concurring:
Although I concur in the results reached by the author of the opinion in this cause, it is my opinion that the courts have failed to adequately protect an injured worker’s prerogative to select a forum in suits filed under the Federal Employers’ Liability Act (FELA) (45 U.S.C. sec. 51 et seq. (1976)) and the Jones Act (46 U.S.C. sec. 688 (1976)). Both Federal statutes purport to grant an injured employee unlimited authority to select the forum for his suit against his employer.
Historically, this court has recognized that a litigant’s right to select a forum under both the FELA and the Jones Act are subject to the application of the doctrine of forum non conveniens. However, it has also been recognized that this right cannot be overcome by a mere balance of convenience. See Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 152 N.E.2d 634, as limited by People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 195 N.E.2d 634; McKinney v. Hougland Towing Co. (1969), 109 Ill. App. 2d 99, 248 N.E.2d 322.
Defendant relies on Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 427 N.E.2d 111, in support of its argument that venue should have been declined by the trial court; however the supreme court there recognized that “plaintiff’s right to select the forum is a substantial one which *** should not be disturbed unless the balance strongly favors defendant.” 86 Ill. 2d 111, 123, 427 N.E.2d 111, 117.
It is noteworthy that in addressing this issue in recent cases, the courts uniformly have relied on Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839, and People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 383 N.E.2d 977, cert. denied (1979), 441 U.S. 936, 60 L. Ed. 2d 660, 99 S. Ct. 2052. Defendant in the instant case urges that these two decisions require a reversal of the trial court. In this regard, however, both Gilbert and Giliberto reasonably could be said to afford a plaintiff less freedom in selecting a forum because neither was a case arising under either the FELA or Jones Act. When consideration is given to a plaintiff’s statutory right to select a forum under either the FELA or the Jones Act, even more deference should be given to his selection of the forum. This rationale has been adopted by courts in the past when they have spoken of the need for sheltering defendants against vexation and harassment when determining the propriety of a forum that has been selected by the plaintiff in a FELA or Jones Act suit. It is my opinion that a plaintiffs selection of venue should not be disturbed unless it can be shown that plaintiff would thereby be granted some advantage at trial.
Additionally, underlying most appeals resulting from the trial court’s refusal to decline jurisdiction in FELA and Jones Act cases is the inference, at the very least, that plaintiff is guilty of “forum shopping.” The plain answer to such a contention is, in my opinion, well stated by our supreme court in Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 152 N.E.2d 385, where the court stated:
“If it is ‘shopping’ for a plaintiff to bring suit in a great metropolis where a large verdict is anticipated, why is it not also ‘shopping’ for a defendant to attempt to have the case dismissed on the ground that it should have been brought in a small community where the defendant anticipates a smaller verdict would result.” (14 Ill. 2d 144,174, 152 N.E.2d 385, 400.)
It is my conclusion that such considerations should have no place in determining the issue raised by the instant appeal.
Finally, in the numerous interlocutory appeals that have resulted from the issue raised in the instant case as well as the recent decisions on such issues, great pains have been taken to provide administrative data designed to indicate that the forum selected by the plaintiff results in an undesirable amount of litigation in the county selected. The paucity of appeals by plaintiffs in cases where the trial court has declined jurisdiction of FELA and Jones Act cases seems to suggest that such cases are not creating an unmanageable case load in the eyes of the resident judiciary.
Therefore, although I concur with the decision reached by the author of the opinion in the case at bar, for the reasons stated above, I would emphasize that plaintiff’s choice of forum should not be disturbed in the absence of a showing of some resulting trial advantage to plaintiff.