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The proper venue or forum for a Plaintiff’s suit is an ever-changing and frequently litigated dispute. The recent case in Illinois’ First District Appellate Court in Malloy v. DuPage Gynecology, 2021 Il App (1st) 19202 (September 30, 2021), provided a less than favorable result for Defendants, on both venue and forum. However, the opinion provides some insight—particularly in venues that are in close physical proximity—that more specific information needs to be provided for a court’s analysis in several of the key forum components. (As always, this begs the question for defense counsel whether a forum motion should even be entertained.)

The Case

In Malloy, Plaintiff sued his wife’s gynecologists, their practice, and Allergan, the manufacturer of Estrace, a product used to treat menopausal changes. Defendant physicians and their practice were located and practiced exclusively in DuPage County. Plaintiff also resided in DuPage County, and all of the decedent’s medical treatment took place in DuPage County. However, Allergan sold its product and had an Illinois registered agent in Cook County. Malloy §10, 12. Therefore, at the time that the Complaint was filed, venue was proper as only one defendant must reside in the county for the entire cause to pass venue muster. (Here, the Allergan agent being registered in Cook County was enough to keep the matter in Cook County.)

Analysis of Venue Rulings

Two months after the Complaint was filed, Allergan moved for dismissal pursuant to Section 5/2-619, arguing the claims against it were barred by the learned intermediary doctrine and that its warnings for the medication were adequate. Plaintiff did not object, and the motion dismissing Allergan with prejudice was entered by the trial court.

Immediately, the remaining Defendants moved to change venue. §10. Both the trial and ultimately the Appellate courts, strictly construing the venue statute [735 ILCS 5/2-104(b)], held that since Defendant Allergan and not Plaintiff had moved for dismissal, venue was still proper in Cook County. The Courts noted that all objections to improper venue are waived by a defendant unless made at the time that they are required to appear. The only exception carved out is “if a defendant upon whose residence venue depends is dismissed upon motion of plaintiff, a remaining defendant may promptly move for transfer” [emphasis added] Here, because the motion was brought by Defendant Allergan, even though not objected to by Plaintiff, the Court would not allow the case to be transferred to DuPage County under venue. §33.

Analysis of Forum Rulings

Unfortunately, Defendants’ forum non-conveniens motion also met with a similar ruling. In detailing the relevant factors utilized in evaluating Defendants’ forum argument, both the trial and Appellate Courts relied heavily on the abuse of discretion standard that “no reasonable person could take the view that the trial court took.”

In the trial court’s eyes, the fact that the two counties at issue (Cook and DuPage) bordered each other made most of the forum factors being weighed a wash in—even though the injury, all of the care, and all of the parties (including Plaintiff) resided in DuPage County. The advent of technology (including the easy access of documents) and the lack of need to view premises were significant factors diminishing Defendants’ arguments. §13, 64.

The Appellate Court appeared to focus exclusively on Defendants’ lack of affidavits evidencing convenience factors for the witnesses in proceeding with trial in Cook County. The Court stated that Defendants failed to identify “any non-party witnesses that would be inconvenienced by trial in the adjacent county.” [emphasis added] §55,58.

Further, the Appellate Court clearly found that the medication prescribed by the Defendants in DuPage County was also being sold and distributed in Cook County. Therefore, the Court found a public interest in a jurisdiction where none of the relevant prescriptions were written. This created a public interest factor for a Cook County jury to decide the case, despite the fact the product manufacturer was dismissed from the case and Defendants never prescribed the medication in Cook County. §70.

The Takeaway

The Malloy case should serve as a guide in analyzing the viability and strength of a defendant’s forum motion, particularly in counties situated next to each other. Very specific and detailed information is necessary, per the findings in Malloy, in order to more strenuously argue the inconvenience factor. Arguably, this still may be an uphill battle. Therefore, in light of the new age of prejudgment interest, close analysis as to whether or not the forum motion should be brought and the time and costs associated with these motions particularly in light of the new age of prejudgment interest, should be carefully evaluated.

The unfortunate literal reading of the venue statute provides what seems to be an absurd result. Defendants who find themselves in similar situations—improper venue with the likelihood of an offending venue defendant being dismissed—should consider filling a motion to change venue with a request that the motion be stayed or continued until any co-defendant is dismissed.