Hepler Broom, LLC

Illinois Appellate Court Ruling on Forum Non Conveniens Venue Transfers

December 22, 2020

It happened again. Plaintiff named a physician buried in the medical record as a defendant, the one that provided a consult on the day of surgery, and the one that lives in The County. The County, the venue where Plaintiff wants to be. Not in the county where your client hospital resides. Not in the county where the surgery took place. That other county down the road. Now your client is stuck there—unless you can convince the court that The County is just too inconvenient and unfair to the defendant and the public. So, you are forced to get out your maps. Measure the distance between the hospital and the home address of the nurse who will be deposed. Count how many cases are pending in one county versus the other. Add up mileage costs. Create the private and public interests pie chart. Argue that this case should be transferred to what you believe is the appropriate venue, and hope that the court agrees, knowing that with a defendant’s residence in The County, it will be a steep hill to climb. But wait! The forum non conveniens cavalry may have arrived by way of Brandt v. Shekar, 2020 IL App (5th) 190137.

Case Analysis: Brandt v Shekar

(I preface this case analysis by pointing out that Brandt is an Illinois Supreme Court Rule 23 Order, which typically would prevent citing it in briefs and allowing the trial court to rely on it in orders. However, Rule 23 is amended as of January 1, 2021, to allow citations to unpublished appellate opinions, so the courts may be open to hearing your arguments, and hopefully Brandt represents the first of a line of cases finding defendant’s home residence as not dispositive.)

Trial Court Denies Motion for Venue Transfer

In Brandt, Plaintiff brought suit in St. Clair County against a radiologist and a clinic, alleging failure to diagnose breast cancer. Defendants moved for a venue transfer based on forum non conveniens, and the motion to transfer was denied. In their motion, Defendants argued that venue was more appropriate in Marion County because: (1) the mammogram at issue took place at St. Mary’s Hospital in Marion County, (2) Plaintiff resided in Marion County, (3) subsequent medical treatment was provided in Marion County, and (4) three lay witnesses resided there or nearby. The only connection to St. Clair County was that one of the defendant physicians, Dr. Shekar, resided there.

In denying the motion to transfer, the trial court found certain private interest factors to favor Plaintiff’s chosen venue: Dr. Shekar lives in St. Clair County, access to evidence and cost to obtain witnesses was of no difficulty, some witnesses would be inconvenienced regardless of venue, and expert witnesses would need to travel from out of state and likely arrive at Lambert Airport in St. Louis, which is closer to St. Clair County. The trial court also found certain public interest factors favored the Plaintiff: St. Clair County jurors would have more interest because Dr. Shekar is a resident of their county, and evidence would be stored in Plaintiff’s attorney’s office located in St. Clair County. The court acknowledged St. Clair County had twice as many pending cases as Marion County but found that factor to be insignificant. In conclusion, the trial court denied the motion to transfer venue because the Defendants failed to show that St. Clair County was inconvenient and that Marion County was more convenient. It stated that applying the private and public interest factors “demonstrated that this is not a case of exceptional circumstances where the interests of justice require transfer.” Brandt at ¶ 23.

Appellate Court Reverses Trial Court’s Denial of Motion to Transfer

On appeal, the court reversed the trial court’s denial of the motion to transfer, finding that Marion County was more convenient to the parties. The 5th District confirmed that a plaintiff’s choice of forum should generally be accepted when venue is proper. However, that choice is given less deference when the plaintiff does not reside in the chosen venue. Brandt at ¶ 33. The court also pointed out that except for Plaintiff’s lawyer’s office and the residence of Dr. Shekar, there was no connection to St. Clair County whatsoever. The court found that while Dr. Shekar’s home residence is the reason that venue in St. Clair County was proper, the trial court placed undue weight on this private interest factor in denying the motion to transfer because the defendant’s residence had no relation to the alleged negligence. Brandt at ¶ 36. The court also said that the place of injury is the most significant factor when weighing the public interest factors. Brandt at ¶ 49. The dissent argued that a trial court’s decision on whether to grant a motion to transfer based on forum non conveniens is given broad discretion and is to be overturned only in exceptional circumstances. The dissent did not believe such circumstances were demonstrated here.

The Takeaway

In cases where the only, or one of the only, connection to a plaintiff’s chosen venue is the residence of a defendant, defense counsel should consider using the reasoning laid out by the 5th District in Brandt to support a motion to transfer based upon forum non conveniens. We will see if the caselaw progeny continues down this path to provide citable authority.

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