SECOND DIVISION

									February 1320, 2001

					No. 1-00-0328					________________________________________________________________

ELDON J. HINSHAW and KATHRYN T. 	)	Appeal from the

KERBER, as co-executors of the  	)	Circuit Court of 

estate of Mary E. Wade, deceased;	)	Cook County.  

ELDON J. HINSHAW, individually; 	)  

and JESSIE M. HINSHAW,			)

   					         	)	

		Plaintiffs-Appellees,	)	

							)

	v. 						)	No. 98 L 14488   

							)

COACHMEN INDUSTRIES, INC.,	 	)	

COACHMEN VAN CONVERSIONS,         	)	The Honorable

a subsidiary of COACHMEN 		)	Michael J. Hogan,

INDUSTRIES, INC., COACHMEN 		)	Judge Presiding.

AUTOMOTIVE (formerly COACHMEN 	)

VANS), FLEXSTEEL INDUSTRIES, INC., )

FLEXSTEEL DIVISION, DYGERT 		)

SEATING, CHRYSLER CORPORATION, 	)

CHRYSLER MOTORS CORPORATION, 		)

DAIMLER-CHRYSLER AG, DAIMLER-		)

CHRYSLER MOTORS CORPORATION, 		)

a Delaware corporation, MITCHELL	)

A. PATE, SECOR SALOON, TOM RORA, 	)

BARBARA RORA, and GARY JASPER,	)

							)

		Defendants-Appellants.	)

-----------------------------------------------------------------					O R D E R

	JUSTICE GORDON delivered the opinion of the court:

	Plaintiffs-appellees Eldon and Jessie Hinshaw, individually,

and Eldon Hinshaw and Kathryn Kerber, as co-executors of the

estate of Mary Wade, deceased, filed a complaint in the circuit

court of Cook County alleging negligence, products liability,

breach of warranty, and Dramshop Act violations arising from an

auto accident in which Eldon and Jessie Hinshaw were seriously

injured, and in which Mary Wade, the backseat occupant of the

Hinshaw van, was killed.  Defendants named in the complaint included Mitchell Pate, the driver of the vehicle which collided

head-on with the Hinshaw van; Dramshop Act defendants Tom and

Barbara Rora, Gary Jasper, and the Secor Saloon; Daimler-Chrysler

Corporation, the manufacturer of the Hinshaw van; Coachmen

Industries, Inc., the customizer of the van; and Flexsteel

Industries and Dygert Seating, which manufactured the van's

seats.  Defendants  Coachmen Industries, Inc., and Coachmen

Automotive (hereinafter referred to collectively as Coachmen)

moved to transfer this action to Woodford County, the site of the

accident, under the doctrine of forum non conveniens.  The circuit court denied the motion, and Coachmen appealed pursuant

to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)).  For

the reasons set forth below, we affirm the denial of the motion.  

	BACKGROUND

	Plaintiffs-appellees alleged in their complaint1 that on December 28, 1996, Eldon Hinshaw, Jessie Hinshaw and Mary Wade

were in a Dodge van which was traveling eastbound on Route 24 in

Woodford County, Illinois.  At about 4:20 p.m., Mitchell Pate was

driving westbound on the same road when he attempted to pass

another vehicle and struck the Hinshaw van head-on in the

eastbound lane.  Eldon and Jessie Hinshaw were seriously injured

in the collision, and Mary Wade was killed.  According to the

complaint, Pate was intoxicated at the time of the collision and had been drinking at the Secor Saloon, an establishment located

in Secor Illinois, which is in Woodford County.  Defendants Tom

and Barbara Rora were the owners of the Secor Saloon, and

defendant Gary Jasper owned the building in which the saloon was

located.  It is undisputed that these four Dramshop Act

defendants did not join in Coachmen's motion to transfer venue.  

	In their answers to defendant Daimler-Chrysler's

interrogatories, plaintiffs identified seven persons who were

present at the scene of the accident, at or near the time of the

collision.  Four of those seven were directly involved in the

accident: Eldon and Jessie Hinshaw of Bloomington, Illinois, in

McLean County; Mitchell Pate of Sheridan, Illinois, in LaSalle

County; and Quinn Schad, Pate's passenger, of East Peoria,

Illinois, in Tazewell, County.  Two of the remaining three

occurrence witnesses reside in DuPage County, and one lives in

Cook County.  Kathryn Kerber, the remaining plaintiff, resides in

McLean County, and Mary Wade, the deceased, also lived in McLean

County.  Plaintiffs identified 18 other persons with knowledge of

the facts of the occurrence.  Fifteen of them reside in Illinois:

seven in Will County, three in McLean County, two in DuPage

County, two in Lake County and one in Woodford County. 

Plaintiffs also identified an auto pound in Cook County where the

Hinshaw van was stored after the accident.  

	In its response to plaintiffs' interrogatories, Daimler-

Chrysler identified 48 vehicle dealerships in Cook County which sell Daimler-Chrysler vehicles.  According to Daimler-Chrysler,

there is one such dealership in Woodford County.  Daimler-

Chrysler also named two of its employees as persons with

knowledge of potentially relevant matters.  Both of them

presumably reside in Michigan.  Defendant Coachmen identified in

its answers to plaintiffs' interrogatories three dealerships in

Woodford County which sell Coachmen products: one in Eureka, one

in Morton, and a third in Peoria.2  According to a purchase order attached to Coachmen's answers to interrogatories, the Hinshaw

van at issue in this case was purchased in Morton, Illinois. 

Coachmen also named at least seven dealerships in Cook County

which sell its products.  In addition, Coachmen listed seven of

its employees, all of whom presumably live in Indiana, as persons

with potentially relevant knowledge. 

	Coachmen also filed a reply in support of its motion to

transfer venue.  Exhibits attached to this reply included an Illinois Traffic Crash Report indicating that the on-scene

investigation of the accident was conducted by Woodford County

police, assisted by officers from Eureka and El Paso, both of

which are in Woodford County.  Also attached to Coachmen's reply

were medical-bill summaries for plaintiffs Eldon and Jessie

Hinshaw indicating that their medical care providers were located

primarily in McLean and Peoria counties.  Thirteen were in McLean

County, five in Peoria County, and one each in Woodford and

Champaign counties.  Also attached was an "Annual Report of the

Illinois Courts" for the year 1997, upon which Coachmen relies

for its assertion that the Cook County court system is more

congested than Woodford County's. 

	In November 1999, defendant Mitchell Pate was dismissed from

the complaint pursuant to a good-faith settlement with

plaintiffs.  In January 2000, plaintiffs moved to voluntarily

dismiss their claims against defendant Flexsteel.  In the same

month, a hearing was held on Coachmen's motion to transfer venue,

with Daimler-Chrysler orally joining in the motion.  The trial

court denied Coachmen's motion, stating that there were "at least nine different counties or states that have potential witnesses

and have some relations to this case," that the witnesses were

"spread all over," and that Coachmen had not met its burden of

showing that a transfer to Woodford County was strongly favored. 

The instant appeal followed.  

	DISCUSSION

	The sole issue in this appeal is whether the trial court

abused its discretion in denying Coachmen's motion to transfer

this action to the circuit court of Woodford County pursuant to

the doctrine of intrastate forum non conveniens.  Coachmen contends that the balance of public and private factors strongly

favors that transfer, and the trial court therefore erred in

denying Coachmen's motion.  Plaintiffs argue that Coachmen failed

to meet its burden of showing that the relevant factors strongly

favor transfer.  

	"[A] trial court is vested with broad discretion in ruling

on a forum non conveniens motion; its decision will be reversed only if it is shown that the court abused its discretion in

weighing the relevant considerations."  Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 106, 554 N.E.2d 209, 211 (1990).  

	In resolving a forum non conveniens motion, a court balances private interest factors affecting the litigants and public

interest factors affecting the administration of the courts. 

Griffith, 136 Ill. 2d at 105, 554 N.E.2d at 211; Washington v. Illinois Power Co., 144 Ill. 2d 395, 399, 581 N.E.2d 644, 645 (1991); Schoon v. Hill, 207 Ill. App. 3d 601, 605, 566 N.E.2d 718, 721 (1990).  Important private interest considerations

include the relative ease of access to sources of proof; the

availability of compulsory process for the attendance of

unwilling, and the cost of obtaining attendance of willing, witnesses; the possibility of a view of the premises if such a

view is appropriate to the action; and "'all other practical

problems that make trial of a case easy, expeditious and

inexpensive.'"  Washington, 144 Ill. 2d at 399, 581 N.E.2d at 645; Smith v. Silver Cross Hospital, 312 Ill. App. 3d 210, 216- 17, 726 N.E.2d 697, 702-03 (2000).  Public factors to be

considered include the administrative difficulties which result

when litigation is handled in congested venues, the unfairness of

imposing jury duty on a community with no connection to the

litigation, and an interest in having localized controversies

decided locally.  Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211; Schoon, 207 Ill. App. 3d at 605, 566 N.E.2d at 721.  

	A further consideration under the forum non conveniens doctrine is deference to plaintiff's choice of forum.  Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211.  While a plaintiff's choice is normally given great weight, it is entitled to less

deference when the plaintiff selects a foreign forum. Schoon, 207 Ill. App. 3d at 605, 566 N.E.2d at 721.  Nevertheless, in either

case, a plaintiff's choice of forum should rarely be disturbed

unless the relevant factors, viewed in their totality, strongly

favor transfer.  Griffith, 136 Ill. 2d at 106-08, 554 N.E.2d at 211-12 (rejecting argument that, where plaintiff is foreign to

the chosen forum, defendant need establish only that factors

favor, rather than strongly favor, transfer; plaintiff's choice of forum receives less deference where plaintiff is not resident of the forum, but that does not alter the ultimate test, which is

whether the relevant factors, having been given their appropriate

weight or deference, and viewed in their totality, strongly favor

transfer); see also Elling v. State Farm Mutual Automobile Insurance Co., 291 Ill. App. 3d 311, 318, 683 N.E.2d 929, 934 (1997) ("[W]hile the deference to be accorded to a plaintiff

regarding his choice of forum is less when the plaintiff chooses

a forum other than where he resides or where the injury occurred,

nonetheless the deference to be accorded is only less, as opposed to none, and the test is still whether the relevant factors[,] viewed in their totality, strongly favor transfer to another

forum").  Hence, the defendant has the burden of "establishing

that the relevant factors, to which the court applies the

balancing test, viewed in their totality, strongly favor the

alternative forum." Smith, 312 Ill. App. 3d at 217, 726 N.E.2d at 703.    

	Coachmen argues that the trial court applied the wrong

standard in denying the motion to transfer.  According to

Coachmen, the court failed to balance the relevant factors as

required, and instead held Coachmen to the standard that in order

for the motion to succeed, all of the public and private interest

factors must strongly favor transfer.  Referring to the

transcript of the hearing on its motion, Coachmen pointed to an

exchange where plaintiffs' counsel, Thomas Harris, stated what he

felt was the appropriate standard: "Defendant Coachmen has to show that all of the public and private interest factors[]

strongly favor[] the transfer to Woodford County."  The court

responded: "I think that's the standard."  Coachmen thus argues

that the trial court mistakenly assumed that all of the factors must strongly favor transfer.  By contrast, the correct standard,

according to Coachmen, is expressed in this court's statement in

Evans v. MD Con, Inc., 275 Ill. App. 3d 292, 298, 655 N.E.2d 1016, 1021 (1995), that the defendant need only show that its

suggested county "would be a substantially more appropriate

forum, in light of the private and public interest factors."   

	Coachmen raised this point for the first time at oral

argument.  Supreme Court Rule 341(e)(7) (179 Ill. 2d R.

341(e)(7)) provides that points not asserted in an appellant's

brief are waived and shall not be raised for the first time in

oral argument.  See People v. Thomas, 164 Ill. 2d 410, 422, 647 N.E.2d 983, 990 (1995).  

	Even if this argument were not waived, we are not convinced

that the standard as stated in the exchange between Harris and

the trial court, when viewed in its entire context, was

incorrect.  In Griffith, our supreme court described the balancing test used in deciding a forum non conveniens motion as "an uneven one that requires a showing that the relevant factors

strongly favor transfer before transfer is allowed."  136 Ill. 2d

at 107, 554 N.E.2d at 212.  Similarly, this court in Evans described the balancing test as "an unequal one, weighted in favor of the plaintiff's chosen forum."  Evans, 275 Ill. App. 3d at 295, 655 N.E.2d at 1019.  The court in Griffith further described the standard as being "whether the relevant factors,

viewed in their totality, strongly favor transfer to the forum

suggested by defendant."  Griffith, 136 Ill. 2d at 108, 554 N.E.2d at 212.  There is no reason to think that the trial court

in the instant case disagreed with this standard, particularly in

view of what followed in the transcript after the passage

mentioned by Coachmen.  Immediately following the trial court's

assent to Harris's description of the standard, Harris added:

"It's not an even balance thing.  I don't believe there has been

any attempt to show factors strongly in favor of the transfer."    Viewed in this context, the trial court's reference to "all of

the *** factors" and its assertion that the test is "not an even

balance" mean essentially the same thing as was stated in

Griffith and Evans, namely, that the factors, when viewed in their totality, must strongly favor transfer.  Neither Griffith nor Evans negates that the balancing test is unequal, i.e., weighted in favor of a plaintiff's choice of forum.  Indeed, the

assertion in Evans that the defendant's recommended forum must be "substantially more appropriate" (emphasis added) than the chosen forum is merely another way of saying that the balancing test is

"unequal" and the factors must strongly favor transfer.  There is nothing in the colloquy between the trial court and Harris that

departs from this position.  In addition, the term "unequal balance" describes a process of weighing where not all of the

factors are on one side.  If they were, there would be no need for a balancing.  Accordingly, we cannot conclude that the trial

court abused its discretion by applying an incorrect standard. 

	Before addressing the private interest factors, we note

that, as indicated, plaintiffs' claims against Pate, the driver

of the vehicle which collided with the Hinshaw van, were

dismissed pursuant to a settlement.  As a result, it is

undisputed that the case as it stands now is limited to product

liability, breach of contract, and Dramshop Act issues.  

	With respect to the private interest factors, Coachmen

argues that they strongly favor Woodford County.  In support of

this contention, Coachmen asserts that plaintiffs reside in

"counties contiguous to Woodford County," that the four Dramshop

Act defendants are in Woodford County, that the accident occurred

in Woodford County and was investigated by officers who were

employed there, that plaintiffs received their medical care from

hospitals and physicians located in or near Woodford County, and

that the Hinshaw van, whose design and manufacture is now the

primary issue in this case, was purchased by plaintiffs in

Woodford County. 

	Taking the last item first, we note that, according to the

purchase order attached to Coachmen's answers to plaintiffs'

interrogatories, the Hinshaw van was purchased from a dealership

in Morton, Illinois.  As set forth in footnote 2 above, we take judicial notice that Morton, Illinois, is in Tazewell (not

Woodford) County.  In addition, while the Secor Saloon is in

Woodford County, there is nothing in the record to indicate that

either Tom and Barbara Rora, the owners of the tavern, or Gary

Jasper, the owner of the building where it is located, resides in

Woodford County.  Even if they did live in Woodford County, these

defendants did not join in Coachmen's motion to transfer venue. 

As to the accident's occurring in Woodford County, the claims

against defendant Pate, as noted, have been dismissed, and the

case at this point is focused on product liability, breach of

contract, and Dramshop Act claims, not on the negligence claims

against Pate.  Hence any importance of the accident scene to the

case as it now stands is diminished.  As to the remaining factors

which might favor Woodford County, it is questionable whether

these factors strongly favor Woodford County, given that, as the trial court observed, potential witnesses and relations to the

case are "spread all over."  

	The accuracy of the court's observation can be seen by

looking at where the witnesses and relations are located. 

Plaintiffs, for example, resided in McLean County, which is also

where the majority of Eldon and Jessie Hinshaw's medical

providers were located.  In addition, three of 15 Illinois

residents identified by plaintiffs as having knowledge of the

facts of the occurrence (knowledge witnesses) live in McLean

County, while one lives in Woodford County.  Seven of these 15 knowledge witnesses live in Will County, and two others reside in

Lake County.  The remaining two live in DuPage County, which is

also the residence of two persons who witnessed the accident.  A

third person who witnessed the accident resides in Cook County,

which is also the location of an auto pound where the Hinshaw van

was stored after the accident.  As noted, the dealership where

the Hinshaw van was purchased is in Tazewell County, which is

also where Quinn Schad, Pate's passenger, resides.  Pate's

residence is in LaSalle County.  Outside Illinois, two Daimler-

Chrysler employees with knowledge of potentially relevant matters

reside presumably in Michigan, and seven Coachmen employees with

potentially relevant knowledge presumably live in Elkhart,

Indiana. 

	Given that these potential witnesses and other connections

are scattered in eight Illinois counties and two additional

states, it was not unreasonable for the trial court to conclude

that there was no predominance among the counties such that

Woodford County was strongly favored.  See Meyers v. Bridgeport Machines Division of Textron, Inc., 113 Ill. 2d 112, 121, 497 N.E.2d 745, 749 (1986) (affirming denial of forum non conveniens motion, where factual connections with forum were evenly

distributed among four counties, and there was thus no

predominance of connections to any one county).  While some of the sources of proof, particularly witnesses, are located in

Woodford County and counties adjacent to it, the same can be said for Cook County.  In addition, it is arguably easier for

potential product liability witnesses such as the Daimler-

Chrysler employees in Michigan and the Coachmen employees in

Indiana to travel to Cook County than it would be for them to

travel to Woodford County.  Hence, if considerations as to the

ease of access to sources of proof favor one county over the

other, which is doubtful, they would seem to favor Cook County. 

In addition, there is nothing in the record to indicate that

compulsory process for the attendance of unwilling witnesses is

any more or less available in Woodford County than it is in Cook

County.  Nor is there any clear indication that the cost of

obtaining attendance of willing witnesses would necessarily

differ greatly between Cook and Woodford counties.  As to the

possibility of a view of the premises, since the case is now

focused primarily on product liability claims, the importance of

this factor appears to be diminished.  Thus it was not an abuse

of discretion to conclude that the private interest factors do

not strongly favor transfer to Woodford County.     

	One of the public interest factors to be considered is the

interest in having localized controversies decided locally. 

While the instant case might have been such a localized

controversy at one time, now that Pate has been dismissed, it is,

as noted, primarily a products liability case.  As such, any

local interest on the part of, say, Woodford County is largely

supplanted by a more general interest in the safety of Dodge vans.  Relevant to this concern is the fact that, as noted, there

are 48 dealerships in Cook County which sell Daimler-Chrysler

vehicles, and at least seven which sell Coachmen products. 

Woodford County, on the other hand, has just one of each.  Given

that difference, we cannot say that Woodford County would have a

stronger interest than Cook County in the products liability

aspects of this case.  Another public interest consideration is

that jury duty should not be imposed upon the residents of a

community with no relation to the litigation.  However, as has

been shown, Cook County is not such a community.  Finally, we

look to the status of the court docket where the action was

filed.  It is undisputed that Cook County's court docket is

busier than Woodford County's.  However, "[w]ith respect to the

forum docket backlog issue, courts are extremely reluctant to

remove cases because of crowded dockets."  Smith, 312 Ill. App. 3d at 218, 726 N.E.2d at 704 (citing Brummet v. Wepfer Marine, Inc., 111 Ill. 2d 495, 503, 490 N.E.2d 694 (1986)); see also Griffith, 136 Ill. 2d at 114, 554 N.E.2d at 215 (court congestion factor alone is not enough to justify transfer of a case when

balanced against other relevant factors).   			

	Accordingly, it was not an abuse of discretion to conclude

that the public interest factors do not strongly favor a transfer

to Woodford County. 

	Notwithstanding the foregoing, Coachmen relies upon

Washington v. Illinois Power Co., 144 Ill. 2d 395, 581 N.E.2d 644 (1991), where the court held that it was an abuse of discretion

to deny the defendant's motion to transfer the case from Madison

County to Bond County.  Washington is distinguishable from the instant case.  In Washington, the plaintiffs, who were residents of Bond County, sued the defendant power company in the circuit

court in Madison County for damages resulting from the death of

their son, who was electrocuted when he touched one of the

defendant's allegedly uninsulated power lines while he was

climbing a tree in front of his home.  The boy's mother witnessed

his death, and as a result she allegedly suffered emotional and

psychological injuries which required hospitalization and medical

treatment.  Though her treating physicians were located closer to

Madison County than to Bond County, the court in Washington looked at other factors and held that the trial court abused its

discretion in denying the defendant's forum non conveniens motion for transfer.  The plaintiffs, for example, were residents of

Bond County.  All of the witnesses referred to in the case were

from Bond County.  In addition, all of the sources of proof were

located in Bond County.  By contrast, in the instant case,

plaintiffs were residents of McLean County, not Woodford County. 

Further, unlike in Washington, here only a minority of witnesses were in Woodford County, with the remainder "spread all over,"

including Cook County.  We note further that in Washington there may have been no county other than Bond with a strong interest in

the case, given that the allegedly uninsulated power line at issue was situated in Bond County.  Here, by contrast, the safety

of Dodge vans is of interest to Cook County as well as Woodford

County.  A further distinction between the two cases is that,

since in Washington the defendant power company had not been dismissed from the case, the fact that the boy's death occurred

in Bond County was potentially important, especially if it were

determined that a view of the scene would be appropriate.  Here,

Pate, the driver of the vehicle which struck the Hinshaw van, has

been dismissed pursuant to a settlement, rendering less important

the fact that the accident occurred in Woodford County.  

	In the instant case, we cannot say that the trial court

abused its discretion in denying Coachmen's motion to transfer

venue.  The court concluded that Coachmen had not met its burden

of showing that the relevant factors, viewed in their totality,

strongly favored a transfer to Woodford County, and we cannot say

that this conclusion was unreasonable.  While we might have come

to a different conclusion, we emphasize that our role here "is

not to substitute our judgment for that of the trial court, or to

decide whether we would have weighed the factors differently

[citation], or even to determine whether the trial court

'exercised [its] discretion wisely.'" Griffith, 136 Ill. 2d at 115, 554 N.E.2d at 215.  "Rather, our task is to determine

whether the trial court abused its discretion" (Griffith, 136 Ill. 2d at 115, 554 N.E.2d at 215), and we conclude that it did

not.  

	Accordingly, we affirm the trial court's denial of

Coachmen's forum non conveniens motion to transfer venue to Woodford County.  

	Affirmed.   

	CAHILL, P.J. and COUSINS, J., concur.