Bruce v. Atadero

• Decision Date: 12 November 2010
• Docket Number: No. 1–09–2463.,1–09–2463.
• Citation: 345 Ill.Dec. 381,939 N.E.2d 110,405 Ill.App.3d 318
• Parties: Paula BRUCE, Special Administrator of the Estate of Michael Bruce, Deceased, Plaintiff–Appellee,v.Arsenio D. ATADERO, Individually, Sherman Hospital, an Illinois Corporation, and Sherman Health System, an Illinois Corporation, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

405 Ill.App.3d 318

939 N.E.2d 110

345 Ill.Dec. 381

Paula BRUCE, Special Administrator of the Estate of Michael Bruce, Deceased, Plaintiff–Appellee,

v.Arsenio D. ATADERO, Individually, Sherman Hospital, an Illinois Corporation, and Sherman Health System, an Illinois Corporation, Defendants–Appellants.

No. 1–09–2463.

Appellate Court of Illinois, First District, Fifth Division.

Nov. 12, 2010.

Steven M. Levin, Margaret P. Battersby, Levin & Perconti, Chicago, IL, for Plaintiff–Appellee.Rick L. Hammond, Phillip E. Wand, Gummerson & Rausch, LLC, Woodstock, IL, Hugh C. Griffin, Anna M. Loftus, Hall Prangle & Schoonveld, LLC, Kay L. Schichtel, Nicole M. Clarke, Leanne Moore, Swanson Martin & Bell, LLP, Chicago, IL, for Defendants–Appellants.Justice TOOMIN delivered the opinion of the court:

[345 Ill.Dec. 383 , 405 Ill.App.3d 319] In this appeal, we determine whether the circuit court properly declined to

[345 Ill.Dec. 384 , 939 N.E.2d 113]

transfer venue based on intrastate forum non conveniens where the original action was brought in the forum where the injury occurred and where several key witnesses resided and, following voluntary dismissal, was refiled in a forum other than where plaintiff resided.

Plaintiff Paula Bruce, special administrator of the estate of Michael Bruce, brought wrongful death and survival claims against defendants, alleging they were negligent in their treatment of decedent, which occurred in McHenry County. Plaintiff originally filed this action in McHenry County, where defendant Sherman Hospital was a resident. After discovery had proceeded for almost two years, plaintiff voluntarily dismissed the action and refiled in Cook County, where two physical therapy facilities of Sherman Hospital were located, but which were not related to the treatment at issue, bringing the same claims and making the same allegations contained in her prior complaint. Defendants filed motions to transfer venue based on the doctrine of intrastate forum non conveniens. The trial court denied the motions. For the following reasons, we reverse and remand the matter to the circuit court with directions to transfer the cause to McHenry County.

BACKGROUND

Plaintiff filed this action in McHenry County on March 10, 2006, grounded on claims for wrongful death and survival, alleging that defendants negligently failed to diagnose decedent's deep vein thrombosis, resulting in his death on March 18, 2004. Plaintiff's allegations stemmed in part from the treatment decedent received at Sherman Hospital and the Sherman Hospital Immediate Care Center, located in McHenry County, following an injury to his left leg. Defendant Sherman Health Systems, a resident of Kane County, is the parent corporation of Sherman Hospital. Plaintiff's allegations against defendant Dr. Arsenio Atadero were based on the care he rendered to decedent on March 10, 2004, in his medical office in McHenry County. Decedent was treated and died in the emergency department at Sherman Hospital's main facility in Kane County.

Decedent was a resident of Kane County. Plaintiff and decedent's two minor children likewise presently reside in that forum. Defendant Dr. Atadero is a resident of McHenry County, where he also maintains his office. He has privileges to practice and sees patients at hospitals located in McHenry and Kane Counties. Dr. Atadero's nurse and potential witness, Joanna Pledger, works in McHenry County and lives in Kane County.

Defendant Sherman Hospital's main facility is in Kane County, but the treatment rendered to decedent primarily occurred at facilities in McHenry County. Nurse Jason Carman, who treated decedent at Sherman Hospital's Immediate Care Center in McHenry County, resides in McHenry County. Nurse Carman presently works at a different hospital in Cook County, Illinois. Two other nurses who were involved in the care of decedent at Sherman Hospital Immediate Care Center, Debra Wojcik and Bonnie Gabriel, work in McHenry County.

The witnesses who provided treatment to decedent the day of his death at Sherman Hospital in Kane County are: nurses Michael Taster and Susan Hacke, who reside in McHenry County; Dr. Timothy Wang, who resides in Kane County; Dr. Dalia Gvildys, who resides in DuPage County; and Dr. Douglas Jackson, who resides in Cook County.

Plaintiff listed the following individuals as damage and loss-of-society witnesses: plaintiff, her two sons, and her neighbors, who all reside in Kane County; and plaintiff's

[345 Ill.Dec. 385 , 939 N.E.2d 114]

mother and father, who reside in Indiana. Plaintiff also listed seven loss-of-society witnesses who live in Cook County, including plaintiff's aunt and uncle; plaintiff's cousin; and plaintiff's two sisters. The only witness to the initial accident and injury to decedent's leg was David Spagnola, who was decedent's coworker. Spagnola resides in Cook County.

The case was pending in McHenry County for almost two years before plaintiff voluntarily dismissed it and refiled in Cook County. Defendants moved to dismiss or transfer the case back to McHenry County under the doctrine of intrastate forum non conveniens. On August 19, 2009, the circuit court entered a 16 page memorandum opinion and order denying defendants' motion. Defendants filed a petition for leave to appeal pursuant to Supreme Court Rule 306(a)(2) (210 Ill.2d R. 306(a)(2)). Pursuant to supervisory order of the Illinois Supreme Court, we granted defendants' petition for leave to appeal.

ANALYSIS

Defendants Sherman Hospital and Sherman Health Systems maintain that the circuit court abused its discretion in giving undue weight to the fact that Sherman Hospital was a resident of Cook County for venue purposes. Defendants contend that plaintiff's choice of Cook County was entitled to less deference because the plaintiff did not reside in the county and the incident did not occur there and the public and private interest factors strongly favored transfer from Cook County back to McHenry County. Defendants further argue that plaintiff's selection of forum upon refiling should be afforded even less deference given there is a clear inference of forum shopping due to the fact that she previously filed her cause of action in McHenry County, the situs of the wrongful conduct. Plaintiff maintains that the balance of all private and public factors weighs in favor of allowing her choice of forum, and that her prior filing of this action is irrelevant to a forum non conveniens analysis and does not lessen the deference due to her choice of forum.

Our precedent instructs that forum non conveniens is an equitable doctrine founded on considerations of fundamental fairness and the sensible and effective administration of justice. Langenhorst v. Norfolk Southern Railway Co., 219 Ill.2d 430, 441, 302 Ill.Dec. 363, 848 N.E.2d 927, 934 (2006). Under the doctrine the trial court has the authority to transfer a lawsuit intrastate, even when the venue where the suit was filed is proper. See Torres v. Walsh, 98 Ill.2d 338, 344–50, 74 Ill.Dec. 880, 456 N.E.2d 601, 604–07 (1983). “ ‘It is often said that the plaintiff may not, by choice of an inconvenient forum, “vex,” “harass,” or “oppress” the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy.’ ” Torres, 98 Ill.2d at 345–46, 74 Ill.Dec. 880, 456 N.E.2d at 604–05, quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062 (1946). The doctrine presupposes the existence of at least two forums in which the defendant is amenable to jurisdiction. Jones v. Searle Laboratories, 93 Ill.2d 366, 371, 67 Ill.Dec. 118, 444 N.E.2d 157, 159 (1982). In adopting the intrastate forum non conveniens doctrine in Torres, our supreme court recognized the Illinois courts' authority to transfer cases as long existing at common law. Torres, 98 Ill.2d at 347, 74 Ill.Dec. 880, 456 N.E.2d at 605. “The doctrine allows a trial court to decline jurisdiction of a case when it is apparent that trial in another forum with

[345 Ill.Dec. 386 , 939 N.E.2d 115]

proper jurisdiction and venue ‘would be more convenient and would better serve the ends of justice.’ ” Glass v. DOT Transportation, Inc., 393 Ill.App.3d 829, 832, 332 Ill.Dec. 275, 912 N.E.2d 762, 766 (2009), quoting Vinson v. Allstate, 144 Ill.2d 306, 310, 162 Ill.Dec. 43, 579 N.E.2d 857, 859 (1991). A court having jurisdiction and venue over a case may dismiss or transfer the case if it “has no practical connection to the forum.” Torres, 98 Ill.2d at 348, 74 Ill.Dec. 880, 456 N.E.2d at 606, citing, e.g., People ex rel. Compagnie Nationale Air France v. Giliberto, 74 Ill.2d 90, 23 Ill.Dec. 106, 383 N.E.2d 977 (1978); Adkins v. Chicago, Rock Island & Pacific R.R. Co., 54 Ill.2d 511, 301 N.E.2d 729 (1973). In the event a plaintiff files suit in an improper forum, the Civil Practice Law (735 ILCS 5/2–101 et seq. (West 2008)) provides for the means to transfer the cause to a proper venue or dismiss the action. Williams v. Illinois State Scholarship Comm'n, 139 Ill.2d 24, 40, 150 Ill.Dec. 578, 563 N.E.2d 465, 472 (1990).

In determining the appropriate forum in which the case should be tried, it is incumbent upon the court to balance the prevailing private and public interests. Glass, 393 Ill.App.3d at 832–33, 332 Ill.Dec. 275, 912 N.E.2d at 767, citing Dawdy v. Union Pacific R.R. Co., 207 Ill.2d 167, 172, 278 Ill.Dec. 92, 797 N.E.2d 687, 693 (2003). “In Illinois, the private interest factors include the convenience of the parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the availability of compulsory process to secure attendance of unwilling witnesses; the cost to obtain attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all other practical considerations that make a trial easy, expeditious, and inexpensive.” Glass, 393 Ill.App.3d at 833, 332 Ill.Dec. 275, 912 N.E.2d at 767, citing Dawd...