MT. VERNON — A state appeals court's recent decision to ship off to Maryland a lawsuit over allegedly defective pelvic mesh may boost hopes of businesses trying to stave off forum shopping by out-of-state plaintiffs seeking a friendly venue in which to air their claims.

In December, a three-justice panel of the Illinois Fifth District Appellate Court in southern Illinois declared a St. Clair County judge abused his discretion in denying a request by a defendant company to make the plaintiffs, who were from Maryland, try the case in their own home state.

The defendant, American Medical Systems Inc. (AMS), appealed the circuit court’s decision to deny its motion to dismiss on the basis of forum non conveniens, which is a power courts hold to dismiss a case when they believe that another court, or forum, would be more suitable to hear the case. 

“I think eventually the court was able to make the right decision because, at the time they rendered the decision in December 2017, most of the plaintiffs had settled their claims, so there were only a couple of plaintiffs left, and the doctrine of forum non conveniens, which means ‘an inconvenient forum,’ was applicable,” Kevin Hara, an attorney at Reed Smith in San Francisco, told the Cook County Record.

The case was originally filed in May 2012 in the St. Clair County Circuit Court. In the beginning, the case included 75 plaintiffs from 23 states, and they filed a joint multi-count product liability suit, alleging the defendants, AMS and Endo Pharmaceuticals, a subsidiary of AMS, manufactured and sold defective pelvic mesh products that caused severe health problems following surgical implantation. 

The plaintiffs also alleged the defendants had concealed unreasonably dangerous risks posed by their products. The plaintiffs claimed venue was proper in St. Clair County because the defendants had promoted and sold their products there. Also, one of the plaintiffs had her pelvic mesh implanted at Memorial Hospital in Belleville in St. Clair County. 

In June 2012, AMS filed a motion to sever the plaintiffs’ causes of action, maintaining they had been improperly joined. AMS also filed a motion to dismiss or transfer on the basis of wrongful venue. 

In its motion, AMS noted the plaintiffs had not alleged either defendant was a resident of St. Clair County. AMS also asserted, if the circuit court granted its motion to sever, all plaintiffs other than the one from St. Clair County would lack a proper legal or factual basis upon which to establish venue in St. Clair County.  

Eventually, 73 of the 75 plaintiffs settled. When only two plaintiffs were left, Paula and Earl Conway of Essex, Md., the case was set for trial. Citing forum non conveniens, in July 2016 AMS filed a motion to dismiss. The company argued the Conways had no connection to St. Clair County. The circuit court denied the motion and AMS appealed. The appellate court ruled in the company's favor.

Hara said such forum shopping is common. Attorneys will try to get their cases in the court where they think they will achieve the best result.

Hara thinks the decision is interesting for several reasons, including its winding and difficult procedural history and the appellate court's eventual decision. 

"They arrived at the correct decision based on the law and the facts that were applicable,” he said. 

Hara doesn’t believe the outcome was negative for any of the parties. 

“The court will weigh public and private interest factors, such as the location of witnesses, the location of the evidence, convenience of the parties - and all of those factors weighed in favor of transferring the case to Maryland," he said. "They weren’t saying that they were dismissing the case. They were allowing the case to be transferred to Maryland.”

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