dissenting:
I respectfully dissent. As noted by the majority in its reference to Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 444 (2006), “To warrant disturbing the plaintiff’s choice, the burden is on the defendant to show that relevant private- and public-interest factors strongly favor the defendant’s choice of forum” (404 Ill. App. 3d at 537), and resolving that question “requires evaluation of the total circumstances rather than concentration on any single factor” (emphasis added) (Peile v. Skelgas, Inc., 163 Ill. 2d 323, 336-37 (1994)). The approach of defendant, however, adopted as the approach by the majority in its disposition, is a standard of showing substantial connection with Illinois and basing substantial reliance on this court’s interpretation of forum non conveniens in McGinty. McGinty, however, does not choose an appropriate focus, as indicated by the Illinois Supreme Court and as pointed out in Justice Donovan’s persuasive dissent.
The burden of a movant in a forum non conveniens motion is to meet the burden of showing that the alternative forum urged by the movant is substantially more convenient than that chosen by the plaintiff. Whether that plaintiff is choosing his or her home forum or an alternative forum, which choice is still given weight (admittedly less than if choosing one’s home forum), it does not shift the burden that the movant must meet. The record in this case indicates that defendant CSX has failed to show that its choice of forum is substantially more convenient. Defendant CSX also attempts to mold the issue before this court in terms of whether forum non conveniens law applies to asbestos litigation in Madison County. This is setting up a straw man, because forum non conveniens jurisprudence, as with all other pronouncements of the supreme court, applies to all counties of the state of Illinois and all matters in litigation in its particular subject area. The real question in this case is whether defendant, the movant, has shown that the alternative forum is more convenient than that chosen by plaintiff, and the record indicates that defendant has not met that burden. Defendant also poses the jurisprudence on forum non conveniens as merely an affirmation of Espinosa v. Norfolk & Western Ry. Co., 86 Ill. 2d Ill (1981). The subsequent supreme court cases of Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167 (2003), First American Bank v. Guerine, 198 Ill. 2d 511 (2002), and Langenhorst are substantially more than merely affirmations of Espinosa and are not supportive of defendant’s position.
Defendant CSX failed to meet its burden of proof as a movant in the circuit court of Madison County and has failed to argue persuasively its view of applicable forum non conveniens jurisprudence in Illinois. Accordingly, I would affirm the order of the circuit court of Madison County.
Since my colleagues have decided to reverse, I respectfully dissent.