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2020 IL App (5th) 190225-U 

NO. 5-19-0225 

IN THE 

APPELLATE COURT OF ILLINOIS 

FIFTH DISTRICT 

________________________________________________________________________ 

MICHAEL KUHN and JUDY KUHN, ) Appeal from the 

 ) Circuit Court of 

 Plaintiffs-Appellees, ) St. Clair County. 

 ) 

v. ) No. 18-L-379 

 ) 

RICHARD E. NICHOL, M.D.; ROBERT J. ) 

MARSHALL, M.D.; INFINITY-MEDS, LLP; and ) 

ST. JOSEPH’S HOSPITAL, BREESE, OF THE ) 

HOSPITAL SISTERS OF THE THIRD ORDER OF ) 

ST. FRANCIS, ) 

) 

 Defendants ) Honorable 

 ) Heinz M. Rudolf, 

(Richard E. Nichol, M.D., Defendant-Appellant). ) Judge, presiding. 

________________________________________________________________________ 

JUSTICE MOORE delivered the judgment of the court. 

 Justices Overstreet and Boie concurred in the judgment. 

 

 ORDER 

¶ 1 Held: The circuit court’s order denying the defendant’s motion to transfer for forum 

non conveniens was an abuse of discretion where proposed transfer was to 

county where alleged malpractice occurred and plaintiffs resided, and only 

evidence identified by the plaintiffs as located outside that county concerned 

the plaintiffs’ postoccurrence treatment and acquaintances the plaintiffs 

identified as having knowledge of the plaintiffs’ condition before and after 

the occurrence. 

NOTICE

This order was filed under 

Supreme Court Rule 23 and 

may not be cited as precedent 

by any party except in the 

limited circumstances allowed 

under Rule 23(e)(1).

NOTICE

Decision filed 04/27/20. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
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¶ 2 The defendant, Richard E. Nichol, M.D., appeals the May 7, 2019, order of the 

circuit court of St. Clair County, which denied his motion to transfer this cause to Clinton 

County on the basis of forum non conveniens. For the following reasons, we reverse and 

remand with directions that the circuit court transfer this cause to Clinton County. 

¶ 3 FACTS 

¶ 4 On May 30, 2018, the plaintiffs, Michael Kuhn and Judy Kuhn, filed a complaint in 

the circuit court of St. Clair County, alleging a cause of action for medical malpractice 

against St. Joseph’s Hospital, Breese, of the Hospital Sisters of the Third Order of 

St. Francis (St. Joseph’s) and Infinity-Meds, LLP (Infinity), as well as Richard E. Nichol, 

M.D., and Robert J. Marshall, M.D.1 The complaint alleges that St. Joseph’s and Infinity’s 

employees, Dr. Nichol and Dr. Marshall, negligently failed to timely diagnose and treat 

Michael’s stroke, causing Michael debilitating injury. On July 31, 2018, St. Joseph’s filed 

a motion to transfer venue to Clinton County on the grounds of forum non conveniens. 

¶ 5 According to St. Joseph’s motion to transfer, the plaintiffs are residents of Clinton 

County, the alleged medical malpractice occurred in Clinton County, and all pertinent 

records regarding the events surrounding the plaintiffs’ allegations of medical malpractice 

are in Clinton County. St. Joseph’s argued that because the plaintiffs’ cause of action had 

no connection to St. Clair County, the relevant private and public interest factors strongly 

favor transfer to Clinton County. In support of its motion, St. Joseph’s attached the “Annual 

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Originally, the complaint named Midwest Emergency Department Services, Inc., as a defendant. 

However, on July 9, 2018, the circuit court granted the plaintiffs’ motion to amend the complaint by 

interlineation to substitute Infinity as the correct defendant. 
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Report of the Illinois Courts Statistical Summary-2016,” which indicates that in calendar 

year 2016, 100 civil cases were filed in Clinton County, one of which was terminated by 

verdict. As of 2016, the average time between the filing of a civil case and a verdict in 

Clinton County was 60.2 months. In contrast, 2925 cases were filed in St. Clair County, 12 

of which were terminated by verdict. As of 2016, the average time between the filing of a 

civil case and a verdict in St. Clair County was 66.9 months. 

¶ 6 On August 2, 2018, Infinity filed a motion to join St. Joseph’s motion to transfer 

this case to Clinton County. On August 21, 2018, in lieu of a response addressing the 

arguments set forth in the motions to transfer, the plaintiffs filed the affidavit of their 

counsel “in opposition to the motion to transfer.” According to the affidavit, “in fact there 

is a good deal of evidence located in St. Clair County.” The affidavit identified medical 

professionals who the affidavit indicated “are actively treating [the] plaintiff” at medical 

facilities in Belleville and O’Fallon, located in St. Clair County. The affidavit then states 

that, “in addition, [the] plaintiff has several lay witnesses who would have relevant 

information about [the] plaintiff’s condition both before and after the stroke, and how [the] 

defendants[’] alleged negligence has affected him and those individuals are all located in 

St. Clair County.” The affidavit then contains a list of 25 names. 

¶ 7 On September 19, 2018, the circuit court held a hearing on St. Joseph’s and 

Infinity’s motion to transfer. On September 21, 2018, the circuit court entered an order 

denying the motion to transfer. On October 10, 2018, St. Joseph’s filed a supplement to its 

motion to transfer, attaching the medical record of Michael’s admission into St. Joseph’s 

during the time of the alleged medical malpractice, as well as the affidavit of the division 
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director of risk management for Hospital Sisters Health System, of which St. Joseph’s is a 

part. According to this affidavit, based on information and belief, the following individuals 

referenced in the medical record reside in Clinton County: (1) Dr. Arnel Garcia (primary 

care medicine); (2) Dr. David Neighbors (primary care medicine); (3) Dr. Brett Prywitch 

(radiology); (4) Elizabeth Terry (registered nurse); (5) Geralyn Stock (clerk); and 

(6) Veronica Hung (ECG technician). In addition, the affidavit states that St. Joseph’s is a 

not-for-profit corporation with its exclusive place of business in Clinton County and 

operates a hospital in Clinton County. The affidavit further states that its medical records, 

department records, and imaging studies are maintained in Clinton County. Finally, the 

affidavit states that Hospital Sisters Health System is based in Springfield, Illinois, and 

St. Joseph’s is a separate legal entity with its own board of directors. 

¶ 8 On October 12, 2018, St. Joseph’s filed a second supplement to its motion to 

transfer, attaching information from the web site for the ambulance service that transferred 

Michael to the hospital following his stroke. The information shows that the ambulance 

service is in Clinton County. On December 12, 2018, this court granted St. Joseph’s and 

Infinity’s petition for leave to appeal the circuit court’s September 21, 2018, order denying 

their motion to transfer, and that appeal was docketed in this court as case number 5-18-

0501. 

¶ 9 On March 4, 2019, having recently been served with the complaint, Dr. Nichol filed 

his own motion to transfer the case to Clinton County based on forum non conveniens. 

Dr. Nichol attached his affidavit to the motion. In his affidavit, Dr. Nichol attested that his 

care and treatment of Michael took place at St. Joseph’s in Clinton County, and none of 
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Michael’s treatment occurred in St. Clair County. Further, Dr. Nichol averred that he 

resides in Madison County and worked in Clinton County at the time of his treatment of 

Michael. Dr. Nichol’s affidavit concluded that participating in a trial in St. Clair County 

would be personally and professionally inconvenient to him, and that a trial in Clinton 

County would be more convenient. Dr. Nichol also attached the medical records from 

St. Joseph’s under seal, as well as the information on the ambulance service and the 

Statistical Summary of the Illinois Courts from 2016, to his motion to transfer. 

¶ 10 On March 18, 2019, St. Joseph’s and Infinity filed a motion to stay their appeal 

pending the circuit court’s ruling on Dr. Nichol’s motion to transfer. On April 3, 2019, this 

court entered an order staying the appeal in 5-18-0501. On May 7, 2019, the circuit court 

entered an order denying Dr. Nichol’s motion to transfer. On June 5, 2019, Dr. Nichol filed 

a petition for leave to appeal, which this court granted on August 21, 2019. 

¶ 11 ANALYSIS 

¶ 12 This court recently set forth, in detail, the standards to be employed by the circuit 

court, and by this court on review, when the issue is whether to transfer a cause based on

the doctrine of forum non conveniens set forth in Illinois Supreme Court Rule 187(c)(2) 

(eff. Jan. 4, 2013): 

“ ‘A trial court’s decision on a forum non conveniens motion will be reversed only 

if it can be shown that the trial court abused its discretion in balancing the various 

factors at issue.’ Gridley v. State Farm Mutual Automobile Insurance Co., 217 Ill. 

2d 158, 169 (2005). A circuit court abuses its discretion where no reasonable person 
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would take its adopted view. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 

(2003). 

 ‘Forum non conveniens is an equitable doctrine founded in considerations of 

fundamental fairness and the sensible and effective administration of justice.’ 

Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441 (2006). The doctrine 

permits the circuit court to decline jurisdiction over a case when trial in another 

forum would better serve the ends of justice. Id. If jurisdiction is so declined, the 

case must be dismissed because the circuit court lacks the authority to transfer it. 

Fennell v. Illinois Central R.R. Co., 2012 IL 113812, ¶ 13. ‘The dismissal is 

conditioned on the plaintiff timely filing the action in the other forum; and the 

defendant accepting service of process from that court, and waiving any available 

statute of limitations defense.’ Id.; see also Ill. S. Ct. R. 187(c)(2) (eff. Jan. 4, 2013). 

‘Each forum non conveniens case must be considered as unique on its facts.’ 

Langenhorst, 219 Ill. 2d at 443. ‘Every request for transfer based upon 

forum non conveniens must be decided pursuant to an “individualized, case-by-case 

consideration of convenience and fairness.” ’ Gridley, 217 Ill. 2d at 168 (quoting 

Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). 

 In determining whether to grant or deny a motion to dismiss on the basis of 

forum non conveniens, the circuit court must balance private interest factors 

affecting the litigants and public interest factors affecting the administration of the 

courts. Dawdy, 207 Ill. 2d at 172. The private interest factors include the 

convenience of the parties; the relative ease of access to sources of testimonial, 
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documentary, and real evidence; the availability of compulsory process to secure 

the attendance of unwilling witnesses; the cost of obtaining the attendance of willing 

witnesses; the possibility of viewing the premises, if appropriate; and all other 

practical considerations that make a trial easy, expeditious, and inexpensive. Id. The 

public interest factors include the interest in having local controversies decided 

locally, the administrative difficulties caused when litigation is handled in congested 

venues instead of being handled at its origin, and the unfairness of imposing jury 

duty upon residents of a county with no connection to the litigation. Id. at 173. 

The defendant has the burden of showing that the balance of the relevant 

public and private interest factors strongly favors a dismissal and transfer (id.), and 

the circuit court must evaluate the totality of the circumstances when determining 

whether that burden has been met (Fennell, 2012 IL 113812, ¶ 17). The relevant 

factors are not weighed against each other, and no single factor should be 

emphasized. Langenhorst, 219 Ill. 2d at 443-44. 

 ‘An additional consideration under the forum non conveniens doctrine is 

deference to the plaintiff’s choice of forum.’ Dawdy, 207 Ill. 2d at 173. It is 

generally assumed that the plaintiff’s choice of forum is convenient, and unless the 

balance of the relevant factors strongly favor a dismissal, the plaintiff’s choice 

should rarely be disturbed. Id. ‘However, when the plaintiff is foreign to the chosen 

forum and when the action giving rise to the litigation did not occur in the chosen 

forum, the plaintiff’s choice of forum is accorded less deference.’ Fennell, 2012 IL 

113812, ¶ 18. Moreover, when the plaintiff is foreign to the chosen forum and the 
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action that gives rise to the litigation did not occur in the chosen forum, ‘it is 

reasonable to conclude that the plaintiff engaged in forum shopping to suit his 

individual interests, a strategy contrary to the purposes behind the venue rules.’ 

(Internal quotation marks omitted.) Dawdy, 207 Ill. 2d at 174. ‘A plaintiff’s right to 

choose a forum “cannot be permitted to override the public interest in, and need for, 

an orderly, efficiently operated judicial system.” ’ Id. at 175 (quoting Espinosa v. 

Norfolk & Western Ry. Co., 86 Ill. 2d 111, 123 (1981)).” Shaw v. Haas, 2019 IL 

App (5th) 180588, ¶¶ 15-19. 

¶ 13 Here, as in Shaw, the circuit court abused its discretion by denying Dr. Nichol’s 

motion to transfer on the basis of forum non conveniens because, “although we 

acknowledge [the plaintiffs’] right to choose the forum, a balance of the relevant factors 

strongly favors a transfer to [Clinton] County (see Gridley, 217 Ill. 2d at 169) and the 

record shows that a trial in [Clinton] County would better serve the ends of justice, as well 

as the convenience of the parties (see Dawdy, 207 Ill. 2d at 177).” Shaw, 2019 IL App (5th) 

180588, ¶ 20. Beginning with the private interest factors, and specifically the relative ease 

of access to sources of evidence, the alleged medical malpractice occurred at St. Joseph’s 

Hospital in Clinton County. The ambulance service that transported Michael to the hospital 

is also in Clinton County, as well as Michael’s primary physician, who Michael visited 

earlier the day of the alleged malpractice. The record contains the name of another primary 

care physician in Clinton County, and other employees of St. Joseph’s with relevant 

knowledge as well. As such, all medical personnel and records surrounding the plaintiffs’ 

allegations of medical malpractice are in Clinton County. 
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¶ 14 We recognize that the plaintiffs’ counsel’s affidavit in opposition to the motion to 

transfer sets forth that the medical professionals providing rehabilitation services to 

Michael following his stroke are in St. Clair County, as well as 25 “lay witnesses who 

would have relevant information about [the] plaintiff’s condition both before and after the 

stroke.” The supreme court has cautioned us, however, not to give undue weight to the fact 

that treating doctors have an office in the plaintiffs’ chosen forum. Bland v. Norfolk & 

Western Ry Co., 116 Ill. 2d 217, 227 (1987). This is because because to do so “would allow 

a plaintiff to easily frustrate the forum non conveniens principle by selecting as a witness a 

treating physician or expert in what would, in reality, be an inconvenient forum.” Id. We 

find the same treatment should be afforded the plaintiffs’ counsel’s list of 25 lay witnesses 

who are acquainted with Michael, especially where counsel does not provide an 

explanation of why there are not lay witnesses in Clinton County, the county of the 

plaintiffs’ residence, who could provide identical testimony. Accordingly, despite the 

plaintiffs’ counsel’s efforts to point to evidence that may be located in St. Clair County, 

we find that the factor of relative ease of access to sources of evidence favors transfer. 

¶ 15 Regarding the convenience of the parties, the plaintiffs reside in Clinton County. A 

trial in Clinton County would be convenient for them, although the defendants may not 

prevail by arguing that St. Clair County is inconvenient for them. Shaw, 2019 IL App (5th) 

180588, ¶ 26. The defendants all either reside or work in Clinton County. While we 

recognize that St. Clair County is adjacent to Clinton County, the supreme court has 

rejected the contention that a trial in an adjacent county is unquestionably convenient for a 

defendant. Id. (citing Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 180 (2003)). We 
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find that the private interest factors of convenience to the parties and ease of access to 

sources of evidence both weigh in favor of Clinton County because the plaintiffs sustained 

their injuries there and the witnesses are on the whole closer to Clinton County. See id.

¶ 16 “The next private interest factor is the possibility of viewing the premises, if 

appropriate.” Id. ¶ 27. While we recognize a viewing of the premises is unlikely in a 

medical malpractice case, if the circuit court were to decide that such a viewing would be 

appropriate, that would occur at St. Joseph’s in Clinton County. Although Clinton County 

is adjacent to St. Clair County, “it would not be rational for a jury of St. Clair County 

residents to travel to [Clinton] County to view the *** site.” Id. (citing Dawdy, 207 Ill. 2d 

at 179). “Moreover, viewing the premises would arguably be more expeditious if the trial 

were in [Clinton] County.” Id. Accordingly, although relatively insignificant, this private 

interest factor also weighs in favor of Clinton County over St. Clair County. Neither party 

points to any other practical considerations that make a trial easy, expeditious, and 

inexpensive. Viewing the private interest factors as a whole, we find that such factors favor 

Clinton County over St. Clair County. 

¶ 17 Turning to the public interest factors, which include court congestion and judicial 

administration, imposing jury duty on residents of a community that is not related to the 

litigation, and the local interest in local controversies, we find that such factors strongly 

support Clinton County as the appropriate forum to try this case. See id. ¶ 29 (citing Dawdy, 

207 Ill. 2d at 180). In Shaw we recognized that, while court congestion in and of itself is 

relatively insignificant if no other relevant factors are in favor of transfer, it is nevertheless 

appropriate to consider it in the plaintiffs’ chosen forum. Id. (citing Dawdy, 207 Ill. 2d at 
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181). Here, like in Shaw, there are other factors that favor transfer, and accordingly, court 

congestion is not insignificant. See id. The Illinois Courts Statistical Summary 2016, which 

is part of the record and detailed in relevant part above, illustrates that the public interest 

factor of docket congestion strongly favors a trial in Clinton County. 

¶ 18 Another public interest factor is the local interest in local controversies. See Shaw, 

2019 IL App (5th) 180588, ¶ 32. The plaintiffs contend that St. Clair County has an interest 

in this controversy because St. Joseph’s has a registered agent in St. Clair County and 

Infinity does business in St. Clair County. We disagree. Although these defendants have 

business ties to St. Clair County that are sufficient to establish venue there, any business 

transactions that are unrelated to the instant case are insignificant for purposes of forum 

non conveniens. See id. In contrast, the plaintiffs reside in Clinton County and the alleged 

medical malpractice and circumstances related thereto occurred in Clinton County. As 

such, this is a controversy local to Clinton County that would be of interest to the citizens 

of Clinton County who rely on the defendants for their medical treatment. See Gundlach 

v. Lind, 353 Ill. App. 3d 677, 683 (2004). 

¶ 19 Based on the foregoing, it would not be unfair to burden the citizens of Clinton 

County with jury duty in this case. See Shaw, 2019 IL App (5th) 180588, ¶ 33. In contrast, 

St. Clair County residents should not be burdened with jury duty when the action neither 

arose there nor has any relation to that county. See id. (citing Dawdy, 207 Ill. 2d at 183). 

Accordingly, the public interest factors strongly favor transfer. 

¶ 20 Finally, we acknowledge that the plaintiffs’ choice of forum is entitled to some 

deference. Id. ¶ 34. However, they are foreign to their chosen forum because they reside in 
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Clinton County and the action giving rise to this litigation did not occur in their chosen 

forum, but in Clinton County. Accordingly, their choice of forum is accorded less 

deference. Id. (citing Fennell, 2012 IL 113182, ¶ 18). Here, where the balance of the private 

and public interest factors strongly favors dismissal, it is an abuse of discretion to allow 

deference to the plaintiffs’ choice to outweigh all other considerations. See id.

¶ 21 CONCLUSION 

¶ 22 For the foregoing reasons, we reverse the May 7, 2019, order of the circuit court of 

St. Clair County and remand with directions that the circuit court grant Dr. Nichol’s motion 

and transfer this cause to Clinton County. 

¶ 23 Reversed and remanded with directions.