Lowe v. Norfolk and Western Ry. Co., L-810

CourtUnited States Appellate Court of Illinois
Citation124 Ill.App.3d 80,463 N.E.2d 792,79 Ill.Dec. 238
Docket NumberL-619,L-469,L-28,L-25,L-241,L-29,L-812,L-665,L-994,L-31,L-15,L-667,L-17,L-30,L-671,L-967,L-40,L-38,L-987,L-831,No. 5-82-0687,L-406,L-666,L-982,L-35,L-26,L-664,L-291,L-669,L-681,WILLAMETTE-WESTERN,L-407,L-670,L-830,L-27,L-408,L-672,L-24,L-810,L-18,L-682,L-981,L-19,L-811,L-16,L-999,L-668,5-82-0687
Parties, 79 Ill.Dec. 238 Richard G. LOWE (79-), Larry Prior (79-), Harold E. Buck (79-), John F. Clark (79-), Gerald Sumpter (80-), Gerald J. Calvert (80-L- 25), Larry W. Hoffman (79-), Allen E. McGee (80-), David C. Brooks (81-), Terry B. Owens (81-), Glenn D. Bloss (81-), Terry Eugene Parker (79-), Gary W. Million (80-), Richard Wuthrich (81-), Ralph Cochran (80-), Clark Lewis (80-), James Freels (80-), Robert Wuthrich (80-), Chester Chase (79-), Alan Penn (79-), Larry Lewis (81-6), Robert Headrick (81-), Johnnie Presson (80-), David Wheeler (81-), Bennie Luntsford (80-), Buford Taylor (80-), Roy Chapman (81-), Frank Hudson (79-), Danny Johnston (80-), Bobby Cleeton (81-), James Brooks (80-), Thomas Wright (80-), Kenneth Haak (80-), William Smith (81-), Kenneth Sly (80-), Earnest Perkins (81-), Robert Austin (81-1), Laverne Gillispie (81-L- 32), Gerald Orr (81-8), Gary Roe (81-7), Elvin Davis (81-), Colin Adams (81-), Edward Spurling (81-), Wid Smith (81-), Dean Coleman (81-), John Little (81-), Richard Tremblay (80-), Plaintiffs- Appellees, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellant, General American Transportation Corporation and Dresser Industries, Inc., Defendants-Appellees, and MONSANTO COMPANY, Defendant-Appellee and Third Party Plaintiff, v.CORPORATION, Third Party Defendant.
Decision Date19 April 1984
[79 Ill.Dec. 242] Albert E. Schoenbeck, Stephen M. Schoenbeck, Schoenbeck, Tucker & Schoenbeck, St. Louis, Mo., Edward J. Kionka, Carbondale, for defendant-appellant
[79 Ill.Dec. 243] Mo., for defendant-appellee Dresser Industries

Coburn, Croft & Putzell, Kenneth R. Heineman, Bruck D. Ryder, Ronald L. Heck, Belleville, for defendant-appellee and third party plaintiff Monsanto Co.

Robert W. Wilson, Madelyn J. Lamb, Burroughs, Simpson, Wilson, Hepler, Broom & McCarthy, Edwardsville, for defendant-appellee GATX.

Paul L. Pratt, P.C., R.E. Schum, East Alton, Paul C. Verticchio, Verticchio & Verticchio, Gillespie, C. Wm. Fechtig, Carmi, for plaintiffs-appellees Richard Lowe, et al.

WEBBER, Justice:

This appeal from a judgment order of the circuit court of Madison County arises out of an event which occurred on the night of January 10, 1979, at Sturgeon, Missouri. At about 11:15 p.m. on that occasion a tank car being transported by the defendant, Norfolk and Western Railway Company (N & W), left the rails and was punctured by its own running gear. It contained a cargo of a chemical substance, liquid in form, manufactured by the defendant, Monsanto Company (Monsanto). This cargo was described in general terms as orthochlorophenol crude. It leaked from the tank car at the site of the derailment and continued to do so after the tanker was removed to the Moberly, Missouri, yards of the N & W where it was cleaned and repaired.

The plaintiffs in the instant suit, 47 in number, were employees of the N & W who worked at or about the spill site or on the tanker in the yards at Moberly. They alleged various physical ailments arising from exposure to the chemical cargo. Each of the cases involved charges of negligence under the Federal Employers' Liability Act (FELA) (45 U.S.C. sec. 51 et seq. (1976)) and the Safety Appliance Act (45 U.S.C. sec. 1 et seq. (1976)) against N & W. Plaintiffs also sued General American Transportation Company, the manufacturer of the tanker, under a products liability theory; Dresser Industries, Inc., the manufacturer of a portion of the running gear of the tanker, under a products liability theory; and Monsanto Company, the manufacturer of the chemical, for negligence, wilful and wanton misconduct, and under a products liability theory. As the suits progressed, the defendants all filed counterclaims, cross-claims, and third-party claims against each other, seeking indemnity and contribution.

The trial court consolidated all 47 suits for trial. Prior to trial (events which will be more fully discussed hereinafter), the defendants General American Transportation Company (GATX), Dresser Industries, Inc. (Dresser), and Monsanto were dismissed together with N & W's counterclaims against them, and the cases were submitted to the jury on N & W's violations of the FELA. One case of the 47, plaintiff Little, proceeded on simple negligence in addition to the FELA count.

The jury returned verdicts in favor of all plaintiffs and against the N & W. The amounts ranged from $1,950,000 to $300,000. The total was $57,965,000. Judgment was entered on the verdicts by the trial court, N & W's post-trial motion was denied, and this appeal followed. N & W, as appellant, appeals all of the individual judgments, as well as the dismissal of its counterclaims against the other defendants. We have taken two motions with the case: (1) motion of Dresser to dismiss N & W's appeal against it, and (2) motion of Monsanto to supplement the instant record with certain extracts from the record of kindred litigation now pending in the circuit court of Madison County. Both motions are now denied for reasons which will be explicated below.

As might be anticipated in a case of this nature, a variety of issues have been raised on appeal. We have concluded that there are errors of law of sufficient gravity to mandate a new trial. This being so, certain consequences follow: (1) No necessity exists for a detailed explication of the facts and the evidence presented, nor to pass judgment on the sufficiency of that evidence; (2) many issues raised here will become moot on retrial; and (3) only if the Of all the issues raised we deem four to be of prime importance. We regard each as being of equal importance to its fellows, but will discuss them in the following order: (1) the trial court's denial of N & W's forum non conveniens motion; (2) the dismissal of N & W's counterclaims against GATX, Dresser, and Monsanto; (3) the consolidation of the 47 cases; and (4) the trial court's dismissal and substitution of jurors. The remaining issues, which are principally of an evidentiary or procedural nature, will be dealt with more summarily. Factual matters, as needed for a more complete comprehension of the issues, will be discussed in connection with the individual issues.

[79 Ill.Dec. 244] retrial takes place in Illinois will much of what we have to say become the law of the case, since we cannot, and do not purport to, bind the courts of a sister state.


The rules governing this doctrine have recently been stated and restated at length by the supreme court, so no good purpose would be served by reiteration here. (See Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill.2d 359, 74 Ill.Dec. 596, 456 N.E.2d 98; Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill.2d 73, 75 Ill.Dec. 423, 457 N.E.2d 417.) In our opinion the factors by which a defendant's motion to dismiss for forum non conveniens should be judged weigh heavily in favor of N & W in this case.

As its name implies, the doctrine's fundamental premise is that of convenience: convenience of the parties, convenience of the witnesses, convenience of the court and jurors and convenience of those who must bear the expenses of maintaining the judicial system, the taxpayers. The plaintiffs' choice of a forum is no longer accorded the weight which it formerly possessed. When the plaintiffs' home forum is chosen, it is reasonable to presume that the choice is convenient, but when the plaintiffs choose a foreign forum, the choice is entitled to less deference. (Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419; Jones v. Searle Laboratories (1982), 93 Ill.2d 366, 67 Ill.Dec. 118, 444 N.E.2d 157.) When plaintiffs pursue the foreign forum in the face of a motion to dismiss, they take a calculated risk of reversal. Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill.2d 111, 56 Ill.Dec. 31, 427 N.E.2d 111.

In the instant case, all 47 plaintiffs were residents of central Missouri. 99 witnesses testified at trial either in person or by deposition. Of these 77 were residents of Missouri, the great majority of them from the central part of the state. 10 witnesses were from Illinois; of these 6 were from the Chicago area, 1 from Decatur, and 3 from the Madison County area. 11 witnesses came from other states: Virginia, Louisiana, Florida, North Carolina, Kentucky, Kansas, Texas, and New York.

All of the Chicago area witnesses were plaintiffs' experts; there is no reason to assume that they would not go wherever plaintiffs desired; furthermore, their presence in the forum is not entitled to consideration in determining convenience. Any contrary rule would permit plaintiffs to employ experts located in inconvenient fora and thus circumvent the rule. (Norman v. Norfolk & Western Ry. Co. (1974), 228 Pa.Super. 319, 330, 323 A.2d 850, 855-56; Espinosa, 86 Ill.2d 111, 124, 56 Ill.Dec. 31, 38, 427 N.E.2d 111, 118.) Of the four remaining witnesses who lived in Illinois, one was an investigator for plaintiffs' attorney, one was an employee of Monsanto, and two were employees of N & W. None of them added anything of great significance to the record which is in excess of 16,000 pages.

It is apparent that the convenience of the great majority of the witnesses would have been better served by a trial in central Missouri; the Illinois experts would have gone anywhere; the locale of the trial would have been a matter of no great consequence to the witnesses from other states.

Apart from the residence in the Madison County area of three witnesses and of plaintiffs' attorney, the only other connection In Wieser the supreme court listed...

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