New Year, New Ways To Fight The FNC Battle In Illinois Fennell v. Illinois Central Railroad Co.

A recent Illinois Supreme Court case represents an encouraging turn for aviation defendants in a state where it has been nearly impossible to achieve dismissal on forum non conveniens grounds in foreign aviation accident cases. The asbestos case of Fennell v. Illinois Central Railroad Co., 2012 IL 113812 (Dec. 28, 2012) involved a forum non conveniens motion brought by the defendant where the plaintiff resided in Mississippi, the injury occurred in Mississippi or Louisiana, the defendant maintained offices in Mississippi and Tennessee, and the only connections to Illinois were the location of the attorneys' offices, some documentary evidence, and the location of one of the plaintiff's experts. In reversing the appellate and circuit court decisions denying dismissal on forum non conveniens grounds, the Illinois Supreme Court articulated the requirement that courts look at all public and private factors in the forum non conveniens analysis, and not focus on only one or two factors. While recognizing the trial court's discretion in ruling on forum non conveniens motions, the court chastised the circuit court for failing to recognize several private and public factors in its analysis. In ordering dismissal in favor of a Mississippi forum, the court noted "far less deference" should be given to the plaintiff's choice of an Illinois forum where the plaintiff does not reside, and the cause of action did not arise, in Illinois.

Although in the asbestos context, Fennell's emphasis on considering all public and private factors in the forum non conveniens analysis is a promising shift for aviation defendants trying to avoid an historically plaintiff-friendly forum. The Illinois State Court seems to be always open to aviation accident cases, no matter how little connection to Illinois the cases bear. Past attempts by aviation products liability defendants at achieving dismissal on forum non conveniens grounds have had little success. In 2009, the...

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