2018 IL App (1st) 180377
 

No. 1-18-0377
 

Opinion filed September 13, 2018
 

FOURTH DIVISION 

IN THE
 

APPELLATE COURT OF ILLINOIS
 

FIRST DISTRICT
 

CODY BENEDICT, By and Through His ) 

Guardian and Conservator, Angela ) 

Benedict, and ADDISON HAND, a ) 

Minor, By and Through Her Parents ) 

Chad and Kimberly Hand, ) 

) 

Plaintiffs-Appellees, ) 

) 

v. ) 

) 

ABBOTT LABORATORIES, INC. ) 

) 

Defendant-Appellant. ) 

Appeal from the Circuit Court
 

of Cook County.
 

No. 2016-M1-302742
 

The Honorable
 

William E. Gomolinski,
 

Judge, presiding.
 

JUSTICE GORDON delivered the judgment of the court, with opinion. 

Justices Burke and Ellis concurred in the judgment and opinion. 

OPINION 

¶ 1 Plaintiffs, Cory Benedict and Addison Hand, allege, by and through their parents, that 

they suffer from serious birth defects caused by their in utero exposure to Depakote, an 
 

 

 

 

 

 

 

 

 

 

No. 1-18-0377
 

antiepilectic drug manufactured, marketed, and sold by defendant, Abbott Laboratories, Inc., 

and ingested by plaintiffs’ mothers during pregnancy. 

¶ 2 In this interlocutory appeal, defendant, Abbott Laboratories, Inc., appeals the trial 

court’s denial of its forum non conveniens motion. Defendant argues that the trial court 

abused its discretion by denying its motion (1) to dismiss the case in Illinois for refiling in 

plaintiffs’ home states of Missouri and Colorado or (2), alternatively, to transfer the case 

from Cook County to adjacent Lake County, where defendant is headquartered. Although 

defendant’s principal place of business is in Illinois, it argues that Illinois is inconvenient. 

For the following reasons, we cannot find that the trial court abused its discretion in denying 

defendant’s motion, and thus, we must affirm. 

¶ 3 BACKGROUND 

¶ 4 Plaintiffs, Cory Benedict and Addison Hand, allege that defendant, Abbott 

Laboratories, Inc., failed to provide adequate warnings regarding the risk of birth defects 

from using Depakote and that, as a result, plaintiffs were born with spina bifida and neural 

tube defects after their mothers ingested the drug during pregnancy. 

¶ 5 On this appeal, plaintiffs stress that defendant’s decisions regarding product labeling 

and marketing occurred in Illinois, where defendant is headquartered, whereas defendant 

emphasizes that plaintiffs and their treating physicians are located outside of Illinois. 

Plaintiffs, Cody Benedict and Addison Hand, reside, respectively, in Missouri and Colorado, 

and their mothers were prescribed Depakote in their respective states. 

¶ 6 Defendant is in the business of selling pharmaceutical and medical products in all 50 

states, including Illinois. Specifically, defendant sold and marketed Depakote across the 

country, including in Illinois and in Cook County. Defendant’s headquarters and principal 

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place of business are in Lake County, Illinois, while its registered agent is in adjacent Cook 

County. In this action, plaintiff served defendant’s agent, CT Corporation, in Cook County. 

Defendant, a Delaware corporation, concedes that venue is proper in Cook County. 

¶ 7 Plaintiffs filed a complaint on December 23, 2016, in Cook County alleging that “the 

primary compound in Depakote—valproic acid—has been established to cause severe birth 

defects if taken during the first trimester of pregnancy, especially during the first twentyeight days of gestation when neural tube closure and other critical mid-line formations are 

taking place in the cellular structure of the developing embryo.” 

¶ 8 Plaintiffs further allege that, “[a]mong the ‘major congenital anomalies’ (i.e., birth 

defects) known to result directly from first-trimester exposure to Depakote are, either singly 

or in some combination with each other, spina bifida, cleft palate, cleft lip, limb and digital 

deformities, facial dysmorphism, mental developmental delays, genitourinary malformations, 

and heart defects.” 

¶ 9 Plaintiffs allege that, on or before defendant began marketing Depakote in 1978, 

defendant was aware of birth defects associated with it and that, even as further evidence 

developed, defendant “consistently and systematically sought to minimize the risk and 

downplay the dangers” and aggressively marketed the drug for additional uses. 

¶ 10 Plaintiffs’ complaint alleges nine causes of action: (1) strict products liability, (2) 

negligence, (3) gross negligence, (4) breach of implied warranty, (5) breach of express 

warranty, (6) misrepresentation by omission, (7) fraud and misrepresentation, (8) intentional 

infliction of emotional distress, and (9) negligent infliction of emotional distress. 

¶ 11 In lieu of filing an answer, defendant moved on March 3, 2017, to dismiss on various 

grounds, including misjoinder. Specifically, defendant argued that the claims of plaintiffs 

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Benedict and Hand were misjoined. The trial court did not rule on this motion prior to this 

appeal, and so this issue is not before us.1 

¶ 12 On April 4, 2017, defendant moved to dismiss plaintiffs’ claims arguing that they 

should be refiled in plaintiffs’ home states or, in the alternative, transferred to Lake County, 

where defendant has its principal place of business. 

¶ 13 While defendant’s motions were pending in this suit, eight additional plaintiffs filed 

Depakote suits against defendant in Cook County. Their last names were Castillo, Counts, 

Collier, Kane, McGowan, Peyton, Tasker, and Mohammed. Of these eight, two resided in 

Illinois. However, the two Illinois plaintiffs (Castillo and Peyton), as well as five others 

(Counts, Collier, Kane, McGowan and Tasker), chose to voluntarily dismiss their suits. 

Defendant decided not to file a forum non conveniens motion against the sole remaining 

plaintiff in these eight cases, namely, the Muhammad plaintiff. In its appellate brief, 

defendant explained that it did not file a forum non conveniens motion in the Mohammed 

case because the plaintiff’s family in that case resided in Cook County until 2014, “long after 

the child plaintiff was born.” 

¶ 14 On September 18, 2017, the trial court entered an order consolidating all current and 

future cases concerning Depakote filed in the circuit court of Cook County “for all purposes, 

excluding trial.”2 

¶ 15 On January 26, 2018, the trial court entered a memorandum opinion denying 

defendant’s forum non conveniens motion. Defendant filed both (1) a motion to reconsider on 

1

In its brief to this court, defendant stated: “The Circuit Court has not ruled on [defendant’s] 

misjoinder motion yet and therefore it is not the subject of this appeal.”

2

The order stated that the matter came “before the Court on Plaintiffs[’] and Defendant[’]s Joint 

Motion to Consolidate for Pre-Trial Purposes, the Court [having been] informed that more cases may be 

filed arising from” Depakote. 

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No. 1-18-0377
 

January 31, 2018, in the trial court and (2) a petition for leave to appeal on February 26, 

2018, in the appellate court. 

¶ 16 The trial court denied defendant’s motion to reconsider on April 2, 2018. The parties 

then filed a joint motion in the appellate court to file a status report with a copy of the trial 

court’s April 2 memorandum opinion. This court granted the motion on April 18, thereby 

making the trial court’s April 2 memorandum opinion part of this appeal. 

¶ 17 Since we must apply an abuse-of-discretion standard to the trial court’s forum non 

conveniens decision,3 we provide here the trial court’s findings. In its April 2 opinion, the 

trial court observed that, “[i]n this case the focus is on [defendant’s] failure to warn 

prescribing physicians that Depakote’s main ingredient—valproic acid—is connected to 

severe birth defects and should not be taken during the first trimester.” The trial court found 

that, since plaintiffs do not reside in Cook County, their choice of forum is entitled to less 

deference but that less deference does not mean no deference as defendant argued. In 

support, the trial court quoted Langenhorst, 219 Ill. 2d at 448 (“ ‘ “the deference to be 

accorded is only less, as opposed to none” ’ ” (emphases in original) (quoting First American 

Bank v. Guerine, 198 Ill. 2d 511, 518 (2002), quoting Elling v. State Farm Mutual 

Automobile Insurance Co., 291 Ill. App. 3d 311, 318 (1997))). 

¶ 18 The trial court observed that, in a product liability case, the place where a plaintiff 

was injured matters less, and it cited numerous cases in support of this proposition: Quaid v. 

Baxter Healthcare Corp., 392 Ill. App. 3d 757, 772 (2009) (“Where a case involves 

questions of product liability, the concern of having local interests resolved locally ‘is of less 

3

As we discuss in more depth in the analysis below, the standard of review for a forum non 

conveniens decision is abuse of discretion. Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441 

(2006). 

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No. 1-18-0377
 

significance because products liability cases have broader implications.’ ” (quoting 

Ammerman v. Raymond Corp., 379 Ill. App. 3d 878, 892 (2008))), Ammerman, 379 Ill. App. 

3d at 892 (“the fact that [plaintiff’s] accident occurred in Kane County as opposed to Cook 

County is of less significance because products liability cases have broader implications”); 

Guerine, 198 Ill. 2d at 525 (“plaintiffs’ products liability claim against [defendant] *** is less 

localized”), Brown v. Cottrell, Inc., 374 Ill. App. 3d 525, 534 (2007) (in product liability 

cases, “[b]oth this court and the supreme court have found those claims to be ones that are 

not inherently local in flavor”), Woodward v. Bridgestone/Firestone, Inc., 368 Ill. App. 3d 

827, 836 (2006) (due to the nature of a products liability case, “this is not a localized case” 

but “a case with international implications”), and Hinshaw v. Coachmen Industries, Inc., 319 

Ill. App. 3d 269, 278 (2001) (“any local interest on the part of, say, Woodford County is 

largely supplanted by a more general interest in the safety of Dodge vans”). 

¶ 19 The trial court found that Illinois had an interest in resolving a controversy over 

whether a corporation, headquartered in Illinois, may be sending forth products that caused 

harm. The court found that facts showing Illinois’s interest in the controversy included

 “(1) gross sales in excess of $42 million on [defendant’s] products in Cook County 

over the last ten years; (2) [defendant’s] headquarters in Lake County, Illinois; (3) 

[defendant] does not argue improper venue in Illinois; (4) [defendant] admitted to 

Depakote-related marketing efforts directed toward regions including Cook County, 

Illinois; and (5) [defendant’s] registered agent, C.T. Corporation is located in Cook 

County, Illinois.” 

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No. 1-18-0377
 

¶ 20 As for defendant’s alternative motion to transfer to Lake County, the trial court 

found: “[Defendant] seems to include its Lake County argument as an afterthought, and does 

not develop its argument other than mentioning it in a single-paragraph with no analysis.” 

¶ 21 The trial court had previously found that if the case were transferred to Missouri or 

Colorado, one of plaintiffs’ home states, the compulsory process problem would remain with 

respect to the other plaintiff. Erwin v. Motorola, Inc., 408 Ill. App. 3d 261, 277 (2011) 

(transfer to a state which is home to only one of the plaintiffs “would not solve the problem 

of *** witnesses unwilling to subject themselves to the compulsory process”). On the motion 

to reconsider, defendant argued that, if defendant’s misjoinder motion was granted, it would 

solve this compulsory process problem. In response, the trial court found: “[Defendant] never 

mention[ed] the misjoinder motion in the original motion to transfer. [Defendant] attempts to 

argue its misjoinder motion under the guise of its reconsideration motion. This court is 

precluded from and will not consider a new legal argument on reconsideration not previously 

addressed.” 

¶ 22 On April 18, 2018, this court granted, pursuant to Illinois Supreme Court Rule 

306(a)(2) (eff. Nov. 1, 2017),

4 defendant’s petition for leave to appeal, and this appeal 

followed. 

¶ 23 ANALYSIS 

¶ 24 Although defendant’s principal place of business is in Illinois, defendant argues that 

Illinois is an inconvenient forum and that the trial court abused its discretion by denying its 

motion (1) to dismiss the case in Illinois for refiling in plaintiffs’ home states of Missouri and 

4

Illinois Supreme Court Rule 306 permits a party to petition for leave to appeal to the appellate 

court from certain interlocutory orders, including “from an order of the circuit court allowing or denying a 

motion to dismiss on the grounds of forum non conveniens.” Ill. S. Ct. R. 306(a)(2) (eff. Nov. 1, 2017). 

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No. 1-18-0377
 

Colorado or (2), alternatively, to transfer the case from Cook County to adjacent Lake 

County, where defendant is headquartered. For the following reasons, we cannot find that the 

trial court abused its discretion in denying defendant’s motion and, thus, affirm. 

¶ 25 In sum, defendant’s principal argument is that plaintiffs’ “claims rely on their 

individual physicians, family members, educators, medical records, pharmacy records, 

insurance records, education records, and sources of such records,” which are all out of state. 

Most of the evidence listed by defendant consists of documentary records, which may be 

scanned and shared electronically, as defendant easily did with the supporting record that it 

filed in this appeal. As this court has previously observed, “the location of documents, 

records and photographs has become a less significant factor in forum non conveniens 

analysis in the modern age of e-mail, Internet, telefax, copying machines and world-wide 

delivery services, since they can now be easily copied and sent.” Vivas v. Boeing Co., 392 Ill. 

App. 3d 644, 659 (2009). As for plaintiffs’ “family members” and “educators,” these 

witnesses relate to the elements of injury and causation, as well as damages, and plaintiffs 

bear the burden of proof on these issues. E.g. Pommier v. Jungheinrich Lift Truck Corp., 

2018 IL App (3d) 170116, ¶ 23 (to recover in a product liability action, plaintiff must prove 

causation and injury). With respect to physicians, Illinois Supreme Court Rule 212(b) (eff. 

Jan. 1, 2011) specifically provides that “[t]he evidence deposition of a physician or surgeon 

may be introduced in evidence at trial on the motion of either party regardless of the 

availability of the deponent.” This rule minimizes the cost and maximizes the access to outof-state physicians. In addition, “[i]n any action in which the physical or mental condition of 

a party or of a person in the party’s custody or legal control is in controversy, the court, upon 

notice and on motion made within a reasonable time before the trial, may order such party to 

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No. 1-18-0377
 

submit to a physical or mental examination by a licensed professional.” Ill. S. Ct. R. 215(a) 

(eff. Jan. 1, 2018). Thus, a defendant may move the court for an examination of a plaintiff by 

a physician of its own choosing. As a result, these considerations do not compel us to find 

that the trial court abused its discretion. However, although we provided a summary here for 

convenience, we discuss and weigh carefully every single factor relating to forum non 

conveniens in the analysis below. 

¶ 26 I. Standard of Review 

¶ 27 “Forum non conveniens is an equitable doctrine founded in considerations of 

fundamental fairness and the sensible and effective administration of justice.” Langenhorst, 

219 Ill. 2d at 441 (citing Vinson v. Allstate, 144 Ill. 2d 306, 310 (1991)). “This doctrine 

allows a trial court to decline jurisdiction when trial in another forum ‘would better serve the 

ends of justice.’ ” Langenhorst, 219 Ill. 2d at 441 (quoting Vinson, 144 Ill. 2d at 310). 

“Forum non conveniens is applicable when the choice is between interstate forums as well as 

when the choice is between intrastate forums,” such as in the case at bar. Glass v. DOT 

Transportation, Inc., 393 Ill. App. 3d 829, 832 (2009). The burden is always on the movant 

to show the need for a transfer. Erwin, 408 Ill. App. 3d at 275; Woodward, 368 Ill. App. 3d at 

833 (“[t]he burden is on a defendant to show” the need for a transfer). 

¶ 28 The standard of review for a forum non conveniens decision is abuse of discretion. 

Langenhorst, 219 Ill. 2d at 441. 

¶ 29 “A trial court is afforded considerable discretion in ruling on a forum non conveniens 

motion.” Langenhorst, 219 Ill. 2d at 441.“We will reverse the circuit court’s decision only if 

defendants have shown that the circuit court abused its discretion in balancing the relevant 

factors.” Langenhorst, 219 Ill. 2d at 442 (citing Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 

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167, 176-77 (2003)). “A circuit court abuses its discretion in balancing the relevant factors 

only where no reasonable person would take the view adopted by the circuit court.” 

Langenhorst, 219 Ill. 2d at 442 (citing Dawdy, 207 Ill. 2d at 177); Glass, 393 Ill. App. 3d at 

832. 

¶ 30 “The issue, then, is not what decision we would have reached if we were reviewing 

the facts on a clean slate, but whether the trial court acted in a way that no reasonable person 

would.” Vivas, 392 Ill. App. 3d at 657. In addition, “we may affirm a trial court’s forum non 

conveniens order on any basis found in the record.” Ruch v. Padgett, 2015 IL App (1st) 

142972, ¶ 40. 

¶ 31	 II. Plaintiffs’ Choice of Forum 

¶ 32 “Before weighing the relevant factors, a court must first decide how much deference 

to give to a plaintiff’s choice of forum.” Vivas, 392 Ill. App. 3d at 657 (citing Langenhorst, 

219 Ill. 2d at 448 (the supreme court determined the appropriate amount of deference before 

weighing the relevant factors)). 

¶ 33	 It is “ ‘assumed on a forum non conveniens motion that the plaintiff’s chosen forum is 

a proper venue for the action.’ ” Langenhorst, 219 Ill. 2d at 448 (quoting Dawdy, 207 Ill. 2d 

at 182). “Plaintiff’s choice of forum is entitled to substantial deference.” Langenhorst, 219 

Ill. 2d at 448; Guerine, 198 Ill. 2d at 521 (“the battle over forum begins with the plaintiff’s 

choice already in the lead”). However, when neither the plaintiff’s residence nor the site of 

the injury are located in the chosen forum, the plaintiff’s choice is “entitled to somewhat less 

deference.” (Emphasis in original.) Langenhorst, 219 Ill. 2d at 448; Guerine, 198 Ill. 2d at 

517. While “ ‘ “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 *** nonetheless the 

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No. 1-18-0377
 

deference to be accorded is only less, as opposed to none.” ’ ” (Emphases in original.) 

Langenhorst, 219 Ill. 2d at 448 (quoting Guerine, 198 Ill. 2d at 518, quoting Elling, 291 Ill. 

App. 3d at 318). Thus, the trial court did not abuse its discretion by finding that plaintiffs’ 

choice of Cook County was entitled to some deference. 

¶ 34 III. Private Interest Factors 

¶ 35 When a court considers a forum non conveniens motion, the Illinois Supreme 

Court has held that it must consider both “the private and public interest factors.” 

Langenhorst, 219 Ill. 2d at 443; Dawdy, 207 Ill. 2d at 172-173; see also Vivas, 392 Ill. App. 

3d at 658. “[N]o single factor is controlling.” Erwin, 408 Ill. App. 3d at 274 (citing 

Langenhorst, 219 Ill. 2d at 443). 

¶ 36 First, we consider the private interest factors, which are “ ‘(1) the convenience of the 

parties; (2) the relative ease of access to sources of testimonial, documentary, and real 

evidence; and (3) all other practical problems that make trial of a case easy, expeditious, and 

inexpensive.’ ” Langenhorst, 219 Ill. 2d at 443 (quoting Guerine, 198 Ill. 2d at 516); Dawdy, 

207 Ill. 2d at 172; see also Vivas, 392 Ill. App. 3d at 658. 

¶ 37 A. Convenience to the Parties 

¶ 38 First, the convenience of the parties does not weigh in favor of transfer, for the 

following reasons. 

¶ 39 With respect to this factor, “the defendant must show that the plaintiff’s chosen forum 

is inconvenient to the defendant.” (Emphasis added.) Langenhorst, 219 Ill. 2d at 450; Vivas, 

392 Ill. App. 3d at 658. “[T]he defendant cannot assert that the plaintiff’s chosen forum is 

inconvenient to the plaintiff.” Langenhorst, 219 Ill. 2d at 444; Vivas, 392 Ill. App. 3d at 658. 

In other words, “one party cannot argue the other party’s convenience.” Padgett, 2015 IL 

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App (1st) 142972, ¶ 51; Susman v. North Star Trust Co., 2015 IL App (1st) 142789, ¶ 27. 

Where a defendant has “its headquarters in plaintiffs’ chosen forum,” the convenience factor 

does not weigh in favor of transfer. Vivas, 392 Ill. App. 3d at 658. A party “cannot be heard 

to complain that his home forum is inconvenient unless other factors are at issue.” Susman, 

2015 IL App (1st) 142789, ¶ 27; Erwin, 408 Ill. App. 3d at 276 (“Motorola could not 

genuinely contend that litigating the case in Illinois, where it maintained its corporate 

headquarters, would prove inconvenient to it”); Vivas, 392 Ill. App. 3d at 658 (the 

convenience of the parties did not weigh in favor of transfer, where “defendant Boeing has its 

headquarters” in Illinois). Thus, in the case at bar, the convenience factor does not weigh in 

favor of transferring the case out of Illinois, which defendant concedes is the site of is 

principal place of business and its headquarters. 

¶ 40 In addition to seeking an interstate transfer, defendant also seeks an intrastate transfer 

from Cook County, where plaintiffs filed this case, to adjacent Lake County. The evidence 

relating to the convenience of an intrastate transfer are as follows. 

¶ 41 In an interrogatory response, defendant admitted that it is “headquartered and 

maintains its principal place of business in Lake County, Illinois.” In a response to a request 

for admission, defendant admitted that “its home office located at 100 Abbott Park Road, 

Abbot Park, Illinois is approximately 34 to 36 miles from Cook County Circuit Court located 

at 50 West Washington Street, Chicago, Illinois.” In addition, defendant admitted that it 

leases “approximately 1,000 square feet of office space in a building at the University of 

Illinois at Chicago.” 

¶ 42 In light of the fact that Lake County is adjacent to Cook County and that defendant’s 

headquarters is only an hour and half from the Cook County circuit court in downtown 

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No. 1-18-0377
 

Chicago and only a half hour from the Cook County circuit court in Skokie, we cannot find 

that this factor weighs in favor of an intrastate transfer. See infra ¶ 56. 

¶ 43 B. Ease of Access to Evidence 

¶ 44 The trial court did not abuse its discretion by concluding that the ease of access to 

evidence did not favor transfer for the following reasons. See Langenhorst, 219 Ill. 2d at 443. 

¶ 45 First, while defendant lists categories of individuals, such as treating physicians, who 

it believes will not be available in Cook County, defendant has not identified a single witness 

by name who would be unwilling to testify in Illinois. In Erwin, 408 Ill. App. 3d at 277, this 

court previously considered a forum non conveniens motion where the defendant failed to 

provide the name or address of a single witness who would be unwilling to testify in Illinois. 

We found: “Since the burden of proof lies with [the defendant], under these circumstances, 

we are not at liberty to speculate about a witness’ whereabouts or unwillingness to testify at 

trial.” Erwin, 408 Ill. App. 3d at 277. 

¶ 46 In its opening brief to this court, defendant argued that plaintiff Benedict listed one 

fact witness who resides in Missouri and plaintiff Hand listed four fact witnesses who reside 

in Colorado. When asked in an interrogatory to list the name and address of any person “with 

personal knowledge of the facts related to the claims alleged in this case,” plaintiffs listed 

defendant, plus these five additional witnesses who live in Missouri and Colorado. However, 

defendant does not argue that it intends to call these five witnesses, and defendant has the 

burden of proof on this motion. E.g. Erwin, 408 Ill. App. 3d at 275. 

¶ 47 Defendant also cites plaintiffs’ interrogatory responses listing treating physicians and 

treating facilities in their home states, an issue that we address below. 

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¶ 48 Second, this court has previously held that, when a court considers a forum non 

conveniens motion in a non-medical malpractice case, the location of a plaintiff’s treatment 

facility or treating physician is “not completely irrelevant,” but a court should be careful not 

to “afford it undue weight.” Ammerman, 379 Ill. App. 3d at 890 (citing Bland v. Norfolk & 

Western Ry. Co., 116 Ill. 2d 217, 227 (1987)). 

¶ 49 By contrast, this court has previously found, in a product liability case, that it is 

important to consider the location of the witnesses and evidence relating to the design and 

manufacture of the product at issue. Vivas, 392 Ill. App. 3d at 658-59. In the case at bar, 

defendant admitted, in a response to a request for admissions, that “some” employees with 

“personal knowledge of Depakote products reside or have permanent personal addresses in 

Chicago, Cook County.” Then, in a document production, defendant provided a list of 12 

specific “employees residing in Cook County who it understands to have personal knowledge 

of the marketing promoting, selling and labeling of Depakote products.” The list included 

first and last names, job titles, and departments. 

¶ 50 Further, in an interrogatory response, defendant provided a list of 57 “employees who 

were responsible for the sale or servicing of Depakote products in the Cook County, Illinois 

area at any time from 2007 to the present,” and it admitted that “[v]arious versions of the 

Depakote products are manufactured in Lake County, Illinois.” 

¶ 51 Defendant argues in its brief to this court that it has “made no such admission” that 

the listed employees are potential witnesses. It claims that it has not admitted that these 

witnesses have “personal knowledge relevant to Plaintiff’s claims.” By the same token, 

defendant has not affirmatively denied that these employees have personal knowledge 

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relevant to plaintiff’s claims, and defendant has the burden of proof. E.g. Erwin, 408 Ill. App. 

3d at 275. 

¶ 52 Third, as we already observed above, “the location of documents, records and 

photographs has become a less significant factor in forum non conveniens analysis in the 

modern age of e-mail, Internet, telefax, copying machines and world-wide delivery services, 

since they can now be easily copied and sent.” Vivas, 392 Ill. App. 3d at 659. See also Erwin, 

408 Ill. App. 3d at 281 (“it has become well recognized by our courts that given our current 

state of technology *** documentary evidence can be copied and transported easily and 

inexpensively”); Woodward, 368 Ill. App. 3d at 834 (“the location of documents is not 

significant because documents can be transported with ease and at little expense”); Glass, 

393 Ill. App. 3d at 836-37 (“there should be little difficulty encountered in securing 

documentary evidence, given that current technology allows documents to be copied and 

transported easily and inexpensively”); Ammerman, 379 Ill. App. 3d at 890 (“the location of 

documentary evidence has become less significant because today’s technology allows 

documents to be copied and transported easily and inexpensively”). Thus, this factor also 

does not favor transfer. 

¶ 53 In sum, where “potential witnesses and evidence [are] scattered among different 

states,” we cannot find that the trial court abused its discretion in concluding that this factor 

“did not tilt in favor” of transfer. Vivas, 392 Ill. App. 3d at 659. See also Erwin, 408 Ill. App. 

3d at 280 (defendant Motorola “failed in its burden to establish that the relative ease of 

obtaining such ‘scattered’ testimonial evidence weighed strongly in favor of dismissal and 

transfer”); Woodward, 368 Ill. App. 3d at 834 (where “potential trial witnesses are scattered 

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among different forums, including the plaintiffs’ chosen forum,” this factor does not favor 

transfer). 

¶ 54 C. Practical Problems 

¶ 55 The last private interest factor is a consideration of “ ‘all other practical problems that 

make trial of a case easy, expeditious, and inexpensive.’ ” Langenhorst, 219 Ill. 2d at 443 

(quoting Guerine, 198 Ill. 2d at 516); Dawdy, 207 Ill. 2d at 172; see also Vivas, 392 Ill. App. 

3d at 658. 

¶ 56 First, with respect to the intrastate part of defendant’s motion, to move the suit from 

Cook County to Lake County, this court finds that this factor does not favor transfer. With 

respect to this factor, this author has previously found: 

“This court, which is located in Chicago, Cook County, may take judicial notice 

of the fact that Lake County is adjacent to Cook County and that many people 

commute every day from Lake County to work in Chicago. Ill. R. Evid. 201(b) (eff. 

Jan. 1, 2011) (‘A judicially noticed fact must be one not subject to reasonable dispute 

in that it is *** generally known within the territorial jurisdiction of the trial court 

***.’); Ill. R. Evid. 201(c) (eff. Jan. 1, 2011) (‘A court may take judicial notice, 

whether requested or not.’). The close proximity of the two counties, and the many 

roads and trains between the two, reduces any practical problems. Speigelman v. 

Victory Memorial Hospital, 392 Ill. App. 3d 826, 844 (2009) (observing ‘the close 

proximity of Lake County to Cook County’); Huffman v. Inland Oil & Transport Co., 

98 Ill. App. 3d 1010, 1018 (1981) (‘arguments regarding convenience to the parties 

and the witnesses [are] of little merit where the Missouri forum suggested by 

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defendant was only 15 miles from the chosen forum’).” Susman, 2015 IL App. (1st) 

142789, ¶ 31. 

¶ 57 As far as the interstate portion of the transfer motion, we have already discussed most 

of the issues above. In addition, we observe that, as shown by the addresses on the 

documents filed by defendant, defendant’s law firm is based in both Chicago, Illinois, and St. 

Louis, Missouri. In fact, the specific attorneys who represented defendant, both in the court 

below and on this appeal, are located in Chicago and St. Louis, thereby easing issues with 

respect to the Missouri plaintiff and suit in Cook County. While little weight should be 

accorded the location of the movant’s attorney on a forum non conveniens motion, “a court 

may still consider it in the forum non conveniens analysis.” Vivas, 392 Ill. App. 3d at 660. 

See also Dawdy, 207 Ill. 2d at 179 (“a court may consider this factor”); Woodward, 368 Ill. 

App. 3d at 835 (“We also note that the defendants’ counsel of record have offices in Illinois. 

Although not a significant factor, we may consider it in our analysis.”). 

¶ 58 Third, defendant argues repeatedly about what the “history of the Depakote litigation 

has taught us” and what it has learned from other cases. However, when plaintiffs argue that 

Cook County is a convenient forum for defendant as shown by its past litigation here, 

defendant argues that consideration of other cases should not be a factor in a forum non 

conveniens motion. This court has found that claims based on “a defendant’s prior litigation 

experience *** lack[ ] merit.” Ammerman, 379 Ill. App. 3d at 888. This is “because forum 

non conveniens claims are heavily dependent upon the facts of each case and accordingly 

‘must be decided pursuant to an “individualized, case-by-case consideration of convenience 

and fairness.” ’ ” Ammerman, 379 Ill. App. 3d at 888 (quoting Gridley v. State Farm Mutual 

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Automobile Insurance Co., 217 Ill. 2d 158, 168 (2005), quoting Van Dusen v. Barrack, 376 

U.S. 612, 622 (1964)). 

¶ 59 For all the foregoing reasons, we find that the trial court did not abuse its discretion in 

finding that the private interest factors did not favor transfer. 

¶ 60	 IV. Public Interest Factors 

¶ 61 When deciding a forum non conveniens motion, a court must also consider the public 

interest factors. These factors include: “(1) the interest in deciding controversies locally; (2) 

the unfairness of imposing trial expense and the burden of jury duty on residents of a forum 

that has little connection to the litigation; and (3) the administrative difficulties presented by 

adding litigation to already congested court dockets.” Langenhorst, 219 Ill. 2d at 443-44 

(citing Guerine, 198 Ill. 2d at 516-17); Gridley, 217 Ill. 2d at 170; Dawdy, 207 Ill. 2d at 173. 

See also Vivas, 392 Ill. App. 3d at 660. 

¶ 62 First, we consider the respective forums’ interests in deciding these controversies and 

the fairness of imposing jury duty on the forums’ residents. Although both Missouri and 

Colorado obviously have an interest in an injury to their citizens, Illinois also has an interest 

in deciding whether a corporation, whose principal place of business and headquarters are 

here, sent forth a product that injured citizens across the nation. The residents of a forum 

“have an interest in ensuring the safety of the products that its corporations build and ship 

throughout the world, particularly when one of those corporations has its world headquarters 

here.” Vivas, 392 Ill. App. 3d at 661. See also supra ¶ 18. 

¶ 63	 In its brief to this court, defendant argues that plaintiffs “do not dispute” that Missouri 

and Colorado law applies. However, before the trial court, plaintiffs argued that the choiceof-law issue was “premature” and that “a choice-of-law analysis is necessary only if there is 

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a difference between the relevant laws of different states.” Thus, defendant is incorrect to the 

extent that it claims that plaintiffs have conceded this issue. In addition, “[a] choice-of-law 

determination is required only when a difference in law will make a difference in the 

outcome.” Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 155 (2007). As we noted 

before, defendant has the burden of proof, and it has not argued that a choice-of-law 

determination will make a difference in the outcome of this suit. 

¶ 64 Even if were to assume that Missouri and Colorado law applied, the choice-of-law 

factor would not change our finding on appeal. “Although choice-of-law issues are a factor to 

consider, they are not usually dispositive.” Vivas, 392 Ill. App. 3d at 662. “An Illinois court 

is competent to determine which law applies to this controversy and to apply the law of [a 

foreign forum], if necessary.” Woodward, 368 Ill. App. 3d at 837. Thus, we cannot find that 

this factor tilts in favor of transfer. 

¶ 65 Lastly, we must consider “the administrative difficulties presented by adding 

litigation to already congested court dockets.” Langenhorst, 219 Ill. 2d at 444 (citing 

Guerine, 198 Ill. 2d at 516-17). Cook County courts are generally more congested than Lake 

County courts. Hackl v. Advocate Health & Hospitals Corp., 382 Ill. App. 3d 442, 453 

(2008) (“we recognize that Cook County does have more cases filed than Lake County and 

also takes more time for those cases to reach verdict”). See also Susman, 2015 IL App (1st) 

142789, ¶ 36 (“Plaintiff did not argue in the court below or before this court that Cook 

County is less congested [than Lake County], nor could he.”). Cf. Guerine, 198 Ill. 2d at 525 

(observing that “Cook County circuit court is more congested” than other Illinois county 

circuit courts). However, “[c]ourt congestion is a relatively insignificant factor.” Guerine, 

198 Ill. 2d at 517. 

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¶ 66 Thus, we cannot find that the trial court abused its discretion in finding that the public 

factors did not favor transfer. 

¶ 67 CONCLUSION 

¶ 68 With respect to defendant’s forum non conveniens motion, plaintiffs argue that 

defendant’s decisions regarding product labeling and marketing occurred in Illinois where 

defendant is headquartered, while defendant emphasizes that plaintiffs and their treating 

physicians are located outside of Illinois. We have carefully considered and weighed every 

factor in the forum non conveniens doctrine, with respect to both interstate and intrastate 

transfer, and we cannot find that the trial court abused its discretion by denying defendant’s 

motion. 

¶ 69 Affirmed. 

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