they please the court my name is ken hall backs i represent my central railroad company this is a interstate forum non convenience matter the issue before the court is whether the circuit court denial  motion to dismiss on the grounds of interstate four and on convenience was an abuse of discretion by the plaintiff was a lifelong resident of the state of mississippi he claims all exposure to a special and other toxic substances occurred in mississippi there is no significant factual connection to the state of illinois and all that matter was bought before the circuit court properly in time this court is well aware the court is to assess a balancing of all relevant private and public interest factors in this case they all strongly favor transfer of this matter to sensually relied upon five factors i want to point out something else to the club before i go on this plaintiff had previously filed a another lawsuit against the illinois central railroad in the state of mississippi it was subsequently dismissed and he refiled at the state of iowa sort of relied upon five factors to conclude that second account it was convenient the first was documents at my office and elbow on as it's called smaller documentary evidence is less significant today than it ever was before the other reason why documentary evidence is not as important factor and should be given little weight if any interstate case such as this is technology's changed all of these documents that he's that the plaintiff is referring to all electronic they are all easily will easily transport in fact these particular alten documents that the plaintiffs counsel represents what is being significant are currently in the state of mest memphis under subpoena in another matter  to see these matters with the same plant stuff and it coincidently the second factor that this court looked at was true witnesses within the state of illinois well actually one witness in the state of illinois but two employees which the court concluded would testify live if the matter proceeded and on and presumably that's because of spring bubble to thirty seven which can mandate certain situations the client or the company to produce what the basically no reference to it all in this order is the fourteen witnesses that the defendant identified in the state of mississippi these included family members of the plaintiff these included coworkers of plants and these included medical professionals which point if it's treated with there's been no treatment in the state of illinois or for that matter any other state the third factor that the court looked at was the location of the plaintiff's expert and as this court noted many many years ago in washington versus only power the location of an expert with us is not an important factor in the form because it's easily manipulated just as the location of documents are easily manipulated by law firm who has accumulated documents over the years could easily move them to our memphis office we could open an office anywhere in the country and they toxic thought litigation across the state the fourth factor that the court found support for holding the case and to thank our county was that st clair county had an interest in the litigation because trains are transported across tracks the same kind of assuming i basically i'm assuming he's an ally of a judge crater specific locations within the state of mississippi including buildings in the state of mississippi where his exposure occurred and again no exposure was and it's been alleged and there's been no basis for any  allegations of exposure within the state of illinois the food factor that the court looked at was the court congestion the court made sensually a self serving statement saying that we are not many cases are tried anymore and if you want to get a trial i'll give you a trial date to be a guarantee that does a really address the issue the issue is the pos associated to the state of illinois as a result of bringing four litigation into the state of all in a way to have them be tried here there are significant costs associated with that there is a cost to the court system because we obviously have to with all due respect to the judges and thank our county because there are so many cases filed and saker county say clark county needs a lot of judges the statistics that we show showed that there were twenty times more cases filed in santa clara county than there were in the a tire judicial district that pike county would be in mississippi where would be the residence relying on those factors clearly shows that the court did not basically do a complete balancing ties the court specifically looked at things that he wanted to say were supporting keeping the cases  st clair county if we look at it strictly a balancing test in this case and we look at the private interest factors if we look at the convenience of the parties the ease of access of sources of proof and the practical problems what we have is we have at the pipe at the judge quito best case two witnesses and the state that will testify live in the state of illinois versus fourteen witnesses that we compile to appear anywhere i mean we could see the argument will be made we could take depositions i've been trying cases for twenty eight years depositions are not a substitute for actual live witnesses the other problem with depositions or these are the continued seas of trial and that's particularly clear when we look at situations where a witness say the plaintiff gets up on the witness stand and expos case and claims that there is a specialist raining down out of the building and came down like flakes of dust and we know there are coworkers who work with him those questions had never come up they were never asked before you're in the trial and the practical problems that make a trial the case easy expeditious and expensive clearly no matter what there will be a great deal of hamas even if we were to even if we could get compliance with get the people to come up voluntarily we're going to have to pay them even if these individuals were employees the coworkers were still employees and we could compel them somehow to appear there is a cost involved there is time to get from from mississippi up to saying our county when we look at the private interest factors we clearly have five coworkers players wife three adult children four medical providers all of which we can't compel to attend anywhere and the cost will be great we provide all that information to the court another factor that is a very important and has been mentioned by this court and dowdy is the possibility of a view with a promise however remote that is it's not a question of whether or not you're going to have it it's the question is whether or not there is a possibility of a view we don't know that now and we now but we won't know that the trial court make that decision at the trial but if the trial court decides for instance that we have a need for a view of the premises and we are in st clair county it's not going to happen we're not going to ship twelve jurors down to the state of mississippi to look at a building on the other hand if the trial has done in mississippi which would be a proprium proper form then that is exactly what they would do they put them into a bus they take them to do it this is to illinois central railroad because of these problems that we would have been defending  the well i do not believe it should be a significant factor this court has mentioned multiple times and cases that you just the fact of a company doing business in the state of illinois cannot defeat for is not doesn't work so it would defeat it completely else was just a practical answer is that a policy that we would like in the state of illinois so that businesses leave the state of illinois so that they are not subject to areas where they believe to be judicial how holes or high jury vote has for the public interest the expense of a trial in the burden of jury duty  illinois citizens in this case would be unfair since oh i residence i have no interest in trying the action of mississippi resident whose claim arose in mississippi the taxpayers shouldn't have to pay for  citizens shouldn't have to sit on juries this is all a cost to the state of all in all and to the economy of all i because quite frankly when just when citizens are sitting on juries and cases that are brought from other states the problem is they're not working that's a cost to their employers as a cost to the tax base the cost to the taxpayers and the state of illinois of putting trials on trials are expensive this is all significant cost is not a situation where there is any connection other than the fact simply that the defendant has a business in the state of illinois and that over the years there are documents that have been accumulated a mile off this is an balboa that second part is very simple we could move them to one of the other offices we could open an office in the state of wisconsin if we thought that was a more favorable place to try cases and we move the documents there that is not a significant factor in this analysis the docket in st clair county that we provided to the court indicates that the while court congestion that this court has talked about working just and not being a significant factor or not to be placed too much weight on the reality is that is a significant hawse that is why in st clair county there are so many judges there that is why in madison county there are so many judges because those areas have become places to bring lawsuits i've been doing this years been practicing in southern illinois for twenty eight years and when i started practicing law back in one nine hundred eighty four for i'm not giving this was out it early stages i have argued for me not to be it's motions all over the place the of the country to try cases where a case is jones that cases because the people believe there are favorable lived in mississippi his entire life in a chase against the oh my central railroad was pending for multiple years and the state of mississippi it was then dismissed three years later after  really filed in the state of iowa the state of illinois and has no more connection to this case that it did when this case was filed in mississippi long ago this court has talked about former shopping in numerous cited there is not a stronger case or cases of a need to transfer this case out of state archives that i've seen at a very very long time there is simply no significant madison county it is not the complaint is alleging that the plaintiff was exposed not only to a spastics but the diesel exhaust sand environmental tobacco smoke toxic concern and cause problems to his long that's this case in this in st clair county the other thing that i want to emphasize is that contrary to what counsel testif to this morning regarding his own experience this court has made it very clear that the decision as to what is the proper forum is made at the trial court and it is made upon the motion by a defendant who has the burden to show that the case should be moved because our state legislatures held that under a long arm statute if there's sufficient minimum contacts you can bring a defendant into this state and the st clair county jersey the gloss of has been over this has been the form and convenience that when this court first dealt with for my convenience it was faced with number one in the whitney case the provision immunities act of the united states constitution which would allow out of state residents to come here in file and this grows quick to say no no no wait a minute we're not violating that but we still can have a reasonable basis for not allowing them here provision in this court said no we only allow form giving this motions when one the burden is on the defendant and to the defendant shows exceptional circumstance exceptional circumstances to move that what do we have here we have the plaintiffs file the act and say county for several reasons and this was in his papers he said number one i need access to what is called the alton documents and these are documents that were created back in the nineteenth thirty's these are very fragile documents these are documents that are not easily transported paul contrary to what counsel s bellotti to show duty and what these alton documents show in the nineteenth thirty's is that the railroads were clearly aware of the problems dealing with this past us and the hazard now who were going to present those documents to well there's a gentleman who works out of the year and works out of the railroads home with office who resides in joliet illinois window or he can testifies in the dust row hi janice for the three miles or more as the fifth district pointed out the bellville that it would be to go down to mississippi with this case as to why twenty three miles he submits an affidavit in favor of their motion well it would be inconvenient for me to go to bellville why there's no reason stated there's no basis for it might involve other employees who all we know is that there are two important witnesses that the plaintiff has a den of five that he can reach pursuant to supreme court rule to thirty seven b in illinois and according to the affidavit that has been uncontested he cannot reach those witnesses in mississippi so that's point number two we have two critical witnesses who said the russian witnesses one is the fellow named like bill burton yes and the second name is to charles garrett who is in memphis and we would not be able to reach him if we were in mississippi because they would they don't have something for the defendant not only here but in mississippi and tennessee they're all over the place defending this wherever so how is it inconvenient for them in bellville annoy when their council is just down the street from the  start balancing these issues and you and the court weighs all of the factors not just one or two the trial court was correct in deciding that this mississippi there where road car travel from mississippi to louisiana to see the back and with all due respect if we're going to be having a jury view i doubt that they're going to corral all those juries in mississippi and put them on a railroad car and home around three states so jury view wouldn't even be a consideration in this case when you're talking about exposure to all these or various substances that occurred while he was a brakeman while he could make it relevant factor but here he claims exposure over thirty seven years we don't know whether those buildings are still there we know that part of it was in the railroad car so i think based on these facts which were very carefully weighed by the trial court and by the fifth district on these facts at the top there taleb the the circumstances do not show the exceptional circumstances and need to be proven by the defendant and let me address these kareen you need to show witnesses and what they're going to testify to and we don't expect to have this long drawn out discovery on form but by the way this case was filed in january of two thousand two before they even took the initiative to notice it up and now let's talk about the record they are relying upon just in iraq to tory's from the mississippi case they only cite one instance where they get into form in iraq or tories in illinois that deals with who is treating physicians are now in the mississippi case because there wasn't a for motion obviously presented there in the mississippi case the point was asked of those in iraq attorney's name the members of her family   ames his wife and he names his children those are on the chart and this is likely testimony they're going to testify to this policy of life and damages were they getting that that wasn't in that answer all it was the lister family now the same well they could be possible witnesses then if you read what they submitted to the trial judge they say it's likely those four will be call we haven't made an indication that we're going to call them they haven't made in the case of the column then you read the petition for leave to appeal before this court and they saying that both sides are going to call these witnesses what does that come from we have never said we're going to call those family members and then in one of the amicus briefs that was filed by the certain defendants they say their testimony will be crucial it's made up i mean i understand that you have to put some reason down for what they're going to testify to but you've got to have a basis for and i think that's what both the circuit court in the fifth district were missing there was five coworkers were those who workers listed in  mississippi not here he was asking for mineral retore is here who is going to call to testify with respect to coworkers he says see my role to thirteen's well those weren't filed until after the four motion had been decided those were found november two thousand and ten what do we say in mississippi we say mississippi they may or may not have knowledge about the working conditions or specimens now they're on the list as the likely witnesses the facts in this case because every of every case is unique we were in business simply for four years were discovery occurred and deposition were taken it was filed here in january two thousand and nine there was notice it up again in may of two thousand and ten in the hearing this held in september two thousand and ten so you know all i'm saying is that with respect to building the record they had every opportunity this is not a motion the defendant has raised it is an issue in there perri saying that once it was dismissed in mississippi he then refiled here and then cites a number of cases that dealt with form shoppin that this court has address every one of those cases and we address that in our preferred cases where the plaintive filed an action voluntarily dismissed it and then we filed in a different form the case in mississippi was dismissed on the defendant's motion not on the plaintiff's motion and the case in mississippi the judge gave them a dismissal without prejudice so they could refile it at that point they refile here they're no longer part of this large group of point if some plain made that determination i've got witnesses i have to depose i can reach them in illinois i've got documents i've got to see i can reach them in illinois so they filed it here so i think in the context of an involuntary dismissal i don't think it's relevant and let me add one other thing too because honestly i think that the defensive just misrepresented their case to this court because when we're talking about what witnesses would be relevant  i agree just as carbon you're going to have to have more witnesses than just the plaintiffs but that's the purpose of the two thirteen that say you disclose who's going to testify and those hadn't even been given to be defending at that point they were done later but we talk about these alton documents again in the reply brief that defendant found in this court in response to what we said about the fragile nature of the altered documents and by the way oxys take a look at them the the impact could be great so we want the originals so we said because the fragile nature of it can be transferred and we said that in the trial court there was no argument to the contrary then yet when they were faced with this i'm contradicting the evidence that we made below they say in their reply brief in reality they are normal pieces of paper kept in an easily transferred horrible manila folder and then they cite to the supplemental record see forty eight section eighty seven while i went to look what does it say well what it says is they are in a manila folder a legible copy of all there were documents it says nothing about the documents being normal pieces of paper that are easily transportable this record does not support what they're saying in this  this record does not support thirteen witnesses this record it most supports two witnesses doctors that were disclosed that they're dealing with this current condition that while he was asked about treating doctors that you've ever seen in your whole life he mentions a couple they had see fifteen years there on the list so when you pare down that list as to what record they made you're down to two witnesses that we need that we can get a two witnesses that are in mississippi and this court has recognized many times doctors don't come to court and testify quite often they're often done by videotape so the fact that they may be in mississippi is irrelevant and secondly plaintiffs doctors so of course he's going to make some arrangements for them either to testify but that decision or bring him here so when you start balancing there is much more than meets the eye here that the that the defendant is arguing about and this is what the fifth district was weighing this is what the circuit court was way and when we get into this whole issue of the burden on say third county jurors i think this court made it clear in agreeing that we're dealing with products liability are here national cause of action under the f e l a or the boiler inspection act there's less of a local interest involved so the mississippi doesn't have as much of an interest in the feel or the boiler inspection act as they might if it involves some localized accident they are as they might if it involved mississippi law because when this court was faced with really versus state farm they were talking about applying the louisiana title law as i recall to everyone else it was outside so the plaintiffs have shown that it's important for them to be in st clair county the defendants have not met their burden and the burden on st clair county taxpayers in my opinion is because we have the  immunities clause of u s constitution we have the long term statute we have a venue provision that's why they have to hear it and the only difference is that the point the defendant if it can show exceptional circumstances can move it that was not shown here the problem with this case is that the defendant has failed to meet the burden and if you reverse what you're saying is you don't have to meet burden defendants you can make up this list of witnesses to make up what they're going to testify to if you presented to the court and if you're lucky you will affirm that that's not the law that's not what this court has carefully said in green and it was filed in two thousand and two is dismissing two thousand and six and point three filed here in january of two thousand and nine and you say that motion for dismissal came from the defendant yes and in fact is a clear it's in the record i know but i no they trial judge the orders in there the trial judge said that he is granting that defend this motion to dismiss the action without prejudice that's all we know and by the way there was no record made of this below all we have is the worked in the state at all and it's very clear that he had i want to talk a little bit about these lists of witnesses one of the problems that you have fun not being so now is this is your you file the motions very early that is the purpose of formed on this not to cause additional expense xandra obviously we look to the things that we can find out this is an exposure case we know of coworkers that they have disclosed whether or not they will call them does not preclude us from me to call them these coworkers can testify that we were never exposed to us past this all of these other things just as easily as they can say that they were so those witnesses are clearly witnesses whether they know exposure or not they don't know of any exposure and they were writing on one play if that's a good witness for the defense but also to all of these that of these five coworkers were also plaintiffs in the mississippi lawsuit claiming the same exposure that the plaintiff us so i suspect those are people who will in fact because now when we get to the medical doctors those are the only medical doctors that this individual back long into medical records to find things like whether they have a history of smoking whether they've had a history of exposures people tell their doctors things and we go back and we look for those things these are important witnesses the doctors are witnesses when it comes to the final numbers obviously we would anticipate the family members testifying on behalf of the plaintiff or if they don't testify back to the point and they say no he said no change and and his becomes this if we go out and we start deposing all of these witnesses and we do all the work that counsel has indicated that we should do i guarantee you will be sitting in front of a judge and say clark county or is we filed a motion and then we call out for here that sometimes we decide you know there's continuances or whatever there's no problem with that the timing of the motion there was no significance to that we get to do this work and we don't go out and take depositions of all these people again because we'd be taking depositions and we will be effaced with the same argument that we've already spent the money therefore it can't be  for he is claiming that there be there is exposure he says throughout his work a broad allegation he says in buildings well obviously he worked in buildings he worked on trains if he says we don't know what they are the question of whether or not upon the possibility of a view was very should be very carefully weighed because we won't know whether or not there will be a need until somewhere down the road but we know this if there is a need and we are a trial we're not going to get that view if if in fact we're in illinois it won't happen the jury will not get  very clearly that type of specificity is not required because if you do it it's defeating the whole purpose of for him not to be is in essence we don't we won't be able to have a real doctor this is an exceptional case because this is a case brought by a president of mississippi this case has no connection whatsoever with the state of illinois we have identified significant witnesses haas that will be borne by us the private and public interest factors clearly clearly way in favor of dismissal of this case and the you thank you case number one one three one two walter final apple e versus only central railroad companies taken under advisement as agenda number twenty one mr  all back mistreated we thank you for your arguments today mr marshall the only supreme court stands adjourned until nine am tomorrow morning thursday september twenty two thousand and twelve