Winnebago County. The public interest factors weighed in favor of transfer according to the court. Exposure for over 45 years took place in Winnebago County. Finally, court congestion was not much of a factor despite some lag time for verdicts in Winnebago County compared to Cook Court. With these factors in mind, the court reversed the trial court and transferred the plaintiff’s case to Winnebago County.