No. 1-14-2972 Opinion filed September 11, 2015

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

MELINDA RUCH, as the Administrator ) Appeal from the Circuit Court for the Estate of Kenneth L. Kazort, ) of Cook County. Deceased, ) ) Plaintiff-Appellant, ) ) v. ) No. 13 L 014527 ) JOHN PADGETT and ADVANCED ) The Honorable DISPOSAL SERVICES SOLID WASTE ) Eileen Mary Brewer, MIDWEST, L.L.C., d/b/a Advanced ) Judge, presiding. Disposal, ) ) Defendants-Appellees. )

JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Palmer concurred in the judgment and opinion.

OPINION No. 14-2972

¶1 Plaintiff Melinda Ruch brought this lawsuit as the administrator for the

estate of Kenneth L. Kazort. Ruch alleged that Kazort died as the result of a

motor vehicle collision on October 24, 2013, between his vehicle and a garbage

truck driven by defendant John Padgett, who was employed by defendant

Advanced Disposal Services Solid Waste Midwest, L.L.C. (Advanced

Disposal).

¶2 Defendants then moved the trial court, pursuant to the doctrine of forum

non conveniens, to transfer the case from Cook County, which is not plaintiff's

home forum, to Boone County, where the motor vehicle accident occurred. The

trial court granted defendants' motion but permitted plaintiff to choose whether

the case would be transferred to Boone County or Winnebago County, where a

number of the witnesses live and where plaintiff both lives and works.

¶3 On this interlocutory appeal, plaintiff Ruch appeals the trial court's grant

of defendants' forum non conveniens motion, and defendants ask that we affirm.

For the following reasons, we cannot find that the trial court abused its

discretion and thus must affirm.

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¶4 BACKGROUND

¶5 I. Complaint

¶6 Plaintiff filed this action in Cook County on December 27, 2013, alleging

negligence by both John Padgett, the driver of the garbage truck, and Advanced

Disposal, his employer.

¶7 Plaintiff alleges that on October 24, 2013, at 11 a.m. Kenneth Kazort was

traveling south on Russelville Road in Belvidere, Illinois. The parties agree

that this location is in Boone County.

¶8 Plaintiff further alleges that, at this time, defendant Padgett was

employed as a garbage truck operator by Advanced Disposal, and was

operating, by himself, a large Mack, front-lift garbage truck. The truck was

designed for front-fork loading and unloading of large trash receptacles. In

order to drive away from a residence that he had serviced, Padgett reversed the

Advanced Disposal garbage truck in a private driveway and headed in an

easterly direction onto Russelville Road.

¶9 Plaintiff alleges that, without warning, the garbage truck crossed into

Kazort's lane of travel as Kazort was heading south on Russelville Road. The

back end of the garbage truck was then in the path of Kazort's vehicle.

Numerous large trees, a recreational vehicle (RV), vegetation and other foliage

located near the scene of the crash obscured Kazort's view of the driveway and

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defendant Padgett's view of oncoming traffic. As a result of the ensuing

collision, Kazort suffered severe injuries and died.

¶ 10 Defendant John Padgett declined to answer plaintiff's complaint based on

the fifth amendment to the United States Constitution. U.S. Const. amend. VX.

¶ 11 Defendant Advanced Disposal admitted in its answer that Padgett is a

resident of Winnebago County, that Padgett was employed by it as a garbage

truck operator at the time of the accident and that he was acting in the scope of

his employment. Defendant admitted upon information and belief that Kazort

died as a result of the collision between the two vehicles.

¶ 12 II. Forum Non Conveniens Motion

¶ 13 A. Defendant's Motion

¶ 14 On May 20, 2014, defendants Advanced Disposal and Padgett moved the

trial court to transfer the action from Cook County to Boone County.

¶ 15 In its motion, defendants stated that the decedent had lived in Boone

County and that defendant Padgett lives in Winnebago County and was working

for Advanced Disposal in Boone County on the day of the accident. In

addition, representatives of the Boone County sheriff's department and coroner's

office investigated the accident. The decedent's son and only beneficiary

resides in Winnebago County with his mother, who is the administrator of

decedent's estate. Plaintiff's lead counsel is a Missouri law firm with an office in

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Chicago, and she also retained a local law firm in Sycamore, Illinois, which is

in De Kalb County, a county adjacent to Boone County. Defendant included a

table based on the 2012 statistics from the annual report of the Illinois courts,

which showed that over 21,000 cases were filed in the law division of Cook

County seeking over $50,000, while just 44 such cases were filed in Boone

County. 1 Plaintiff does not dispute these facts.

¶ 16 In an interrogatory response, defendants also listed, as a potential Boone

County witness, the customer whom defendant Padgett serviced prior to the

accident, and who could be called to testify about the upkeep and maintenance

of the property. Defendants' interrogatory response also stated that the

"[b]usiness records for Boone County customers are kept in the Davis Junction,

Illinois ADS facility," which is in Ogle County.

¶ 17 B. Plaintiff's Response

¶ 18 In plaintiff's response to defendant's motion, plaintiff stated that her

damages expert, Dr. Stan Smith, is from Cook County and her reconstruction

expert, Dr. Mariusz Ziejewsk, is from Fargo, North Dakota. She also stated that

1 As we mention infra ¶ 21, plaintiff argued in her response to the trial court that the time lapse between filing and verdict is more significant than the number of cases filed, and that, in 2012, the time lapse for law jury verdicts over $50,000 averaged 36.1 months in Cook County and 56 months in Boone County. However, as plaintiff later acknowledged in her brief to this court, this same time lapse in 2013 was still 36 months for Cook County but had dropped to only 22 months for Boone County. 5 No. 14-2972

decedent's vehicle was stored in McHenry County, while the subject truck was

stored in Ogle County. While arguing that the landowner could alter the

accident site by trimming foliage or cutting down trees, plaintiff did not allege

that had actually happened.

¶ 19 Plaintiff attached an exhibit which she entitled "Table of Witnesses and

Exhibits," which listed the likely witnesses and exhibits and where they were

"locat[ed]." Except for plaintiff Melinda Ruch, the table lists the witness'

"location" rather than his or her residence or workplace. According to

plaintiff's list, there is not a single witness or piece of evidence located in Cook

County, except for plaintiff's economic expert, Stan Smith. Plaintiff's list of

likely witnesses and exhibits includes "police, paramedics" from Boone and

Winnebago Counties, and the Boone County coroner. Since neither side has

identified a witness to the accident,2 plaintiff listed "scene witnesses'

residences" as "unknown."

¶ 20 Plaintiff also submitted affidavits, which were almost identical, from

nine3 witnesses who stated that they would be willing to provide a videotaped

2 Plaintiff's brief to this court states that "there are no eyewitnesses to the crash." 3 Plaintiff's response stated that it attached affidavits from 10 witnesses, but there are only 9 affidavits attached. The tenth affidavit appears by itself, at the end of the appellate record. Similar to the other nine, the tenth affidavit states that the 6 No. 14-2972

deposition in Boone or adjacent McHenry and Winnebago Counties, and would

be willing to appear at a trial in Cook County "if the need arose" and that

appearing at a trial in Cook County "would not pose an undue hardship or

inconvenience to myself or my family." The witnesses stated that their

affidavits were based on the "understand[ing] that [he or she] will be

reimbursed to the fullest extent permitted by law for traveling to attend a trial in

Cook County." The affidavits did not state the source of the affiants' source of

knowledge about the underlying facts or whether Boone County would be more

convenient.

¶ 21 Plaintiff also attached statistics from the annual report of the

Administrative Office of the Illinois Courts which showed that, in 2012, for law

jury verdicts over $50,000, Cook County averaged 36.1 months between the

date of filing and the date of verdict, while in Boone County the time lapse

between filing and the date of verdict was 56 months.

¶ 22 On July 16, 2014, the trial court granted plaintiff's motion to attach the

affidavit of Illinois State Trooper Marsha Banfe to plaintiff's response to

defendant's motion. Plaintiff's motion stated that Banfe was "involved in the

downloading of information from the decedent's car." Banfe's affidavit was

worded similarly to the other witness affidavits submitted by plaintiff and it

affiant is willing to appear for a videotaped deposition in Du Page County and that it would not be an "undue" hardship for her to testify at a trial in Cook County. 7 No. 14-2972

stated that Banfe would appear for deposition in Du Page County and that a trial

in Cook County "would not pose an undue hardship or inconvenience to myself

or to my family."

¶ 23 C. Trial Court's Ruling

¶ 24 On September 2, 2014, at the hearing on the motion, defendants stated,

with respect to the affidavits submitted by plaintiff, "we don't know what it is

they're going to talk about," and plaintiff, who was given an opportunity to

respond, did not respond to that issue.

¶ 25 The trial court gave its ruling orally from the bench, stating:

"I am granting defendant's motion to dismiss in this case. The case

should be transferred to Boone County where the accident occurred and

the majority of witnesses reside or to Winnebago where the beneficiary

resides and also the defendant Padgett.

Plaintiff's reliance of [sic] Defendant Advanced Disposal is only

relevant to venue. Yes, the Cook County court can assert jurisdiction.

However, this case is primarily a wrongful death case for a car accident

that happened in Boone County.

The alleged negligence and injury occurred in Boone. There is no

reasonable connection between the accident and Cook County.

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Looking at the totality of circumstances, the situation strongly merits

transfer. Here, a foreign plaintiff filed in Cook, and the connection is

always the accident [sic], are in different jurisdictions, thus the plaintiff's

choice deserves little weight.

And the Court should grant a forum non conveniens motion where the

facts indicate that the plaintiff is engaged in forum shopping.

Further, the Court rejects plaintiff's attempt to place witnesses in Cook

based on an expert witness. If the Court were to consider an expert

witness as a factor against transfer, such decision would cut against

forum non conveniens precedent and use of a [Rule] 187 4 motion to deter

and prevent forum shopping."

¶ 26 With respect to whether the case would be transferred to Boone or

Winnebago County, the trial court ruled: "This is going to be the decision of

the plaintiff on where to file."

¶ 27 On September 2, 2014, the trial court issued a written order which stated

in full:

"This case coming on to be heard on the motion to dismiss and

transfer pursuant to forum non conveniens, due notice having been given,

and the court fully advised in the premises,

4 Ill. S. Ct. R. 187 (eff. Jan. 4, 2013). 9 No. 14-2972

It is hereby ordered that this case is dismissed here in Cook County

and transferred to Boone County or Winnebago County in accordance

with the court's oral remarks during the hearing."

¶ 28 This court granted plaintiff's petition for leave to appeal on December 12,

2014, and this appeal followed.

¶ 29 ANALYSIS

¶ 30 In this interlocutory appeal, plaintiff appeals the trial court's grant of

defendants' forum non conveniens motion to transfer the case from Cook

County. After carefully reviewing all the forum non conveniens factors, we

cannot conclude that the trial court abused its discretion by granting defendants'

motion to transfer to Boone County, and plaintiff does not complain that the

court gave her the additional option of choosing her home forum, Winnebago

County. For the following reasons, we affirm.

¶ 31 I. Interlocutory Appeal

¶ 32 Defendants moved the trial court pursuant to Illinois Supreme Court Rule

187 (eff. Jan. 4, 2013) to transfer this case from Cook County to Boone County.

Rule 187(a) provides: "A motion to dismiss or transfer the action under the

doctrine of forum non conveniens must be filed by a party not later than 90 days

after the last day allowed for the filing of that party's answer." Ill. S. Ct. R.

187(a) (eff. Jan. 4, 2013). If the trial court orders an "[i]ntrastate transfer of

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action," the "clerk of the court from which a transfer is granted to another

circuit court in this State on the ground of forum non conveniens shall

immediately certify and transmit to the clerk of the court to which the transfer is

ordered the originals of all documents filed in the case together with copies of

all orders entered therein." Ill. S. Ct. R. 187(c)(1) (eff. Jan. 4, 2013). The rule

further provides: "The clerk of the court to which the transfer is ordered shall

file the documents and transcript transmitted to him or her and docket the case,

and the action shall proceed and be determined as if it had originated in that

court." Ill. S. Ct. R. 187(c)(1) (eff. Jan. 4, 2013).

¶ 33 Since this case involved an intrastate transfer, this appeal is an

interlocutory appeal pursuant to Illinois Supreme Court Rule 306 (eff. July 1,

2014). Rule 306 permits a party to petition the appellate court for leave to

appeal "an order of the circuit court allowing or denying a motion to dismiss on

the grounds of forum non conveniens, or from an order of the circuit court

allowing or denying a motion to transfer a case to another county within this

State on such grounds." Ill. S. Ct. R. 306(a)(2) (eff. July 1, 2014). On December

12, 2014, this court granted plaintiff's petition for leave to appeal, and this

appeal followed.

¶ 34 Illinois Supreme Court Rule 306(c)(1) (eff. July, 1, 2014) requires the

petition to be accompanied by a supporting record, as that term is defined by

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Illinois Supreme Court Rule 328 (eff. Feb. 1, 1994). Rule 328 permits a

"supporting record" to be authenticated either by a certificate of the circuit court

clerk or "by the affidavit of the attorney or party filing it." Ill. S. Ct. R. 328

(eff. Feb. 1, 1994). In the case at bar, the supporting record was authenticated

by an attorney's affidavit. After the petition was granted, this court did not order

plaintiff to file a record, as permitted by Illinois Supreme Court Rule 306(c)(6)

(eff. July 1, 2014). Defendants then filed a response to the petition but chose

not to file a supplementary supporting record, as permitted by Illinois Supreme

Court Rule 306(c)(2) (eff. July 1, 2014). Thus, the record in this appeal

consists of the supporting record filed by plaintiff.

¶ 35 II. Standard of Review

¶ 36 The standard of review for a forum non conveniens decision is abuse of

discretion. Langenhorst v. Norfolk Southern Ry. Co.,

(2006).

¶ 37 "Forum non conveniens is an equitable doctrine founded in

considerations of fundamental fairness and the sensible and effective

administration of justice." Langenhorst,

(citing Vinson v.

Allstate,

(1991)). "This doctrine allows a trial court to

decline jurisdiction when trial in another forum 'would better serve the ends of

justice.' " Langenhorst,

(quoting Vinson,

).

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"Forum non conveniens is applicable when the choice is between interstate

forums as well as when the choice is between intrastate forums," such as in the

case at bar. Glass v. DOT Transportation, Inc.,

(2009).

¶ 38 "A trial court is afforded considerable discretion in ruling on a forum non

conveniens motion." Langenhorst,

. "We will reverse the

circuit court's decision only if defendants have shown that the circuit court

abused its discretion in balancing the relevant factors." Langenhorst,

(citing Dawdy v. Union Pacific R.R. Co.,

(2003)).

"A circuit court abuses its discretion in balancing the relevant factors only

where no reasonable person would take the view adopted by the circuit court."

Langenhorst,

(citing Dawdy,

); Glass,

.

¶ 39 Both parties agree that we must apply an abuse-of-discretion standard of

review. "The issue, then, is not what decision we would have reached if we

were reviewing the facts on a clean slate, but whether the trial court acted in a

way that no reasonable person would." Vivas v. Boeing Co.,

(2009).

¶ 40 Plaintiff claims in her brief to this court that "the trial court did not

engage in any analysis of the public and private factors" (emphasis in original)

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required in a forum non conveniens analysis. When an appellate court reviews a

trial court's forum non conveniens order, "[t]he issue is not the detail of the

underlying order, but whether the circuit court abused its discretion." Estate of

Rath v. Abbott Laboratories, Inc.,

. This court

has previously stated that it is not "aware of any authority[] supporting the

proposition that a circuit court's ruling on a forum non conveniens motion must

be reversed solely for an inadequate record of its analysis." Landmark

American Insurance Co. v. NIP Group, Inc.,

.

As a result, we may affirm a trial court's forum non conveniens order on any

basis found in the record. Estate of Rath,

(Spomer, J., specially concurring) (agreeing with the majority that a reviewing

court may affirm a forum non conveniens order "on any basis in the record").

¶ 41 III. Plaintiff's Choice of Forum

¶ 42 "Before weighing the relevant factors, a court must first decide how

much deference to give to a plaintiff's choice of forum." Vivas,

(citing Langenhorst,

(the supreme court determined the

appropriate amount of deference before weighing the relevant factors)).

¶ 43 Normally, the plaintiff's choice of forum is a substantial factor in

deciding a forum non conveniens motion. Dawdy,

; Vivas,

. However, where the plaintiff chooses a forum other than

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where she resides, her choice is not entitled to the same weight. Dawdy,

; Vivas,

.

¶ 44 Plaintiff argues that, although she did not choose her home forum, her

choice is entitled to substantial deference and she cites in support First

American Bank v. Guerine,

, 517 (2002). In Guerine, our

supreme court explained: " 'When the home forum is chosen, it is reasonable to

assume that the choice is convenient. When the plaintiff is foreign to the forum

chosen, however, the assumption is much less reasonable and the plaintiff's

choice deserves less deference.' " Guerine, 198 Ill. 2d at 517 (quoting Wieser v.

Missouri Pacific Ry. Co.,

(1983)).

¶ 45 In Glass, this court stated: "While the deference to be accorded a

plaintiff as to his choice of forum is less when the plaintiff chooses a forum

other than where he resides, ' "the deference to be accorded is only less, as

opposed to none." ' " (Emphases in original.) Glass,

(quoting Guerine, 198 Ill. 2d at 518, quoting Elling v. State Farm Mutual

Automobile Insurance Co.,

(1997)).

¶ 46 Thus, plaintiff's choice of a foreign forum receives "some deference" but

less deference than if she had chosen her home forum. Vivas,

. In addition, the trial court did permit her some choice by allowing

her to select either Boone County or her home forum, Winnebago County.

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¶ 47 IV. Private Interest Factors

¶ 48 The Illinois Supreme Court has held that a court must consider both "the

private and public interest factors" in deciding a forum non conveniens motion.

Langenhorst,

; Dawdy,

; see also Vivas,

.

¶ 49 The private interest factors include: " '(1) the convenience of the parties;

(2) the relative ease of access to sources of testimonial, documentary, and real

evidence; and (3) all other practical problems that make trial of a case easy,

expeditious, and inexpensive.' " Langenhorst,

(quoting

Guerine, 198 Ill. 2d at 516-17); Dawdy,

; see also Vivas,

.

¶ 50 A. Convenience of Parties

¶ 51 First, the convenience of the parties does not strongly favor either county.

Langenhorst,

. Since defendants sought the transfer to Boone

County, the convenience of defendants and the witnesses under their control

"fades as an issue." Susman v. North Star Trust Co.,

. In her brief to this court, plaintiff, who resides in adjacent Winnebago

County, does not argue that Boone County is personally inconvenient for her. In

addition, the trial court permitted her to select her home forum, if she so

chooses. Instead of arguing her own inconvenience, plaintiff argues that

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defendants have "significant connections to Cook County." However, one party

cannot argue the other party's convenience. Vivas,

.5

Thus, the convenience of the parties does not strongly favor either Cook County

or Boone County.

¶ 52 B. Ease of Access to Evidence

¶ 53 Second, the relative ease of access to sources of testimonial, documentary

and real evidence does not indicate that the trial court abused its discretion.

Langenhorst,

.

¶ 54 1. Testimonial Evidence

¶ 55 The trial court did not abuse its discretion in concluding that access to

testimonial evidence favored Boone County when the majority of witnesses live

or work in Boone County and neighboring Winnebago, McHenry and Ogle

Counties, and none of the witness affidavits submitted by plaintiff stated that

Cook County would be more convenient.

¶ 56 According to plaintiff's own list of witnesses, not a single witness is

"locat[ed]" in Cook County, except one of her experts. In her brief to this court,

plaintiff argues that "one of Plaintiff's experts hails from Cook County and

most, if not all, of Plaintiff's other experts will be from states other than

5 As we discuss supra ¶ 19 and infra ¶ 56, not a single witness listed by plaintiff is "locat[ed]" in Cook County, except for plaintiff's economic expert, Stan Smith. 17 No. 14-2972

Illinois." Plaintiff states that "Illinois precedent does recognize that the fact that

plaintiff's expert 'has an office in the plaintiff's chosen forum' is relevant to the

determination of a forum non conveniens motion.' (Emphasis in original.) See

Ammerman v. Raymond,

(2008)." The quote, of

which plaintiff provided only a portion, states: "courts 'should be cautious ***

not to give undue weight to the fact that a plaintiff's treating physician or expert

has an office in the plaintiff's chosen forum.' " (Emphasis in original.)

Ammerman,

(quoting Bland v. Norfolk & Western Ry.

Co.,

(1987)).

¶ 57 Echoing the same concern expressed by this court in Ammerman, our

supreme court has stated that "courts are cautious not to give undue weight to

the fact that a plaintiff's expert witness maintains an office in the plaintiff's

chosen forum. To do so would allow a plaintiff to easily frustrate the forum

non conveniens principle by selecting an expert witness in what would actually

be an inconvenient forum." Fennell v. Illinois Central R.R. Co.,

; Bland v. Norfolk & Western Ry. Co.,

(1987)

(listing several cases supporting this point).

¶ 58 Thus, we cannot find that the trial court abused its discretion in

concluding that the ease of access to testimonial evidence favored Boone

County.

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¶ 59 2. Documentary Evidence

¶ 60 Plaintiff does not dispute defendants' contention that many sources of

documentary proof are located in Boone County or nearby Winnebago and Ogle

Counties. For example, defendants stated in an interrogatory response that the

"[b]usiness records for Boone County customers are kept in the Davis Junction,

Illinois ADS facility," which is in Ogle County.

¶ 61 However, plaintiff is correct that this factor is much less significant than

it used to be. As this court has previously observed, "the location of documents,

records and photographs has become a less significant factor in forum non

conveniens analysis in the modern age of email, internet, telefax, copying

machines and world-wide delivery services, since they can now be easily

copied and sent." Vivas,

.

¶ 62 In addition, defendant Advanced Disposal, as a party, is under an

obligation to produce its employees and relevant documents, whether the suit

proceeds in Boone or Cook County. Susman,

.

Supreme Court Rule 201(b)(1) provides that "a party may obtain by discovery

full disclosure regarding any matter relevant to the subject matter involved in

the pending action, whether it relates to the claim or defense of the party

seeking disclosure or of any other party, including the existence, description,

nature, custody, custodian, and location of any documents or tangible things,

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and the identity and location of persons having knowledge of relevant facts."

Ill. S. Ct. R. 201 (eff. July 1, 2014). Supreme Court Rule 204 provides:

"Service of notice of the taking of the deposition of a party or person who is

currently an officer, director, or employee of a party is sufficient to require the

appearance of the deponent and the production of any documents or tangible

things listed in the notice." Ill. S. Ct. R. 204(a)(3) (eff. July 1, 2014). If a party

refuses to comply with discovery rules or orders, a court in either Cook County

or Boone County is fully empowered to enforce them. Ill. S. Ct. R. 219 (eff.

July 1, 2002) ("Consequences of Refusal to Comply with Rules or Order

Relating to Discovery or Pretrial Conferences").

¶ 63 Thus, ease of access to documentary evidence does not strongly favor

either forum.

¶ 64 3. Real Evidence

¶ 65 In her brief to this court, plaintiff states that "the only known items of

nondocumentary, tangible evidence are Decedent's vehicle, located in McHenry

County, and the truck" driven by defendant Padgett. In her brief to the trial

court, plaintiff stated that the truck was stored in Ogle County. Thus, the

location of real evidence could favor adjacent Boone County over more distant

Cook County, but the real evidence is probably not a factor. It would be a rare

instance for the vehicle to be viewed by the trier of fact when photographs are

20 No. 14-2972

normally used for this purpose. Although our supreme court listed the location

of a defendant's vehicle as a consideration in a forum non conveniens case, it

was not a significant factor in the supreme court's analysis. Guerine, 198 Ill. 2d

at 524-25.

¶ 66 C. All Other Practical Problems

¶ 67 Third, consideration of " 'all other practical problems that make trial of a

case easy, expeditious, and inexpensive' " also does not indicate an abuse of

discretion by the trial court. Langenhorst,

(quoting Guerine,

198 Ill. 2d at 516-17); Dawdy,

; see also Vivas,

.

¶ 68 As plaintiff correctly observes, unwilling witnesses can be compelled to

testify at trial in Boone County just like they can in any other Illinois county

pursuant to Illinois Supreme Court Rule 237(b) (eff. July 1, 2005) ("If the party

or person [subpoenaed] is a nonresident of the county, the court may order any

terms and conditions in connection with his or her appearance at the trial or

other evidentiary hearing that are just, including payment of his or her

reasonable expenses.").

¶ 69 Plaintiff argues that "Cook County is more convenient for purposes of

flights for out-of-state corporate representatives and other witnesses."

However, the only corporation in this case is defendant Advanced Disposal and,

21 No. 14-2972

as we observed above, defendant, as a party, must produce its employees and

relevant documents, whether the suit proceeds in Boone or Cook County.

Susman,

. As for other witnesses, they will be

coming primarily from northern Illinois and will most likely be driving rather

than flying. Thus, proximity to O'Hare and Midway Airports is not as

compelling a consideration as plaintiff claims.

¶ 70 Defendants are correct that viewing the accident site will be an option if

the trial proceeds in Boone County. Regarding this issue, our supreme court

has stated:

"This convenience factor is not concerned with the necessity of viewing

the site of the injury, but rather is concerned with the possibility of

viewing the site, if appropriate. See Gulf Oil [Corp. v. Gilbert,

, (1947)]. Adhering to Gulf Oil, this court has recognized that

'the possibility of having a jury view the scene of an accident is an

important consideration in ruling upon a forum non conveniens motion.'

(Emphasis added.) Moore [v. Chicago & North Western Transportation

Co.,

(1983)]. Further, the necessity or propriety of

viewing the scene is a decision left within the discretion of the trial court.

See Cook [v. General Electric Co.,

(1992)];

22 No. 14-2972

Washington [v. Illinois Power Co.,

(1991)]."

(Emphasis in original and omitted). Dawdy,

.

See also Fennell,

("This possibility [of viewing the

premises] is an important consideration in ruling on a forum non conveniens

motion.").

¶ 71 Thus, a consideration of all other practical problems favors Boone

County.

¶ 72 In sum, consideration of the private factors does not lead us to conclude

that the trial court abused its discretion, where the convenience of the parties

does not strongly favor either Cook or Boone County, and the ease of access to

proof and the other practical problems favor Boone County.

¶ 73 V. Public Interest Factors

¶ 74 When deciding a forum non conveniens motion, a court must also

consider the public interest factors. These factors include: "(1) the interest in

deciding controversies locally; (2) the unfairness of imposing trial expense and

the burden of jury duty on residents of a forum that has little connection to the

litigation; and (3) the administrative difficulties presented by adding litigation

to already congested court dockets." Langenhorst,

-44 (citing

Guerine, 198 Ill. 2d at 516-17); Gridley v. State Farm Mutual Automobile

23 No. 14-2972

Insurance Co.,

(2005); Dawdy,

. See also

Vivas,

.

¶ 75 At the heart of this issue is an accident which occurred in Boone County.

The only connection between this case and Cook County is that defendant

Advanced Disposal also does business in Cook County. Thus, "the interest in

deciding controversies locally" and the fairness in imposing a burden and

expense on residents of a forum with a "connection to the litigation" favors

Boone County. Langenhorst,

.

¶ 76 Although "[c]ourt congestion is a relatively insignificant factor," it is still

a factor. Guerine, 198 Ill. 2d at 517. It would be hard to argue that Cook

County is not congested. Guerine, 198 Ill. 2d at 525 (observing that "Cook

County circuit court is more congested" than other Illinois county circuit

courts); Trent v. Caterpillar, Inc.,

(1992) ("the court

dockets in Cook County are congested"). According to the 2012 case statistics

from the annual report of the Illinois courts, over 21,000 cases were filed in the

law division of Cook County seeking over $50,000, while just 44 such cases

were filed in Boone County.

¶ 77 Although the average law jury verdict over $50,000 in 2012 had a shorter

time lapse between filing and verdict in Cook County than in Boone County,

this is the only number cited by the parties from the 2012 and 2013 annual

24 No. 14-2972

reports that favors Cook County. Our supreme court has repeatedly directed us

to look to the annual report of the Administrative Office of the Illinois Courts

when assessing court congestion for a forum non conveniens motion and so, as

directed, we will take judicial notice of the annual reports. Dawdy v. Union

Pacific R.R. Co.,

(2003) ("This court has found the annual

report of the Administrative Office of the Illinois Courts (Annual Report) to be

a proper reference in assessing court congestion [for a forum non conveniens

motion]."); Washington v. Illinois Power Co.,

(1991) ("This

court has found the annual report of the Administrative Office of the Illinois

Courts to be a proper source of reference in assessing court congestion [for a

forum non conveniens motion]."). See also Cook v. General Electric Co.,

(1992) (relying on the Annual Report from the Administrative

Office of the Illinois Courts in order to determine relative court congestion

between two counties for a forum non conveniens motion); Ill. R. Evid. 201(d)

(eff. Jan. 1, 2011) ("A court shall take judicial notice if requested by a party and

supplied with the necessary information.").

¶ 78 As plaintiff observed in its brief to this court, the 2013 annual report of

the Illinois courts reveals that, while the average time lapse in Cook County

remained at 36 months in 2013, the average in Boone County dropped from 56

months in 2012 to only 22 months in 2013—or 14 months less than Cook

25 No. 14-2972

County. When a county like Boone has so few cases, just a couple of complex

cases can skew its average atypically upward in any given year. In addition,

while Cook County had 438 law jury verdicts in 2013 that were over $50,000,

Boone County had just one. Although the average time lapse in 2012 could

favor Cook County, a review of all the public factors shows that the trial court

did not abuse its discretion by finding that these factors, when considered

together, favored Boone County.

¶ 79 CONCLUSION

¶ 80 After carefully reviewing all the forum non conveniens factors, we cannot

conclude that the trial court abused its discretion in granting defendants' motion

to transfer to Boone County, or alternatively Winnebago County, when neither

the private nor public factors favor Cook County and less deference is given to

plaintiff's choice of a foreign forum. In addition, consideration of (1) the

witnesses, (2) the viewing of the accident site and (3) the policy to decide such

controversies locally all favor Boone County. Neither plaintiff nor defendants

complain that the trial court gave plaintiff the additional option of choosing her

home forum of Winnebago County, so that issue is not before us. For the

foregoing reasons, we affirm.

¶ 81 Affirmed.

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