Kuhn v. Nicol

Rule 23 order filed 2020 IL App (5th) 190225
April 27, 2020.
Motion to publish granted NO. 5-19-0225
June 4, 2020.
IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

MICHAEL KUHN and JUDY KUHN, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellees, ) St. Clair County.
)
v. ) No. 18-L-379
)
RICHARD E. NICOL, M.D.; ROBERT J. )
MARSHALL, M.D.; INFINITY-MEDS, LLP; and )
ST. JOSEPH’S HOSPITAL, BREESE, OF THE )
HOSPITAL SISTERS OF THE THIRD ORDER OF )
ST. FRANCIS, )
)
Defendants ) Honorable
) Heinz M. Rudolf,
(Richard E. Nicol, M.D., Defendant-Appellant). ) Judge, presiding.
______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court, with opinion.
Justices Overstreet and Boie concurred in the judgment and opinion.

OPINION

¶1 The defendant, Richard E. Nicol, M.D., appeals the May 7, 2019, order of the circuit court

of St. Clair County, which denied his motion to transfer this cause to Clinton County on the basis

of forum non conveniens. For the following reasons, we reverse and remand with directions that

the circuit court transfer this cause to Clinton County.

¶2 FACTS

¶3 On May 30, 2018, the plaintiffs, Michael Kuhn and Judy Kuhn, filed a complaint in the

circuit court of St. Clair County, alleging a cause of action for medical malpractice against

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St. Joseph’s Hospital, Breese, of the Hospital Sisters of the Third Order of St. Francis

(St. Joseph’s) and Infinity-Meds, LLP (Infinity), as well as Richard E. Nicol, M.D., and Robert J.

Marshall, M.D. 1 The complaint alleges that St. Joseph’s and Infinity’s employees, Dr. Nicol and

Dr. Marshall, negligently failed to timely diagnose and treat Michael’s stroke, causing Michael

debilitating injury. On July 31, 2018, St. Joseph’s filed a motion to transfer venue to Clinton

County on the grounds of forum non conveniens.

¶4 According to St. Joseph’s motion to transfer, the plaintiffs are residents of Clinton County,

the alleged medical malpractice occurred in Clinton County, and all pertinent records regarding

the events surrounding the plaintiffs’ allegations of medical malpractice are in Clinton County.

St. Joseph’s argued that because the plaintiffs’ cause of action had no connection to St. Clair

County, the relevant private and public interest factors strongly favor transfer to Clinton County.

In support of its motion, St. Joseph’s attached the “Annual Report of the Illinois Courts Statistical

Summary—2016,” which indicates that in calendar year 2016, 100 civil cases were filed in Clinton

County, one of which was terminated by verdict. As of 2016, the average time between the filing

of a civil case and a verdict in Clinton County was 60.2 months. In contrast, 2925 cases were filed

in St. Clair County, 12 of which were terminated by verdict. As of 2016, the average time between

the filing of a civil case and a verdict in St. Clair County was 66.9 months.

¶5 On August 2, 2018, Infinity filed a motion to join St. Joseph’s motion to transfer this case

to Clinton County. On August 21, 2018, in lieu of a response addressing the arguments set forth

in the motions to transfer, the plaintiffs filed the affidavit of their counsel “in opposition to the

motion to transfer.” According to the affidavit, “in fact there is a good deal of evidence located in

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Originally, the complaint named Midwest Emergency Department Services, Inc., as a defendant.
However, on July 9, 2018, the circuit court granted the plaintiffs’ motion to amend the complaint by
interlineation to substitute Infinity as the correct defendant.
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St. Clair County.” The affidavit identified medical professionals who the affidavit indicated “are

actively treating [the] plaintiff” at medical facilities in Belleville and O’Fallon, located in St. Clair

County. The affidavit then states that, “[i]n addition, [the] plaintiff has several lay witnesses who

would have relevant information about [the] plaintiff’s condition both before and after the stroke,

and how [the] defendants[’] alleged negligence has affected him and those individuals are all

located in St. Clair County.” The affidavit then contains a list of 25 names.

¶6 On September 19, 2018, the circuit court held a hearing on St. Joseph’s and Infinity’s

motion to transfer. On September 21, 2018, the circuit court entered an order denying the motion

to transfer. On October 10, 2018, St. Joseph’s filed a supplement to its motion to transfer, attaching

the medical record of Michael’s admission into St. Joseph’s during the time of the alleged medical

malpractice, as well as the affidavit of the division director of risk management for Hospital Sisters

Health System, of which St. Joseph’s is a part. According to this affidavit, based on information

and belief, the following individuals referenced in the medical record reside in Clinton County:

(1) Dr. Arnel Garcia (primary care medicine); (2) Dr. David Neighbors (primary care medicine);

(3) Dr. Brett Prywitch (radiology); (4) Elizabeth Terry (registered nurse); (5) Geralyn Stock

(clerk); and (6) Veronica Hund (ECG technician). In addition, the affidavit states that St. Joseph’s

is a not-for-profit corporation with its exclusive place of business in Clinton County and operates

a hospital in Clinton County. The affidavit further states that its medical records, department

records, and imaging studies are maintained in Clinton County. Finally, the affidavit states that

Hospital Sisters Health System is based in Springfield, Illinois, and St. Joseph’s is a separate legal

entity with its own board of directors.

¶7 On October 12, 2018, St. Joseph’s filed a second supplement to its motion to transfer,

attaching information from the website for the ambulance service that transferred Michael to the

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hospital following his stroke. The information shows that the ambulance service is in Clinton

County. On December 12, 2018, this court granted St. Joseph’s and Infinity’s petition for leave to

appeal the circuit court’s September 21, 2018, order denying their motion to transfer, and that

appeal was docketed in this court as case No. 5-18-0501.

¶8 On March 4, 2019, having recently been served with the complaint, Dr. Nicol filed his own

motion to transfer the case to Clinton County based on forum non conveniens. Dr. Nicol attached

his affidavit to the motion. In his affidavit, Dr. Nicol attested that his care and treatment of Michael

took place at St. Joseph’s in Clinton County, and none of Michael’s treatment occurred in St. Clair

County. Further, Dr. Nicol averred that he resides in Madison County and worked in Clinton

County at the time of his treatment of Michael. Dr. Nicol’s affidavit concluded that participating

in a trial in St. Clair County would be personally and professionally inconvenient to him, and that

a trial in Clinton County would be more convenient. Dr. Nicol also attached the medical records

from St. Joseph’s under seal, as well as the information on the ambulance service and the Statistical

Summary of the Illinois Courts from 2016, to his motion to transfer.

¶9 On March 18, 2019, St. Joseph’s and Infinity filed a motion to stay their appeal pending

the circuit court’s ruling on Dr. Nicol’s motion to transfer. On April 3, 2019, this court entered an

order staying the appeal in No. 5-18-0501. On May 7, 2019, the circuit court entered an order

denying Dr. Nicol’s motion to transfer. On June 5, 2019, Dr. Nicol filed a petition for leave to

appeal, which this court granted on August 21, 2019.

¶ 10 ANALYSIS

¶ 11 This court recently set forth, in detail, the standards to be employed by the circuit court,

and by this court on review, when the issue is whether to transfer a cause based on the doctrine of

forum non conveniens set forth in Illinois Supreme Court Rule 187(c)(2) (eff. Jan. 4, 2013):

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“ ‘A trial court’s decision on a forum non conveniens motion will be reversed only if it can

be shown that the trial court abused its discretion in balancing the various factors at issue.’

Gridley v. State Farm Mutual Automobile Insurance Co., 217 Ill. 2d 158, 169 (2005). A

circuit court abuses its discretion where no reasonable person would take its adopted view.

Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).

‘Forum non conveniens is an equitable doctrine founded in considerations of

fundamental fairness and the sensible and effective administration of justice.’ Langenhorst

v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441 (2006). The doctrine permits the circuit

court to decline jurisdiction over a case when trial in another forum would better serve the

ends of justice. Id. If jurisdiction is so declined, the case must be dismissed because the

circuit court lacks the authority to transfer it. Fennell v. Illinois Central R.R. Co., 2012 IL

113812, ¶ 13. ‘The dismissal is conditioned on the plaintiff timely filing the action in the

other forum; and the defendant accepting service of process from that court, and waiving

any available statute of limitations defense.’ Id.; see also Ill. S. Ct. R. 187(c)(2) (eff. Jan.

4, 2013). ‘Each forum non conveniens case must be considered as unique on its facts.’

Langenhorst, 219 Ill. 2d at 443. ‘Every request for transfer based upon

forum non conveniens must be decided pursuant to an “individualized, case-by-case

consideration of convenience and fairness.” ’ Gridley, 217 Ill. 2d at 168 (quoting

Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).

In determining whether to grant or deny a motion to dismiss on the basis of

forum non conveniens, the circuit court must balance private interest factors affecting the

litigants and public interest factors affecting the administration of the courts. Dawdy, 207

Ill. 2d at 172. The private interest factors include the convenience of the parties; the relative

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ease of access to sources of testimonial, documentary, and real evidence; the availability

of compulsory process to secure the attendance of unwilling witnesses; the cost of

obtaining the 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. Id. The public interest factors include the interest in having local controversies

decided locally, the administrative difficulties caused when litigation is handled in

congested venues instead of being handled at its origin, and the unfairness of imposing jury

duty upon residents of a county with no connection to the litigation. Id. at 173.

The defendant has the burden of showing that the balance of the relevant public and

private interest factors strongly favors a dismissal and transfer (id.), and the circuit court

must evaluate the totality of the circumstances when determining whether that burden has

been met (Fennell, 2012 IL 113812, ¶ 17). The relevant factors are not weighed against

each other, and no single factor should be emphasized. Langenhorst, 219 Ill. 2d at 443-44.

‘An additional consideration under the forum non conveniens doctrine is deference

to the plaintiff’s choice of forum.’ Dawdy, 207 Ill. 2d at 173. It is generally assumed that

the plaintiff’s choice of forum is convenient, and unless the balance of the relevant factors

strongly favor a dismissal, the plaintiff’s choice should rarely be disturbed. Id. ‘However,

when the plaintiff is foreign to the chosen forum and when the action giving rise to the

litigation did not occur in the chosen forum, the plaintiff’s choice of forum is accorded less

deference.’ Fennell, 2012 IL 113812, ¶ 18. Moreover, when the plaintiff is foreign to the

chosen forum and the action that gives rise to the litigation did not occur in the chosen

forum, ‘it is reasonable to conclude that the plaintiff engaged in forum shopping to suit his

individual interests, a strategy contrary to the purposes behind the venue rules.’ (Internal

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 quotation marks omitted.) Dawdy, 207 Ill. 2d at 174. ‘A plaintiff’s right to choose a forum

“cannot be permitted to override the public interest in, and need for, an orderly, efficiently

operated judicial system.” ’ Id. at 175 (quoting Espinosa v. Norfolk & Western Ry. Co., 86

Ill. 2d 111, 123 (1981)).” Shaw v. Haas, 2019 IL App (5th) 180588, ¶¶ 15-19.

¶ 12 Here, as in Shaw, the circuit court abused its discretion by denying Dr. Nicol’s motion to

transfer on the basis of forum non conveniens because, “although we acknowledge [the plaintiffs’]

right to choose the forum, a balance of the relevant factors strongly favors a transfer to [Clinton]

County (see Gridley, 217 Ill. 2d at 169) and the record shows that a trial in [Clinton] County would

better serve the ends of justice, as well as the convenience of the parties (see Dawdy, 207 Ill. 2d at

177).” Shaw, 2019 IL App (5th) 180588, ¶ 20. Beginning with the private interest factors, and

specifically the relative ease of access to sources of evidence, the alleged medical malpractice

occurred at St. Joseph’s Hospital in Clinton County. The ambulance service that transported

Michael to the hospital is also in Clinton County, as well as Michael’s primary physician, who

Michael visited earlier the day of the alleged malpractice. The record contains the name of another

primary care physician in Clinton County, and other employees of St. Joseph’s with relevant

knowledge as well. As such, all medical personnel and records surrounding the plaintiffs’

allegations of medical malpractice are in Clinton County.

¶ 13 We recognize that the plaintiffs’ counsel’s affidavit in opposition to the motion to transfer

sets forth that the medical professionals providing rehabilitation services to Michael following his

stroke are in St. Clair County, as well as 25 “lay witnesses who would have relevant information

about [the] plaintiff’s condition both before and after the stroke.” The supreme court has cautioned

us, however, not to give undue weight to the fact that treating doctors have an office in the

plaintiffs’ chosen forum. Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 227 (1987). This is

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because because to do so “would allow a plaintiff to easily frustrate the forum non conveniens

principle by selecting as a witness a treating physician or expert in what would, in reality, be an

inconvenient forum.” Id. We find the same treatment should be afforded the plaintiffs’ counsel’s

list of 25 lay witnesses who are acquainted with Michael, especially where counsel does not

provide an explanation of why there are not lay witnesses in Clinton County, the county of the

plaintiffs’ residence, who could provide identical testimony. Accordingly, despite the plaintiffs’

counsel’s efforts to point to evidence that may be located in St. Clair County, we find that the

factor of relative ease of access to sources of evidence favors transfer.

¶ 14 Regarding the convenience of the parties, the plaintiffs reside in Clinton County. A trial in

Clinton County would be convenient for them, although the defendants may not prevail by arguing

that St. Clair County is inconvenient for them. Shaw, 2019 IL App (5th) 180588, ¶ 26. The

defendants all either reside or work in Clinton County. While we recognize that St. Clair County

is adjacent to Clinton County, the supreme court has rejected the contention that a trial in an

adjacent county is unquestionably convenient for a defendant. Id. (citing Dawdy v. Union Pacific

R.R. Co., 207 Ill. 2d 167, 180 (2003)). We find that the private interest factors of convenience to

the parties and ease of access to sources of evidence both weigh in favor of Clinton County because

the plaintiffs sustained their injuries there and the witnesses are on the whole closer to Clinton

County. See id.

¶ 15 “The next private interest factor is the possibility of viewing the premises, if appropriate.”

Id. ¶ 27. While we recognize a viewing of the premises is unlikely in a medical malpractice case,

if the circuit court were to decide that such a viewing would be appropriate, that would occur at

St. Joseph’s in Clinton County. Although Clinton County is adjacent to St. Clair County, “it would

not be rational for a jury of St. Clair County residents to travel to [Clinton] County to view the ***

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site.” Id. (citing Dawdy, 207 Ill. 2d at 179). “Moreover, viewing the premises would arguably be

more expeditious if the trial were in [Clinton] County.” Id. Accordingly, although relatively

insignificant, this private interest factor also weighs in favor of Clinton County over St. Clair

County. Neither party points to any other practical considerations that make a trial easy,

expeditious, and inexpensive. Viewing the private interest factors as a whole, we find that such

factors favor Clinton County over St. Clair County.

¶ 16 Turning to the public interest factors, which include court congestion and judicial

administration, imposing jury duty on residents of a community that is not related to the litigation,

and the local interest in local controversies, we find that such factors strongly support Clinton

County as the appropriate forum to try this case. See id. ¶ 29 (citing Dawdy, 207 Ill. 2d at 180). In

Shaw we recognized that, while court congestion in and of itself is relatively insignificant if no

other relevant factors are in favor of transfer, it is nevertheless appropriate to consider it in the

plaintiffs’ chosen forum. Id. (citing Dawdy, 207 Ill. 2d at 181). Here, like in Shaw, there are other

factors that favor transfer, and accordingly, court congestion is not insignificant. See id. The

Illinois Courts Statistical Summary 2016, which is part of the record and detailed in relevant part

above, illustrates that the public interest factor of docket congestion strongly favors a trial in

Clinton County.

¶ 17 Another public interest factor is the local interest in local controversies. See id. ¶ 32. The

plaintiffs contend that St. Clair County has an interest in this controversy because St. Joseph’s has

a registered agent in St. Clair County and Infinity does business in St. Clair County. We disagree.

Although these defendants have business ties to St. Clair County that are sufficient to establish

venue there, any business transactions that are unrelated to the instant case are insignificant for

purposes of forum non conveniens. See id. In contrast, the plaintiffs reside in Clinton County and

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the alleged medical malpractice and circumstances related thereto occurred in Clinton County. As

such, this is a controversy local to Clinton County that would be of interest to the citizens of

Clinton County who rely on the defendants for their medical treatment. See Gundlach v. Lind, 353

Ill. App. 3d 677, 683 (2004).

¶ 18 Based on the foregoing, it would not be unfair to burden the citizens of Clinton County

with jury duty in this case. See Shaw, 2019 IL App (5th) 180588, ¶ 33. In contrast, St. Clair County

residents should not be burdened with jury duty when the action neither arose there nor has any

relation to that county. See id. (citing Dawdy, 207 Ill. 2d at 183). Accordingly, the public interest

factors strongly favor transfer.

¶ 19 Finally, we acknowledge that the plaintiffs’ choice of forum is entitled to some deference.

Id. ¶ 34. However, they are foreign to their chosen forum because they reside in Clinton County

and the action giving rise to this litigation did not occur in their chosen forum, but in Clinton

County. Accordingly, their choice of forum is accorded less deference. Id. (citing Fennell, 2012

IL 113812, ¶ 18). Here, where the balance of the private and public interest factors strongly favors

dismissal, it is an abuse of discretion to allow deference to the plaintiffs’ choice to outweigh all

other considerations. See id.

¶ 20 CONCLUSION

¶ 21 For the foregoing reasons, we reverse the May 7, 2019, order of the circuit court of St. Clair

County and remand with directions that the circuit court grant Dr. Nicol’s motion and transfer this

cause to Clinton County.

¶ 22 Reversed and remanded with directions.

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 2020 IL App (5th) 190225
NO. 5-19-0225
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT

MICHAEL KUHN and JUDY KUHN, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellees, ) St. Clair County.
)
v. ) No. 18-L-379
)
RICHARD E. NICOL, M.D.; ROBERT J. )
MARSHALL, M.D.; INFINITY-MEDS, LLP; and )
ST. JOSEPH’S HOSPITAL, BREESE, OF THE )
HOSPITAL SISTERS OF THE THIRD ORDER OF )
ST. FRANCIS, )
)
Defendants ) Honorable
) Heinz M. Rudolf,
(Richard E. Nicol, M.D., Defendant-Appellant). ) Judge, presiding.
______________________________________________________________________________

Rule 23 Order Filed: April 27, 2020
Motion to Publish Granted: June 4, 2020
Opinion Filed: June 4, 2020
______________________________________________________________________________

Justices: Honorable James R. Moore, J.

Honorable David K. Overstreet, J., and
Honorable Mark M. Boie, J.
Concur
______________________________________________________________________________

Attorneys Craig L. Unrath, Heyl, Royster, Voelker & Allen, P.C., 300 Hamilton
for Blvd., P.O. Box 6199, Peoria, IL 61601-6199; Richard K. Hunsaker,
Appellant Martha E. Ravenhill, Heyl, Royster, Voelker, & Allen, P.C., 701 Market
Street, Suite 1505, St. Louis, MO 63101 (for Richard E. Nicol, M.D.)

Michael J. Nester, Chi-yong Throckmartin, Jason M. Gourley, Donovan
Rose Nester, P.C., 15 North 1st Street, Suite A, Belleville, IL 62220
(for St. Joseph’s Hospital, Breese, of the Hospital Sisters of the Third
Order of St. Francis)

William P. Hardy, Hinshaw & Culbertson, LLP, 400 South Ninth Street,
Suite 200, Springfield, IL 62701-1908; Madelyn J. Lamb, Hinshaw &
Culbertson, LLP, 521 W. Main Street, Suite 300, Belleville, IL 62222
(for Infinity-Meds, LLP)
______________________________________________________________________________

Attorneys Thomas Q. Keefe, Jr., Kelly T. Crosby, Keefe, Keefe & Unsell, P.C.,
for 6 Executive Woods Court, Belleville, IL 62226
Appellee
______________________________________________________________________________