PATRICK K. McGINTY, Plaintiff-Appellee, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellant, 362 Ill. App. 3d 934

JUSTICE McGLYNN delivered the opinion of the court: Norfolk Southern Railway Company (Norfolk Southern) appeals from the trial court’s September 29, 2004, denial of its motion to dismiss on the basis of interstate forum non conveniens. On December 2, 2004, we granted Norfolk Southern’s petition for leave to appeal pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)). There is no dispute that venue in Madison County, Illinois, is proper, because Norfolk Southern does business in Madison County. See 45 U.S.C. § 56 (2000).

On appeal, Norfolk Southern argues that there is no connection between the claim filed and Madison County, Illinois, and that, therefore, under the doctrine of interstate forum non conveniens, the claim should have been dismissed. The plaintiff, Patrick K. McGinty (McGinty), alleges repetitive-trauma injuries to his back, neck, shoulders, and knees. He claims that these injuries occurred over the 30-year duration of his employment with Norfolk Southern, for whom he worked as a laborer/ machinist and special agent.

McGinty filed his claim in Madison County circuit court pursuant to provisions of the Federal Employers’ Liability Act (45 U.S.C. § 51 et seq. (2000)). McGinty resides in Liberty, Missouri, a community close to Kansas City. At no time during his Norfolk Southern employment did McGinty live in Madison County or anywhere else in Illinois. McGinty alleges that there was a brief period of time during which he performed Norfolk Southern work in Madison County.

In essence, McGinty claims that because his injuries are of a repetitive type and because he did work at least some period of time in Madison County, at least some of his injuries occurred in Madison County. During his deposition, McGinty was unable to specifically tie his injuries to any one accident, incident, or other reportable condition that occurred during his Madison County employment. In his 30-year employment history, McGinty worked out of Moberly, Missouri, Wentzville, Missouri, St. Louis, Missouri, and Kansas City, Missouri.

The Madison County work took place during the time frame when McGinty worked out of St. Louis, Missouri, and, while not specified, did take place more than 15 years ago. Neither party has any witnesses located in Madison County, or anywhere else in Illinois. All of McGinty’s treating physicians or other healthcare providers are located in the Kansas City, Missouri, area. He alleged that the pain and/or physical problems with which he suffered were not present when he worked out of St. Louis, Missouri, but did show up over, approximately, the last 13-year period when he worked out of Kansas City.

Norfolk Southern filed its forum non conveniens motion seeking to have the case dismissed, arguing that the case would be more properly filed in Jackson County, Missouri. The trial court’s September 29, 2004, order denying the motion simply states, “The motion is hereby denied.” No rationale for the denial was included in the order. The only issue on appeal is whether or not the trial court erred in reaching its conclusion that allows the case to proceed in Madison County. On appeal from an order granting or denying a motion to dismiss, we must determine whether or not the trial court abused its discretion.

Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 176-77, 797 N.E.2d 687, 696 (2003); Ferguson v. Bill Berger Associates, Inc., 302 Ill. App. 3d 61, 70, 704 N.E.2d 830, 836-37 (1998). Forum non conveniens is essentially an equitable doctrine. Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 223, 506 N.E.2d 1291, 1294 (1987). The doctrine presumes that there is more than one appropriate forum relative to jurisdiction and venue. Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 364, 456 N.E.2d 98, 100 (1983).

The trial court retains discretionary power to decline the exercise of jurisdiction and to direct the lawsuit to an alternative forum that would more appropriately serve the parties’ convenience. Washington v. Illinois Power Co., 144 Ill. 2d 395, 399, 581 N.E.2d 644, 645 (1991). The convenience of the parties is at the heart of the doctrine. Hefner v. Owens-Corning Fiberglas Corp., 276 Ill. App. 3d 1099, 1101, 659 N.E.2d 448, 451 (1995). The doctrine of forum non conveniens is applicable on both an intrastate basis and an interstate basis. Dawdy, 207 Ill. 2d at 176, 797 N.E.2d at 696.

The identical concerns of convenience and fairness apply to both types of forum non conveniens situations. To determine if the doctrine of forum non conveniens applies, a court must balance private-interest factors affecting the convenience of the litigants and public-interest factors impacting the court’s administration. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843 (1947). The balancing analysis requires an evaluation of the relevant factors in their entirety rather than an emphasis on any single factor. Peile v.

Skelgas, Inc., 163 Ill. 2d 323, 336-37, 645 N.E.2d 184, 190 (1994). Private-interest factors include the “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious!.,] and inexpensive.” Gulf Oil Corp., 330 U.S. at 508, 91 L. Ed. at 1062, 67 S. Ct. at 843.

Some of the other private-interest factors taken into consideration include the residence of the plaintiff (Peile, 163 Ill. 2d at 337-38, 645 N.E.2d at 191) and the complexity of the litigation. Mowen v. Ulinois Valley Supply Co., 257 Ill. App. 3d 712, 717, 629 N.E.2d 176, 180 (1994). Public-interest factors include court congestion, an interest in having “localized controversies decided at home,” and the burden of jury duty upon local citizens in an unrelated forum. Gulf Oil Corp., 330 U.S. at 509, 91 L. Ed. at 1063, 67 S. Ct. at 843. In Peile v.

Skelgas, Inc., the Illinois Supreme Court restated its position that forum non conveniens remains a viable doctrine, and it reiterated the importance of a flexible consideration of the private- and public-interest factors. Peile, 163 Ill. 2d at 336-37, 645 N.E.2d at 190-91. While the court confirmed that the plaintiff’s choice is entitled to substantial deference, the court noted that the right is seriously diminished when the forum selected is not his or her county of residence and where the forum is not the situs of the injury. Peile, 163 Ill. 2d at 337-38, 645 N.E.2d at 191.

No single interest factor should be accorded primary or conclusive emphasis. Dawdy, 207 Ill. 2d at 180, 797 N.E.2d at 698, citing Jones v. Searle Laboratories, 93 Ill. 2d 366, 373, 444 N.E.2d 157, 160 (1982). Affording major significance to any one of the factors would result in a weakening of the flexibility of the forum non conveniens doctrine. Dawdy, 207 Ill. 2d at 180, 797 N.E.2d at 698 (relying on Bland, 116 Ill. 2d at 227, 506 N.E.2d at 1295 (relying on Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249-50, 70 L. Ed. 2d 419, 432, 102 S. Ct. 252, 263 (1981))).

All of the factors must be weighed in their entirety. Dawdy, 207 Ill. 2d at 175-76, 797 N.E.2d at 695 (relying on Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 107-08, 554 N.E.2d 209, 212 (1990)). “In considering an interstate forum non conveniens motion filed in a suit pending in an Illinois court, the focus is on Illinois’s connections with the litigation and whether the applicable public- and private-interest factors favor Illinois or an appropriate forum in another state.” (Emphasis omitted.) Skidmore v. Gateway Western Ry. Co., 333 Ill. App. 3d 947, 950, 776 N.E.2d 333, 336 (2002).

In 2002, the Illinois Supreme Court reaffirmed the doctrine of forum non conveniens in First American Bank v. Guerine, 198 Ill. 2d 511, 764 N.E.2d 54 (2002). Rather than weighing each factor in determining whether a case should be dismissed, Guerine, which was an intrastate forum case, required an approach in which the court “evaluate[s] the total circumstances of the case,” in order to determine if the defendant has proven that the balance of factors strongly favors a transfer. Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59.

This case turns on the repetitive nature of McGinty’s injuries in that, theoretically at least, some part of his overall injury occurred in Madison County. Madison County would not be the only appropriate forum, however. Following McGinty’s argument, any county where he worked throughout the entirety of his railroad career would be proper.

The plaintiffs choice of forum is entitled to great deference, and although the deference is somewhat minimized due to the fact that he does not reside in that county, McGinty argues that his choice should still be granted great deference because the injury “occurred” in Madison County. Norfolk Southern counters with the argument that merely working in Madison County for a short period of time is insufficient to warrant maintaining the case in Madison County.

Norfolk Southern distinguishes cases where an actual injury or accident occurred in Madison County, arguing that because McGinty cannot point to one precise incident in Madison County, his injury essentially could not have occurred there. See Brummett v. Wepfer Marine, Inc., 111 Ill. 2d 495, 490 N.E.2d 694 (1986) (the plaintiff suffered a traumatic fall while the vessel on which he worked was docked at Lock Number 26 near Alton, Illinois); Peterson v. Monsanto Co., 181 Ill. App. 3d 677, 537 N.E.2d 1030 (1989) (where a chemical exposure occurred within Madison County, Illinois); Weaver v.

Midwest Towing, Inc., 116 Ill. 2d 279, 507 N.E.2d 838 (1987) (injuries resulting from a continuous benzine gas exposure over a short period of time while working on a vessel traveling the upper Mississippi River to and including passage through the Alton Lock and Dam system in Madison County, Illinois). As stated above, this case turns on an acceptance of the theory that a repetitive injury over the span of an entire career fixes venue and forum in any county that the employee performed so much as one minute of work.

If we accept this theory, as the trial court did, then no matter how remote in time the employment at issue was, the “injury” occurred in Madison County. We believe that this stretches the bounds of the forum, non conveniens doctrine and cannot, at least in this situation, be solely utilized to fix Madison County as an appropriate forum. In a typical injury case where the location of the injury is the forum chosen by the plaintiff, the connection between the county and the injury is significant.

The site of the injury and the county’s interest in the outcome of the litigation are naturally tied, and complete deference to the plaintiffs choice is virtually automatic, because there is a presumption that the choice is convenient because the litigation is being decided in its home county. Skidmore, 333 Ill. App. 3d at 956, 776 N.E.2d at 340. We understand that, by definition, a repetitive trauma is an injury that occurs over and over again. We are unwilling, however, to equate a repetitive injury to that of a one-time incident, injury, or exposure that more directly ties an injury to a particular county.

If we equated the two types of injuries, any truck driver with a repetitive injury could claim Madison County as a convenient forum simply because there are many interstate highways that run through the county and the truck driver at some point in time drove on one of those highways. We will not afford this type of repetitive injury the same deference as accidents and exposures that solely occur in Madison County. To hold otherwise could promote unfavored forum-shopping. Dawdy, 207 Ill. 2d at 173-75, 797 N.E.2d at 694-95.

Because McGinty does not remember much of anything relative to his Madison County work history, and due to the nonspecific repetitiveness of the injury and its remoteness in time — more than 15 years ago — we will only afford slight deference to his choice of forum on the basis of the injury situs. Other factual situations may warrant different treatment, but this injury’s connection with Madison County is simply too tenuous to receive automatic deference. We will briefly discuss the relevant private- and public-interest factors.

In this case, the private-interest factors involving the relative ease of access to sources of proof and the availability and cost of obtaining willing and unwilling witnesses can be discussed together. Neither of these private-interest factors favors Madison County. None of the potential witnesses resides in Madison County, or anywhere near Madison County. McGinty and his wife both reside near Kansas City, Missouri. All of McGinty’s coworkers reside in or near Kansas City. Seven listed doctors and other medical providers all live and work in and around Kansas City.

The employees of McGinty’s janitorial business all live near Kansas City. Jackson County, Missouri, is the location of these witnesses, and Jackson County is approximately 265 miles from Madison County, Illinois. The reality is that there would be no “ease of access” to these witnesses, and the cost to bring many or all of them to a trial in Madison County would be quite high. We must address the possibility of a view of the premises, however remote that likelihood is. Dawdy, 207 Ill. 2d at 178-79, 797 N.E.2d at 697.

In this situation, a view of the premises could conceivably include whatever location in Madison County where McGinty was occasionally sent to work when he worked out of the St. Louis railroad yard. However, because the injury alleged is a repetitive one with no specific accident site, it is just as likely that a view could be arranged at any of the Missouri locations where McGinty worked. Any view, if ordered by the trial court, would necessarily be representative of the type of work in which McGinty engaged over the many years of his employment, and not the site of a discrete incident.

Consequently, this factor does not support McGinty’s forum choice over Jackson County, Missouri. The only other private-interest factor referenced by McGinty’s attorneys favoring the Madison County forum choice was the location of the attorneys’ offices — in Madison County and neighboring St. Clair County, Illinois. As the Illinois Supreme Court stated, “While a court may consider this factor, ‘little weight should be accorded it.’ ” Dawdy, 207 Ill. 2d at 179, 797 N.E.2d at 697, quoting Boner v. Peabody Coal Co., 142 Ill. 2d 523, 534, 568 N.E.2d 883, 888 (1991).

So, although it may be entitled to very little weight, this factor does favor Madison County. Turning to the public-interest factors, we conclude that the court-congestion factor weighs in favor of Jackson County, Missouri, in that the average time for a trial to proceed from filing to verdict in Madison County was 28.9 months, while the average time in Jackson County, Missouri, was approximately 12 months. Administrative Office of the Illinois Courts, 2002 Annual Report of the Illinois Courts, Statistical

Summary 53; Office of State Courts Administrator, 2002 Annual Report Supplement 180 (Missouri). To the extent that a part of the repetitive injury occurred in Madison County, then the citizens of Madison County would have a very slight interest in deciding the controversy. Given the lack of any other connection to the county, we are unable to say that merely occasionally working in Madison County more than 15 years ago vests the citizens of Madison County with more than a modest interest in the controversy’s outcome.

We find that in this particular factual situation, jury duty would impose a burden upon the citizens of Madison County. Evaluating the factors in their totality, we are unable to reach the same conclusion that the trial court reached. We conclude that the factors strongly favor Jackson County, Missouri, over Illinois. Accordingly, we find that the trial court abused its discretion in denying Norfolk Southern’s motion to dismiss. For the foregoing reasons, the judgment of the circuit court of Madison County is hereby reversed, and the cause is dismissed. Reversed; cause dismissed. WELCH, J., concurs.