Eads v. Consolidated Rail Corp., 1-05-1895.

• Court: United States Appellate Court of Illinois
• Citation: 847 N.E.2d 601
• Docket Number: No. 1-05-1895.,1-05-1895.
• Parties: Tracie EADS, Plaintiff-Appellee, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant.
• Decision Date: 20 March 2006

847 N.E.2d 601 Tracie EADS, Plaintiff-Appellee,
v.
CONSOLIDATED RAIL CORPORATION, Defendant-Appellant. No. 1-05-1895. Appellate Court of Illinois, First District, First Division. March 20, 2006.

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Roger C. Denton and J. Brad Wilmoth of Schlichter, Bogard & Denton, St. Louis, MO, for Plaintiff-Appellee.

Raymond H. Groble III and Christopher R. Karsten of Daley & Mohan, P.C., Chicago, for Defendant-Appellant.

Justice McBRIDE delivered the opinion of the court:

In this permissive interlocutory appeal pursuant to Supreme Court Rule 306, the defendant, Consolidated Rail Corporation (Conrail), a Pennsylvania corporation, contends it was an abuse of discretion for the circuit court of Cook County to deny its motion to dismiss the Indiana plaintiff's negligence action on the basis of forum non conveniens before a retrial on the action commences in this jurisdiction. 166 Ill.2d R. 306.

The accident at issue occurred in Indiana at approximately 3:37 p.m. on Saturday, September 20, 1997, when plaintiff Tracie D. Eads was riding in the front passenger seat of a 1989 Chevrolet Astro Van being driven by her friend, Donald L. Steiner. Like Eads, Steiner resided in Goshen, Elkhart County, Indiana. Steiner drove the van south on a two-lane, unpaved, gravel road, Elkhart County Road 31, to its juncture with train tracks owned and maintained by Conrail, approximately one-half mile north of Elkhart County Road 38. The rural, grade-level crossing was flanked by soybean fields and woods, and equipped with advance warning signs, crossbuck signs, and stop signs, but not automatic gates or flashing lights. There was conflicting witness testimony as to whether Steiner heeded the stop sign before driving into the path of an eastbound Conrail freight train. The train was approximately 100 miles from Chicago, returning to Toledo, Ohio, and its crew consisted of engineer Michael J. Schmidt, who resided in Sylvania, Ohio, and conductor Daniel R. Bailey, who resided in Wayne, Ohio. When the freight train struck Eads' side of the van, she and Steiner were ejected from the vehicle. Ronald G. Denning was mowing a field near the crossing and Kendall Toole was busy working on a nearby home, and they hurried to the scene of the collision. The collision was investigated by deputies Michael Carich, Brian Holloman, and Deb Fulk, of the Elkhart County, Indiana, sheriff's department. Steiner died at the scene and Eads was transported to Goshen General Hospital, in Goshen, Elkhart County, Indiana, and then Parkview Trauma, in Fort Wayne, Indiana, for treatment of her injuries. All of Eads' medical care was provided in Indiana. Her primary treating physician was Dr. Stephen Ribaudo, a physiatrist, whose office was in South Bend, Indiana. She was also treated by neuro-surgeon, Dr. Stephen Schroeder, of Fort Wayne, Indiana, Dr. Donald Graber, of Elkhart, Indiana, Dr. Mohammed Zeitoun, of Merrillville, Indiana, and Behavioral Psychological Family Services, of South Bend, Indiana. Eads has remained a resident of Elkhart County throughout these proceedings.

Eads filed a negligence action against Steiner's estate in Elkhart County on February 27, 1998, and then a separate negligence action in Madison County, Illinois, on August 20, 1998, against Conrail and two of its employees. In the Indiana action, Eads alleged Steiner's negligence was

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the sole cause of her injuries. In the Illinois action, Eads did not allege any negligence on the part of Steiner, train engineer Schmidt, conductor Bailey, or Schmidt and Bailey's direct supervisors who were located in Elkhart County, Indiana, and Dearborn, Michigan. She did, however, name as defendants two Conrail employees who worked in Cook County, Milt Leppert and George Marx, and alleged these individuals negligently failed to properly train and supervise the train crew, negligently failed to evaluate the need for and order the installation of gates and lights at the crossing, and also negligently failed to order a speed reduction at the crossing.

On October 13, 1998, Conrail filed a notice of removal to the federal District Court for the Southern District of Illinois on the basis of diverse citizenship and an amount in controversy exceeding $75,000. See 28 U.S.C. § 1332 (2000). Conrail argued diversity existed because it was a resident of Pennsylvania and Eads was a resident of Indiana, and that Marx and Leppert's Illinois residency should be disregarded because Eads had fraudulently joined the Cook County personnel as defendants solely for the purposes of jurisdiction. Conrail provided affidavits from Marx and Leppert indicating they had no direct supervisory authority over the crew. Eads, however, sought and obtained leave to add another defendant, Conrail employee John Ryan, an "Assistant Vice President of Operating Rules" working in Cook County, and then motioned to remand the case back to Madison County. Eads' motion was granted on December 15, 1998.

On January 13, 1999, Conrail filed what would be the first of four written or oral motions in the Illinois state courts that was based on the equitable doctrine of forum non conveniens. In this first motion, Conrail asked Madison County to dismiss Eads' action so that it could be refiled in Indiana, because her residence, the accident site, most of the post-occurrence witnesses and all of the medical witnesses were in Indiana. Conrail argued that when Eads rejected her home county and home state, and filed her action in a jurisdiction that had no interest in its outcome, Eads demonstrated she was forum shopping. As an alternative, Conrail asked Madison County to transfer the case to Cook County because Madison County had a congested docket and no arguable connection to the litigation, and the three individual defendants at least worked in Cook County. Nearly two years later, on November 29, 2000, Madison County granted Conrail's alternative request to transfer the case to Cook County. In the meantime, the parties had proceeded with discovery.

On June 18, 2002, Conrail filed its second forum non conveniens motion, which was based on its recent discovery of the negligence action that was pending in Indiana against Steiner's estate. The grant or denial of a forum non conveniens motion is a discretionary ruling (Ferguson v. Bill Berger Associates, Inc., 302 Ill. App.3d 61, 70, 235 Ill.Dec. 257, 704 N.E.2d 830, 836 (1998)), and ordinarily, once a judge has made a discretionary ruling, the ruling will not be disturbed by a judge of coordinate jurisdiction unless there is a change of circumstances or additional facts which warrant such action. W.R. Grace & Co. v. Beker Industries, Inc., 128 Ill. App.3d 215, 221, 83 Ill.Dec. 451, 470 N.E.2d 577, 583 (1984) (indicating a "change in circumstances of the parties relating to forum non conveniens principles" justifies renewal of a challenge to forum). Conrail argued Eads' choice of forum demonstrated that even she believed Indiana was the appropriate forum to redress her personal injuries, and that

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the imposition of sanctions pursuant to Supreme Court Rule 137 was warranted because Eads had been concealing the existence of her Indiana suit. 155 Ill.2d. R. 137. The circuit court's March 28, 2003, order denying Conrail's motion does not specify the court's reasoning; however, the hearing transcript discloses that the Cook County judge was "concern[ed]" that the Madison County judge had already determined there were sufficient contacts with Illinois to keep the case in Illinois, and that the only new development was the discovery of Eads' suit against Steiner, which the court did not believe had been wilfully concealed from Conrail.

On January 9, 2004, Eads' Illinois action against Conrail and its Cook County personnel proceeded to trial before Cook County circuit court judge James M. Varga. Judge Varga first conducted approximately five full days of proceedings in his chambers addressing the parties' motions in limine and determined that the law of Indiana (the site of the accident) would control what was presented to the jury and the substance of the jury instructions. On January 21, 2004, after all the pretrial motions had been resolved and it was time to select a jury, Eads orally dismissed the three individual defendants from the case. Conrail immediately renewed its forum non conveniens motion, characterized Eads' inclusion of the individual defendants as a "sham" and a "ruse" and stated that dismissing them at the last possible opportunity made it "crystal clear [they were] kept in the case solely to keep the case in Cook County and Illinois [when it] should be tried in Indiana [along with the claim against Steiner's estate]." Eads countered that she had a "good faith basis" for bringing negligent supervision claims against the Illinois employees in Illinois, that her reason for dismissing them was privileged, and that she had "expended the resources to be here" and was "ready for trial today." Judge Varga acknowledged that Conrail had repeatedly challenged whether it was appropriate for Eads to litigate her damages in Illinois state court. He indicated he was denying Conrail's third forum non conveniens motion, however, since Cook County taxpayers had already "invested so much [judicial] time and effort and resources" over the preceding three years or so, and the litigants were indicating they needed just five days with a jury to conclude the case. "[T]he bottom line," he concluded, "is, just finish it."

At trial, Eads relied on the testimony of eight individuals, including herself, to prove her case. Denning was the neighbor who left the field he was mowing to come to the scene of the accident. Denning was in the process of moving to Michigan when the accident occurred in 1997, and he traveled from his home in Edwardsburg, Michigan, to testify at the Cook County trial in January 2004. The jury also...