respect to fundamental fairness i've defended simply cannot put on a full and fair defense of the claims that brought against them you know when a baby identified two dozen occurrence witnesses that are available in any unfairness for crashes that would result in back if this case were to proceed in virginia instead of illinois they haven't identified any witnesses that are available in virginia and in illinois that number ginia as opposed to two dozen that convenience motion it cannot be made to come to illinois for this litigation plaintiffs have file nearly identical litigation against those defendants in virginia that case is proceeding and as we submitted a court yesterday we found out just on friday that fusion is now actually a defendant a third party defendant to that case so now we have two cases seven from the same facts c being based on the same essential point proceeding in two different yesterday and again you know fake and true of the other defendants are are defending litigation in virginia even before we were brought our argument was we should we should be in virginia but we should only be in virginia we should be forced to defend this case in not only permitted but expected to balance those private and public interest factors just terminal where i believe in fact all that that the phrase was what is the most appropriate state in which to try to case and what we submit in this case it's clear of private and public interest factors we believe that it came out you know it came out incorrectly completely and considering some of those factors and on balance it merely it just simply i've used his discretion and not seeing the fact that i'm again on the one side of the balance is prejudice prejudice to defense in trying this case again this isn't a matter of inconvenience as a matter of practicing not being able to put on a full and fair defense you know in a way there is nothing nothing on prior history of suicide attempts a minor who was that resulted from him intentionally walking into a road i getting hit by a car accident that was investigated by virginia police officers ruled suicide a by the virginia medical and the defense context here clearly clearly was pivotal i mean he again it legally purchased it legally consume this product had a history of these are things that that we just can't put any of that evidence  where is your honest crack that there is some evidence regarding the design of the product that can be put out in illinois for g m and to plaintiffs point that's the case plaintiffs want to try is that simply the design of this product and they want they don't want the trial court they don't want five witnesses on the occurrence backs so players can try that the same case players can put on every piece of evidence that they need for their case whether this case is tried illinois or virginia  absolutely right and you know if it were you know if you've seen the declaration in this case obviously this is a this is a modern company that these individuals work around the country they work in their homes there was no how critical that factor was when the court ruled that this was their was this other reaction not and think that's true your honor and the court actually made note of this this is something we pointed out in our briefs that at the time that the trial made you know we believe inconsistent rulings except for to correctly find it with respect a factor of deciding local controversy locally that back your favorite virginia and of course we are with that this was an injury that occurred in virginia it and didn't didn't really explain how it out resolved that insistence and with respect to the issue of whether a genial law will by the court assume in its her that virginia law were applied to these claims but then it said it please the court the narrow issue on appeal is whether or not the trial court abused its discretion in concluding that the appellant failed to meet its substantial evidentiary burden necessary to obtain exceptional relief relief it must now show no reasonable person could have denied as they can see today they're not arguing that judge kirby or raw applied the wrong analytical framework that he didn't applied the correct private and public interest factors described by the case law i think the case was a little murky that even though this standard is abuse of discretion it gets so many decisions all over the in illinois and applying to right private or public interest factors siddur in the evidence presented by the appellate the court decides to transfer the case to another us stay that has never been deemed an abuse of discretion by out of state and by injury i mean the product was used or consume out of state in fact in ls out of the country in the philippines in those cases the same arguments that were illegally presented today the same evidence which four in texas and in arizona they sued motorola who they allege developed these toxic products in illinois even though undeniably the exposure was in texas and arizona and the court consider that factor and they said sure evidence relating to the exposure is localized in those states but the evidence of the issues relating to design formulation why were these talks list there any suggestion that the the injury in which case it started when you just heard there was in the irwin case a discussion about the medical evidence and whether or not it is or is it going to show that these people have birth defects as a result of the toxins and here in the rock case we have a similar form there is no impairing and contributed to his erratic behavior was there some finding by someone in that other state that death was the result of the suicide the medical examiner concluded that it was a suicide which in a technical sense it was it was not a homicide but the person that ran over him did not mean to and he did not die of natural causes so you're saying there's no dispute about what cause saying that there is a dispute about whether he was deliberate and the taking of his own life so there is a dispute about that yes all right now let's go to the other case the other case you say result of the crash i presume not all ok now let me ask you this if you try case you want to have a videotaped deposition to present that you like to do here your trials it does not trouble me you know you don't like like witnesses it's not that i dislike them your honor it's that i receive every information every day news i can use from anderson cooper in my living room he's not sitting there with me but this is how in the digital age we receive information i present videotaped testimony in trials and suck do it routinely with every single witness because that's the way you feel you can fairly and fully present your case i don't mean to imply i do it routinely with every witness helping  if you have ten witnesses and you can't subpoena them in your option is to present an evidence deposition is that we'd like to do it i want to present some of that evidence by videotape and some of those issues overlap with this case would you would you agree that there might be overlapping issues yes there may be some overlapping issues does this serve judicial economy or a court in virginia to be having a portion of the case litigated and if we're in illinois to have the case litigated yes for each of several reasons all right and if the law of virginia is go applied it your answer to that question would still be yes yes it does not  first of all our case law here in the in the browning first cotterell decisions in the ammerman decisions made very clear that we're products liability is alleged against an illinois resident corporation there is a profound public interest in the state of illinois in preventing addressing those holes harms caused by defective products formulated here in fact the brown vs cotterell decision spoke to it what it said another important princip guiding for non convenience review is that in cases where the primary issues center around products liability claim the site of the accident caused by the allegedly defective product in this case virginia is less important because any local reprocess over unwilling witnesses did favor virginia he gave them he considered that the practical implications of some of these witnesses being in virginia favor that that said there were witnesses in wisconsin were city brewing brewed the prop but that they got the benefit of that when he granted the personal jurisdiction of city during the brewer of wisconsin company on the same day that immediately meant there would also be a wisconsin action to they sell this product in forty seven states they do in by their logic any time they get sued for injuries resulting from those products it would be really convenient to adjudicate in forty seven different states well i don't think it would suggest the w y you think that the good citizens of virginia wouldn't take this is seriously is the good citizens of illinois you think that jurors don't follow the law as they're instructed in one state versus another   actor about the local controversy decided locally weighed against it did they gave them that and then the second public interest you're saying that's really not  e here that the controversy is you're going to lose if it's not heard in versus for jim i'm saying that we are prejudiced if their products liability is not that the product was fit for a particular purpose human consumption or in fact it was that said your honor what we have here are there are practical implications that are important synergy flavors the company that provided the artificial flavoring which makes the product neither taste nor smell nor punch like alcohol so that it can be consumed quickly and easily marketed to a teen demographic is a chicago resident they  and they are not subject to the personal for jurisdiction of virginia as far as we know they're not subject to the personal jurisdiction of illinois of wisconsin as far as we know they remain under any thesis as far as we know and so the question is just send it to her ginia there are reasons those reasons include the fact i just heard he considered it and the question now is did he behave irrationally i don't believe they are i think you know i think you're really going going out on a limb there let me bring you back to one of your earlier answers because i think you are trying to put a fine point on something and i want to know what that five point is and response just civic rights question you said that that  instant sensing that you were trying to make a fine point there as to what the dispute is and can you relate it to this discussion that i had earlier with you with your opponents of the question of what you're saying the only one that knows that is that the seat but isn't the jury going to be visiting that question i believe there will be circumstantial evidence presented to that in that evidence come from well some of it will come from the parents will be here others will come from those who saw him that night those people are listed people who attended the concert they listed several they could have arguably listed hundreds but they all have essentially the same thing to say a matter which is not in dispute which is that he was behaving erratically and in paraguay that evening i mean it's not really interest beautifully if we're talking about this was  is that it was the product right right yes so you're not contesting that he was underage you're not confessing that legally bought this stuff you're not protesting that he might sit down for a truck you're not consistent that he was on i don't know if i have time left i certainly will simply try to make this point if i might there is other litigation involving this caffeinated alcoholic injuries involving four loko they do so in cook county and what their choice of four to be respected only five days ago is that one of the factors that's listed in any of the cases that you reference for us to look at is something where it's consider a form transfer as a plaintiff to file in the northern district of illinois and that the court considered that where as in this case the affidavit of the defendant jason freeman was gee county is not really important to who or what we are just a post office box in fact in two thousand and nine on march twenty fifth he filed affidavit to defeat a form action in which he said virtually all of the evidence all of the key personnel everything that we at fusion are in how we design market and sell our products is in cook county and that if we're going to litigate fairly issues related to this caffeinated alcohol drink that issue into speed then they do so here that's the most convenient and just form in their estimation in the end judge kirby balanced the private interest factors and found one strongly favored illinois one strongly favorite were genya and the others were a mixed bag as he put concluding therefrom that the substantial evidentiary burden had not been met on the public interest factors it was also the same one favored virginia one favored illinois the other was essentially neutral there was very little evidence on it and that was the issue of court congestion he also made to note that that is not an issue about which of the courts apply much consideration anyway because it's presumed that all courthouses are busy because the  have not established the judge kirby applied the wrong analytical framework well that no other reasonable person could have reached the conclusion he did which i believe is a correct recitation of the peace discretion standard we respectfully request tell her to increase deference to her suit in illinois here they send an able to argue that they had no connection to illinois outside of this litigation with respect to compulsory process factor in las the court found that point is that identified that cannot be compelled to appear for trial and i hear state illinois or virginia but there's no witness who's available we want a way they will loose compulsory process over if this case goes to virginia it going back to your honest question what point if that can talk about prior acts that he had you know when you get i think your honest question is is there going to be a dispute about why he acted irrationally on the one question and you're exactly right that's going to be a critical issue in this case so if the if the case is tried here you're basically going to be putting out a defense mostly through videotaped depositions or whatever you won't be able to call anybody from virginia correct certainly but they'll be able to call your witnesses point with respect to because i i know your honour's is focused on this issue of what really is the ads that we wouldn't be able to put on here would have to put on through video testimony or reading a transcript it would be his that his prescribing doctor the doctor th prescribed him antidepressants the doctor that saw him for his prior attempted suicide his as his mother told the police officers the fact that just weeks before didn't he had started acting i believe it's referred to as bad thoughts again the fact that he was litigation in illinois in the past i believe one such complaint was submitted this court yesterday this court and women versus raymond court which the two thousand and eight cases i'll just read the cites i'm not sure of a cite in our brief three seventy nine elapse third eight seventy eight said that the consideration of such a factor would be improper in a forum like convenience analysis because each case stands on its own with respect to the case made to this court yesterday fusion file a lawsuit against an insurance broker and his company both of whom are housed in a resident in cook county thus it was the resident of the defendants that militated where that litigation was filed but as this court is held even despite that defendants argue that this is geographically in phoenix it comes back to