Espinosa v. Norfolk & W. Ry. Co.

• Decision Date: 30 September 1981
• Docket Number: No. 54186,54186
• Citation: 86 Ill.2d 111,56 Ill.Dec. 31,427 N.E.2d 111
• Parties: , 56 Ill.Dec. 31 Jose A. ESPINOSA, Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellant.
• Court: Illinois Supreme Court

Page 111

427 N.E.2d 111 86 Ill.2d 111, 56 Ill.Dec. 31 Jose A. ESPINOSA, Appellee,
v.
NORFOLK AND WESTERN RAILWAY COMPANY, Appellant. No. 54186. Supreme Court of Illinois. Sept. 30, 1981.

[86 Ill.2d 113]

Page 112

[56 Ill.Dec. 32] Edward J. Kionka, Columbia, and Pope & Driemeyer, Belleville (Edward J. Kionka, Columbia, and Thomas W. Alvey, Jr., Belleville, of counsel), for appellant.

John T. Pierce, Jr., of Paul L. Pratt, P. C., of East Alton, for appellee.

Baker & McKenzie, Chicago (Francis D. Morrissey and Paul B. O'Flaherty, Jr., Chicago, of counsel), for amici curiae The Atchison, Topeka & Santa Fe Ry. Co., the Belt Ry. Co. of Chicago, Burlington Northern, Chessie System, Chicago and North Western Transp. Co., Chicago & Western Indiana R. Co., Illinois Cent. Gulf Rd., Louisville & Nashville Rd. Co., The Milwaukee Road, and the Missouri Pacific Rd. Co.

John J. Naughton, of Henslee, Monek & Henslee, Chicago, for amicus curiae United Transp. Union.

Edward W. Cleary, Tempe, Ariz., and Paul L. Pratt, East Alton, for amici curiae Brotherhood of Maintenance of Way Employees, Brotherhood of Railway Carmen of the United States, International Brotherhood of Firemen and Oilers, International Brotherhood of Electrical Workers, Brotherhood of Railway, Airline and Steamship Workers, International Association of Sheet Metal Workers, Brotherhood of Railroad Signalmen, International Association of Machinist and Aerospace Workers.

UNDERWOOD, Justice:

This is an action for damages under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1976)) in which the sole issue before us is whether the trial judge's denial of defendant's motion to dismiss on forum non conveniens grounds constituted an abuse of discretion.

Plaintiff, Jose A. Espinosa, was employed by defendant, Norfolk and Western Railway Company, as a section foreman in its Melvindale, Michigan, yards. Melvindale is a Detroit suburb located some 530 miles from Edwardsville, the county seat of Madison County, Illinois. While so [86 Ill.2d 114] employed plaintiff was injured when his foot and leg went through planking covering the platform of a sub-surface scale in the railroad yards. Plaintiff, who resided in the Detroit area, reported the injury to his supervisor and sought treatment from a medical group in Allen Park, Michigan, which served the railroad as the company doctors. Plaintiff was hospitalized twice while in their care,

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[56 Ill.Dec. 33] but his condition worsened. He was then referred by his union representative to an orthopedic specialist, Dr. George Schoedinger of St. Louis, Missouri. Dr. Schoedinger diagnosed a lumbar disc condition, performed surgery in St. Louis on plaintiff's low back and examined him periodically in his St. Louis office during the following 14 months.

The union representative also referred plaintiff to his present counsel, the regional attorney for the Brotherhood of Maintenance of Way Employees. Plaintiff's attorney offices in East Alton, Illinois, located in Madison County, and suit was filed against the railroad in that county. The railroad's motion to dismiss, predicated on forum non conveniens grounds, was denied, and its later motion to reconsider that ruling on the basis of additional facts was also denied. Subsequently, after requesting and receiving a response from plaintiff, this court denied a motion for leave to file an original action for a writ of mandamus to compel dismissal of the Madison County complaint. The case was thereafter tried, and both preceding and during trial the railroad unsuccessfully renewed its motions. The bench trial resulted in a $275,000 judgment for plaintiff. The railroad appealed to the appellate court, which affirmed (87 Ill.App.3d 1147, 44 Ill.Dec. 135, 411 N.E.2d 41), and we allowed its petition for leave to appeal.

Much evidence was submitted on the forum non conveniens issue in the form of affidavits, documents and testimony concerning the identity and place of residence of potential witnesses, the distance between the place of injury and place of filing suit, the cost of pretrial discovery trips to [86 Ill.2d 115] Michigan, the inconvenience and additional cost to the defendant in trying a case so far from the site of occurrence, and the condition of the court dockets in Madison County. Several references to the "Wabash Hospital Association" appear in this record. Although it also appears that Dr. Schoedinger was an "Association doctor," and plaintiff testified that he was a member of the Association and that it paid part of his hospitalization costs, there is no explanation of the purpose, type or manner of operation of the Association. Consequently its relevance, if any, to the issue before us cannot be determined.

It was established that, except for Dr. Schoedinger, all occurrence and post-occurrence witnesses resided in the Detroit area, although one witness had since retired and moved to Michigan's upper peninsula, some 450 miles from Detroit. Of those witnesses, three of the five members of plaintiff's crew who were present on the date of the accident testified at trial. Two other employees, the supervisor and a building foreman, testified concerning the condition of the scale platform. These witnesses were required to travel from Michigan to Madison County for one or more days of the trial. Prior to the occurrence in question here, plaintiff had been treated for back problems by four Michigan doctors. Though it apparently was later determined that those problems were not related to the occurrence or plaintiff's current condition, the railroad's attorneys investigated that possibility by discovery and deposition. While the Michigan doctors were not called as witnesses, the evidence deposition of one doctor was offered and admitted. In the course of the investigation and discovery process defendant's Madison County counsel made five trips to Michigan and communicated by mail and telephone with Michigan residents. Cost figures were disputed, but defendant's attorney testified to out-of-pocket expenses for these trips aggregating over $1,400 and that a locally occurring case could be prepared in about one-half [86 Ill.2d 116] the time this case had required, thus substantially reducing defendant's legal expense.

Among the evidence relating to the claimed burden imposed upon the Madison County taxpayers and court system was defendant's exhibit No. 1 consisting of a list of FELA cases filed in that county during 1976...