                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                       Taylor v. Lemans Corp., 2013 IL App (1st) 130033




Appellate Court            JACK TAYLOR, Plaintiff-Appellee, v. LEMANS CORPORATION, a
Caption                    Foreign Corporation, MOOSE RACING, a Foreign Corporation, PARTS
                           UNLIMITED, a Foreign Corporation, and GIBBS MOTOR
                           CORPORATION, an Illinois Corporation, Defendants-Appellants.



District & No.             First District, Second Division
                           Docket No. 1-13-0033


Filed                      October 15, 2013


Held                       The appellate court upheld the denial of defendants’ motion to transfer
(Note: This syllabus       the venue of plaintiff’s product liability action for the injuries he suffered
constitutes no part of     when the front tire on his motocross-style bike blew out upon landing
the opinion of the court   after executing a jump, since the trial court did not abuse its discretion in
but has been prepared      finding that defendants did not establish that Cook County, the venue
by the Reporter of         chosen by plaintiff, was inconvenient to them and that Bureau County,
Decisions for the          the scene of the accident, was more convenient to the parties.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 2012-L-6987; the
Review                     Hon. Moira S. Johnson, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Lewis Brisbois Bisgaard & Smith LLP, of Chicago (Ronald W. Payne, of
Appeal                     counsel), for appellants.

                           Kralovec, Jambois & Schwartz, of Chicago (Jeffrey C. Schwartz, of
                           counsel), for appellee.


Panel                      JUSTICE HARRIS delivered the judgment of the court, with opinion.
                           Presiding Justice Quinn and Justice Simon concurred in the judgment and
                           opinion.




                                             OPINION

¶1          Defendants Lemans Corporation, Moose Racing, Parts Unlimited, and Gibbs Motor
        Corporation (collectively defendants) appeal from the order of the circuit court denying their
        motion to transfer plaintiff Jack Taylor’s product liability complaint to another county on the
        grounds of forum non conveniens. On appeal, defendants contend the trial court erred in
        denying their motion to transfer where (1) it gave undue deference to Taylor’s choice of
        forum; and (2) it incorrectly required defendants to show that each factor considered in the
        balancing test used to determine forum non conveniens strongly favored a transfer. For the
        foregoing reasons, we affirm.

¶2                                         JURISDICTION
¶3         The trial court’s denial of a motion to transfer pursuant to the doctrine of forum non
        conveniens is the basis for an interlocutory appeal under Illinois Supreme Court Rule
        306(a)(2) (eff. Feb. 16, 2011). The trial court denied the motion to transfer on December 7,
        2012. Defendants filed their petition for leave to appeal on January 4, 2013. Accordingly, this
        court has jurisdiction pursuant to Rule 306(a)(2) and 306(c)(1) governing interlocutory
        appeals by permission. Ill. S. Ct. R. 306(a)(2), (c)(1) (eff. Feb. 16, 2011).

¶4                                         BACKGROUND
¶5           Taylor is a resident of Lewiston, Illinois, in Fulton County. He owned a motocross-style
        bike that he purchased in Iowa. On July 9, 2009, in East Peoria, Illinois, he purchased an
        aluminum rim tire with compliant spokes for the bike. On July 11, 2010, Taylor took his bike
        to the Sunset Ridge MX MotoCross course (Sunset Ridge) located in Walton, Illinois, in
        Bureau County. While riding the bike, Taylor performed a jump and upon landing the front
        tire blew out causing him to fall and suffer an injury. Taylor was taken to a nearby hospital
        in Princeton, Illinois, in Bureau County, for immediate treatment but the majority of his

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       treatment and care took place in Peoria, Illinois, in Peoria County, with Dr. Piero Capecci
       of Great Plains Orthopedic. The bike is now located in Du Page County, Illinois.
¶6          Nick Spierowki of Farmington, Illinois, and Evan Palmer of Lewiston, Illinois, witnessed
       the accident. Both cities are located in Fulton County. Josh Pistal of Walnut, Illinois, also
       witnessed the accident. Walnut is located in Bureau County. Taylor’s treating physician
       immediately after the accident was Dr. Gregg Davis, who practiced at Perry Memorial
       Hospital in Princeton, Illinois. Princeton is also located in Bureau County.
¶7          On June 21, 2012, Taylor filed a defective product complaint in Cook County against
       defendants alleging strict liability, negligence, and breach of implied warranties. Defendants
       Lemans Corporation, Moose Racing, and Parts Unlimited are Wisconsin corporations with
       their principal place of business in Janesville, Wisconsin. Defendant Gibbs Motor
       Corporation is an Illinois corporation with its principal place of business in Rock Falls,
       Whiteside County, Illinois.
¶8          Defendants filed a motion to transfer venue pursuant to Illinois Supreme Court Rule 187
       (Ill. S. Ct. R. 187 (eff. Jan. 4, 2013)), on the basis of forum non conveniens. The motion
       requested a transfer to Bureau County, Illinois. Defendants argued that Bureau County was
       a more appropriate forum because the accident occurred there and an inspection of the
       premises would be easier if the case was tried in that county. Also, Taylor was treated by
       medical personnel and taken to a hospital in Princeton, the Bureau County seat. The expected
       medical witnesses reside in either Bureau or Peoria County. Bureau County is also more
       convenient for the eyewitnesses, all of whom reside in either Fulton or Bureau County.
       Furthermore, the residents of Bureau County have a greater interest in, and should bear the
       costs and responsibilities of, a trial involving an accident that occurred on a motorbike course
       located in Bureau County. In addition, defendants argued that Bureau County’s court docket
       is substantially less congested than Cook County’s docket.
¶9          In response, Taylor argued that Cook County was more convenient for defendants and
       all parties had retained counsel from Cook County. Although Bureau County is a more
       convenient location for the medical witnesses, access to the medical evidence was easily
       available regardless of the location of the evidence. Taylor also argued that the site of the
       accident holds less significance in this case because he is alleging product liability and
       breach of warranty claims, making a site visit to the motorbike course unnecessary.
       Furthermore, the accident took place in 2010 and “it is highly unlikely that the dirt course
       at Sunset Ridge MX is in the same condition [now] as it was at the time of the accident.”
       Moreover, since he is alleging product liability and breach of warranty, placing the burden
       and costs of a trial on Cook County residents was fair since they have a general interest in
       resolving a claim involving an allegedly defective product that can be purchased in at least
       18 locations throughout Cook County. Taylor also argued that court congestion “is a
       relatively insignificant factor” and the record does not show that Bureau County would
       resolve the case more quickly than Cook County.
¶ 10        On December 7, 2012, the trial court denied the motion. The trial court issued a thorough
       10-page order in which it acknowledged that deference is given to the plaintiff’s choice of
       forum and therefore if defendants seek a transfer pursuant to the doctrine of forum non


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       conveniens, they must show that relevant private and public interest factors strongly favor
       their choice of forum.
¶ 11        In evaluating the private interest factors, the trial court noted that Cook County is not
       Taylor’s place of residence, nor is it the location of the accident. It determined that although
       Taylor’s choice of forum will be given less deference as a result, the court will still accord
       deference to his choice. The trial court also determined that defendants failed to show that
       Taylor’s chosen forum is inconvenient to defendants and another forum is more convenient
       to all parties. None of the parties are located in defendants’ chosen County of Bureau
       whereas the Wisconsin defendants are approximately the same distance from Cook County
       (110 miles) as from Bureau County (113 miles). Defendant Gibbs, however, is located only
       56.6 miles from the Bureau County courthouse but almost 132 miles from the Richard J.
       Daley Center in Cook County. The witnesses are scattered among various counties, and
       defendants did not present affidavits from any witnesses stating that Taylor’s chosen forum
       is inconvenient. The court also noted that Taylor’s bike is stored in Du Page County, which
       is next to Cook County. The trial court also found that since the claim is one of product
       liability and breach of warranties, a site visit was unnecessary and therefore the location of
       the accident site held less significance.
¶ 12        The trial court then analyzed the public interest factors. It found that the interest in
       deciding a controversy locally and the imposition of the expenses of trial did not “weigh
       strongly in favor of a transfer.” Although the accident occurred in Bureau County, the trial
       court reasoned that Taylor’s complaint is one of product liability and “the site of an accident
       caused by the allegedly defective product is less important because any local interest is
       largely supplanted by a more general interest in resolving a claim concerning an allegedly
       defective product and jury views of the accident site are generally unnecessary.” The trial
       court also noted that Moose Racing and Parts Unlimited had “many dealer locations within
       Cook County” and no dealer locations in Bureau County, although it acknowledged that
       where defendants merely conduct business does not necessarily affect the forum non
       conveniens issue. The trial court found that the court docket in each county also did not
       justify a transfer. In 2011, for cases with verdicts over $50,000, Cook County received 426
       cases that took 35.1 months to reach a verdict. In comparison, Bureau County received only
       one case but it took 20.7 months to reach a verdict. Since the factors, as a whole, did not
       strongly favor a transfer, the trial court determined that Taylor’s choice of forum would
       prevail and denied defendants’ motion to transfer. Defendants filed this timely appeal.

¶ 13                                          ANALYSIS
¶ 14       Forum non conveniens is an equitable doctrine founded in considerations of fundamental
       fairness that allows a trial court to decline jurisdiction when another forum “ ‘would better
       serve the ends of justice.’ ” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441
       (2006) (quoting Vinson v. Allstate, 144 Ill. 2d 306, 310 (1991)). The trial court, however,
       should exercise its authority “only in exceptional circumstances when the interests of justice
       require a trial in a more convenient forum.” (Emphasis in original.) Id. at 442. Furthermore,
       the doctrine recognizes that the plaintiff has a substantial interest in choosing a forum to


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       vindicate his rights. First American Bank v. Guerine, 198 Ill. 2d 511, 517 (2002). The trial
       court has broad discretion to determine a motion based on forum non conveniens and a
       reviewing court will not overturn the trial court’s determination absent an abuse of
       discretion. Lagenhorst, 219 Ill. 2d at 442. The trial court abuses its discretion when no
       reasonable person would take the view adopted by the trial court. Dawdy v. Union Pacific
       R.R. Co., 207 Ill. 2d 167, 177 (2003).
¶ 15        When a defendant challenges plaintiff’s choice of forum, the trial court conducts an
       unequal balancing test to determine whether plaintiff’s chosen forum prevails. Due to the
       deference accorded plaintiff’s choice of forum, in most cases his choice will prevail unless
       inconvenience factors associated with the chosen forum “greatly outweigh” plaintiff’s
       substantial right to choose where to try his case. Guerine, 198 Ill. 2d at 520. The trial court
       considers both private and public interest factors in making its determination. “[P]rivate
       interest factors include (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.” Id. at 516. “Public interest
       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.
¶ 16        In conducting its analysis, the trial court does not emphasize any single factor nor does
       it weigh the private interest factors against the public interest factors; rather, it evaluates the
       total circumstances of the case. Id. The defendant bears the burden of showing that the
       relevant private and public interest factors “strongly favor” defendant’s choice of forum. Id.
       at 444. In other words, the defendant must show that plaintiff’s chosen forum is inconvenient
       to defendant and that another forum is convenient to both parties. Id. The defendant,
       however, cannot argue that plaintiff’s chosen forum is inconvenient to plaintiff. Guerine, 198
       Ill. 2d at 518. “Unless the factors weigh strongly in favor of transfer, the plaintiff’s choice
       of forum should rarely be disturbed.” Dawdy, 207 Ill. 2d at 173.
¶ 17        Before addressing the merits of this appeal, we note that defendants did not provide
       transcripts of the hearing on their motion to transfer or an appropriate alternative pursuant
       to Illinois Supreme Court Rule 323 (eff. Dec. 13, 2005). As the appellant, defendants bear
       the burden of presenting a sufficiently complete record of the proceedings below to support
       their claims of error. Foutch v. O’Bryant, 99 Ill. 2d 389, 391 (1984). Therefore, we presume
       that the trial court had sufficient factual basis for its holding and its determination conforms
       with the law. Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 157 (2005). Furthermore, we
       resolve any doubt associated with the incomplete record against defendants. Foutch, 99 Ill.
       2d at 392.
¶ 18        Defendants generally complain that in making its determination, the trial court “accorded
       substantially more than the minimal deference” it should have given to Taylor’s forum
       choice. Although Taylor’s decision to file in Cook County is given less deference because
       he is neither a resident of Cook County nor did the accident occur in Cook County, the
       deference accorded is only less as opposed to none. Guerine, 198 Ill. 2d at 518. The test used
       to resolve forum non conveniens issues is an unequal balancing test whereby the plaintiff’s

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       choice of forum is “already in the lead” and intrastate transfer is proper only when the case
       has no practical connection to, or no nexus with, the chosen forum. Id. at 521. In its order the
       trial court stated that it would grant less deference to Taylor’s choice, but that his choice only
       commanded less deference as opposed to none. In reviewing the basis for its ruling in the
       order, we cannot say that the trial court accorded undue deference to Taylor’s forum choice
       when it applied the unequal balancing test. Therefore, we turn to the issue of whether the trial
       court abused its discretion in denying defendants’ motion to transfer.
¶ 19        The trial court first considered the private interest factors. Regarding the convenience of
       the parties, none of the parties reside in Cook County or Bureau County, the defendants’
       chosen forum. Also, the distance of each county’s courthouse is approximately the same for
       the Janesville, Wisconsin, defendants, although the trial court acknowledged that defendant
       “Gibbs Motor Corporation is located only 56.6 miles from the Bureau County Courthouse
       but nearly 132 miles from the Richard J. Daley Center.” However, defendants did not obtain
       an affidavit from Gibbs stating that Cook County would be inconvenient.
¶ 20        Regarding the relative ease of access to sources of testimonial, documentary, and real
       evidence, the medical witnesses are located in Peoria and Bureau Counties, and the
       occurrence witnesses reside in Fulton and Bureau Counties. None of the witnesses reside in
       Cook County. However, defendants did not obtain affidavits from any witnesses stating that
       Cook County would be inconvenient. Ammerman v. Raymond Corp., 379 Ill. App. 3d 878,
       890 (2008). Defendants must show that Taylor’s chosen forum is inconvenient to them and
       that another forum is more convenient to all parties. Guerine, 198 Ill. 2d at 518. Furthermore,
       where witnesses are scattered among various counties and the litigation has ties to more than
       one forum, the trial court does not abuse its discretion in denying a motion to transfer based
       on forum non conveniens. Ammerman, 379 Ill. App. 3d at 885.
¶ 21        In addition, defendants here have not argued any practical problems or impediments to
       accessing documentary or testimonial evidence. Witness testimony could be obtained
       through deposition, and computer technology and Internet access render the location of
       documentary evidence a less significant convenience consideration. Ammerman, 379 Ill.
       App. 3d at 890. Furthermore, the parties have retained counsel based in Cook County.
       Although the location of the attorneys carries little weight in the analysis, “it may nonetheless
       be considered.” Id. at 890-91. Also relevant but not determinative in itself, Taylor’s bike is
       located in Du Page County, which is adjacent to Cook County. Defendants have not shown
       that the private interest factors strongly favor a transfer to Bureau County.
¶ 22        Public interest factors to consider include the interest in deciding controversies locally,
       and the unfairness of imposing trial expense and the burden of jury duty on residents of a
       forum that has little connection to the litigation. Residents generally have a greater interest
       in deciding controversies involving accidents that occur in their county. Dawdy, 207 Ill. 2d
       at 183. Also, the possibility that the trial court may find a jury visit to the site of the accident
       appropriate is an important consideration. Id. at 178-79. As the location of the accident,
       Bureau County appears to prevail when we look at these factors.
¶ 23        However, we must note that Taylor’s complaint against defendants centers on product
       liability claims including negligence in the manufacture and design of a product, failure to


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       warn consumers of the faulty product, strict liability, and breach of implied warranties.
       Where the primary issue is one of product liability, the location of the accident is less
       significant “because any local interest is largely supplanted by a more general interest in
       resolving a claim concerning an allegedly defective product.” Ammerman, 379 Ill. App. 3d
       at 886. Also, since a jury visit to the accident site is generally unnecessary, the significance
       of this factor is diminished in product liability claims. Hinshaw v. Coachmen Industries, Inc.,
       319 Ill. App. 3d 269, 277 (2001). See also Brown v. Cottrell, Inc., 374 Ill. App. 3d 525, 534
       (2007) (finding that a jury view of the accident site was unnecessary because product liability
       claims “are not inherently local in flavor”). Although not determinative by itself, the fact that
       defendant Moose Racing has 18 dealers and Parts Unlimited has 12 dealers located in Cook
       County, and no dealer locations in Bureau County, is relevant. As this court reasoned in
       Ammerman, “Cook County certainly has an interest in resolving a controversy concerning
       the sale of an allegedly defective product by companies conducting business in its forum.”
       Ammerman, 379 Ill. App. 3d at 892; Hinshaw, 319 Ill. App. 3d at 278.
¶ 24        The final public interest factor to consider is court congestion. The number of cases on
       the court docket in Cook County is obviously greater than that of Bureau County, but not
       necessarily congested. However, this factor alone “is not sufficient to justify transfer of
       venue when none of the other relevant factors weigh strongly in favor of transfer.” Dawdy,
       207 Ill. 2d at 181.
¶ 25        Balancing the private and public interest factors and evaluating the totality of the
       circumstances, the trial court concluded that defendants have not sufficiently shown that
       Cook County is inconvenient to them and that Bureau County is more convenient to all
       parties. We find that the trial court did not abuse its discretion in denying defendants’ motion
       to transfer venue.
¶ 26        Defendants disagree, arguing first that the trial court erred in applying the unequal
       balancing test when it required defendants to prove that each relevant private and public
       interest factor strongly weighs in their favor. As support, defendants point to the trial court’s
       order in which it stated that defendants “failed to meet their burden in showing this factor
       strongly favors” transfer, and “failed to show that the first two [public] factors strongly weigh
       in favor of transfer to Bureau County.” In reviewing the order, however, it appears that the
       trial court was merely evaluating the strength of each factor and whether a particular factor
       weighed strongly in favor of transfer. There is no indication the trial court improperly
       weighed the factors in conducting its final analysis. Instead, throughout its order, it
       emphasized that it must “evaluate the totality of the circumstances in determining whether
       the balance of factors strongly favors transfer.” We again note that defendants did not include
       transcripts of the hearing on their motion to transfer or an appropriate alternative. We
       therefore presume that the trial court had sufficient factual basis for its holding and its
       determination conforms with the law. Mervis Industries, 217 Ill. 2d at 157. We also resolve
       any doubt associated with the incomplete record against defendants. Foutch, 99 Ill. 2d at 392.
¶ 27        Defendants contend that the trial court should have given more weight to the fact that the
       accident occurred in Bureau County and numerous witnesses reside nearer to Bureau County
       while none reside in Cook County, Taylor’s medical care took place in or near Bureau
       County, and defendant Gibbs Motor Corporation resides closer to Bureau County than to

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       Cook County. The trial court has broad discretion in determining a motion to transfer based
       on forum non conveniens, and it is not the function of a reviewing court to substitute its
       judgment for that of the trial court. Ferguson v. Bill Berger Associates, Inc., 302 Ill. App. 3d
       61, 70 (1998). Our only function is to determine whether the trial court abused its discretion.
       Id. As stated above, defendants have not obtained any affidavits from witnesses stating that
       Cook County would be an inconvenient forum. See Ammerman, 379 Ill. App. 3d at 890.
       Location of documents associated with medical witnesses is less significant due to the
       technology available today. Id. Also, the underlying action is centered on a product liability
       claim and all of the defendants except for Gibbs Motor Corporation have a presence in Cook
       County and sell their products there. The record contains no affidavit from Gibbs Motor
       Corporation stating that Cook County would be inconvenient. The trial court did not abuse
       its discretion in finding that the balance of relevant factors, when viewing the totality of the
       circumstances, does not strongly favor transfer of venue to Bureau County.
¶ 28        Defendants also argue that although Taylor’s claim frames this case as one of product
       liability, making the necessity of viewing the site of the accident less of a concern, the jury
       viewing factor will have more significance here. Defendants contend that they plan to file
       affirmative defenses and a third-party complaint alleging that the dangers of the Sunset Ridge
       course itself caused Taylor’s injuries. At this point, however, defendants have not filed any
       pleadings adding Sunset Ridge as a defendant. Also, as Taylor points out, defendants have
       raised this issue for the first time on appeal. Issues not raised before the trial court may not
       be raised for the first time on appeal, and are deemed waived by a reviewing court. Haudrich
       v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996).
¶ 29        For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 30      Affirmed.




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