Opinion
No. 1-11-2285
06-28-2012
CHRISTOPHER ORLANDO, Plaintiff-Appellee, v. IMAD M. AL-BASHA, M.D., Individually and as an Employee of Psychiatric Clinics of Northern Illinois, S.C.; PSYCHIATRIC CLINICS OF NORTHERN ILLINOIS, S.C., an Illinois Corporation; BETHANY BREMMER, Individually and as an Employee of SwedishAmerican Health System Corporation and as an Employee of SwedishAmerican Hospital; SWEDISHAMERICAN HEALTH SYSTEM CORPORATION, an Illinois Not-for-Profit Corporation; SWEDISHAMERICAN HOSPITAL, an Illinois Not-for-Profit Corporation; and DONALD C. ROBERTS, Defendants-Appellants (Ximena R. Llobet, M.D., Individually and as an Employee of Infinity Healthcare Physicians, S.C., and as an Employee of Infinity Healthcare, Inc.; Infinity Healthcare Physicians, S.C., a Wisconsin Corporation; and Infinity Healthcare, Inc., an Illinois Corporation; Defendants).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from
the Circuit Court
of Cook County
No. 10 L 10348
Honorable
Jeffrey Lawrence,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Justices Howse and Taylor concurred in the judgment.
ORDER
¶ 1 Held: The circuit court did not abuse its discretion in denying defendants' motion to transfer venue on the basis of forum non conveniens. ¶ 2 Plaintiff-appellee Christopher Orlando filed a medical malpractice and false imprisonment action against defendants-appellants Imad M. Al-Basha, M.D., Psychiatric Clinics of Northern Illinois, S.C., Bethany Bremmer, SwedishAmerican Health System Corporation, SwedishAmerican Hospital and Donald C. Roberts (collectively defendants) in the circuit court of Cook County. Defendants moved to transfer the action from Cook County to the 17th judicial circuit in Winnebago County under the doctrine of forum non conveniens. The court denied defendants' motion to transfer. On appeal, defendants argue that the court abused its discretion in denying their motion as (1) it granted improper deference to plaintiff's choice of forum; (2) the clear predominance of connections rests in Winnebago County; (3) it granted improper deference to the residence of one of the defendants; and (4) it improperly considered plaintiff's witness list. We affirm.
¶ 3 Background
¶ 4 Plaintiff's parents divorced in 1998. Plaintiff lived with his mother in Chicago, Cook County, after the divorce. In June 2005, the 17th judicial circuit court located in Rockford, Winnebago County, granted plaintiff's father's emergency petition for change in custody. It awarded custody of plaintiff to his father, who lived in Cherry Valley, Winnebago County. The court ordered that plaintiff be brought to SwedishAmerican Hospital in Rockford for a psychological evaluation. Roberts, a private investigator, transported plaintiff to the hospital. ¶ 5 At SwedishAmerican Hospital, emergency room physician Ximena R. Llobet, M.D., and assessment counselor Bethany Bremmer examined plaintiff. After conferring with psychiatrist Dr. Al-Basha by phone, Dr. Llobet diagnosed plaintiff with "delusional disorder" and admitted him for observation to the hospital's adolescent inpatient psychiatric unit. The following day, a hospital psychiatrist determined that plaintiff had "adjustment disorder" rather than delusional disorder and ordered his discharge. The hospital discharged plaintiff some eight hours later. ¶ 6 On September 21, 2009, plaintiff filed an action in the circuit court of Cook County against Llobet, Llobet's employers Infinity Healthcare Physicians, S.C., and Infinity Healthcare, Inc., Al-Basha, Al-Basha's employer Psychiatric Clinics of Northern Illinois, Bremmer, SwedishAmerican Hospital, SwedishAmerican Health System Corporation and Roberts. He asserted negligence, medical negligence, false imprisonment and respondeat superior claims against the defendants for their evaluation, diagnosis, treatment, involuntary admission and detention of plaintiff. At the time plaintiff filed his complaint, he lived in Winnebago County with his father, as he had for the previous four years. ¶ 7 In March 2010, defendants filed a motion to transfer the case to the 17th circuit in Winnebago County under the doctrine of forum non conveniens. Llobet, Infinity Healthcare Physicians and Infinity Healthcare filed a similar motion to transfer. On April 8, 2010, plaintiff voluntarily dismissed his action. ¶ 8 On September 9, 2010, plaintiff refiled his action in Cook County against the same defendants. In October 2010, defendants and Llobet/Infinity Healthcare Physicians/Infinity Healthcare again filed motions to transfer the action to Winnebago County under the doctrine of forum non conveniens. They conceded that venue was proper in Cook County because, at the time plaintiff refiled his complaint, defendant Dr. Llobet lived in Cook County. They asserted, however, that Dr. Llobet's residency was the only connection the case had with Cook County and Winnebago County would be the more convenient forum for all parties. ¶ 9 Defendants pointed out that plaintiff was still living with his father in Winnebago County when he refiled the complaint, the alleged injuries occurred in Winnebago County at SwedishAmerican Hospital and the majority of the defendants and witnesses lived and/or worked in Winnebago County. Al-Basha lived and worked in Winnebago County. Psychiatric Clinics of Northern Illinois was incorporated in Winnebago County. Bremmer lived in Carroll County but worked in Winnebago County. Roberts lived in Boone County but worked in Winnebago County. Infinity Healthcare Physicians, S.C., was incorporated in Wisconsin. ¶ 10 Defendants submitted affidavits from 11 "trial witnesses": plaintiff's father, Roberts, Bremmer, two nurses at SwedishAmerican Hospital, the hospital's risk manager, the director of the hospital's adolescent inpatient psychiatric unit, a consulting physician, plaintiff's hospital case manager and two hospital therapists who had examined plaintiff. Each asserted reasons, such as work schedules, child and elder care, for why Winnebago County would be a more convenient forum for them than Cook County. ¶ 11 Plaintiff moved to Cook County on March 10, 2011, six months after he refiled his complaint and five months after the defendants filed their motions to transfer. In plaintiff's response to the motions to transfer, he asserted that venue in Cook County would be convenient because, besides himself and "primary defendant" Dr. Llobet, numerous witnesses were located in Cook County. He pointed to the allegations in his refiled complaint in which he asserted that, throughout the years that he had lived with his mother in Chicago, he had been treated by 12 named physicians at several hospitals in Chicago, Cook County, and he expected to call these physicians as witnesses. He asserted that the treatment he received from these physicians was relevant to his medical conditions at the time he was involuntarily admitted to SwedishAmerican hospital and to the impropriety of defendants' actions in negligently misdiagnosing his conditions and admitting him to the hospital. ¶ 12 Plaintiff attached to his response a copy of the 2009 Annual Report of the Illinois Courts Statistical Summary. It showed that, for the calendar year 2009, there were 1,661,115 cases filed in Cook County and 122,034 cases filed in the 17th Circuit. It also showed that there were 5,084.8 cases filed per judge in the 17th Circuit but only 3,964.5 cases per judge in Cook County. It showed the average time lapse in months between the date of filing and the date of verdict was 37.7 months in Cook County and 48.9 months in Winnebago County. ¶ 13 The circuit court denied the motions to transfer and the defendants' subsequent motions to reconsider. Defendants filed a petition for leave to appeal pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)). Llobet/Infinity Healthcare Physicians/Infinity Healthcare did not appeal the court's denial of their motion to transfer and are, therefore, not parties to this appeal. ¶ 14 On September 19, 2011, we denied defendants' petition for leave to appeal. On January 25, 2012, the Illinois Supreme Court denied defendants' petition for leave to appeal and issued a supervisory order directing this court to vacate our September 19, 2011, judgment and consider the case on its merits. On April 4, 2012, we vacated the September 19, 2011, order and took the case on its merits.
¶ 15 Analysis
¶ 16 The sole question is whether the court erred in denying defendants' motion to transfer the case to Winnebago County pursuant to the doctrine of forum non conveniens. Implicit in the doctrine is the existence of more than one forum in which the case can be tried and the inquiry, therefore, focuses on the relative convenience of the available forums. Moore v. Chicago & North Western Transportation Co., 99 Ill. 2d 73, 76 (1983). If the court in which a plaintiff filed an action determines that an alternative forum can better serve the convenience of the parties and the ends of justice, the court may decline jurisdiction and direct the action to that alternative forum. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 172 (2003). The same considerations of convenience and fairness apply whether the choice is between forums in different states (interstate) or, as here, between forums in the same state (intrastate). Dawdy, 207 Ill.2d at 176. ¶ 17 "A trial court is afforded considerable discretion in ruling on a forum non conveniens motion." Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441 (2006). We will not reverse the trial court's decision on a motion to transfer under forum non conveniens unless the defendant has shown that the court abused its discretion in balancing the relevant factors, i.e., has shown that no reasonable person would take the view adopted by the court. Langenhorst, 219 Ill. 2d at 442.
"[T]he forum non conveniens doctrine gives courts discretionary power that should be exercised only in exceptional circumstances when the interests of justice require a trial in a more convenient forum. [Citations and parenthetical.] 'The plaintiff has a substantial interest in choosing the forum where his rights will be vindicated, and the plaintiff's forum choice should rarely be disturbed unless the other factors strongly favor transfer.' [Citations and parenthetical.] However, the plaintiff's interest in choosing the forum receives 'somewhat less deference when neither the plaintiff's residence nor the site of the accident or injury is located in the chosen forum.' " Langenhorst, 219 Ill. 2d at 442-43 (quoting First American Bank v. Guerine, 198 Ill. 2d 511, 517, 520 (2002)).¶ 18 Generally, " 'the plaintiff's initial choice of forum will prevail, provided venue is proper and the inconvenience factors attached to such forum do not greatly outweigh the plaintiff's substantial right to try the case in the chosen forum.' " (Emphasis in original.) Langenhorst, 219 Ill. 2d at 443 (quoting Guerine, 198 Ill. 2d at 520). A defendant has a difficult standard to meet but legitimate transfers are not foreclosed " 'when the balance of factors strongly favors litigation in another forum.' " (Emphasis in original.) Langenhorst, 219 Ill. 2d at 443 (quoting Guerine, 198 Ill. 2d at 521). "In deciding a forum non conveniens motion, a court must consider all of the relevant factors, without emphasizing any one factor" and each "case must be considered as unique on its facts." Langenhorst, 219 Ill. 2d at 443. ¶ 19 In order to determine the appropriate forum in which a case should be tried, the court must weigh the private interest factors affecting the litigants and the public interest factors affecting the administration of the courts. Dawdy, 207 Ill. 2d at 172. Private interest factors include:
"the convenience of the parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the availability of compulsory process to secure attendance of unwilling witnesses; the cost to obtain attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all other practical considerations that make a trial easy, expeditious, and inexpensive." Dawdy, 207 Ill. 2d at 172.Public interest factors include: "the administrative difficulties caused when litigation is handled in congested venues instead of being handled at its origin; the unfairness of imposing jury duty upon residents of a county with no connection to the litigation; and the interest in having local controversies decided locally." Dawdy, 207 Ill. 2d at 173. ¶ 20 It is the defendant's burden "to show that relevant private and public interest factors 'strongly favor' the defendant's choice of forum to warrant disturbing plaintiff's choice." Langenhorst, 219 Ill. 2d at 444 (quoting Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 107 (1990)). The trial court does not weigh the private interest factors against the public interest factors. Langenhorst, 219 Ill. 2d at 444. Instead,
"the trial court must evaluate the total circumstances of the case in determining whether the defendant has proven that the balance of factors strongly favors transfer. [Citation.] The defendant must show that the plaintiff's chosen forum is inconvenient to the defendant and that another forum is more convenient to all parties. [Citation.] However, the defendant cannot assert that the plaintiff's chosen forum is inconvenient to the plaintiff." Langenhorst, 219 Ill. 2d at 444."Unless the balance of factors strongly favor a defendant's choice of forum, the plaintiff's choice of forum should rarely be disturbed." Langenhorst, 219 Ill. 2d at 444. ¶ 21 Turning to the case at bar, defendants argue that the circuit court of Cook County abused its discretion in denying their motion to transfer the case to Winnebago County pursuant to the doctrine of forum non conveniens. They assert that it is undisputed that all the events at issue took place in Winnebago County, plaintiff was a longtime resident of Winnebago County when he filed and refiled suit, every defendant supports a transfer to Winnebago County and the likely trial witnesses prefer a Winnebago County forum. Defendants argue that these undisputed facts support transfer to Winnebago County and, to have held otherwise, the trial court improperly accorded significant or substantial deference to plaintiff's post-suit move to Cook County. They claim that, under these facts, little or no deference should be accorded to plaintiff's choice of forum because to do otherwise would encourage forum shopping. They also assert that the private and public interest factors strongly favor transfer to Winnebago County, which has the predominant connection to the litigation. ¶ 22 Plaintiff responds that the court did not abuse its discretion in denying the motion to transfer because defendants did not show that Winnebago County was the substantially more appropriate forum. He points out that he is located in Cook County as are "primary defendant" Dr. Llobet and "at least twelve physician witnesses." Plaintiff contests defendants' assertion that the court granted significant or substantial deference to his choice of forum. He asserts the court expressly stated it afforded his choice of forum "less deference" than it ordinarily would have had he lived in Cook County at the time he filed his complaint and that it did not consider the case to be a "substantial deference case." Plaintiff argues that the court conducted a thorough analysis of all the relevant factors, applied the correct amount of deference to his choice of forum and correctly determined that the public and private factors did not favor a transfer of the case to Winnebago County. ¶ 23 In weighing the private and public interest factors, we conclude that the trial court did not abuse its discretion when it denied defendants' motion to transfer. The court could clearly and reasonably find that defendants failed to show that the relevant factors, viewed in their totality, "strongly favor" transfer to Winnebago County and that Winnebago County is the more convenient forum for all parties. ¶ 24 We consider first the proper deference to be accorded to plaintiff's choice of forum. On a forum non conveniens motion, the plaintiff's chosen forum is assumed to be a proper venue and his choice of forum is generally entitled to substantial deference. Langenhorst, 219 Ill. 2d at 448. However, when neither the plaintiff's residence nor the site of the injury is located in the chosen forum, "the plaintiff's interest in choosing the forum receives 'somewhat less deference.' " Langenhorst, 219 Ill. 2d at 442-43 (quoting Guerine, 198 Ill. 2d at 517). Nevertheless, even though less deference is to be accorded, that deference " ' "is only less, as opposed to none." ' " (Emphases in original.) Langenhorst, 219 Ill. 2d at 448 (quoting Guerine, 198 Ill. 2d at 518 (quoting Elling v. State Farm Mutual Automobile Insurance Co., 291 Ill. App. 3d 311, 318 (1997))). ¶ 25 Plaintiff's injuries occurred in Winnebago County and he resided in Winnebago County at the time he refiled his action in Cook County. His choice of forum should, therefore, be accorded " 'somewhat less deference.' " Langenhorst, 219 Ill. 2d at 442-43 (quoting Guerine, 198 Ill. 2d at 517). In making its findings, the court explained:
"The first step in my analysis is to determine whether it's a strong deference or a less deference case, and my determination on that question is that if this is a less deference case, it's a marginally less deference case because of the fact that it arose in Winnebago County, and that a much stronger indicator of what deference ought to be accorded the plaintiff's choice of forum is where the plaintiff currently resides, assuming that his choice of residence is not dictatedSubsequently, during the hearing on the motions to reconsider, the court acknowledged that the case was "somewhere in between" a "less deference" case and a "not much less than substantial deference case." While this could have been more clearly stated, the court did not accord plaintiff's choice of forum substantial deference as defendants assert. ¶ 26 We examine next the private interest factors. Regarding the convenience of the parties, the majority of the defendants, occurrence witnesses and treating physicians and nurses at SwedishAmerican Hospital reside or work in Winnebago County. Further, all of the defendants moved to transfer the case to Winnebago County and 11 possible defense witnesses testified by affidavit that Winnebago County would be the more convenient forum. For all of these defendants and witnesses, Winnebago County would be a more convenient forum. ¶ 27 On the other hand, plaintiff resides in Cook County; defendant Dr. Llobet resides in Cook County and has not appealed the court's denial of her motion to transfer venue; and plaintiff names as potential witnesses 17 physicians who treated plaintiff when he lived in Cook County as a young child and who still work in Cook County. For plaintiff, defendant Dr. Llobet and these 17 witnesses, Cook County would be the more convenient forum. Moreover, as the trial court noted, "Winnebago County is simply not that far away" because Rockford, Winnebago County, is a mere 1.5 hour drive from Chicago, Cook County. Requiring the witnesses located in Winnebago County to travel to Cook County would not be particularly onerous or inconvenient to them. Overall, the convenience of the parties does not strongly favor transfer to Winnebago County. ¶ 28 We find similarly with regard to the relative ease of access to documentary, testimonial and real evidence. The medical records related to plaintiff's admission to SwedishAmerican Hospital are located in Winnebago County but the records related to his earlier medical treatments are located in Cook County. Further, "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." Dowd v. Berndtson, 2012 IL App (1st) 122376, ¶ 15. There are numerous possible witnesses located in Winnebago County but Winnebago County is within two hours of Cook County and the witnesses can, if necessary, testify by deposition. There is no real evidence at issue. Overall, ease of access to witnesses, records and evidence does not strongly favor transfer to Winnebago County. ¶ 29 With regard to the possibility of viewing the site of plaintiff's injuries, it is highly unlikely that such would be necessary in this case given that little would be gained by a viewing of SwedishAmerican Hospital. With regard to the availability of compulsory process to secure attendance of unwilling witnesses, Winnebago County and Cook County are equally well equipped to deal with such procedural matters. The cost to obtain attendance of willing witnesses would be minimal in both forums given that they are located mere hours apart by car and the cost of hotel and airfare would not be a significant issue. Overall, none of these factors strongly favor transfer of the case to Winnebago County. ¶ 30 Turning to the public interest factors, we recognize the administrative difficulties caused when litigation is handled in congested venues instead of being handled at its origin. There is no question that the Cook County courts are congested. However, as the 2009 Annual Report of the Illinois Courts Statistical Summary attached to plaintiff's response to the motion to transfer showed, cases move to verdict substantially faster in Cook County than in 17th judicial circuit/Winnebago County. Although there were 1,661,115 cases filed in Cook County in 2009 and only 122,034 cases in the 17th judicial circuit, Cook County judges were assigned only 3,964.5 cases per judge while 17th judicial circuit judges were assigned 5,084.8 cases. As a result, the average time lapse in months between the date of filing and the date of verdict in Cook County was 37.7 months in Cook County while in Winnebago County it was 48.9. It took almost a year longer to bring a case to verdict in Winnebago County than in Cook County. Clearly, the administrative difficulties in handling the case in Winnebago County would greatly outweigh those in Cook County. ¶ 31 There is no question that there is a public interest in having local controversies decided locally. We recognize that Winnebago County has an interest in deciding this controversy which stems from the actions of a Winnebago County hospital. We also recognize that plaintiff resides in Cook County and a defendant physician resides and works in Cook County. If this physician committed medical malpractice on plaintiff as plaintiff asserts, Cook County obviously has an interest in the resolution of this litigation in order to ensure that such does not happen in Cook County to any of its citizens. We recognize the unfairness of imposing jury duty upon residents of Cook County when the injuries occurred in Winnebago County. We find that these public interest factors are somewhat neutral. However, taking into account these neutral factors along with the above case load analysis, on balance, the public interest factors do not strongly favor transfer to Winnebago County. ¶ 32 Overall, balancing the public and private interest factors, we find that the factors do not strongly favor transfer of the case from Cook County to Winnebago County. The court could reasonably conclude that Winnebago County was not the more convenient forum for all parties where plaintiff, a physician defendant and numerous potential witnesses were located in Cook County; access to witnesses, records and evidence in Cook County would not be particularly onerous; and the Cook County court system was less burdened and better able to absorb an additional case than the 17th judicial circuit court in Winnebago County while other public interest factors were somewhat neutral. ¶ 33 Defendants argue that the court accorded improper weight to Dr. Llobet's residence in Cook County. We disagree. Dr. Llobet was a named defendant. The medical records show that she was the physician who first examined plaintiff upon his arrival at the hospital and who, after conferring with Dr. Al-Basha, diagnosed plaintiff with the delusional disorder that resulted in his involuntary admission. Dr. Llobet is clearly a key defendant and key witness in the action and her residence in Cook County should carry more weight in the balancing test than the residence of more peripheral defendants or witnesses. Moreover, although Dr. Llobet had moved to transfer the action to Winnebago County, she did not appeal this ruling. She presumably has no further objection to the Cook County forum. ¶ 34 Defendants also argue that the court improperly considered plaintiff's witness list of the physicians who had treated him in Cook County when he was a child. They assert plaintiff's list was not a "true listing of actual trial witnesses or case deponents, but a list created to fend off a very justified transfer of the case to Winnebago County," a "red herring designed to fix venue in Cook County." Defendants assert plaintiff provided an unattested laundry list of alleged witnesses with no affidavits or verification as to the counties of residence or employment of these purported witnesses or of their forum preferences. They argue that these physicians treated plaintiff for childhood asthma, allergies and dermatology issues and there is little likelihood that they would provide any relevant testimony concerning the standard of care provided by the physicians at SwedishAmerican Hospital. ¶ 35 In plaintiff's amended complaint, he claimed that he was treated by numerous physicians and at several hospitals in Cook County and named12 of the physicians and five hospitals. As he explained in his amended complaint:
purely by a desire to fix venue in a particular county. So my approach in this case will be that the moving party has to show strong reasons for denying the plaintiff his choice of forum."
"49. All of the foregoing treatment that [plaintiff] received in Cook CountyIn plaintiff's answer to defendants' venue interrogatories, he identified the 14 physicians he might call as witnesses and listed their places of employment, all at hospitals in Cook County. The physicians are variously allergists, dermatologists, rheumatologists, immunologists, gastroenterologists, pulmonologists and pediatricians. ¶ 36 The relevancy of the physicians' testimony to whether plaintiff suffers from a psychiatric disorder, which was the basis for his admission to SwedishAmerican Hospital, is not immediately apparent. However, when one considers the basis for the 17th judicial circuit court's transfer of custody to plaintiff's father and its order that plaintiff be taken to the hospital for a psychiatric evaluation, the relevancy of their testimony becomes clear. Plaintiff's mother stood accused of essentially brainwashing plaintiff into thinking that he was ill and that his father was trying to poison him. The suspicion was that she suffered from Munchausen's by proxy syndrome (MBPS), taking plaintiff to numerous physicians during the years that plaintiff lived with her in Cook County and seeking diagnoses for ailments he did not have. The 17th circuit court sent plaintiff to the hospital for a psychological evaluation after concerns were raised that plaintiff was so afraid of his father that he would attempt suicide if he was sent to live with his father. The testimony of plaintiff's childhood physicians would be entirely relevant to whether there was any basis for his mother's concerns or accusations and whether he actually suffered from any illness warranting hospital admission. The court did not err in considering plaintiff's listed witnesses in its weighing of the public and private interest factors.
is relevant to the issues in this case. For example, the foregoing treatment relates to [his] medical conditions at the time he was involuntarily admitted to the SwedishAmerican Hospital, and it relates to the impropriety of the Defendants' actions in negligently misdiagnosing [his] medical conditions and improperly admitting him to the Hospital based on their misdiagnosis.
50. The foregoing Cook County medical providers are expected to testify concerning their care and treatment of [plaintiff], and their diagnoses of [his] medical conditions at the time he improperly involuntarily admitted to the SwedishAmerican Hospital by Defendants."
Munchausen by proxy syndrome is "a psychological disorder in which a parent and typically a mother harms her child (as by poisoning), falsifies the child's medical history, or tampers with the child's medical specimens in order to create a situation that requires or seems to require medical attention." Merriam Webster.
¶ 37 Conclusion
¶ 38 For the reasons stated above, we affirm the decision of the trial court denying defendants' motion to transfer venue on the basis of forum non conveniens. ¶ 39 Affirmed.