2013 I L App (1st) 130033

SECOND DI VI SI ON October 15, 2013

No. 1-13-0033 J ACK TAYL OR, ) Appea l from the ) Circuit Court of Plaintiff-Appellee , ) Cook County ) v. ) ) L EMANS CORPOR ATI ON, a F oreig n Corporation,) No. 2012 L 6987 MOOSE RACI

NG, a F oreig n Corporation, ) PARTS UNL I MI TED, a F oreig n Corporation, and ) GI BB S MOTOR CORP ORATI ON, an I llinois ) Corporation, ) The Honor able ) Moira S. J ohnson, Def endants-A

ppellants. ) J udg e Presiding

. J USTI CE HARRI S delivered the judgme nt of the cour t, with opinion. Presiding Justice Quinn and Just ice Simon concur red in the judg ment and opinion.

OP INION ¶ 1 Def

en d an t s L em an s C o rp o ra t i o n , M o ose Racing , Parts Unlimited, and Gibbs Motor Corporation (collec tively defe ndants) appea l from the order of the circ uit court deny ing their motion
t o t ra n sfer plaintiff J ack Tay lor' s product liability complaint to another county on the g rounds of forum non conve niens

. On appea l, defe ndants contend the trial court err ed in deny ing their motion
to transfe r wher e (1) it g ave undue defe renc e to Tay lor' s choice of forum; and (2) it incorre ctly require d defe ndants to show that eac h fac tor considere d in the balanc ing test used to deter mine forum

non conve niens strong ly

favor ed a tr ansfe r. F or the for eg oing r easons, we aff irm.No. 1-13-0033

¶ 2 J URI SDI CTI ON ¶ 3 The trial court' s denial of a motion to t ra n s fe r p u rs u an t t o t h e d o ctrine of forum non

conve niens is the basis for an interlocutory appea l under I llinois Supreme Court Rule 306(a) (2) (ef f. Fe b. 16, 2011). The trial court denied the motion to transfe r on Dec ember 7, 2012. Def endants filed their petition for leave to appea l on J anuar y 4, 2013. Acc ording ly , this court h as j u ri sdiction pursuant to Rule 306(a) (2) and 306(c) (1) g overning interlocutory appea ls by permission. I ll. S. Ct. R. 306(a)( 2), (c )(1) (ef

f. F eb. 16, 2011). ¶ 4 BA CKGROUND ¶ 5 Tay lor is a resident of L ewiston, I llinois , in Fulton County

. He owned a motocross-sty le bike that he purcha sed in I owa. On J uly 9, 2009, in East Peoria, I llinois , he purcha sed an aluminum rim tire with compliant spokes for the bike. On J uly 11, 2010, Tay lor took his bike to the Sunset Ridge MX MotoCross course (Sunset Ridge ) located in Walton, I llinois , in Bur eau County

. Whil e riding the bike, Tay lor perf

ormed a jump and upon landing the front tire blew out c ausing him to fall and suffe r an injury

. Tay lor was taken to a near by hospital in Princeton, I llinois , in Bur eau County , for immediate trea tment but the majority of his trea tment and car e took place in Peoria, I l linois, in Peoria County , with Dr. Piero Capec ci of Gre at Plains Ort h o p edic. The bike is now located in DuPag e County , I llinois

. ¶ 6 Nick Spierowki of Fa rming ton, I llinois , and Evan Palmer of L ewiston, I llinois , witnessed the

acc ident. Both c ities are loc ated in Fulton County

. J osh Pist al of W alnut, I llinois , also witnessed the acc ident. Walnut is located in Bur eau County

. Tay lor' s trea ting phy sician immediately afte r the

acc ident was Dr. Gre g g Davis, who prac ticed at Perry Memorial Hospital in Princeton, I llinois

. 2No. 1-13-0033

Princeton is also locate d in Bure au County

. ¶ 7 On J une 21, 2012, T ay l o r fi l ed a d ef ec t ive product complaint in Cook County ag ainst defe ndants alleg ing strict liability , neg lige nce, and brea ch of im p li e d w a r r a n ti e s . D e f e n d a n ts L emans Corporation, Moose Racing , and Parts Unlimited are Wis consin corpor ations with thei r p ri n cipal place of business in J anesville, Wis consin. Def endant Gibbs Mot o r C o rp o ra tion is an I llinois corpor ation with its principal place of business in Rock Falls, Whiteside County , I llinois

. ¶ 8 Def

endants filed a motion to transfe r venue pursuant to I llinois Supreme Court Rule 187 (I ll. S. Ct. R. 187 (ef

f. J an. 4, 2013)), on the basis of forum non conve niens

. The mot i o n reque sted a transfe r to Bur eau County , I llinois

. Def endants arg ued that Bur eau County was a more appropr iate forum beca

use the acc ident occur

red there and an inspection of the premises would be easie r if the

case was tried in that County

. Also, Tay lor was trea ted by medical personne l and taken to a hospital in P ri n ceton, the Bur eau County seat. The expected medical witnesses reside in either Bur eau or Peoria Counties. Bur eau County is also more convenie nt f or the ey ewitnesses, all of whom reside i n ei t h er Fu lton or Bur eau County

. Fur thermore , the residents of Bur eau County have a g rea ter interest in, and should bear the cos t s an d responsibilities of, a trial involving an acc ident that

occur red on a motorbike course located in Bur eau County

. I n addition, defe ndants arg ued that Bur eau County ' s court docke t is subst antially less cong ested than Cook County ' s docket. ¶ 9 I n response , Tay lor arg ued that Cook County was more convenie nt for defe nd an t s an d al l parties had reta ined counsel from Cook County

. Although Bu reau County is a more convenie nt location for the m edica l witnesses, acce s s t o the m edica l evidenc e was easily available reg ardle ss of the location of the evidenc e. Tay lor also arg ued that the site of the acc ident holds less signific ance 3No. 1-13-0033

in this case beca

use he is alleg ing product liability and brea ch of war ranty claims, making a site visit
to the motorbike course unnece ssary . Fur thermore , the acc ident took place in 2010 and "it is highly unlikely that the dirt course at Sunset Ridge MX is in the same condition [now] as it was at the time of the acc ident." Moreove r, since he is alleg ing product liability and brea ch of war ranty , placing the burden and costs of a trial on Cook County residents was fair since t hey have a g ener al intere st in resolving a claim involving an alleg edly defe ctive produc t t h at can be purcha sed in at least 18 locations t h roug hout Cook County

. Tay lor also arg ued that court cong estion "is a rela tively insignifica

nt fac tor" and the rec ord does not show that Bur eau County would resolve the case more quickly than Cook County

. ¶ 10 On December 7, 2012, the trial cour t denied the motion. The trial court iss ued a thoroug h 10-pag e order in which it acknow ledg ed that defe renc e is g iven to the plaintiff' s choice of forum and there fore if defe ndants seek a transfe r pursuant to the doctrine of forum non conve niens , they must show that rele vant private and public intere st factor s strong ly favor their choic e of f

orum. ¶ 11 I n evalua ting the private interest fac tors, the trial court noted that Cook County is not Tay lor' s place of residenc e, nor is it the location of the acc ident. I t deter mined that althoug h Tay lor' s choice of forum will be g iven less defe renc e as a result, the court will still a ccor d defe renc e to his choice

. The trial court also deter mined that defe ndants failed to show that Tay l o r's ch o s en forum is inconvenient to defe ndants and another forum is more convenie nt to all parties. None of the parties

are located in defe ndants' chosen County of Bur eau wher eas the Wis consin defe ndants are approximately the same distance from Cook County (110 miles) as from Bur eau County (113 miles). Def endant Gibbs, howeve r, is located only 56.6 mi le s f rom the Bur eau County courthouse but almost 4No. 1-13-0033

132 miles from the Richard J

. Daley Center in Cook C o u n t y . The witnesses are scatter ed among various counties, and defe ndants did not prese nt aff idavits from any witnesses stating that Tay lor' s chosen forum is inconvenient. The court also noted that Tay lor' s bike is stored in DuPag e County , which is next to Cook County

. The t rial court also found that since the claim is one of product liability and brea ch of warranties, a site visit was unnece ssary and there fore the location of the

acc ident site held less signif icanc e. ¶ 12 The trial court then analy zed the public interest fac tors. I t found that the interest in deciding

a controve rsy locally and the imposit ion of the expenses of trial did not "w eig h strong ly in favor of

a transfe r." Although the acc ident occur red in Bur eau County , the trial court rea soned that Tay lor' s complaint is one of product li ability and "the si te of an accident caused by the allege dly defe ctive product is less important beca use any local interest is larg ely supplanted by a more g ener al interest in resolving a claim conce rning an alleg edly defe ctive product and jury views of the acc ident site are g ener all y unnece ssary ." The trial court also noted that Moose Racing and Parts Unlimited had "ma ny deale r locations wi t h i n C o o k County " and no deale r locations in Bur eau County , althoug h it acknow ledg ed that wher e defe ndants mere ly conduct business does not nece ssarily aff ect the forum

non conve niens issue. The trial court found that the court docket in eac h county also did not justify

a transfe r. I n 2011, for case s with verdic ts over $50,000, Cook County rec eived 426 case s that took 35.1 months to rea ch a verdic t. I n compar ison, Bur eau County rec eived only o n e ca s e but it took 20.7 months to reach a

verdic t. Since the fac tors, as a whole, did not strong ly favor a tra nsfer , the trial court deter

mined that Tay lor' s choice of forum would preva il and denied defe ndants' motion to transfe r. De fenda

nts filed this ti mely

appea l. 5No. 1-13-0033

¶ 13 ANAL YSI S ¶ 14 Forum non conve niens is an equitable do ct ri n e fo u n ded in considera tions of funda mental fairne ss that allows a trial court to decline jurisdiction when another forum " ' would better serve the ends of jus t i ce . ' " L a n genhorst v. Norfolk Southern Ry. Co. , 219 I ll. 2d 430, 441 (2006) (quoting Vinson v. Allstate , 144 I ll. 2d 306, 310 (1991))

. The trial court, howeve r, should exercise its authority " o nly i n exc eptional circumstance s when the interests of justice require a trial in a more convenie nt forum." (Emphasis in orig inal.) Id. at 442. Fur thermore , the doctrine rec og nizes that the plaintiff has a substantial interest in choosing a forum to vindicate his rig hts. First American Bank

v. Guerine , 198 I ll. 2d 511, 517 (2002). The trial court has broad discretion to deter mine a motion based on forum non conve niens and a revie wing court will not overturn the trial court' s deter mination absent a n abuse of

discretion. Lagenhorst , 219 I ll. 2d at 442. The trial court abuses its discretion when no rea sonable person would take the view adopted by the trial court. Dawdy v. Union Pacific R.R. Co. , 207 I ll. 2d 167, 177 (2003). ¶ 15 When a defe ndant challeng es plaintiff' s choice of forum, the trial court conducts an unequa l balanc ing test to deter

mine whether plaintiff' s chosen forum preva ils. Due to the defe renc e acc orded plaintiff' s choice of forum, in most case s his choice will preva il unless inconvenienc e fac tors associate d with the chosen forum "g rea tly outweig h" plaintiff' s substantial rig ht to choose wher e to try his case. Guerine , 198 I ll. 2d at 520. The trial cour t considers both private and public int ere st fac tors in making its deter mination. "[P] rivate interest fac tors include (1) t h e co n v enienc e of the parties; (2) the rela tive ease of acc ess to source s of testimonial, documentar y , and rea l evidenc e; (3) all other prac tical problems that make trial of a case easy , expeditious , and inexpensive." Id

. at 516. 6No. 1-13-0033

"Public interest fac tors include (1) the interest in de ciding controve rsies locally ; ( 2) the unfairne ss of impo s i n g t ri al ex pense and the burden of jury duty on residents of a forum that has littl e

connec tion to the litigation; and (3) the administrative difficulties prese nted by adding litigation to alre ady cong ested c ourt docke ts." Langenhorst , 219 I ll. 2d at 443-44. ¶ 16 I n conducting its analy sis, the trial court does not emphasize an y s i n gl e fa ct or nor does it weig h the private interest fac tors ag ainst the public interest fac tors; rathe r, it evalua tes the total circ umstances of the case . Id. The defe ndant bear s the burden of showing that the rele vant private and public interest fac tors "strong ly favor " defe ndant' s choice of forum. Id. at 444. I n other words, the defe ndant must show that plaintiff' s chosen forum is inconvenient to defe ndant and that another forum is convenie nt to both parties. Id

. at 444. The defe ndant, howeve r, cannot arg ue that plaintiff' s chosen forum is inconvenient to p laintiff. Guerine , 198 I ll. 2d at 518. "U nless the fac tors weig h strong ly in favor of transfe r, the plaintiff' s choice of forum should rar ely be disturbed." Dawdy , 207 I ll. 2d at 173. ¶ 17 Be fore addre ssing the merits of this appea l, we note t h at d ef en d an t s did not provide
transcr ipts of the hear ing on their motion to transfe r or an appropr iate alterna tive pursuant to I llinois Supreme Court Rule 323 (ef f. Dec

. 13, 2005). As the appe l l ant, defe ndants bear the burden of prese nting a sufficie ntly complete rec ord of the proce eding s below to support their claims of err or. Foutch v. O'Bryant , 99 I ll. 2d 389, 39 1 (1 9 8 4 ). T h erefore , we presume that the trial court had sufficie nt fac tual basis for its holding and its deter mination confor

ms with the law. Corral v. Merv is Industries, Inc. , 217 I ll. 2d 144, 157 (2005). Fur thermore , we resolve any doubt associate d with the incomplete re cord a g ainst defe ndants. Foutch , 99 I ll. 2d at 392. 7No. 1-13-0033

¶ 18 Def

endants g ener al l y co m p l ai n that in making its deter mination, the trial court " acc orded substantially m o re t h an t he minimal defe renc e" it should have g iven to Tay lor' s forum choice

. Although Tay lor' s decision to file in Cook County is g iven less defe renc e b ecause he is neither a resident of Cook County nor did the acc ident occur in Cook County , the defe renc e acc orded is only less as opposed to none. Guerine , 198 I ll. 2d at 518. The test used to resolve forum non conve niens issues is an unequal balanc ing test wher eby the plaintiff' s choice of forum is "a lrea dy in the lead" and intrastate transfe r is proper only when the case has no prac tical connec tion to, or no nexus with, the chosen forum. Id

. at 521. I n its order the trial court s t at ed t h at i t wo u ld g rant less defe renc e to Tay lor' s choice , but that his choice only commanded less defe renc e as opposed to none. I n revie wing the basis for its ruling i n t h e o rder , we cannot s ay that the t rial court acc orded undue defe renc e to Tay lor' s forum choice when it applied the unequal balanc ing test. There fore , we turn to the issue of whether the trial cour

t abused its discretion in deny ing de fenda

nts' motion to transfe r. ¶ 19 The trial court first considere d the private interest fac tors. Reg arding the convenie nce of the parties, none of the parties reside in Cook County or Bur eau County , the defe ndants' chosen forum. Also, the distance of eac h county ' s courthouse is approximately th e s am e fo r the J anesville, Wis consin, defe ndants althoug h the trial court ac k nowledg ed that defe ndant "G ibbs Motor Corporation is locate d o n ly 56.6 miles from the Bur eau County Courthouse but near ly 132 miles from the R i ch ar d J

. Daley Center." Howeve r, defe ndants did not obtain an aff idavit from Gibbs stating tha t Cook Count y

would be inconve nient. ¶ 20 Reg arding the rela tive ease of ac ce s s t o s o u rc es o f t es t imonial, documentar y , and re al evidenc e, the medical witnesses are located in Peoria and Bur eau Counties, and the occur renc e 8No. 1-13-0033

witnesses reside in Fulton and Bur eau Counties. None of t h e wi t n esses reside in Cook County

. Howeve r, defe ndants did not obtain aff idavits from any witnesses stating that Cook County would be inconvenient. Amme rman v. Raymond Corp ., 379 I ll. App. 3d 878, 890 (2008). Def endants must show that Tay

lor' s chosen forum is inconvenient to them and that another forum is more convenie nt to all parties. Guerine , 198 I ll. 2d at 518. Fur thermore , wher e witnesses are scatter ed among various counties and the litigation has ties to more than one forum, th e t ri al co u rt d oes not abuse its discretion in deny ing a motion to transfe r based on forum non conve niens

. Amme rman , 379 I ll. App. at 885. ¶ 21 I n ad d i t i o n , d ef

en d ants here have not arg ued any prac tical problems or impediments to

acc essing documentar

y or testim o nial evidenc e. Wit ness testimony could be obtained throug h deposition, and computer technolog y and I n t er net acc ess rende r the location of documentar y evide n ce a less signific ant convenie nce consideration. Amme rman , 379 I ll. App. 3d at 890. Fur thermore , the parties have reta ined counsel based in Cook County

. Although the location of the attorney s car

ries littl e weig ht in the analy sis, "it may nonetheless be considere d." Id

. at 890-91. Also rele vant but not deter

minative in itself, Tay lor' s bike is located in DuPag e County , which is adjac ent to Cook County

. Def

endants have not shown that the private interest fac tors strong ly favor a transfe r to Bure au County

. ¶ 22 Public interest fac tors to consider include the interest in deciding controve rsies locally , and the unfairne ss of imposing trial expense and the burden of jury duty on residents of a forum that has littl e connec tion to the litigation. Residents g ener ally have a g rea ter inte re s t i n d ec iding
controve rsies i nvolving accide nts that occur in their county

. Dawdy , 207 I ll. 2d at 183. Also, the 9No. 1-13-0033

possibili ty that the trial court may fi n d a jury visit to the site of the acc ident appropr iate is an important considera

tion. Id

. at 178-79. As the location of the acc ident, Bur eau County appea rs to preva il when we look a t these fa ctors. ¶ 23 H o w e v e r , w e mu s t n o te th a t T a y lo r ' s complaint ag ainst defe ndants cente rs on product liabi li ty claims including neg lige nce in the manufa cture and desig n of a product, failure to war n consumers of the faulty product, strict liability , and bre ach of implied warra

nties. Where the pr imary issue is

one of product liability , the location of the acc ident is less signific ant "be cause any local interest is larg ely supplanted by a more g ener al interest in resolving a claim conce rning an alleg edly defe ctive product." A mm erman , 379 I ll. App. 3d at 886. Also, since a jury visit to the acc ident site is g ener ally unnece ssary , the signific ance of this fac tor is diminis hed in produ ct liability claims. Hinshaw v. Coachmen Industries, Inc. , 319 I ll. App. 3d 269, 277 (2001). See also Brown v. Cottrell, Inc. , 374 I ll. App. 3d 525, 534 (2007) (finding that a jury view of the acc ident site was unnece ssary beca use product liability claims "a re not inhere ntly local in flavor" ). Although not deter minative by itself , the fac t that defe ndant Moose Racing has 18 deale rs and Parts Unlimited has 12 deale rs located in Co o k County , and no deale r locations in Bur eau County , is rele vant. As this court

rea soned in Amme rman , "Cook County cer tainly h as an interest in resolving a controve rsy

conce rning the sale o f an al l egedly defe ctive product by companies conducting business in its forum." Amme rman , 379 I ll. App. 3d at 892; Hinshaw , 319 I ll. App. 3d at 278. ¶ 24 The final public interest fac tor to consider is court cong estion. The number of case s on the court docket in Cook County is obviously g rea ter than that of Burea u Count y , b u t n o t n ece ssarily cong ested. Howeve r, this fac tor alone "is not sufficie nt to justify transfe r of venue when none of the 10No. 1-13-0033

other re levant fa ctors we igh strong ly in favor of

transfe r." Dawdy , 207 I ll. 2d at 181. ¶ 25 Ba l an ci n g t h e p ri v at e an d p u b l i c interest fac tors and evalua ting the totality of the circ umstances, the trial court conclude d t h at defe ndants have not sufficie ntly shown that Cook County is inconvenient to them and that Bur eau County is more convenie nt to a ll pa rties. We find that the trial cour

t did not abuse its discretion in deny ing de fenda nts' motion to transfe r venue . ¶ 26 Def

endants disag ree , arg uing first that the trial court err ed in apply ing the unequal balanc ing
test when it require d defe ndants to prove that eac h rele vant private and public interest fac tor strong ly weig hs in their favor . As support, defe ndants point to the trial court' s order in which it stated t hat defe ndants "f

ailed to meet their burden in showing this fac tor strong ly favor s" transfe r, and "f ailed
to show that the first two [publ ic] fac tors strong ly weig h in favor of transfe r to Bur eau County ." I n revie wing the order , howeve r, it appears that the trial court was mere ly evalua ting the streng th of

eac h fac tor and whether a particula r fac tor weig hed st ro n gl y i n favor of transfe r. There is no indication the trial court i m p ro p erly weig hed the fac tors in conducting its final analy sis. I nstead, throug hout its order , it emphasized that it must "eva l u ate the totality of the circ umstances in deter mining whether the balanc e of fac tors strong ly favor s transfe r." We ag ain note that defe ndants did not include transcr ipts of the hear ing on their motion to transfe r or an appropr iate alterna tive. We there fore presume that the trial court had sufficie nt fa ctual basis for its holding and its deter mination confor

ms with the law. Merv is Industries , 217 I ll. 2d at 157. We also resolve any doubt associated w ith the incomplete re cord a g ainst defe ndants. Foutch , 99 I ll. 2d at 392. ¶ 27 Def

endants contend that t h e t ri al co u rt should have g iven more weig ht to the fac t that the

acc ident occur

red in Bur eau County and numerous witnesses reside near er to Bur eau County while 11No. 1-13-0033

none reside in Coo k County , Tay lor' s medical car e took place in or near Bur eau County , and defe ndant Gibbs Motor Corporation resides closer to Bur eau County than to Cook County

. The trial
court has broad discretion in deter mining a motion to transfe r based on forum non conve niens , and it is not the function of a revie wing court to substitut e its judgme n t for that of the trial court. Ferguson v. Bill Berger Associates, In c. , 3 0 2 I l l. App. 3d 61, 70 (1998). Our only function is to deter mine whether the trial court abused its d i s cr eti on. Id

. As stated above, defe ndants have not obtained any aff

idavits f rom witnesses stating that Cook County would be an inconvenient forum. See Amme rman , 379 I ll. App. 3d at 890. L ocation of documents associate d with medical witnesses is less signific ant due to the technolog y available today

. Id

. Also, the underly ing action is cente red

on a product liabi l i t y cl ai m and all of the defe ndants except for Gibbs Motor Corporation have a prese nce in Cook County and sell their products there

. The rec ord contains no aff idavit from Gibbs Motor Corporation stating that Cook County would be inconvenient. The trial court did not abuse its discretion in finding that the balanc e of rele vant fa ct o rs , when viewing the totality of the circ umstances, doe s not strongly favor transfe r of ve nue to B urea u County

. ¶ 28 Def

endants also arg ue that althoug h Tay l o r's cl ai m fr am es this case as one of produc t liability , making the nece ssity of viewing the site of the acc ident less of a conce rn, the jury viewing fa ct o r wi ll have more signific ance here

. Def endants contend that they plan to file aff irmativ e defe nses and a third-par

ty complaint alleg ing that the dang ers of the Sunset Ridge co u rs e i t s elf

cause d Tay lor' s injuries. At this point, howeve r, defe ndants have n o t fi l ed any pleading s adding Sunset Ridge as a defe ndant. Also, as Tay lor points out, defe ndants have raised th i s i s s u e for the first time on appea l. I ssues not raised before the t rial court may not be raised for the first time on 12No. 1-13-0033

appea l, and are deeme d waived by a revie wing court. Haudrich v. Howmedica, Inc. , 169 I ll. 2d 525, 536 (1996). ¶ 29 For

the fore g oing r easons, the judg ment of the c ircuit court is af firmed. ¶ 30 Affir

med.

13