Malloy v. Dupage Gynecology, S.C.
| Decision Date | 30 September 2021 |
| Docket Number | 1-19-2102 |
| Citation | 2021 IL App (1st) 192102,193 N.E.3d 170,456 Ill.Dec. 202 |
| Parties | William MALLOY, Individually, and as Independent Executor of the Estate of Leila Malloy, Plaintiff-Appellee, v. DUPAGE GYNECOLOGY, S.C., an Illinois Medical Corporation; John J. Messitt, M.D., and Kevin I. Hussey, M.D., Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Kevin J. Vedrine, Robert L. Larsen, and Heather A. Begley, of Cunningham, Meyer & Vedrine, P.C., of Warrenville, for appellants.
A. Fredrick Chapekis and Tarik M. Denden, of Chapekis, Chapekis & Schmidt Law Group, LLP, of Chicago, for appellee.
¶ 1 Plaintiff William Malloy brought this medical malpractice action claiming that defendants negligently treated his wife, Leila Malloy,1 who has since died. The complaint alleges multiple instances of negligent treatment, including the negligent prescription of Estrace cream. Defendants DuPage Gynecology, S.C.; Dr. John J. Messitt; and Dr. Kevin I. Hussey appeal the trial court court's denial of their motion to transfer venue based on improper venue and forum non conveniens. For the following reasons, we find no error by the trial court and affirm.
¶ 3 In 2018, when this complaint was filed,2 Leila was a 66-year-old woman who had been a patient of Dr. Messitt and Dr. Hussey at DuPage Gynecology, S.C. She was a patient of Dr. Messitt for approximately 40 years. Dr. Hussey started treating her in 2014, following Dr. Messitt's retirement.
¶ 4 In 1998, she was diagnosed with breast cancer and underwent a bilateral mastectomy. In 2001, she was diagnosed with multiple basal cell carcinomas. The complaint alleges that defendants were "aware of this history at all times relative to this [c]omplaint."
¶ 5 In October 2013, Dr. Messitt prescribed Estrace cream to be applied to certain areas once a week. The complaint alleges that Estrace cream is "a prescription medicine used to treat moderate to severe menopausal changes in and around the vagina." The complaint alleges that, at the time that Dr. Messitt prescribed Estrace, he informed her "that she was not at risk for any cancer" and he did not inform her of any known risks from her use of Estrace.
¶ 6 The complaint alleges that from October 2014 through March 2015, while under the gynecological care of Dr. Hussey, Leila complained of "pelvic and abdominal pain, bloating, abdominal swelling, pressure in her bladder, fatigue and weight loss." During this time, Dr. Hussey continued and increased her use of Estrace. The complaint alleges that, during this time, neither Dr. Messitt nor Dr. Hussey ordered any advanced screening or imaging.
¶ 7 The complaint alleges that, in March 2015, she visited Dr. Hussey with complaints of a uterine prolapse, and he advised her that "no further management was required." In June 2015, she visited Northwestern Medical Urgent Care in Glen Ellyn, Illinois, with a claim of another uterine prolapse, and sought follow-up care with her primary care physician, who advised her to visit Dr. Hussey. On July 15, 2015, she visited Dr. Hussey with complaints of the same full uterine prolapse, and he advised her that a hysterectomy and cystocele surgery would be required. The complaint alleges that, "[a]t this time, the use of Estrace was discontinued," but it does not specify who discontinued it.
¶ 8 The complaint alleges that, on August 24, 2015, Dr. Hussey performed surgery and discovered "for the first time" that Leila had "nodular tumors throughout her abdominal cavity." A subsequent pathology report "diagnosed her with stage 3C ovarian cancer."
¶ 9 The complaint alleges multiple counts of negligence by defendants, including negligently failing to order advanced screening tests and imaging and negligently prescribing Estrace given her symptoms and history.
¶ 10 The complaint also alleged multiple counts against former defendant Allergan USA, Inc. (Allergan), the manufacturer of Estrace, including failure to adequately warn. The complaint alleged that Allergan "manufactured, marketed and sold in the State of Illinois, itself or through *** its wholly owned Warner Chilcott brand, the drug known as Estrace Cream." On February 21, 2019, defendant Allergan moved to dismiss pursuant to section 2-619 of the Code of Civil Procedure ( 735 ILCS 5/2-619(a)(9) (West 2018)), on the ground that plaintiff's claims against it were barred by the learned intermediary doctrine and that its warnings were adequate. On May 17, 2019, the trial court granted Allergan's motion and dismissed Allergan with prejudice.
¶ 11 Four days later, on May 21, 2019, defendants moved to transfer venue due to Allergan's dismissal or, in the alternative, to transfer due to forum non conveniens.
¶ 12 In their motion, defendants argued that all the remaining parties resided in Du Page County, and in support, they attached the affidavits of Drs. Messitt and Hussey. Dr. Messitt averred that he resided in Du Page County, that his care and treatment of Leila occurred in Du Page County and that "[i]t would be more convenient for [him] to attend trial in Du Page County" because the Du Page County courthouse was closer to his residence than "the Daley Center" in downtown Chicago. Other than averring that he treated Leila in Du Page County, his affidavit did not aver the places where he practiced medicine before retiring.3 The almost identical affidavit of Dr. Hussey averred that he also resided in Du Page County, that his care and treatment of Leila occurred in Du Page County and that "[i]t would be more convenient for [him] to attend trial in Du Page County" because the Du Page County courthouse was closer to his residence than "the Daley Center" in downtown Chicago. Other than averring that he treated Leila in Du Page County, his affidavit also did not aver the places where he practiced medicine.
¶ 13 Defendants’ motion argued that "it is more likely than not that most of the witnesses that will need to appear at trial live and/or work in Du Page County." However, defendants’ motion did not specify the name of a single nonparty witness. Defendants also argued that the "ease of access to sources of evidence" favored Du Page County without naming a source. Defendants argued that "a viewing of the premises," namely, their offices, favored Du Page County, while acknowledging that "a jury viewing of the premises" was "unlikely in this case." Defendants observed that courts should consider the administrative difficulties posed by litigating in congested forums, but they did not argue that Cook County courts were more congested and did not provide any relevant statistics. Finally, defendants argued that Du Page County residents had a greater interest in the litigation than Cook County residents.
¶ 14 In response, plaintiff argued, among other things, that, although Allergan was no longer a defendant, Allergan possessed relevant evidence and was located in Cook County. With respect to the interest of Cook County in the litigation, plaintiff argued that Estrace, "produced by Allergan, is a product whose manufacturer is registered in Cook County," and, thus, "the negligence flowing from" its prescription is "a concern for Cook County."
¶ 15 Defendants’ motion was set for "status" on July 18, 2019, and the trial court issued a written order on September 18, 2019. The record before us does not contain transcripts, so we do not know if additional evidence was produced or admitted at a hearing.
¶ 16 In its September 18, 2019, order, the trial court made the following findings. The trial court found, as a preliminary matter, that, since plaintiff was a resident of Du Page County, his choice of Cook County as a forum was entitled to "somewhat less deference" than that of a resident of Cook County.
¶ 17 First, the trial court found that the convenience of the parties, as a factor, weighed only "slightly" in favor of transfer. The trial court found that, while plaintiff resides in Du Page County and the alleged injury occurred there, "none of the moving defendants attach any specific evidence attesting to the notion of a substantial inconvenience if this case continues to be litigated in Cook County."
¶ 18 Second, the trial court found that "the ease of access to sources of evidence does not weigh in favor of transfer to Du Page County." The court found that "[t]he moving defendants" offered "no specific evidence that the ease of access to sources of evidence would be substantially inconvenienced if this case was litigated in Cook County." In addition, the court found that computer technology and Internet access rendered the location of documentary evidence a less significant consideration.
¶ 19 Third, the trial court found that the availability of compulsory process to secure the attendance of unwilling witnesses and the cost to obtain the attendance of willing witnesses did not favor transfer. The order states: "This Court finds that any difference in costs between Cook County and Du Page County respectively will be minimal."
¶ 20 Fourth, the trial court found that the possibility of viewing the premises did favor transfer. However, overall, the court found that defendants had failed to show that Cook County would be substantially more inconvenient.
¶ 21 Fifth, the trial court found that the interest in deciding controversies locally did not weigh in favor of transfer. The court found that, although the alleged treatment occurred in Du Page County, "the alleged negligence in this case is centered on an Estrace cream produced by Allergan, which is a product whose manufacture is prevalent in Cook County." For the same reason, the court found that consideration of the fairness of imposing jury duty upon the residents of Cook County did not weigh in favor of transfer. The trial court found that "the notion that the Estrace cream is manufactured and regularly distributed in Cook County is not evidence ...
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