Supreme Court Summaries

Opinion filed December 28, 2012

Fennell v. Illinois Central R.R. Co., 2012 IL 113812

Appellate citation: 2012 IL App (5th) 100504.


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

      Justices Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

      Chief Justice Kilbride dissented, with opinion, and dissent upon denial of rehearing, with opinion.

      Justice Thomas took no part in the decision.


      The railroad that is the defendant in this asbestos litigation does business in Illinois and there is no dispute that venue was proper in St. Clair County, the county in which it was sued. Walter Fennell is the lead plaintiff in the action, which includes 80 additional plaintiffs and which sought relief under the Federal Employers’ Liability Act, or FELA. Defendant’s alleged negligence was in exposing its employees to asbestos.

      The railroad was originally sued in 2002 in Mississippi, where plaintiff lived and worked and was allegedly exposed to asbestos. He had also worked for the railroad in Louisiana. In 2006, after discovery, the circuit court in Mississippi dismissed the action without prejudice, but the plaintiff did not refile there. Instead, in 2009, he refiled his action in Illinois, in the circuit court of St. Clair County.

      The Illinois Central Railroad sought to have the suit dismissed under the interstate doctrine of forum non conveniens, but the St. Clair County circuit court denied the motion and the appellate court affirmed in 2010. In this decision, the supreme court said that the circuit court had not looked at all of the factors to which it should have given consideration. The results below were reversed as an abuse of discretion.

      The supreme court said that the citizens of St. Clair County should not be asked to bear the burden of this lawsuit. In addition, the vast majority of the identified witnesses, including treating physicians, are located in Mississippi and are not subject to Illinois subpoenas. Although the St. Clair County circuit court, in denying the motion, cited “almost 80 years of relevant evidence as to the defendant’s knowledge of the exposure to asbestos” that were held by the defendant’s Belleville law firm located in the county, the supreme court ruled that such documents can be copied and that this is not sufficient to tip the balance as to the proper forum.

      The defendant’s motion to dismiss the action in favor of a Mississippi forum should have been granted, and the cause was remanded to the circuit court for entry of a dismissal.