On January 3, 2020, in Mary Ellerbrock, Individually, and as Special Administrator of the Estate of Alex Kaszynski, Deceased, v. A.O. Smith Corp., et. al. (case No. 18-L-1434), the Third Judicial Circuit Court in Madison County, IL, denied defendant PW Power Systems’ (“PW”) motion to transfer based on forum non conveniens. In this asbestos case, premises Defendant PW sought to have the case moved from Madison County, IL to LaSalle County, IL. In denying PW’s motion, the Court referenced the Supreme Court’s decision in Fennell v. Illinois Central R.R. Co., emphasizing “[t]he defendant must show that the plaintiff’s chosen forum is inconvenient to the defendant and that another forum is more convenient to all parties.” 2012 IL 113812, ¶ 6. The Court’s reliance on Fennell for support that all defendants must join the motion is misplaced given that Fennell involved only one defendant.

In the Ellerbrock matter, decedent lived in LaSalle County, IL for most of his life. He received most of his medical care and spent almost his entire career working in LaSalle County. Decedent allegedly performed maintenance on a PW jet engine turbine mounted in a powerhouse in Peru, IL. The engine is still in use at the powerhouse. As such, PW argued that LaSalle County was the more convenient forum given the presence of the engine and given that all fact witnesses reside in LaSalle County. Plaintiff argued that PW did not meet its burden of proof, as the other thirty-eight remaining defendants did not join in PW’s motion. Further, LaSalle County is ninety minutes from the nearest airport and the opportunity for a jury to view the powerhouse premises and engine is immaterial as the powerhouse has changed significantly in the thirty years since Decedent stopped working at the facility.

The Court’s denial of PW’s motion focused on the fact that no other defendants joined PW’s forum non conveniens motion. Namely, the Court reasoned that a dismissal of PW would force the Court to continue trying the case in Madison County with the remaining defendants. As such, the Court concluded that granting this motion would go against the purpose of the forum non conveniens rule which “is to ‘unburden’ the Court with litigation that could be more conveniently tried in some other forum.” The Court’s reasoning here does not appear to comport with black letter law. PW filed a motion to dismiss Plaintiff’s first amended complaint wherein PW included (1) a motion to dismiss for failure to state a claim pursuant to 735 ILCS 5/2-615 and (2) a motion to dismiss pursuant to 735 ILCS 5/2-619. PW also argued for a motion to transfer based on forum non conveniens. Clearly, PW was not requesting that the case be dismissed under forum non conveniens but rather, and properly, that it be transferred. Transferring the entire case to LaSalle County would nullify the Court’s argument that it would have to continue trying the case in Madison County with the remaining defendants.

At oral argument on this motion, the Court noted a recent, and unpublished, decision by the Fifth District Appellate Court, Shaw v. Hass. 2019 IL App (5th 180588). The appellate court in Shaw overturned the lower court’s denial of a defendant’s motion to dismiss/transfer based on forum non conveniens and transferred the case from St. Clair County to Monroe County. The Madison County Court gleaned that this was due to the defendant in Shaw being headquartered in Monroe County. Since PW is not headquartered in LaSalle County, the Court found support from Shaw in denying PW’s motion.

Given the significant presence of relevant evidence in LaSalle County and the lack of case law supporting that a Defendant be “headquartered” where the case is transferred, the Court’s reasoning here is a concerning development. With the recent dismissal of PW from this case we will not have the opportunity to see how the Court’s reasoning would hold up at the appellate level.