Burns v. AP Green Industries, Inc. (2001)

Our plain-English summary of Burns v. AP Green Industries, Inc. (Illinois Appellate Court, December 26, 2001).

Howard Burns, an industrial arts teacher who also did summer construction and maintenance work at Moweaqua High School in Shelby County, Illinois, from 1951 to 1986, was diagnosed with mesothelioma in April 2000. He and his wife, Caren, sued many companies in Madison County, Illinois. Howard alleged exposure to asbestos-containing products at the school and while building his own home. Several defendants asked to move the case to Shelby County under the forum non conveniens doctrine. The trial court denied the motions because of Howard's short life expectancy and said it would ignore other factors. The appellate court held this was an abuse of discretion because the trial court looked at only one factor. It found that the plaintiffs lived in Shelby County, Howard never worked in Madison County, his exposure and named witnesses were in Shelby County, and Madison County's court was more congested. It reversed and ordered the case transferred to Shelby County.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Illinois Appellate Court, 5th District
• Decided: December 26, 2001
• Citation: 761 N.E.2d 380
• Docket: No. 5-00-0548
• Stage: Appeal from jurisdiction, venue or removal
• State: Illinois

Outcome. The appellate court reversed the trial court's denial of the defendants' motions to transfer and remanded with directions to transfer the case from Madison County to Shelby County, Illinois, ruling for the defendants.

What the court held. A trial court abuses its discretion in a forum non conveniens ruling when it focuses on one factor, here the plaintiff's short life expectancy, and ignores the other private-interest and public-interest factors.

Issues decided: Venue, Removal and Transfer.

The people and their exposure

• Howard Burns: mesothelioma; died

Who	Work	Where	When	Products
Howard Burns	industrial arts teacher and summer construction and maintenance worker (construction)	Moweaqua High School, Moweaqua, Illinois	1951 to 1986

The defendants

• A.P. Green Industries, Inc. (manufacturer) · its asbestos trust
• CertainTeed Corporation (manufacturer)
• Pfizer, Inc. (manufacturer)
• Union Carbide Corporation (manufacturer)
• United States Gypsum Company, PLC (manufacturer) · its asbestos trust
• Georgia-Pacific Corporation (manufacturer)
• R.T. Vanderbilt Company, Inc. (manufacturer)
• Bondex International, Inc. (manufacturer) · its asbestos trust
• RPM, Inc. (manufacturer)
• T & N (manufacturer)
• Proko Industries, Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Hefner v. Owens-Corning Fiberglas Corp. (Illinois Appellate Court, 5th District, 1995). The appellate court affirmed the Madison County trial court's denial of Owens-Corning Fiberglas's motion to reconsider transfer to Massac County for forum non conveniens, so the plaintiff kept his chosen forum, and remanded the case.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

761 N.E.2d 380 (2001)

326 Ill. App.3d 624

260 Ill.Dec. 536

Caren BURNS, Plaintiff-Appellee,

v.

A.P. GREEN INDUSTRIES, INC.; A.P. Green Services, Inc.; AC and S, Inc.; Armstrong World

Industries, Inc.; John Crane, Inc.; DAP, Inc.; Fibreboard Corporation; GAF Corporation; General

Refractories Company; Harbison-Walker Refractories Company; Harcros Chemicals, Inc., as

Successor-in-Interest to Thompson-Hayward Chemical Company; Kaiser Refractories, A Division

of Kaiser Aluminum & Chemical Corporation; Kelly-Moore Paint Company, Inc.; McKesson

Chemical Company; Asbestos Management Corporation, d/b/a National Gypsum Company;

Owens-Corning Fiberglas Corporation; Owens-Illinois, Inc.; Rapid American Corporation, as

Successor-in-Interest to Philip Carey Corporation; Sprinkmann Sons Corporation of Illinois; The

Synkoloid Company; W.R. Grace & Company; and Metropolitan Life Insurance Company,

Defendants (R.T. Vanderbilt Company, Inc.; Bondex International, Inc.; CertainTeed Corporation;

Pfizer, Inc.; Proko Industries, Inc.; RPM, Inc., Individually and as Successor-in-Interest to The

Reardon Company and Successor-in-Interest to Republican Powered Metals; T & N; Union Carbide

Corporation; United States Gypsum Company, PLC; and Georgia-Pacific Corporation, Defendants-

Appellants).

No. 5-00-0548.

December 26, 2001.

Appellate Court of Illinois, Fifth District.

[*381] Brad A. Elward, Heyl, Royster, Voelker & Allen, Peoria, for CertainTeed Corp., [*382] Pfizer, Inc., T & N, Union Carbide Corp., United States Gypsum Co.

Edward J. Matushek III, Douglas M. Sinars, Matushek & Associates, L.L.C., Chicago, for R.T. Vanderbilt Co., Inc. Jeffrey S. Hebrank, Burroughs Hepler Broom MacDonald Hebrank & True, Edwardsville, for Bondex International, GAF Corp., Georgia Pacific, Proko, RPM, W.R. Grace & Co.-Conn.

Robert J. Evola, Wise & Julian, P.C., Alton, Roger Mandel, Stanley, Mandel & Iola, L.L.P., Dallas, TX, for Caren Burns. Justice HOPKINS delivered the opinion of the court:

Various defendants appeal the trial court's order denying their motions to transfer the case of Howard Burns, now deceased, and Caren Burns, from Madison County, Illinois, to Shelby County, Illinois, pursuant to the intrastate doctrine of forum non conveniens, under Supreme Court Rule 187 (134 Ill.2d R. 187). The only issue raised on appeal is whether the trial court abused its discretion when it denied the defendants' motions. We reverse the trial court's order, and pursuant to our powers under Supreme Court Rule 366(a)(5) (155 Ill.2d R. 366(a)(5)), we remand this case and order that it be transferred to Shelby County.

FACTS

Howard was employed at Moweaqua High School in Moweaqua, Shelby County, Illinois, as an industrial arts teacher during the school year and for construction and maintenance work during the summer months from 1951 to 1986. While working construction and maintenance at the high school and also while building his own home, Howard was exposed to asbestos-containing products. Howard's home was also in Moweaqua, Shelby County, Illinois. On April 10, 2000, Howard was diagnosed with mesothelioma, a rapidly progressing, terminal, asbestos-induced disease. Howard filed his complaint for

negligence, wilful and wanton conduct, and conspiracy, and his wife, Caren, filed her complaint for loss of consortium on May 17, 2000, in Madison County, Illinois. Howard never worked in Madison County. Howard's treating physicians were in Sangamon County, Illinois, and in Cook County, Illinois. The plaintiffs filed a motion for an immediate setting for trial on May 24, 2000, citing Howard's rapidly deteriorating health. The court granted the motion on July 7, 2000, and set the trial date for December 4, 2000.

Fourteen defendants filed motions to transfer this case from Madison County to Shelby County under Rule 187. While acknowledging that jurisdiction and venue were proper in Madison County, the defendants contended that there was no connection between this case and Madison County. The plaintiffs objected to the defendants' motions, claiming that their right to select a forum is a substantial right and that the defendants did not meet their burden of showing that the factors strongly favored transfer. A hearing on the defendants' motions was held on August 11, 2000. At the hearing, the plaintiffs argued that Shelby County is a rural county and that it is unable to accommodate "all of the people coming into town for a trial of this matter." Counsel stated: "There is no airport in Shelby County. * * * There is not even an interstate[,] to my knowledge[,] close to the county seat. It is a very inconvenient place to have this, inconvenient for all of the parties." The plaintiffs also advised the court that Howard had a very short life expectancy. Counsel asserted: "It certainly would be inconvenient to [Howard] to have this trial conducted at a time after his death. The only way that I can see to get it done [*383] during his life expectancy is to do it in this court." The defendants' argument to the trial court was that Howard worked and lived in Shelby County for at least 36 years, that his exposure to asbestos was in Shelby County, and that the two witnesses named in Howard's deposition both live in Shelby County.

The trial court stated at the hearing at the end of the parties' arguments on the motions: "If [Howard] make[s] it to December, we'll give him a trial. If he doesn't make it until December, the case is transferred." The court went on to state at the hearing: "This is my preliminary position. If there is [sic] some other factors, fine. Under the circumstances, the Court would ignore any other factors and considerations given that this man's life expectancy is so short. I want to give him his day in court even if it is Madison County." The trial court's written order, entered on August 11, 2000, denying the defendants' motions to transfer stated in pertinent part as follows:

"1) In consideration of [Howard's] shortened life expectancy[,] Defendants' Motion is denied and trial is set on 12/4/2000[.]

2. If [Howard] should die prior to 12/4/2000[,] this Court shall re[]consider Defendants' Motion to Transfer." The defendants filed a petition for leave to appeal the trial court's denial of their motions, pursuant to Supreme Court Rule 306(a)(2) (166 Ill.2d R. 306(a)(2)), and this court granted the defendants leave to appeal.

ANALYSIS

The principles of law pertaining to the review of a trial court's ruling on a motion to transfer under the doctrine of intrastate forum non conveniens are well-established. A motion for transfer under the doctrine of forum non conveniens presupposes that jurisdiction and venue are proper in more than one county. Peile v. Skelgas, 163 Ill.2d 323, 206 Ill.Dec. 179, 645 N.E.2d 184 (1994). The doctrine allows a court to decline to exercise its jurisdiction over a case when it appears that another forum with jurisdiction may be more convenient. Bland v. Norfolk & Western Ry. Co., 116 Ill.2d 217, 107 Ill. Dec. 236, 506 N.E.2d 1291 (1987). The doctrine applies on an intrastate basis as well as on an interstate basis. Bland, 116 Ill.2d at 224, 107 Ill.Dec. 236, 506 N.E.2d 1291. A trial court's decision on a motion to transfer is a matter left to the sound discretion of the trial court, and the trial court's determination will not be overturned on review unless the court has abused its discretion. Peile, 163 Ill.2d at 336, 206 Ill.Dec. 179, 645 N.E.2d 184.

The doctrine of forum non conveniens is a flexible one dependent on an evaluation of the total circumstances without concentration on any single factor. Peile, 163 Ill.2d at 336-37, 206 Ill.Dec. 179, 645 N.E.2d 184. One of the factors to be considered is that a plaintiff's right to select the forum is a substantial one; however, if the plaintiff is not a resident of the chosen forum or the county selected is not the situs of the injury, a plaintiff's choice of forum is given less deference. Peile, 163 Ill.2d at 337-38, 206 Ill.Dec. 179, 645 N.E.2d 184. In addition, a court must consider the private-interest factors and the public-interest factors. Peile, 163 Ill.2d at 337, 206 Ill.Dec. 179, 645 N.E.2d 184. The private-interest factors include the relative ease of access to sources of proof, the accessibility of witnesses, the possibility of a jury view of the premises, and any other practical problems that make the trial of a case easy, expeditious, and inexpensive. Peile, 163 Ill.2d at 337, 206 Ill.Dec. 179, 645 N.E.2d 184. An ability to try a case in an expeditious manner [*384] has also been recognized as a private-

interest factor. Hefner v. Owens-Corning Fiberglas Corp., 276 Ill.App.3d 1099, 213 Ill.Dec. 532, 659 N.E.2d 448 (1995). The public-interest factors include having localized controversies decided in a local forum, administrative concerns, and imposing jury duty on residents of a county with little connection to the litigation. Peile, 163 Ill.2d at 337, 206 Ill.Dec. 179, 645 N.E.2d 184.

In the case sub judice, the trial court focused on one factor—providing Howard with an expeditious trial—and failed to consider any other factor involved in deciding a motion to transfer under the doctrine of forum non conveniens. The record reflects that the trial court was aware that it should consider the other factors but that the court was choosing to "ignore" any other factors. The failure to consider all of the factors and focusing on only one factor was an abuse of the trial court's discretion.

The discovery in this case indicated that Howard and his wife were not residents of Madison County but that they lived in Shelby County. Howard had never worked in Madison County. Howard's exposure to asbestos was either from products used at work in Shelby County or from products used in the construction of his home, again in Shelby County. Howard's treating physicians were not in Madison County. Howard's named witnesses who would testify as to the products used by Howard were in Shelby County. The expert witnesses listed by both the plaintiffs and the defendants are located all over the United States and, in some instances, outside of this country. Although the record does not indicate where any of the defendants' places of business are, the defendants have acknowledged that jurisdiction and venue are proper in Madison County. However, this factor is not sufficient to support bringing suit in Madison County. See Bland, 116 Ill.2d at 226, 107 Ill.Dec. 236, 506 N.E.2d 1291.

Because Howard's exposure to asbestos was at the local high school, the local interest in this case would be in Shelby County. The statistics reported by the Illinois Supreme Court in its annual report of 1998 indicate that Madison County is a more congested court than Shelby County. There is an insufficient connection between Madison County and this case to justify imposing jury duty on the citizens of Madison County. Thus, when considering the private-interest and public-interest factors involved, it is clear that the most convenient forum for this case is Shelby County.

CONCLUSION

Because the trial court abused its discretion in denying the defendants' motions to transfer under the doctrine of forum non conveniens and because the private-interest and public-interest factors weigh strongly in favor of a transfer from Madison County to Shelby County, we reverse the trial court's denial of the defendants' motions to transfer. Additionally, pursuant to our powers granted under Supreme Court Rule 366(a)(5), we remand this case with directions that the trial court enter an order transferring this case to Shelby County, Illinois.

Reversed; cause remanded with directions.

MAAG, P.J., and GOLDENHERSH, J., concur.

Sources

• The opinion on Google Scholar
• Illinois asbestos laws
• Illinois asbestos exposure sites