Pierce v. Cherukuri

2022 IL App (1st) 210339-U

FOURTH DIVISION
March 31, 2022

No. 1-21-0339

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________

SUSAN PIERCE, Individually and as Wife and Next Friend ) Appeal from the
of CRAIG F. PIERCE, a Disabled Person, ) Circuit Court of
) Cook County
Plaintiff-Respondent, )
)
v. )
) No. 20 L 1591
SUDHA CHERUKURI, M.D., FRESENIUS HEALTH )
PARTNERS, INC., FRESENIUS USA )
MANUFACTURING, INC., FRESENIUS MEDICAL )
CARE OF ILLINOIS, LLC, FRESENIUS KIDNEY CARE, ) Honorable
FRESENIUS KIDNEY CARE MACOMB, FRESENIUS ) Kathy M. Flanagan,
MEDICAL CARE, FRESENIUS MEDICAL CARE ) Judge Presiding.
MACOMB, FRESENIUS MEDICAL CARE HOLDINGS, )
INC., NATIONAL MEDICAL CARE, INC., ILLINOIS )
KIDNEY DISEASE & HYPERTENSION CENTER, )
RENALCARE ASSOCIATES, S.C., and RENAL )
INTERVENTION CENTER, L.L.C., )
)
Defendants-Petitioners. )

______________________________________________________________________________

PRESIDING JUSTICE REYES delivered the judgment of the court.
Justices Lampkin and Rochford concurred in the judgment.

ORDER

¶1 Held: Affirming the circuit court’s denial of defendants’ motions to
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transfer pursuant to forum non conveniens where the circuit court did not
abuse its discretion in finding that defendants failed to demonstrate that
the balance of relevant interest factors strongly favored transfer.

¶2 Plaintiff Susan Pierce, individually and as next friend of her husband, Craig F. Pierce

(Craig), brought an action for medical malpractice in the circuit court of Cook County.

Defendants Fresenius Health Partners, Inc., Fresenius USA Manufacturing, Inc., Fresenius

Medical Care of Illinois, LLC, Fresenius Kidney Care, Fresenius Kidney Care Macomb,

Fresenius Medical Care, Fresenius Medical Care Macomb, and Fresenius Medical Care

Holdings, Inc. (the Fresenius Defendants) filed a motion to transfer plaintiff’s action to the

circuit court of McDonough County pursuant to the doctrine of forum non conveniens and

Illinois Supreme Court Rule 187 (eff. Jan. 1, 2018). Defendants Sudha Cherukuri, M.D.,

Renalcare Associates, S.C., Illinois Kidney Disease & Hypertension Center, and Renal

Intervention Center, L.L.C., filed a similar motion to transfer under the doctrine of forum non

conveniens, which also joined and adopted the arguments in the Fresenius Defendants’ motion.

The circuit court denied both motions.

¶3 On permissive interlocutory appeal pursuant to Illinois Supreme Court Rule 306(a)(2),

defendants contend that the circuit court abused its discretion in denying their motions to transfer

the cause from Cook County to McDonough County, Illinois. Specifically, defendants maintain

that the circuit court accorded too much deference to plaintiff’s choice of forum and failed to

properly weigh the public and private interest factors, which defendants argue strongly favor

transfer to McDonough County. For the following reasons, we affirm.

¶4 BACKGROUND

¶5 In early 2016, Craig began receiving medical treatment for atrial fibrillation. From

February 28, 2016, through March 14, 2016, he received inpatient care at OSF Saint Francis

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Medical Center 1 which is located in Peoria County. After he was discharged, he commenced

receiving dialysis treatment from defendants. Between March 14, 2016, and April 13, 2016,

Craig received medical care from defendants in McDonough County and Knox County. The

parties dispute the facts regarding the care which Craig received at that time. Plaintiff contends

that on April 13, Craig suffered a stroke due to defendants’ negligent care which significantly

reduced his physical and mental capabilities and left him unable to care for himself. Thereafter,

Plaintiff filed her complaint, and subsequently amended the complaint, in the circuit court of

Cook County. Both the complaint and the amended complaint included a claim for institutional

negligence against the Fresenius Defendants.

¶6 The parties then proceeded to engage in written discovery. Pursuant to Illinois Supreme

Court Rule 213 (eff. Jan. 1, 2018), plaintiff and defendants, in response to the other’s

interrogatories, collectively disclosed 70 potential witnesses. Six of these witnesses either

worked or resided in McDonough County, fourteen of these witnesses either worked or resided

in Peoria County, forty-four of these witnesses worked in Cook County, one witness resided in

DuPage County, one witness resided in Kane County, one witness worked in Fulton County, two

witnesses resided out of state, and the location of one witness 2 was not disclosed.

¶7 Defendants filed their motions to transfer venue pursuant to the doctrine of forum non

conveniens. In their motions, defendants argued that the complained of medical care occurred in

and around McDonough County, that plaintiff and Craig resided in McDonough County, and that

many of the witnesses also resided near McDonough County. As to the private interest factors,

1
“OSF” is an initialism for “Order of Saint Francis.” The hospital, however, is known as “OSF
Saint Francis Medical Center.”
2
Curtis Pierce’s location was not disclosed.
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defendants argued that McDonough County was more convenient for the parties and the

disclosed potential witnesses. Thus, McDonough County was also an easier, more expeditious,

and less expensive forum to conduct a trial. As to the public interest factors, defendants argued

that the litigation had no material connection to Cook County where plaintiff, a McDonough

County resident, was suing for alleged negligent acts to Craig, a McDonough County resident,

occurring in McDonough County. Accordingly, defendants asserted that this matter was a purely

local controversy that should be decided locally in McDonough County and that the citizens of

Cook County should not be burdened with the costs of litigation and jury duty. In addition,

defendants noted that the Cook County court docket is more congested than that of McDonough

County. Defendants concluded that a balancing of the private and public interest factors strongly

favored transferring the case and that McDonough County was the appropriate forum in which to

try plaintiff’s case.

¶8 In support of their motions, defendants appended affidavits from several of the witnesses

who each stated that they had relevant evidence to provide in this case and that McDonough

County would be a more convenient venue for them. Dr. Cherukuri, in her affidavit, asserted that

in March and April 2016 her residence and primary office were in Knox County. Her residence

and primary office, however, are now located in Peoria County. Dr. Cherukuri accordingly

would only have to travel 70 miles to testify in McDonough County but 150 miles if she had to

testify in Cook County. Registered nurses Alicia Palm and Judy Walters each submitted separate

affidavits where they each averred that the McDonough County courthouse was less than half of

a mile away from where they worked and that they would need to travel approximately 500 miles

round trip to testify in Cook County. Judith Dansizen, an advanced practice nurse, in her

affidavit stated that she resided in Peoria County and that she would only need to travel 60 miles

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to testify in McDonough County but would have to travel 176 miles to testify in Cook County.

Timothy Pflederer, M.D., set forth in his affidavit that his residence and primary office were in

Peoria County and that he would only need to travel 60 miles to testify in McDonough County

but 160 miles to testify in Cook County.

¶9 Defendants also attached a statistical report published by the Administrative Office of the

Illinois Courts, which showed that in 2019, there were 336 cases in Cook County in which jury

verdicts over $50,000 were rendered, as compared to only one such case in McDonough County.

The report also established that the average duration of each case from filing to verdict in Cook

County was 29.9 months, compared to 33.1 months in McDonough County.

¶ 10 Plaintiff filed a combined response to defendants’ motions to transfer venue. Plaintiff

argued that her choice of venue was proper as the Fresenius Defendants are Cook County

residents, who treat thousands of patients within Cook County and maintain at least 76 dialysis

centers within 25 miles of the Daley Center in Cook County. Plaintiff also referenced Craig’s

admission at the Shirley Ryan AbilityLab in Cook County, where he received care following his

stroke from doctors and therapists who are also potential witnesses in the case. Further, plaintiff

argued that the trial witnesses for this case were spread across several counties within Illinois

and some witnesses are from out of state therefore no county represented an ideal venue for trial.

Finally, plaintiff asserted that defendants had failed to meet their burden to demonstrate that the

public and private factors strongly favored transferring the case.

¶ 11 Attached to plaintiff’s response was a document demonstrating that the Fresenius

Defendants operate 76 facilities within 25 miles of the Daley Center in Cook County and operate

over 55 facilities within Cook County.

¶ 12 Without holding argument, the circuit court denied defendants’ motions. In its written

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decision, the circuit court found that defendants had not met their burden to demonstrate that the

balance of private and public interests strongly favored transfer to McDonough County.

Regarding the ease of access to evidence and convenience to the parties, the circuit court noted

that defendants had identified witnesses across Peoria, McDonough, and Fulton Counties, and

that the record indicated the participation of witnesses from DuPage and Kane Counties as well

as witnesses from out of state. The circuit court also noted the likely testimony of Fresenius

employees from Cook County or out of state and that plaintiff intended to present evidence of

treatment that occurred in Cook County following Craig’s stroke. The circuit court, however, did

not accord much weight to the location of the Cook County treatment facilities identified by

plaintiff. The circuit court thus found that there was no county that has a dominant connection to

the sources of proof.

¶ 13 The circuit court also acknowledged the affidavits which were submitted by the

defendants wherein each witness asserted that they would need to travel further and take more

time away from their work if the trial were held in Cook County. The circuit court, however,

found that these witnesses would miss time away from their professional obligations regardless

of where the trial was held. The circuit court also pointed to the ongoing COVID-19 pandemic as

likely enabling the use of technologies that might promote both safety and convenience, like

videotaped testimony. Ultimately, the circuit court concluded that defendants had failed to

demonstrate that this interest factor weighed in favor of transfer.

¶ 14 For similar reasons, the circuit court also concluded that the cost of obtaining testimony

from willing witnesses did not weigh in favor of transfer. Again, citing the COVID-19 pandemic,

the circuit court stated that videotaped evidence depositions or other remote means of collecting

testimony were likely to affect discovery in this case. As a result, neither Cook nor McDonough

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County provided an advantage. Additionally, the practical concerns regarding distance and time

that defendants raised in their motions were not found to heavily favor transfer since the same

challenges associated with the COVID-19 pandemic would delay the case’s progress in either

Cook or McDonough County. The circuit court did find that the possibility of the jury viewing

the scene weighed in favor of transfer while noting that such viewing was unlikely.

¶ 15 The circuit court found that Cook County courts were more congested but more

efficiently disposed of cases over $50,000, and therefore, this factor weighed, “albeit not

strongly,” in favor of transfer. The circuit court also found that the local interest in resolving the

dispute weighed in favor of transfer, though the court qualified its finding by noting that the

Fresenius Defendants operate in Cook County as well as McDonough County and that Craig

came to Cook County for subsequent treatment. Thus, the circuit court found that Cook County

had an interest in the dispute as well, and therefore, that this factor weighed in favor, but not

strongly in favor, of transfer. For this same reason, the circuit court found that the fairness in

burdening the citizens of Cook County with jury duty weighed in favor, but not strongly in favor,

of transfer. Weighing all these factors and noting that plaintiff’s choice of forum was entitled to

some deference where neither plaintiff nor Craig were Cook County residents, the circuit court

concluded that the balance of factors did not strongly favor transfer and denied defendants’

motions.

¶ 16 Thereafter, defendants filed in this court a petition for leave to appeal with this court

pursuant to Rule 306(a)(2). We granted the petition, and this appeal follows.

¶ 17 ANALYSIS

¶ 18 On appeal, defendants contend that the circuit court abused its discretion in denying their

motion to transfer the cause from Cook County to McDonough County, Illinois. Specifically,

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defendants maintain that the circuit court accorded too much deference to plaintiff’s choice of

forum and failed to properly weigh the public and private interest factors, which they argue

strongly favor transfer to McDonough County. For the following reasons, we affirm.

¶ 19 Standard of Review

¶ 20 The determination of a forum non conveniens motion lies within the sound discretion of

the circuit court. Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 442 (2006). On

review, the circuit court’s determination will be reversed only if it can be shown that the court

abused its discretion in balancing the relevant factors. Id. The “abuse of discretion” standard of

review is the most deferential standard of review. In re D.T., 212 Ill. 2d 347, 356 (2004).

Consequently, it is “traditionally reserved for decisions made by a trial judge in overseeing his or

her courtroom or in maintaining the progress of a trial.” Id. When an abuse of discretion standard

is applicable, the actions of the trial court will not be disturbed on appeal unless they are “clearly

against logic.” Miranda v. Walsh Group, Ltd., 2013 IL App (1st) 122674, ¶ 16. In such an

instance, the question is not whether the reviewing court agrees with the action taken by the trial

court, but whether the trial court “acted arbitrarily, without employing conscientious judgment,

or whether, in view of all of the circumstances, the court exceeded the bounds of reason and

ignored recognized principles of law so that substantial prejudice resulted.” State Farm Fire &

Casualty Co. v. Leverton, 314 Ill. App. 3d 1080, 1083 (2000); see Dawdy v. Union Pacific R.R.

Co., 207 Ill. 2d 167, 177 (2003). We will turn to the record to consider whether such an abuse

occurred, but first we set forth the controlling principles related to the doctrine of forum non

conveniens.

¶ 21 Forum Non Conveniens: Controlling Principles

¶ 22 The Illinois venue statute provides: “every action must be commenced (1) in the county

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of residence of any defendant who is joined in good faith and with probable cause for the

purpose of obtaining a judgment against him or her and not solely for the purpose of fixing

venue in that county, or (2) in the county in which the transaction or some part thereof occurred

out of which the cause of action arose.” 735 ILCS 5/2-101 (West 2020). The doctrine of forum

non conveniens assumes that there is more than one forum with the power to hear the case.

Gridley v. State Farm Automobile Insurance Co., 217 Ill. 2d 158, 169 (2005). If there exists

more than one potential forum, the equitable doctrine of forum non conveniens may be invoked

to determine the most appropriate forum. Dawdy, 207 Ill. 2d at 171; Fennell v. Illinois Central

R.R. Co., 2012 IL 113812, ¶ 12. The doctrine of forum non conveniens is an equitable doctrine

based on considerations of fundamental fairness and the sensible, effective administration of

justice. Fennell, 2012 IL 113812, ¶ 14. The doctrine allows the circuit court in which the action

was filed to decline jurisdiction and direct the lawsuit to an alternative forum that the circuit

court determines can better serve the convenience of the parties and the ends of justice. Vinson v.

Allstate, 144 Ill. 2d 306, 310 (1991). The doctrine may also be applied intrastate, or where the

choice is between two forums in the same state. Fennell, 2012 IL 113812, ¶ 13; see Kwasniewski

v. Schaid, 153 Ill. 2d 550, 553-54 (1992) (in an intrastate case, a plaintiff’s “home forum” is the

plaintiff’s home county).

¶ 23 Each case, however, is unique and must be considered on its own facts. Fennell, 2012 IL

113812, ¶ 21. In determining whether the doctrine of forum non conveniens applies, the circuit

court conducts an unequal balancing test to determine whether the plaintiff’s chosen forum

prevails. Taylor v. Lemans Corp., 2013 IL App (1st) 130033, ¶ 15. Under an unequal balancing

test, the balance of factors must strongly favor transfer before the plaintiff can be deprived of his

or her chosen forum. Id. The circuit court does not weigh the private interest factors against the

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public interest factors. First American Bank v. Guerine, 198 Ill. 2d 511, 518 (2002). Rather, the

circuit court must evaluate the total circumstances of the case in determining whether the balance

of factors strongly favors transfer. Id. The private interest factors include: (1) convenience of the

parties; (2) the relative ease of access to sources of testimonial, documentary, and real evidence;

(3) the availability of compulsory process to secure attendance of unwilling witnesses; (4) the

cost to obtain attendance of willing witnesses; (5) the possibility of viewing the premises, if

appropriate; and (6) all other practical considerations that make a trial easy, expeditious, and

inexpensive. Fennell, 2012 IL 113812, ¶ 15. The public interest factors include: (1) the

administrative difficulties caused when litigation is handled in congested venues; (2) the

unfairness of imposing jury duty upon residents of a community with no connection to the

litigation; and (3) the interests of having local controversies decided locally. Id. ¶ 16. “The

defendant bears the burden of showing that the relevant private and public interest factors

‘strongly favor’ defendant’s choice of forum.” Taylor, 2013 IL App (1st) 130033, ¶ 16 (quoting

Langenhorst, 219 Ill. 2d at 444). The defendant, however, cannot assert that the plaintiff’s

chosen forum is inconvenient to the plaintiff. Whirlpool Corp. v. Certain Underwriters at

Lloyd’s London, 295 Ill. App. 3d 828, 837 (1998).

¶ 24 In addition, while courts acknowledge that plaintiffs may forum shop, courts may not

consider this practice in a forum non conveniens analysis. “By itself, forum shopping ‘furnishes

no legal reason for sustaining’ a plaintiff’s choice of forum.” Dawdy, 207 Ill. 2d at 175 (quoting

Pruitt Tool & Supply Co. v. Windham, 379 P.2d 849, 850 (Okla. 1963)).

¶ 25 Deference to Plaintiff’s Chosen Forum

¶ 26 Defendants first contend that the circuit court abused its discretion by extending

impermissible deference to plaintiff’s choice of forum. Generally, the plaintiff’s choice of forum

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should rarely be disturbed, as the plaintiff has a substantial interest in choosing the forum where

his or her rights will be vindicated. Guerine, 198 Ill. 2d at 517. The plaintiff’s choice, however,

is not entitled to the same weight in all circumstances, and when the plaintiff selects a different

forum from his or her home or the site of the accident, the choice is afforded only some

deference. Id. In other words, the deference to be accorded is only less, as opposed to none.

Elling v. State Farm Mutual Automobile Insurance Co., 291 Ill. App. 3d 311, 318 (1997).

¶ 27 In this case, the circuit court found that “neither the [p]laintiff nor the patient are Cook

County residents, and therefore the choice of forum is entitled to less deference.” Defendants

argue, however, that despite making this finding, the circuit court extended too much deference

to plaintiff’s choice of forum. Defendants argue that plaintiff’s choice of forum was actually due

“considerably less deference” or “far less deference,” relying on Schuster v. Richards, 2018 IL

App (1st) 171558, and Fennell v. Illinois Central R.R. Co., 2012 IL 113812.

¶ 28 We disagree with defendants’ interpretation of these cases. In Fennell, our supreme court

found the plaintiff’s choice of forum to be owed “far less deference” where that plaintiff had

initially filed suit in the foreign forum before voluntarily dismissing the suit and refiling in

Illinois. (Emphasis in original.) Fennell, 2012 IL 113812, ¶¶ 25-26. On that basis, our supreme

court characterized Illinois as “plaintiff’s second choice of forum” as the plaintiff in Fennell had

already demonstrated his willingness to bring suit in either forum with his initial filing.

(Emphasis in original.) Id. ¶ 25. That fact is not present in this case, as plaintiff here has only

filed her complaint in Cook County. Therefore, based on Fennell, we cannot say that the circuit

court abused its discretion when it found that her chosen forum was entitled to less deference.

¶ 29 Defendants also rely on Schuster, where the reviewing court found that the plaintiff’s

choice of a non-resident, offsite forum was due “considerably less deference.” Schuster, 2018 IL

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App (1st) 171558, ¶ 21. The Schuster court, however, did not indicate that it intended to impose

a different level of deference than is typically extended. The choice of words used by the

Schuster court appears to be merely semantics where, in the same paragraph, it describes the

plaintiff’s choice as being entitled to “some deference.” Id. On this point, Schuster cites Ruch v.

Padgett, 2015 IL App (1st) 142972, ¶ 45, which characterizes the deference due to a plaintiff’s

choice merely as “less.” In turn, Ruch cites Glass v. DOT Transportation, Inc., 393 Ill. App. 3d

829, 834 (2009), where the court describes the level of deference as being “somewhat less.”

These precedents indicate that a plaintiff’s choice of a non-resident, offsite forum is due less

deference than if the plaintiff had chosen his or her home forum or the forum where the harm

occurred. See Schuster, 2018 IL App (1st) 171558, ¶ 21; Ruch, 2015 IL App (1st) 142972, ¶ 45;

Glass, 393 Ill. App. 3d at 834. This is the same conclusion that the circuit court drew in its

decision. Therefore, we cannot say that the circuit court abused its discretion by extending too

much deference to plaintiff’s choice of forum.

¶ 30 Defendants’ final argument regarding deference is that the circuit court abused its

discretion by addressing deference at the end of its analysis. Defendants argue that the discretion

due to plaintiff’s choice of forum is a threshold inquiry to be conducted prior to analysis of the

private and public interest factors. See Ruch, 2015 IL App (1st) 142972, ¶ 42 (“Before weighing

the relevant factors, a court must decide how much weight to give to a plaintiff’s choice of

forum.”).

¶ 31 Defendants are correct that the determination of deference typically occurs prior to the

circuit court balancing the public and private interest factors. Defendants, however, do not cite

any case, nor could we find one, where it was held that a circuit court abused its discretion by

performing this analysis out of order in a written opinion. Rather, in Dawdy, our supreme court

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stated that “deference to plaintiff’s choice of forum is but one factor, along with other relevant

private and public interest factors, to be considered in the balancing process.” Dawdy, 207 Ill. 2d

at 175 (quoting Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 107-08 (2003)).

The forum non conveniens analysis requires the circuit court to evaluate the totality of the

circumstances, including the deference due to plaintiff’s choice. Thus, we cannot say that the

court abused its discretion by considering deference at the end of its analysis.

¶ 32 The Private Interest Factors

¶ 33 We next turn to examine the private interest factors. The first private interest factor is the

convenience of the parties. Langenhorst, 219 Ill. 2d at 444. Defendants argue that that

McDonough County is substantially more convenient. We acknowledge that defendant Dr.

Cherukuri resides in Peoria County, her main office is in Peoria County, and she would need to

travel 80 more miles to appear in Cook County compared to McDonough County. We note,

however, that the Fresenius Defendants operate 76 facilities within 25 miles of the Daley Center

in Cook County and that they are residents of Cook County since they operate over 55 facilities

within the county. See Langenhorst, 219 Ill. 2d at 430. Further, although plaintiff resides in

McDonough County, defendants may not assert that plaintiff’s chosen forum is inconvenient to

plaintiff. Guerine, 198 Ill. 2d at 518. In addition, a defendant seeking transfer must demonstrate

that a defendant’s choice of forum is substantially more appropriate. Czarnecki v. Uno-Ven Co.,

339 Ill. App. 3d 504, 508 (2003). Since defendants may not assert that plaintiff’s chosen forum is

inconvenient to plaintiff, and since the majority of defendants reside in Cook County, we cannot

say that the circuit court abused its discretion in finding that defendants failed to demonstrate

that McDonough County is substantially more appropriate for all parties. See Langenhorst, 219

Ill. 2d at 430; Guerine, 198 Ill. 2d at 518; Czarnecki, 339 Ill. App. 3d at 508.

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¶ 34 We now turn to the second private interest factor—the relative ease of access to sources

of testimonial and documentary evidence. In addition to Dr. Cherukuri’s affidavit, defendants

presented four affidavits from witnesses asserting that McDonough County was a more

convenient forum than Cook County. Two of these affidavits were from registered nurses Alicia

Palm and Judy Walters, who averred that they worked less than half of a mile away from the

McDonough County courthouse but would have to travel approximately 500 miles round trip to

testify in Cook County. Another affidavit was from advanced practice nurse Judith Dansizen,

who asserted that she resided in Peoria County and would only need to travel 60 miles to testify

in McDonough County but 176 miles to testify in Cook County. The final affidavit was from Dr.

Pflederer, who testified that his residence and primary office were in Peoria County and that he

would only need to travel 60 miles to testify in McDonough County but 160 miles to testify in

Cook County.

¶ 35 We acknowledge defendants’ affidavits; however, we also note that both parties disclosed

70 witnesses, including the affiants listed above, who either resided or worked in several

different counties: six of these witnesses either worked or resided in McDonough County,

fourteen worked or resided in Peoria County, forty-four worked in Cook County, one resided in

DuPage County, one resided in Kane County, one worked in Fulton County, two resided out of

state, and the location of one witness was not disclosed. Therefore, we find that the witnesses’

connections are not predominant in any forum. See Quaid v. Baxter Healthcare Corp., 392 Ill.

App. 3d 757, 768 (2009) (“[W]hen potential witnesses are scattered among different forums,

none enjoys a predominant connection to the litigation.”).

¶ 36 In addition, any documentary evidence, such as medical records, are now provided in an

electronic format that can be easily distributed to the parties. See Koss Corp. v. Sachdeva, 2012

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IL App (1st) 120379, ¶ 128. As the documents can be easily produced in either Cook County or

McDonough County, we find that this fact does not weigh in favor of transfer. See Ammerman v.

Raymond Corp., 379 Ill. App. 3d 878, 890 (2008) (“the location of documentary evidence has

become less significant because today’s technology allows documents to be copied and

transported easily and inexpensively.”)

¶ 37 Therefore, the circuit court did not abuse its discretion in finding that defendants failed to

demonstrate that the relative ease of access to sources of testimonial and documentary evidence

weighs in favor of transfer.

¶ 38 In reaching this conclusion, we have considered the cases which defendants cite for the

proposition that the relative ease of access to sources of testimonial and documentary evidence

weighs in favor of transfer. First, defendants cite Kuhn v. Nicol, 2020 IL App (5th) 190225. In

Kuhn, the plaintiffs were two residents of Clinton County, and they brought suit alleging that

defendants’ medical malpractice in Clinton County caused a debilitating injury to one of the

plaintiffs. Id. ¶¶ 3-4. The plaintiffs, however, brought suit in St. Clair County, and the defendants

moved to transfer the action to Clinton County based on forum non conveniens. Id. ¶ 3. In

opposition to the motion, the plaintiffs filed an affidavit from the plaintiffs’ counsel averring

those medical providers were treating the plaintiff’s injury in St. Clair County and listing 25 lay

witnesses from St. Clair County “who would have relevant information about [the] plaintiff’s

condition.” Id. ¶ 5. The circuit court subsequently denied the defendants’ motion. Id. ¶ 6. Then,

in finding that the circuit court abused its discretion, the reviewing court asserted that it would

not give undue weight to the fact that the plaintiff was being treated in St. Clair County. Id. ¶ 13.

The reviewing court also did not accord much weight to “plaintiffs’ counsel’s list of 25 lay

witnesses who are acquainted with [the plaintiff], especially where counsel does not provide an

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explanation of why there are not lay witnesses in Clinton County, *** who could provide

identical testimony.” Id.

¶ 39 We find Kuhn distinguishable from the case at bar. First, unlike Kuhn, the record

demonstrates that the plaintiff intends to call family members from different counties and states

to testify; these lay witnesses are not mere acquaintances like those in Kuhn. See id. Plaintiff, for

example, intends to call as a witness Cary Pierce, Craig’s twin brother from DuPage County and

someone who would most likely provide unique testimony. See id. Additionally, unlike the

plaintiffs in Kuhn, plaintiff here did not only provide post-injury witnesses residing in different

counties; both parties, for example, provided several witnesses from OSF Saint Francis Medical

Center, which treated Craig prior to his injury. See id. Finally, the circuit court here expressly

found that the location of plaintiff’s post-occurrence treatment providers was not accorded much

weight.

¶ 40 Defendants also cite Bruce v. Atadero, 405 Ill. App. 3d 318 (2010), for its contention that

the circuit court abused its discretion in finding that the witnesses did not predominate in any

venue. In Atadero, the administrator of the decedent’s estate brought suit against defendants for

negligence occurring in McHenry County. Id. at 320. During circuit court proceedings, the

plaintiff presented over 10 loss-of-society witnesses who resided in Cook County, Kane County,

and Indiana. Id. at 321. Thereafter, the plaintiff refiled in Cook County after the case was

pending for two years, and the defendants moved to transfer the case back to McHenry County

pursuant to forum non conveniens. Id. The circuit court subsequently denied the defendants’

motion. Id. In finding that the circuit court abused its discretion, the court in Atadero asserted

“[t]he fact that several, perhaps cumulative, damage witnesses reside across several counties

simply does not weigh in favor of plaintiff’s choice ***.” Id. at 326. The court then asserted that

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“[t]his is especially true considering that plaintiff’s residence is *** not in Cook County, her

newly chosen forum, and the wrongful acts and omissions alleged all occurred in McHenry

County, the forum of [the plaintiff’s] original choice.” Id.

¶ 41 We find that Atadero is also distinguishable. In the case at bar, the witnesses residing or

working in different counties are not merely “cumulative damage witnesses”; for example, there

are several witnesses from Fulton County or Peoria County who are expected to testify about

liability and causation. See id. Moreover, the record demonstrates that the alleged wrongful acts

and omissions in this case occurred in multiple counties, McDonough and Knox Counties, and

that unlike in Atadero, plaintiff in this case never refiled her case in a different county. See id.

Thus, we find that defendants’ contentions fail.

¶ 42 The third private interest factor—the availability of compulsory process to secure

attendance of unwilling witnesses—is neutral. As the majority of the witnesses identified hail

from Illinois, compulsory process is available in either Cook or McDonough County. See Bird v.

Luhr Bros., Inc., 334 Ill. App. 3d 1088, 1094 (2002). Further, neither party has suggested that the

out-of-state witnesses might be unwilling to testify. See Benedict v. Abbott Laboratories, Inc.,

2018 IL App (1st) 180377, ¶ 45. Therefore, we find that the circuit court did not abuse its

discretion in finding that this factor did not weigh in favor of transfer.

¶ 43 We next address the fourth private interest factor—the cost to obtain attendance of the

willing witnesses. The alleged negligence occurred in McDonough County. The cost to obtain

deposition testimony will be the same whether the case proceeds in Cook or McDonough

County. Defendants presented five affidavits in which each witness asserted that they would bear

significant costs regarding their appearing for trial in Cook County, including missing time from

work and the costs of travel. However, as stated above, there are more witnesses anticipated to

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participate in this case, including out-of-state witnesses. It is defendants’ burden to demonstrate

that McDonough County represents a significant savings with regard to the attendance of willing

witnesses. See Langenhorst, 219 Ill. 2d at 444. Here, the circuit court did not find that this factor

weighed in favor of transfer, and we do not find that decision to be an abuse of discretion.

¶ 44 The fifth private interest factor is the possibility of a jury viewing the premises. Because

there is a possibility of a jury viewing the premises, we agree with the circuit court that this

factor weighs in favor of transfer, although we also agree that a jury viewing of the scene would

be unlikely. See Dawdy, 207 Ill. 2d at 178-79.

¶ 45 The sixth private interest factor—other practical considerations, making trial easy,

expeditious, and less expensive—is neutral and does not favor transfer. Defendants argue that the

cost of bringing witnesses to Cook County is significantly higher than the cost of bringing

witnesses to McDonough County. Besides the affidavits, which we have already discussed,

defendants present no further evidence supporting this claim. The circuit court did not find that

there were any practical considerations that merited special attention and weighed in favor of

transfer to McDonough County. We do not find that the circuit court abused its discretion with

regard to this factor.

¶ 46 Defendants argue that the circuit court abused its discretion by speculating about the

COVID-19 pandemic in its analysis of the parties’ and the witnesses’ convenience. While we

agree with defendants that there is nothing in the record to support the circuit court’s comments,

we do not believe that these comments played a significant role in the circuit court’s analysis of

these factors. We may affirm the circuit court’s forum non conveniens decision on any basis

found in the record, and based on our review, we have found a sufficient basis for the circuit

court to conclude that transfer to McDonough County was not warranted without analyzing the

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effects of the COVID-19 pandemic. Benedict, 2018 IL App (1st) 180377, ¶ 30; see also Bell v.

Louisville & Nashville R.R. Co., 106 Ill. 2d 135, 148 (1985).

¶ 47 We therefore conclude that the circuit court did not abuse its discretion while balancing

the private interest factors.

¶ 48 The Public Interest Factors

¶ 49 Finally, defendants argue that the circuit court abused its discretion by finding that all

three public interest factors weighed in favor, rather than strongly in favor, of transfer to

McDonough County. We conclude that the circuit court did not abuse its discretion regarding

any of the three public interest factors.

¶ 50 The first public interest factor is the administrative difficulties caused when litigation is

handled in congested venues. Accompanying their motion to transfer, defendants attached the

2019 Annual Report of Illinois Courts, which documented the civil circuit court caseload. Our

supreme court has found that this annual report is a proper source of reference in assessing court

congestion; therefore, we will rely on this data in our analysis. See Washington v. Illinois Power

Co., 144 Ill. 2d 395, 403 (1991). The parties both agree that this report indicates that Cook

County is more congested than McDonough County and that the circuit court appropriately

examined these statistics when it determined that it favored McDonough County. Defendants

contend that the circuit court should have given this factor greater weight. However, in deciding

a forum non conveniens motion, a court must consider all of the relevant factors, without

emphasizing any one factor. Langenhorst, 219 Ill. 2d at 443. We find the circuit court did not

abuse its discretion when it found that this factor weighs in favor of a transfer to McDonough

County.

¶ 51 We now turn to address the second public interest factor, the interest in deciding local

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disputes locally. The circuit court found that this factor weighed in favor of transfer to

McDonough County. Defendants contend that the circuit court erred in failing to find that

transfer was strongly warranted based on McDonough County’s interest in the litigation.

¶ 52 The alleged negligence in this case occurred in McDonough and Knox County.

Moreover, the Fresenius Defendants maintain over 55 facilities offering dialysis care throughout

Cook County. Since these defendants have offered medical care to Cook County residents, Cook

County has an interest in the litigation. See Hackl v. Advocate Health & Hospitals Corp., 382 Ill.

App. 3d 442, 452 (2008); see also Gundlach v. Lind, 353 Ill. App. 3d 677, 683 (2004). Therefore,

we find that the circuit court did not abuse its discretion to conclude that this factor favored,

rather than strongly favored, transfer to McDonough County.

¶ 53 Defendants rely on Vinson v. Allstate, 144 Ill. 2d 306, 311 (1991), to argue that “merely

conducting business in [a] County does not affect the forum non conveniens issue.” Contrary to

defendants’ contentions, the Fresenius Defendants are not “merely conducting business” in Cook

County. See Vinson, 144 Ill. 2d at 311. As stated above, by operating dialysis clinics, they are

also offering medical care to the people of Cook County, and the county therefore has an interest

in the litigation. See Hackl, 382 Ill. App. 3d at 452; see also Gundlach, 353 Ill. App. 3d at 683.

¶ 54 In addition, defendants cite Kuhn v. Nicol, 2020 IL App (5th) 190225, for the proposition

that the Fresenius Defendants’ contacts in Cook County are insignificant. In Kuhn, the plaintiffs

on appeal contended that St. Clair, the county in which they filed suit, had an interest in the

litigation because one of the defendants had a registered agent in the county and another

defendant did business in the county. Kuhn, 2020 IL App (5th) 190225, ¶ 17. The reviewing

court rejected the plaintiffs’ contention, finding that “any business transactions that are unrelated

to the instant case are insignificant for the purposes of forum non conveniens. Id. In this case,

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however, the Fresenius Defendants’ contacts are significantly greater than the Kuhn defendants’

contacts. The Fresenius Defendants do not have only one registered agent, and as stated above,

they are not “merely doing business”; they operate over 55 facilities in Cook County. 3 See id.

Therefore, we find that Kuhn is inapplicable and that the Fresenius Defendants’ contacts are

sufficient to provide Cook County an interest in the litigation. See Hackl, 382 Ill. App. 3d at 452.

We further find that the circuit court reasonably noted Cook County’s interest when it analyzed

this factor.

¶ 55 Finally, as to the third public interest factor, the unfairness of imposing jury duty upon a

community with no connection to the litigation, the circuit court similarly found the factor

favored transfer to McDonough County, though not strongly. We, however, find that the circuit

court did not abuse its discretion in making this determination since the court correctly noted

Cook County’s interest in the litigation.

¶ 56 Thus, we conclude that the circuit court did not abuse its discretion in finding that

defendants failed to demonstrate that the balance of relevant interest factors strongly favored

transfer. It is conceivable that, on these facts, a different conclusion could be reached. Yet our

duty is not to reweigh the private and public interest factors ourselves, but to determine whether

the circuit court abused its discretion when it denied the motion to transfer. See Johnson v. Nash,

2019 IL App (1st) 180840, ¶ 33. The circuit court is thus afforded considerable deference in its

3
In defendants’ brief under the statement of facts, defendants note that plaintiff’s amended
complaint generally alleged the Fresenius Defendants’ business contacts in Cook County but did
not incorporate these allegations into any specific count. To the extent defendants argue that the
circuit court erred in considering these allegations, this argument must fail; plaintiff was not
required to repeat these allegations. See Ill. S. Ct. R. 134 (eff. Jan. 1, 1967). Moreover,
defendants never presented this argument before the circuit court and have therefore forfeited
this argument on appeal. See Bozek v. Bank of America, N.A., 2021 IL App (1st) 191978, ¶ 98.

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ruling. Langenhorst, 219 Ill. 2d at 441. Based on our review, we cannot say the circuit court’s

decision was so unreasonable that no court would take its position. Accordingly, the judgment of

the circuit court is affirmed.

¶ 57 CONCLUSION

¶ 58 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 59 Affirmed.

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