author: JUSTICE GOLDENHERSH JUSTICE UNDERWOOD,

text:
    (No. 53175.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES DEVIN, Appellant.

      Opinion filed October 22, 1982.
    Rehearing denied January 28, 1983.

      UNDERWOOD, J., and RYAN, C.J., concurring in part and dissenting in part.
    George P. Lynch and Joseph M. Macellaio, of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Herbert Lee Caplan, Melbourne A. Noel, Jr., Thomas E. Holum, and Michael B. Weinstein, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a jury trial in the circuit court of Du Page County defendant, James Devin, was convicted of the murder of Scott Brunoehler, a fellow inmate in the Du Page County jail. Pursuant to section 9—1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(d)) the People requested a sentencing hearing. The jury found that there were present one or more of the aggravating factors set forth in section 9—1(b). Following the consideration of aggravating and mitigating factors the jury found that there were no mitigating factors sufficient to preclude a sentence of death (see Ill. Rev. Stat. 1979, ch. 38, par. 9—1(d)) and returned a verdict directing the court to sentence defendant to death. Defendant was sentenced, and the sentence was stayed (73 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill. 2d R. 603).

The testimony of several of the inmates of the tier in which defendant and the deceased were being held shows that defendant had suggested that there be a “blanket party” for Brunoehler. A blanket party was defined as a form of harassment in which a blanket is thrown over the victim and the victim is then punched and kicked through the blanket. On the day on which the blanket party occurred, one of the inmates had ripped a bed sheet into three strands and another inmate, Robert Gangestad, had started braiding the strands into a rope. Defendant, apparently dissatisfied with the way in which the strands were being braided, took over and braided the rope himself. That night defendant, accompanied by Billy Hopson and Robert Gangestad, went to Brunoehler’s bed. While Gangestad held Brunoehler’s arms and Hopson held his feet, defendant put the rope around Brunoehler’s neck and the remainder underneath his knee, and then fell on the rope. After Brunoehler’s body went limp, he was dragged to the dayroom and suspended from a lamp. Several inmates testified that they had seen various portions of this sequence of events or had heard gurgling noises which sounded like someone unable to breathe.

A jail guard testified that he saw Brunoehler’s body hanging in the dayroom. He climbed up the bars and cut the body down. The jail medical officer testified that he saw two rope burns on the right side of Brunoehler’s neck, one seemed to parallel the ground and the other slanted up toward the top of the neck.

An inmate testified that after Brunoehler’s death he was confined in the same tier as defendant. Defendant described the incident, and said that the victim’s eyes popping out, his face puffing up, and his urinating while choking to death were “really dynamite.” Defendant told him that he killed Brunoehler hoping that at first the authorities would think it was a suicide. Later, defendant planned to implicate two other inmates in the tier, who were notorious in Du Page County, and who defendant believed the State really wanted to have imprisoned for a long time. For his coming forward, defendant believed he would receive more lenient sentences for the armed robbery charges for which he was being held. Defendant explained that if the plan backfired he would probably be found guilty of voluntary manslaughter. The State would probably accept a plea bargain in order to avoid a jury trial. The witness admitted on cross-examination that he was defendant’s partner in a series of armed robberies of chain restaurants and that at the time of his arrest defendant had told the police that the witness was his accomplice. He stated that he received nothing from the State in consideration of his testimony.

The jury found defendant guilty of murder. At the second phase of the trial, the jury found at the time of the offense defendant was over 18 years of age and that he had murdered a fellow jail inmate. (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(b)(2).) At the third phase, the jury considered evidence in aggravation and mitigation and found no mitigating factors that would preclude the imposition of the death penalty.

Defendant’s first claim of error concerns the jury’s viewing of the portion of the jail where the offense was allegedly committed. At the conclusion of opening statements, the circuit court, defense counsel, defendant, and the State’s Attorney retired to the judge’s chambers to discuss the procedures to be followed in conducting the “view” to which defense counsel and the State’s Attorney had stipulated. The court and counsel discussed the path that the jury would take through the jail and what would be pointed out to them. After counsel had agreed to the procedure, the court asked if defendant was going to go with them. Defense counsel replied, “He will stay here but I am going.” The court asked if anyone wanted the court to go along, and the following colloquy ensued:

“MR. ANDERSON [assistant State’s Attorney]: No.
MR. EMERY [assistant State’s Attorney]: No.
MR. ANDERSON: Do you want the judge to go?
MR. HEIDECKE [defense counsel]: Are you going?
THE COURT: There is no reason I have to go, is there?
MR. HEIDECKE: Not that I know of.
MR. EMERY: We are not ordering the court to go.”

Defense counsel made no mention of any unusual or objectionable occurrence during the view, and no mention of the view was made in defendant’s post-trial motion.

Defendant contends that his constitutional rights to due process of law and confrontation were violated because the court ordered a view of the scene of the crime and did not attend the view; that when the jury viewed the premises defendant was not present and had not personally waived his right to be present; that a court reporter was not in attendance at the time; and that the jury was placed under the control of a deputy sheriff who was not appropriately sworn to protect the jury. The People contend any error resulting from the failure of the defendant and the circuit court to be present at the viewing of the jail premises was waived. On this record we could hold that the alleged error was waived, but in view of defendant’s contention that he was denied a substantial constitutional right, we elect to review it.

Because his absence might affect the fairness of the proceedings an accused has the right to be present at all stages of the trial. (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525.) At common law a viewing of the premises was not considered a part of the trial. (Snyder v. Massachusetts (1934), 291 U.S. 97, 107, 78 L. Ed. 674, 679, 54 S. Ct. 330, 335.) Our review of the authorities shows that only in those jurisdictions where a statute specifically requires the court’s presence during a viewing has its failure to be present been held to be error. (Compare State v. Rohrich (N.D. 1965), 135 N.W.2d 175, 180, and McCollum v. State (Fla. 1954), 74 So. 2d 74, 76-78 (en banc), with State v. Suber (1911), 89 S.C. 100, 101-02, 71 S.E. 466, 467, and State v. McClurg (1931), 50 Idaho 762, 792-95, 300 P. 898, 909-11; see also Annot., 47 A.L.R.2d 1227, 1228-29 (1956).) The record shows that the circuit court gave carefully detailed instructions concerning the manner in which the viewing was to be conducted and that defense counsel stated he would be present. Under the circumstances we find that no error resulted from the failure of either the court or the defendant to be present when the jury viewed the premises.

We have considered defendant’s arguments that comments made by the State’s Attorney during closing argument indicate that during the viewing there must have been considerable colloquy and discussion between the jury and the officer who was showing them the premises. Clearly the State’s Attorney’s comments were based on evidence adduced at the trial, and defendant’s contention, concerning the comments and colloquy is based on pure conjecture.

Citing Beck v. Alabama (1980), 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382, defendant contends that the circuit court erred in refusing to give two instructions on voluntary manslaughter submitted by defendant. In Beck the defendant was convicted of murder committed during the course of a robbery and sentenced to death. On review the Alabama Supreme Court affirmed. The Supreme Court reversed on the ground that the sentence of death may not be constitutionally imposed after a jury verdict of guilt of a capital offense when the jury was not permitted to consider a verdict of guilt of a lesser included noncapital offense when the evidence would have supported such a verdict. Beck is clearly distinguishable for the reason that the record shows that in this case the evidence would not have supported a verdict of manslaughter.

Defendant contends next that the circuit court erroneously refused to give an instruction on involuntary manslaughter. Defendant argues that there was “substantial” evidence supporting an involuntary-manslaughter instruction. Specifically, defendant states that uncontradicted testimony established that blanket parties did not ordinarily involve inflicting serious injury to the victim, and that “they” were not going to hurt Scott Brunoehler. The record shows that Hopson and Gangestad testified that they were surprised when defendant placed the rope around Brunoehler’s neck and “kneedropped” on the rope. In contrast, several witnesses testified that defendant admitted his intent to murder Brunoehler. There was no evidence to support the tendered instruction on involuntary manslaughter, and refusing to give it was not error.

Defendant contends that his constitutional rights to due process and effective assistance of counsel were denied him in that “agents” of the State’s Attorney’s office surreptitiously overheard conversations between defendant and his trial counsel and because the People purposely “placed” potential witnesses near defendant in order to obtain a confession from him. Defendant also suggests that the State attempted to prevent defendant from acquiring counsel after his indictment. We find nothing in the record to support these arguments, and we decline to consider them.

Defendant contends that his constitutional rights to representation by counsel and due process were violated by reason of ineffective assistance of counsel afforded him at trial by his court-appointed lawyer. He concedes that the record shows adequate preparation by trial counsel but argues that in a case where the death penalty could be imposed no lawyer should be appointed who has not tried at least 100 felony cases and 10 murder cases. We are in complete agreement that it is desirable to provide representation by experienced counsel, but we do not agree that defendant did not receive effective assistance of his trial counsel. The record shows thorough preparation, filing of numerous motions, making of many objections, many of which were sustained, and a thoroughly professional representation of defendant’s rights.

Defendant contends next that in permitting the introduction of evidence of other crimes the circuit court committed reversible error. An inmate testified that, while he and defendant were in jail, defendant admitted to murdering the victim and that defendant had told him that he wanted it to look like the victim committed suicide. Later, defendant planned to inform the authorities that the victim was murdered by two other inmates in the tier who were notorious in the county, whom defendant believed the People would be eager to prosecute for murder. As a reward for his information, defendant believed, the People would reduce his sentence for the charges pending against him. The witness asked him what he would do since the plan had obviously backfired. Defendant replied that this possibility had been contemplated and that if the plan backfired he would get the State to accept his guilty plea for voluntary manslaughter since the State would be unwilling to present such a weak case. If the State refused, defendant would threaten to request a jury trial. After an objection based on the narrative form of the testimony, the witness reiterated the defendant’s admission, but this time specifically mentioned that the pending charge was for armed robbery. Defense counsel objected and moved for a mistrial because of the reference to pending charges. The People argued that the reference to pending charges was necessary to the witness’ testimony. The State’s Attorney told the court that he had told the witness to refer to the armed-robbery charges as “pending charges,” and offered to remove the witness from the stand and again admonish him to refer to the armed-robbery charges as “pending charges.” The court agreed to send the jury to the jury room and admonish the witness accordingly, but defense counsel stated that he would have to “go into it now.” Trial resumed and the court did not admonish the witness. On cross-examination, defense counsel attacked the witness’ credibility on the ground that he was angry at defendant because defendant had given the police the witness’ name when defendant was apprehended for the armed robberies that he and the witness had committed together.

We find no error in the admission of the testimony concerning the armed robberies. Defense counsel’s statements during the discussion in the judge’s chambers indicate that he was objecting “to any mention of the pending charge ***.” The testimony was admissible in order to show defendant’s motive. (People v. Lindgren (1980), 79 Ill. 2d 129, 137, citing People v. McDonald (1975), 62 Ill. 2d 448.) While we agree that reference to “pending charges” is preferable to the specific reference to armed robbery, the objection was to any reference to other crimes no matter what the form. The reference to armed robbery, rather than “pending charges,” was not so prejudicial as to require reversal.

Defendant also alleges that the circuit court’s instruction to the jury to limit their use of evidence of other crimes to proper purposes “merely highlighted the improper admission of unrelated criminal occurrences ***.” In light of our conclusion that the reference to armed robbery was not so prejudicial as to require reversal, we fail to see in what manner prejudice resulted from the giving of the instruction.

Defendant contends that the circuit court erred in permitting the State’s Attorney to make comments in closing argument which penalized defendant for exercising his right to counsel. He argues that the error is of constitutional proportions. The record shows that another inmate in the jail testified concerning the occurrence which resulted in Brunoehler’s death. He refused to talk to the officers who sought to interrogate him until he had spoken with a lawyer. In closing argument, defense counsel stated:

“[This inmate] said, I wanted to see my lawyer. Mr. Anderson suggests, well, he wants to go to his lawyer to — I don’t know what he suggests. I know why he went to see his lawyer. I know why people come to me as a criminal lawyer before they are ever charged because they are afraid. They have something to hide. They need a lawyer, and I think the reason they needed a lawyer is because they thought they were in trouble.
They had goaded and kidded and caused Scott Brunoehler to hang himself.
They were participants. They were afraid and they thought they were criminally culpable, and they wanted to see a lawyer. Am I in trouble?
* * *
If they really saw what they say they saw, they would have said so, not wait three or four days later. They didn’t have to go see their lawyers.”

In closing argument, the State’s Attorney responded:

“Mr. Heidecke [defense counsel] says, well, I’m a lawyer, I know. Why do they want to talk to a lawyer? Because they are guilty of something. ***
* * *
*** Is every single person who consults a lawyer guilty of something? That appears to be the inference from what Mr. Heidecke is saying and I say to you, Mr. Heidecke is here. Mr. Heidecke is a lawyer. He is appearing in this case. He has been consulted by someone.”

In our opinion the comments of defense counsel invited the complained-of statement. (People v. Vriner (1978), 74 Ill. 2d 329, 344; cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858.) Defendant argues that the instant case is distinguishable because defendant did not take the stand and therefore the prosecution’s remarks, even if invited, violated defendant’s fifth and sixth amendment rights. We fail to see how the quoted statements relate to defendant’s fifth amendment right to remain silent. The fact that the invited comment relates to the right to be represented by counsel does not preclude the People from responding.

Defendant contends next that his right to a fair trial was violated because the People suggested to the jury that they find defendant guilty because his codefendant, Billy Hopson, had pleaded guilty. Throughout the trial defense counsel argued that Scott Brunoehler committed suicide because his fellow inmates had encouraged him to do so, and that the witnesses were testifying against defendant because, among other reasons, he was considered a “snitch.” In closing argument defense counsel argued that Billy Hopson knew that he could get the death sentence if he was found guilty of murdering Brunoehler; that even though Brunoehler’s death was a suicide, Hopson, because he did not want to gamble with a death penalty agreed to a 20-year sentence in exchange for testifying against defendant. The People argued that defendant’s suicide theory was implausible because no man would admit to a murder that never occurred and spend even two years extra in prison, let alone 20. No objection was made to this argument.

The prosecution may not directly or indirectly suggest that the jury should find a defendant guilty because a codefendant has pleaded guilty. (People v. Sullivan (1978), 72 Ill. 2d 36, 41-42.) This, however, is not what occurred here. The State’s Attorney argued that defendant’s contention that no crime had occurred at all because the victim committed suicide was implausible because another individual would not have pleaded guilty to a crime that never occurred. We do not interpret this to suggest that defendant was guilty because Hopson pleaded guilty; rather, it suggests that defendant was guilty because his theory of the facts was unbelievable. Additionally, unlike Sullivan, the prosecutor did not bring out for the first time in closing argument the fact that a codefendant had pleaded guilty but did so in refuting defense counsel’s theory of why the defendant’s codefendant pleaded guilty.

Upon review of the foregoing contentions of error we conclude that the record reflects no error which requires reversal of the conviction and the judgment insofar as defendant is convicted of the offense of murder is affirmed.

We consider now defendant’s contentions concerning the sentencing hearing. Defendant contends first that the aggravating circumstance which the jury found to be present does not fall within the ambit of section 9—1(b)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b)(2)). Insofar as pertinent here section 9—1(b)(2) provides:

“(b) *** A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:
* * *
2. the murdered individual was an employee of an institution or facility of the Department of Corrections, or any similar local correctional agency, killed in the course of performing his official duties, or the murdered individual was an inmate at such institution or facility and was killed on the grounds thereof, or the murdered individual was otherwise present in such institution or facility with the knowledge and approval of the chief administrative officer thereof.” (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b)(2).)

Defendant contends that the Du Page County jail is not an institution or facility to which this foregoing provision is applicable.

Defendant contends further that section 9—1(b)(2) of the Criminal Code of 1961 is unconstitutional because it is vague and indefinite. He refers to the statutory language and points out that the deceased was an inmate of the Du Page County jail and not of an institution or facility of the Department of Corrections. He argues that the indictment was “at total variance" with the statute. He argues further that the statute makes no reference to murders of inmates at county jails and that had the General Assembly intended that the statute apply under those circumstances it could very easily have so provided.

Sections 3—1—2(c) and (d) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, pars. 1003—1—2(c),(d)) provide that “correctional institution” means “any building or part of a building where committed persons are kept in a secured manner.” Section 2—14 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 2—14) provides that “penal institution” means a “penitentiary, state farm, reformatory, prison, jail, house of correction, or other institution for the incarceration or custody of persons under sentence for offenses or awaiting trial or sentence for offenses.”

Section 5—7—3 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—7—3(b)) permits commitment under a sentence of periodic imprisonment for a felony, inter alia, to the sheriff, in which event a prisoner would be confined in the county jail. “A cardinal rule of statutory construction ordains that sections in pari materia should be considered with reference to one another so that both sections may be given harmonious effect.” (People v. Scheib (1979), 76 Ill. 2d 244, 250.) It is presumed that in enacting the statutes under consideration the General Assembly was aware that commitments of convicted felons would be made to the sheriff and that under those circumstances the prisoner would be an inmate of a “similar local correctional agency.” (People v. Manning (1979), 76 Ill. 2d 235, 241.) We hold, therefore, that the circuit court did not err in its ruling that section 9—1(b)(2) was applicable as an aggravating factor which could invoke the death penalty proceedings.

Defendant argues that the introduction of testimony during the sentencing hearing (phase III) to the effect that there is no known treatment for persons with antisocial or sociopathic personalities permitted the jury to sentence defendant to death because he has an incurable disease. We disagree.

Three psychiatrists testified at the hearing. Dr. James L. Cavanaugh, Jr., a psychiatrist called by the People, testified that he diagnosed defendant as a sociopath, able to conform his conduct to the law but unwilling to do so. He did not agree with the diagnosis of schizoid personality contained in defendant’s military service record. He concluded that defendant was a sociopathic personality but found no dysfunction that impaired his ability to comprehend reality or distinguish right from wrong. Dr. Cavanaugh testified that there was no known treatment for individuals with sociopathic personalities other than biological treatments “outlawed by modem society.” When asked whether one’s upbringing or environment could cause schizophrenia, Dr. Cavanaugh explained that an individual must have the underlying biochemical problem associated with schizophrenia in order to become schizophrenic. Dr. Cavanaugh stated that defendant showed no indications of a psychotic or schizophrenic personality.

Dr. Lyle Rossiter, Jr., called by defendant, agreed that defendant was a sociopathic personality. He explained that the conscience’s function is to provide internal restraints and prohibitions against certain immoral, unethical, or antisocial behavior. On cross-examination, Dr. Rossiter stated that sociopaths are able to conform their conduct to “right,” but on occasion choose not to do so. Further, the individual with an antisocial personality often chooses to engage in criminal activity, and the “recidivist” criminal is often said to have a sociopathic element in his personality. Dr. Rossiter agreed that this type of personality is prevalent in the penal system. He admitted that, statistically, sociopaths would be more likely to commit murder than other segments of the population, but it was impossible to predict which sociopath might commit murder. He also stated that the antisocial personality that had already committed murder would be more likely to commit murder again. Dr. Kiran Frey, called by defendant, diagnosed defendant as a borderline schizophrenic, and testified that while defendant appreciated right from wrong and could conform to right, he had an impairment in his ability to conform to societal standards.

The State’s Attorney, in closing argument, stated that this information was relevant because it showed that defendant was likely to commit murder again, and that imposition of the death penalty was the only way to protect the Scott Brunoehlers of the world. In response to defense counsel’s characterization of the defendant as a sick person who should be removed from society but not executed because of his problem, the State’s Attorney argued that the personality disorder of sociopathy was nothing more than the personality known as the criminal mind, and that if defendant was capable of distinguishing right from wrong and conforming his behavior accordingly, but merely chose not to conform, he should be held fully accountable for his actions.

We do not agree that admitting this testimony permitted the jury to sentence defendant to death because he had an incurable disease. Dr. Cavanaugh explained that by the term “disorder” psychiatrists roughly meant to indicate any deviation from the expected order of things, and that any crime would indicate some type of disturbance or disorder. In this sense of the word, a person cannot escape punishment merely because he has a disorder. Carried to its extreme, defendant’s argument would suggest that no person committing a crime should be punished for that crime because he had a disorder as shown by the fact that he committed a crime.

The evidence is relevant to the related questions whether it is likely that the defendant’s crime will be repeated and whether he is likely to be rehabilitated. The psychiatric testimony, together with evidence of defendant’s inability to be content with leading a “straight” life and his long history of criminal activity, was relevant evidence concerning his character.

Defendant contends that his rights to a jury trial and due process were violated when the circuit court refused to impanel a new jury during the sentencing phases of the trial. Defense counsel at trial argued that he had lost his credibility with the jury because the suicide defense was so implausible, and requested a new jury be impaneled for the sentencing phases. The statute presumes that the sentencing hearing will be conducted before the jury that determined guilt unless that jury, “for good cause shown,” was discharged. The record reflects no basis to hold that the jury was unable to proceed fairly with the sentencing phases of the trial. We are unable to say that the circuit court erred in refusing to impanel a new jury.

In a motion to amend his brief, defendant contends that his rights under the fifth and sixth amendments were violated when Dr. Cavanaugh was permitted to testify concerning statements made by defendant during his examination. He contends that he was not specifically informed that any statements made during the fitness examination could be used against him at the sentencing stage of the trial. (See Estelle v. Smith (1981), 447 U.S. 934, 65 L. Ed. 2d 1129, 101 S. Ct. 1866.) No objection was raised at trial concerning Dr. Cavanaugh’s testimony, and thus the issue is waived on appeal. (People v. Gaines (1981), 88 Ill. 2d 342; People v. Lewis (1981), 88 Ill. 2d 129; People v. Carlson (1980), 79 Ill. 2d 564.) We note parenthetically that the record shows that Dr. Cavanaugh testified that prior to commencing the examination he told defendant that he could, and expected to, testify as to what defendant told him.

Defendant contends that his rights to due process were violated by reason of the fact that his codefendants were given penitentiary sentences. The record shows that Billy Hopson, also indicted for the murder of Brunoehler, at the time of the offense was serving a sentence of 90 days imposed for violation of probation for a misdemeanor theft conviction. He pleaded guilty to murder and was sentenced to 20 years in the penitentiary.

Robert Gangestad was serving 75 days in the Du Page County jail as a condition of probation on an aggravated-battery conviction. He was tried for murder, convicted and sentenced to 40 years in the penitentiary. There is little similarity between the prior criminal records of defendant and his codefendants. Furthermore, defendant’s role in the murder of Brunoehler was considerably different than theirs. The disparity in sentences did not cause a violation of due process.

Although we have found no error which requires reversal of the conviction for murder and do not agree that the alleged errors in the sentencing phase of the case heretofore discussed require reversal or remand, we nevertheless conclude that because the jury was permitted to consider certain information without adequate limiting instructions the sentence of death must be vacated and the cause remanded to the circuit court for resentencing.

The purpose of the aggravation and mitigation phase of the sentencing hearing is to insure that discretion in the area of sentencing be exercised in an informed manner. In Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978, the Supreme Court said:

“This Court has previously recognized that ‘[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.’ Pennsylvania ex rel. Sullivan v. Ashe [(1937), 302 U.S. 51, 55, 82 L. Ed. 43, 46, 58 S. Ct. 59, 61]. Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York [(1949), 337 U.S. 241, 247-49, 93 L. Ed. 1337, 1342-43, 69 S. Ct. 1079, 1083-84]; Furman v. Georgia [(1972), 408 U.S. 238, 402-03, 33 L. Ed. 2d 346, 443-44, 92 S. Ct. 2726, 2810-11] (Burger, C.J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles [(1958), 356 U.S. 86, 100, 2 L. Ed. 2d 630, 642, 78 S. Ct. 590, 597] (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” 428 U.S. 280, 304, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991.

It has long been the law in this jurisdiction that a sentencing court, vested with discretion as to the extent of punishment, must hear evidence in aggravation and mitigation. (See Ill. Rev. Stat. 1845, ch. XXX, par. 183.) This court, repeatedly, has emphasized the importance of excluding from consideration matters which might erroneously prejudice the sentencing authority. In People v. Riley (1941), 376 Ill. 364, the defendants had pleaded guilty to murder and were sentenced to death. In discussing evidence heard by the circuit court in aggravation and mitigation the court said:

“On a hearing of this kind the prosecutor is under both a legal and moral duty not to offer anything for the consideration of the trial judge which may be of doubtful competency and materiality. On this kind of a hearing the attorneys must be held accountable for the highest ethical standards and if it can be seen that a breach of such standards has prejudiced a defendant it must be expected that any sentence so attained will be set aside.” 376 Ill. 364, 367-68.
“Obviously the trial judge owes the same duty to the defendant to protect his own mind from the possible prejudicial effect of incompetent evidence that he would owe in protecting a jury from the same contaminating influence. The prosecutor in such circumstances owes the duty of not only protecting the defendant but also the judge from such prejudicial matter.” 376 Ill. 364, 369.

In People v. Crews (1967), 38 Ill. 2d 331, 337, the court said:

“Plainly, a judge with the solemn responsibility of determining the punishment of the convicted is to be encouraged to hear and consider all available and pertinent information concerning the person and the crime, so as to enable him to impose a punishment which is appropriate. However, before relying on such information the judge must determine its accuracy (see People v. O’Neil, 18 Ill. 2d 461, 466; People v. Serrielle, 354 Ill. 182), and he must take care to shield his mind from what might be the prejudicial effect of unreliable and other improper evidence. (See People v. Riley, 376 Ill. 364, 369.)”

In People v. La Pointe (1981), 88 Ill. 2d 482, 496, we quoted with approval from People v. Adkins (1968), 41 Ill. 2d 297:

“ ‘[A] sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.’ (41 Ill. 2d 297, 300.) While ‘the judge *** is not limited to considering only information which would be admissible under the adversary circumstances of a trial,’ he must ‘exercise care to insure the accuracy of information considered.’ 41 Ill. 2d 297, 300.”

Under the provisions of section 9—1(e) (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(e)) a jury hears and may consider information regardless of its admissibility under the rules governing the admission of evidence at criminal trials. Certainly the precautions taken to preclude the “contaminating influence” of improper information should be at least as great as those required by the foregoing authorities when the hearing is before the court. The testimony shows that a number of witnesses were permitted to testify concerning conversations with defendant. Defendant’s former wife testified that she had discussed with defendant the term “hit man” and that he had said that if he wanted anything done he could have it done and told her about the various nerves “that could hurt you real bad.” A third inmate, who was incarcerated with defendant in the Du Page County jail, stated that defendant told him “that you can take a small bladed knife and cut a person’s major nervous system that would leave him paralyzed” or “a vegetable for life.” He talked about a form of torture called “brain cookin,” in which a person is tied upside down, all of his hair is shaved off and a small fire is put under him and “it heats their head until their head blows up.” Another torture called the “gag treatment” in which some type of liquid detergent mixed with water is poured into a person’s mouth until the individual chokes. Another form of torture described by defendant was something called “slow kill,” in which a tent large enough to hold an automobile is used. An individual is placed in the tent behind an automobile near the exhaust pipe and is thereby suffocated. He further described a form of torture called “tug of war.” He quoted defendant as talking about having kicked Viet Cong officers out of a helicopter at 15,000 feet. Defendant also told the witness that he had caught Vietnamese girls stealing supplies out of a barracks and had inserted pipe flares in their vaginal cavities and ignited the pipe flares.

Another witness testified concerning a letter in which defendant stated “that he knew how to kill in cold blood and that he had already done so.” Another witness testified that defendant frequently talked to her about “contract killers,” and that he enjoyed killing people because it was good money.

The record shows that the psychiatrists who testified were in agreement that a sociopathic personality frequently engaged in fantasies and that much of the criminal conduct of a sociopathic personality resulted from efforts to carry out those fantasies. The jury heard the testimony concerning the conversations with defendant without being given a cautionary instruction that there was no corroborating evidence which tended to prove that any of the conduct described had in fact occurred. The jury was given no guidance that would assist them in the determination of whether the conversations to which the witnesses testified purported to recount actual occurrences or whether they were pure fantasy. Absence of such guidance would permit the jury to reach a conclusion as to defendant’s “character and propensities,” not on the basis of his conduct, but on the basis of his sociopathic fantasies. Under the extraordinary circumstances of this case and in view of the possibility that this may have occurred, we conclude that the circuit court did not, as required by the rule enunciated in Adkins and approved in LaPointe, “exercise care to insure the accuracy of information considered.”

For the reasons stated the judgment of conviction of murder is affirmed but the sentence of death is vacated. The cause is remanded to the circuit court of Du Page County for further proceedings consistent with this opinion.

Judgment affirmed; sentence vacated; cause remanded.

JUSTICE UNDERWOOD,

concurring in part and dissenting in part:

I agree with the majority’s conclusion that there was no error which requires reversal of the murder conviction, but I cannot agree that the fact the trial judge did not give a cautionary instruction requires reversal of the death sentence. Illinois law does not require such an instruction, the defendant neither sought nor tendered such an instruction at trial, and he does not even now argue that the absence of such an instruction is error. Nevertheless, in what I believe to be an unprecedented holding, my colleagues now say the trial judge’s failure to volunteer an instruction which no one ever suggested or requested constitutes reversible error. In my judgment the law is clear that regardless of whether the defendant’s multiple claims of torturing and killing, as revealed by the testimony at the sentencing hearing, were true or not, the testimony regarding those claims was significant, relevant and appropriate — if not essential — to an adequate consideration of the sentencing question by the jury. No cautionary instruction was either necessary or proper.

The majority indicates that the precautions taken to preclude the “contaminating influence” of improper information should be at least as great before a jury as in a bench trial. While such a statement is indisputable, the difficulty with the majority’s position is that no case cited in that opinion or found by me which considers the bounds of legitimate inquiry at a sentencing hearing suggests the need or use of a cautionary instruction when undisputed but uncorroborated testimony is considered. Instead, this court has approved consideration of a broad range of information from a wide variety of sources subject only to the sensible caveat that the judge must exercise care to ensure that the information is accurate. (See, e.g., People v. La Pointe (1981), 88 Ill. 2d 482; People v. Meeks (1980), 81 Ill. 2d 524; People v. Kelley (1970), 44 Ill. 2d 315, cert. denied (1970), 398 U.S. 954, 26 L. Ed. 2d 297, 90 S. Ct. 1881, cert. denied (1971), 403 U.S. 906, 29 L. Ed. 2d 683, 91 S. Ct. 2212; People v. Adkins (1968), 41 Ill. 2d 297.) The decisions of this court indicate that the judge’s duty to ensure accuracy is met by compliance with the traditional dictates of the adversarial process — a fair opportunity to the opponent to rebut the testimony and offer evidence of his own. People v. LaPointe (1981), 88 Ill. 2d 482; People v. Crews (1967), 38 Ill. 2d 331; People v. Mann (1963), 27 Ill. 2d 135; People v. O’Neil (1960) 18 Ill. 2d 461; People v. Riley (1941), 376 Ill. 364, cert. denied (1941), 313 U.S. 586, 85 L. Ed. 1542, 61 S. Ct. 1118.

Other jurisdictions also allow a wide range of information-including uncorroborated testimony unaccompanied by any cautionary instructions — to be considered during the sentencing process. The United States Supreme Court has strongly reaffirmed its stance that “ ‘ “a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” ’ ” Roberts v. United States (1980), 445 U.S. 552, 556, 63 L. Ed. 2d 622, 628, 100 S. Ct. 1358, 1362, quoting United States v. Grayson (1978), 438 U.S. 41, 50, 57 L. Ed. 2d 582, 589, 98 S. Ct. 2610, 2615, quoting United States v. Tucker (1972), 404 U.S. 443, 446, 30 L. Ed. 2d 592, 596, 92 S. Ct. 589, 591. See also Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978; Williams v. New York (1949), 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct. 1079.

Many of our sister States also require consideration of a broad range of information at the sentencing stage and, as do our opinions, regard the adversarial process as an adequate safeguard for the accuracy of information considered. See Nukapigak v. Slate (Alaska 1977), 562 P.2d 697; Fair v. State (1980), 245 Ga. 868, 873, 268 S.E.2d 316, 321, cert. denied (1980), 449 U.S. 968, 66 L. Ed. 2d 250, 101 S. Ct. 407, reh. denied (1981), 449 U.S. 1104, 66 L. Ed. 2d 831, 101 S. Ct. 903 (approved consideration of testimony detailing defendant’s conversations with jailmates, gloating over his misdeeds); Lottie v. State (1980), _ Ind. _, 406 N.E.2d 632; Commonwealth v. Frank (1977), 372 Mass. 866, 362 N.E.2d 895; Williamson v. State (Miss. 1980), 388 So. 2d 168; State v. Aby (1980), 205 Neb. 267, 287 N.W.2d 68; Lucas v. State (1980), 96 Nev. 428, 610 P.2d 727; State v. Marzolf (1979), 79 N.J. 167, 398 A.2d 849; State v. Pearce (1979), 296 N.C. 281, 250 S.E.2d 640; Dickinson v. Mueller (N.D. 1977), 261 N.W.2d 787; State v. Blight (1977), 89 Wash. 2d 38, 569 P.2d 1129.

As I understand the testimony in this case, defendant has said that in order to secure information from other Viet Cong prisoners he pushed Viet Cong officers out of high-flying helicopters in Viet Nam; that he also inserted, and then lighted, flares in the vaginas of Vietnamese women caught stealing; and that he spoke of various types of torture killing and indicated he enjoyed killing. The majority speculates that these things may only have been fantasized by defendant, and that a cautionary instruction (the content of which is left to the ingenuity of the judge and counsel) is required to avoid the otherwise prejudicial effect upon the jury of hearing evidence that the defendant claims to have committed these offenses.

In my opinion the majority overlooks the fact that the psychiatrists who testified in this case characterized defendant as a sociopathic personality who would be likely to attempt to carry out the fantasies which he experienced. It is readily apparent from this testimony that whether defendant actually did what he claimed to have done or not, the likelihood that he will pursue his fantasies poses a serious threat to society, evidence of which is clearly admissible in the sentencing hearing.

I would affirm the trial court’s judgment and sentence.

CHIEF JUSTICE RYAN joins in this partial concurrence and partial dissent.


source: Caselaw Access Project

author: JUSTICE MORAN JUSTICE SIMON,

license: Public Domain

text:
    (Nos. 55684, 56186.
    CINDY ZICK, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Shaklee Company, Appellee).

      Opinion filed December 17, 1982.
    Rehearing denied January 28, 1983.

      SIMON, J., dissenting.
    Gregory E. Bogus, of Brundage & Garr, Ltd., of Chicago, for appellant.
    Galliani & Kuzel, of Chicago (William R Galliani, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Claimant, Cindy Zick, filed two claims for injuries sustained on September 7 and 11 of 1979, while in the employ of respondent, Shaklee Company. The causes were consolidated, and the arbitrator denied compensation as to each claim. With regard to the September 7 incident, he concluded that claimant “failed to prove that she sustained any disability as the result of said accidental injury.” Claimant was denied continuing temporary total compensation for the injury sustained on September 11 because she “failed to prove that the present condition of ill being is causally related to the injury.” The Industrial Commission affirmed the denial of compensation, and the circuit court of Cook County confirmed the decision of the Commission. The claimant brought a consolidated appeal directly to this court pursuant to Rule 302(a)(2). (73 Ill. 2d R. 302(a)(2).) However, she directs our attention only to that decision denying compensation for the injury sustained on September 11.

The sole issue on review is whether the Commission’s decision is contrary to the manifest weight of the evidence.

The evidence indicates that, prior to 1979, claimant had never experienced any problems related to her feet. On September 7 of that year, while employed by respondent as a stock clerk, claimant’s left foot became caught between two pallets. As a result, she fell over some boxes and twisted her ankle. Claimant received medical attention at St. Francis Hospital. Her ankle was examined, X-rayed, and wrapped in an Ace bandage. She received no further medical attention for this injury. Claimant returned to work on September 11, and she testified that her ankle felt fine at that time.

During the afternoon of September 11, a forklift “lowered” on her left foot, allegedly resulting in the injury for which compensation is sought. Her supervisor applied cold packs to her foot, after which claimant returned to St. Francis Hospital. Her foot was again examined, X-rayed and wrapped in a bandage. She returned to work that afternoon. Although she worked the following day, she left early because of pain and swelling in her foot. Claimant has not since returned to work.

On September 14, she visited Holy Cross Hospital, where her foot was examined and medication prescribed. On approximately this same date she also consulted Dr. George Kotcher, her family physician. He prescribed pain medication, advised her not to work for a few weeks, and requested that she telephone him in three weeks. She never called him but instead, on her mother’s recommendation, consulted Dr. Gerald Quinlan on October 23, 1979. Dr. Quinlan, a podiatrist, examined and X-rayed her foot, administered medication, and prescribed whirlpool and sensor-sound treatment. Claimant continued to see him four times each week. She received injections in her left foot for two or three weeks.

In November of 1979, Dr. Quinlan advised that she consult Dr. Stephen Smith, a doctor of podiatric medicine. He arranged her admittance in Northlake Hospital that December and performed surgery on her left foot. Her sesamoid bones, which are small bones located in the tendons, were removed, and a metal pin was inserted in her left great toe. Following her release from the hospital, she continued to see Dr. Smith approximately once each week. However, claimant’s condition failed to improve, and she was required to undergo surgery on two further occasions. Claimant testified that she still suffers extreme pain, and that her foot swells, runs a fever, and is subject to a discoloration which extends to her knee.

In addition to claimant’s testimony, she introduced into evidence the deposition of Dr. Smith. He stated that, in his opinion, claimant sustained an injury to the sesamoid bones in her great toe joint. Based upon her history and exhibited symptoms, he believed that the injury was caused by trauma and was not a congenital condition. Dr. Smith indicated that surgery was performed in December because claimant’s foot was not responding to the more conservative treatment of steroid injections and immobilization.

He further stated that he saw claimant again in February. At that time, there was diffused pain in her left foot, accompanied by swelling, stiffness and hyperalgesia (extreme sensitivity to pain). He determined that she had developed reflex sympathetic dystrophy, a condition which is triggered by an injury and results in fibrosis of the muscles, stiffness in the joints, pain, and an atrophy of the bone. Because of her perceived condition, an operation which Dr. Smith termed a “regional sympathetic block” was performed. He has continued to see the claimant following surgery and believes that she is unable to return to work.

On cross-examination, Dr. Smith stated that, in his opinion, claimant suffered from a separated or fractured tibia or sesamoid bone in her left foot, a condition resulting from trauma. He did not recall if there was any callus formation in the area of the injury. Nor did he recall if there was a congenital bipartite lateral sesamoid beneath the bone of the first metatarsal. Dr. Smith described a bilateral sesamoid as a congenital condition in which the sesamoid bone develops in two pieces instead of one. He did not believe she had this condition because it is not painful. Finally, Dr. Smith did not recall if there was a separation of sesamoids in the right foot. He indicated that such a condition could be relevant to a comparative diagnosis. He also stated that the condition of reflex sympathetic dystrophy was not present prior to surgery. He later qualified this statement and testified that there was insufficient information, prior to the first operation, to support a diagnosis.

Respondent introduced into evidence the depositions of two doctors. Dr. William Fischer, a physician specializing in orthopedic surgery, stated that he examined the claimant in March of 1980 and reviewed the roentgenologist’s report relating to her X ray taken on September 11. The report stated that the “[ejxamination of the left great toe reveals no evidence of a recent fracture, dislocation or osseous [bone or joint] pathology.” Dr. Fischer concurred with the roentgenologist’s report. He stated that claimant suffered from a congenital bipartite lateral sesamoid bone beneath the distal first metatarsal of the left foot. This condition is characterized by the smooth margins and concentric trabecular lines of the two bone pieces. He stated that, if the bone were fractured, the bone margins would be rough and the trabecular line would be broken. Further, between September and November of 1979, there was no callus formation or other indicia of healing characteristic of a fracture.

Dr. Fischer further stated that, in the absence of a fracture, the surgery was unnecessary and “may be iatrogenic.” He defined “iatrogenic” as a condition caused by overtreatment. He indicated that there was no relationship between the original injury and her current condition, except that the September incident is where “it all started.” “But where it’s gotten from there is a considerable difference.” In his opinion, claimant now suffers from an entrapment of the medial plantar nerve in the great toe, which precipitates considerable pain and resulting disability. This condition has no relationship to the original injury in September. Finally, Dr. Fischer indicated that claimant’s acute symptoms would have eventually subsided “just by conservative care, rest, and a bandaging of [the foot].” On cross-examination, he reiterated his opinion that it is highly unlikely that claimant’s condition of ill-being was caused by the incident in September.

Dr. William Meszaros, a physician specializing in radiology, was also deposed by respondent. He did not examine claimant but did review her X rays. He concurred with Dr. Fischer’s analysis that claimant suffered from a bipartite lateral sesamoid bone beneath the distal first metatarsal of the left foot. He stated that this was a relatively rare congenital anomaly which was not caused by any trauma. In his opinion, there was no evidence of any fracture. On cross-examination, Dr. Meszaros stated that the X rays did not reveal any injury to the soft tissue of the left foot. On redirect examination, he indicated that such a condition would be visible on an X ray only if it reached “a certain degree.”

Claimant states that the arbitrator found there is no causal relationship between the injury and her present condition of ill-being. She infers from these findings that the arbitrator determined she is disabled as a result of a work-related injury. We find nothing in the record to support this inference. Building upon this false premise, she argues that the arbitrator must have found there was no causal relationship because her disability was precipitated by an intervening cause. Claimant asserts that the only intervening cause supported by the record was the possible mistreatment of her injury by Drs. Smith and Quinlan. She cites International Harvester Co. v. Industrial Com. (1970), 46 Ill. 2d 238, for the proposition that a causal relationship between the injury and disability is sufficiently established where the treatment would not have been rendered but for the original injury.

Respondent notes that Dr. Smith stated he treated claimant for a fracture which resulted from trauma. However, Drs. Fischer and Meszaros indicated that her disability was due to a congenital anomaly for which she received improper medical treatment. It is therefore argued that there is no causal relationship between claimant’s disability and the incident of September 11.

As can be seen, the arbitrator did not state the basis upon which he concluded claimant’s injury and disability were not causally related. Claimant did not request specific findings. Although respondent’s evidence established a possible mistreatment of her condition, this was not the real issue before the arbitrator. The question was whether her disability resulted from trauma, or whether it was due to a congenital anomaly aggravated by medical mistreatment.

Matters of causation and other questions of fact are to be decided by the Commission. (See Ross v. Industrial Com. (1980), 79 Ill. 2d 258, 261.) Similarly, “where there is conflicting medical testimony it is for the Commission to determine which testimony it will prefer and accept.” (Pathfinder Co. v. Industrial Com. (1976), 62 Ill. 2d 556, 567-68; White v. Industrial Com. (1982), 88 Ill. 2d 523, 526; see also Fernandez v. Industrial Com. (1978), 71 Ill. 2d 283, 286-87.) This court may not set aside the Commission’s decision even though we may draw different inferences from the record. (White v. Industrial Com. (1982), 88 Ill. 2d 523, 526; Swift & Co. v. Industrial Com. (1967), 37 Ill. 2d 145, 147.) The Commission’s decision will be reversed only where it is contrary to the manifest weight of the evidence. General Electric Co. v. Industrial Com. (1982), 89 Ill. 2d 432, 435; see Howard v. Industrial Com. (1982), 89 Ill. 2d 428, 431.

As previously noted, claimant’s physician stated that her disability was due to a fracture caused by trauma. Respondent’s physicians indicated that she suffered from a mistreated congenital anomaly which was unrelated to the incident of September 11. The Commission chose to believe respondent’s evidence, and we cannot say that this decision was contrary to the manifest weight of the evidence.

Claimant next argues that, even if her treating physicians were guilty of malpractice, respondent remains liable. She cites several cases which hold an employer is liable for new injuries, or for the aggravation of an injury, due to medical malpractice. (E.g., Huntoon v. Pritchard (1939), 371 Ill. 36; Lincoln Park Coal & Brick Co. v. Industrial Com. (1925), 317 Ill. 302.) Further, she points out that she was obligated to seek medical treatment, and it would be unfair to deny her recovery if her disability resulted from such treatment.

Respondent submits that claimant advanced the malpractice issue to obscure the fact that she received treatment in response to a congenital condition. It further argues that the treatment was unreasonable and unnecessary, and that therefore the employer should not be held responsible for claimant’s current disability.

Claimant’s malpractice argument must fail. As claimant concedes, many of the relevant cases involved malpractice committed by doctors who were provided by the employer, or to whom an employee was referred by the employer. Contrary to claimant’s contention, this court, in awarding compensation, emphasized the fact that the doctor was selected by the employer.

For example, in Lincoln Park Coal & Brick Co. v. Industrial Com. (1925), 317 Ill. 302, cited by the claimant, the respondent required an employee to undergo a medical examination conducted by a doctor that respondent selected. During the examination, and as a result of the doctor’s negligence, the employee was burned by an X-ray machine. In holding the injury compensable, this court stated:

“[Respondent] refused to pay further compensation until the nature, extent and probable duration of the disability could be ascertained, and required [claimant] to submit to an examination by a physician of its selection to determine that question. If there had been no injury there would have been no examination, and if there had been no examination there would have been no burn. The burn resulted in the examination which the law authorized [respondent] to require to be made to ascertain whether [claimant] was entitled to further compensation for the injury ***.” 317 Ill. 302, 306-07.

Similarly, in Kivish v. Industrial Com. (1924), 312 Ill. 311, respondent’s insurance company refused to compensate claimant for a work-related injury unless he underwent hospital treatment. While in the hospital, claimant contracted influenza and subsequently died. In holding that claimant’s death was caused by his original injury, this court reasoned:

“[I]t is not possible to determine definitely and absolutely whether the injuries received by him were the proximate cause of his death. Two things are certain: one, that he was severely injured in the line of his employment and that he never recovered from those injuries; and the other, that he went to the hospital for treatment in compliance with the demands of the insurance company which was paying the compensation due the injured employee from his employer. We have held that while the employee must submit to proper treatment at the request of the employer or forfeit his right to compensation, the employer is, on the other hand, liable for the consequences of a surgical operation to which the injured employee submits in compliance with the employer’s demand. (Mt. Olive Coal Co. v. Industrial Com., 295 Ill. 429; Joliet Motor Co. v. Industrial Board, 280 id. 148.)” 312 Ill. 311, 316-17.

In the instant case, claimant voluntarily submitted to treatment by a physician of her choice. Where such treatment results in a disability unrelated to an injury sustained during employment, it would be unjust to hold the respondent liable. Cf. Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 238 (the likelihood that plaintiff’s chosen doctor would inflict emotional distress is plaintiff’s risk, not the employer’s).

For these reasons, we do not find that respondent is liable to claimant for continuing temporary total compensation. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

JUSTICE SIMON,

dissenting:

I believe that the determination that the September 11 injury did not cause claimant’s later symptoms is against the manifest weight of the evidence and contrary to law. I would reverse and remand to the Industrial Commission for computation of disability benefits.

I disagree first with the majority’s conclusion that claimant’s symptoms prior to her surgery in December 1979 were due to a congenital condition of the sesamoid bones rather than to an injury suffered at work. In view of the uncontradicted evidence that Miss Zick felt pain in that area after the two accidents at work but felt none before, combined with Dr. Smith’s testimony that the congenital deformity alluded to by Drs. Fischer and Meszaros could not cause pain by itself, I find it difficult to escape the conclusion that the accidents caused the pain. Drs. Fischer and Meszaros, on whose testimony the Industrial Commission relied, merely pointed out that there was no fracture of the sesamoid bones. The fact remains that claimant felt pain severe enough to induce her to undergo two operations in 1979. The absence of a fracture does not mean that there was no pain. Discomfort can be caused by a wide variety of things other than a bone fracture; Dr. Fischer in fact attributed the pain to an entrapment of the medial plantar nerve in the great toe, and stated in answer to a question as to whether there was any relation between the September 1979 accidents and her condition following the later operations, “I have to say that it all started in September, of course. I mean that’s self evident.” As the record reveals no testimony that the congenital condition alone could have caused pain, a possibility which is by no means self-evident, I would hold any determination that it did to be against the manifest weight of the evidence. See Brooks v. Industrial Com. (1979), 78 Ill. 2d 150, 155-56.

I disagree on a more fundamental level, however, with the majority’s holding that even if claimant’s current disability was caused by an operation induced by work-related pain, she cannot recover for it if the choice of doctors was her own. This stark limitation is a departure from our workers’ compensation statute (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) and has no precedent in our common law.

Professor Larson, in his treatise on workmen’s compensation, notes that it is “now uniformly held that aggravation of the primary injury by medical or surgical treatment is compensable” (1 A. Larson, Workmen’s Compensation sec. 13.21, at 3—384 (1978)) and notes, citing an Illinois case (Duvardo v. Moore (1951), 343 Ill. App. 304), that this maxim is often used to support holdings that a claimant cannot sue in tort for malpractice because the workmen’s compensation remedy is exclusive (1 A. Larson, Workmen’s Compensation sec. 13.21, at 3—389 (1978)). Claimants have recovered under workers’ compensation even where the “medical treatment” consisted of the claimant’s own application of home remedies (Tierney v. Independent Warehouse Co. (1962), 16 A.D.2d 844, 227 N.Y.S.2d 548) or of his submission to the advice or physical treatment of a co-employee who was not a doctor (Fishman v. S.W. Layton, Inc. (1954), 284 A.D. 165, 130 N.Y.S.2d 656 (advice); State ex rel. Adriatic Mining Co. v. District Court (1917), 137 Minn. 435, 163 N.W. 755 (treatment); Cline v. Studebaker Corp. (1915), 189 Mich. 514, 155 N.W. 519 (treatment)), on the theory that the supposed remedy would not have been resorted to had it not been for the pain caused by the original work-related injury. According to Larson, it is only where the claimant knowingly chooses to be treated by a charlatan rather than a medical doctor that a break in the chain of compensable consequences should be found. See 1 A. Larson, Workmen’s Compensation sec. 13.21, at 3—395 (1978).

The cases in Illinois are not to the contrary. This court uses a “but-for” test to determine whether an initial work-related injury causes a subsequent injury for which compensation is sought. (International Harvester Co. v. Industrial Com. (1970), 46 Ill. 2d 238, 245.) The International Harvester decision, in announcing this rule, noted that “[c]lear illustrations of this chain of causation relationship are cases where a second injury occurs due to treatment for the first” (46 Ill. 2d 238, 245). This strong observation formed the holding in several cases, decided both before and after International Harvester. (See Brooks v. Industrial Com. (1979), 78 Ill. 2d 150; Shell Oil Co. v. Industrial Com. (1954), 2 Ill. 2d 590; Huntoon v. Pritchard (1939), 371 Ill. 36; Lincoln Park Coal & Brick Co. v. Industrial Com. (1925), 317 Ill. 302; Kivish v. Industrial Com. (1924), 312 Ill. 311.) The claimant in Brooks was employed by a hospital but sought treatment from doctors at another hospital, apparently on her own initiative; that did not prevent this court from ruling an injury resulting from such treatment compensable. It is unclear from the opinion in Huntoon who selected the doctor, while in Shell Oil one but not both of the doctors involved had been selected by the employer. Yet neither of those decisions attached any significance to whose doctor was involved or whose idea it was that the claimant consult him. Only in Lincoln Park Coal and Kivish was an issue made of this, the court in the former case observing:

“[Respondent] refused to pay further compensation until the nature, extent and probable duration of the disability could be ascertained, and required [claimant] to submit to an examination by a physician of its own selection to determine that question. If there had been no injury there would have been no examination, and if there had been no examination there would have been no burn.” (317 Ill. 2d 302, 306.)

However, nothing in Lincoln Park Coal or Kivish states or even suggests that the but-for connection found in those cases would not exist where the employer did not provide or recommend a doctor or condition further payment of benefits on visiting such a doctor. The later cases I have cited did not interpret Lincoln Park Coal or Kivish as being so limited. To follow those two decisions as narrowly as the majority does here, with no further discussion of their rationale, is to make the unrealistic assumption that injured employees do not voluntarily consult doctors of their own choice without some prodding from their employers.

In this case the claimant made a natural and understandable response to pain in her foot: she consulted several licensed medical doctors of her choice, as it was her statutory right to do (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a)), and agreed to surgery by one of them. As long as the pain was initially related to her work, what difference does it make who selected the doctors? The risk of mistreatment, though slight, is present whenever one consults a doctor. The majority opinion is likely to result in employers being less willing to recommend doctors to their injured employees for fear that their recommendation will lead to liability for further benefits in case such mistreatment occurs. Some employees may be unfamiliar with the medical community in their city and may therefore be dependent on such a recommendation for prompt relief. I feel that the law should encourage employers to be solicitous with regard to the health of their employees, rather than discouraging such concern as the majority has done here. I therefore dissent.


author: JUSTICE MORAN JUSTICE GOLDENHERSH,

text:
    (No. 55829.
    MARGARET JONES et al., Appellees, v. SEARLE LABORATORIES et al., Appellants.

      Opinion filed December 17, 1982.
    Rehearing denied January 28, 1983.

      GOLDENHERSH and SIMON, JJ., dissenting.
    Sidley & Austin, of Chicago (Howard J. Trienens, William P. Richmond, Michael W. Davis, and Stephen V. Beyer, of counsel), for appellants.
    Kenneth C. Miller, of Chicago, and Walter H. Walker III, of the Law Offices of Gerald C. Sterns, of San Francisco, California, for appellees.
    Tyrone C. Fahner, Attorney General, of Springfield (Paul P. Biebel, Jr., and Kathryn A. Spalding, Assistant Attorneys General, of counsel), amicus curiae.

    Gordon B. Nash, Jr., and Laura J. Jones, of Gardner, Carton & Douglas, of Chicago (Arthur M. Wright, of counsel), for amicus curiae Illinois Tool Works, Inc.
    Reuben L. Hedlund and Sean F. O’Shea, of Hedlund, Hunter & Lynch, of Chicago, for amicus curiae Sears, Roebuck & Co.
    Roger F. Lewis, of Deerfield, for amicus curiae Baxter Travenol Laboratories, Inc.
    Lord, Bissell & Brook, of Chicago (R. R. McMahan and Hugh L. Moore, of counsel), for amicus curiae Abbott Laboratories.
    John M. Cannon and Susan W. Wanat, of Chicago, for amici curiae Chicago Association of Commerce & Industry, Illinois Manufacturers’ Association, and Mid-America Legal Foundation.
   JUSTICE MORAN

delivered the opinion of the court:

Numerous plaintiffs, all of whom are residents of the United Kingdom, filed separate suits against Searle Laboratories (defendant) in the circuit court of Cook County. Pursuant to defendant’s motion, the trial court dismissed the suits on the grounds that Illinois is a forum non conveniens. The appellate court reversed and remanded the cause, concluding that there is a relevant connection between the litigation and the selected forum. (100 Ill. App. 3d 165.) We granted defendant leave to appeal.

The sole issue presented for review is whether the trial court’s dismissal of the cause, pursuant to the doctrine of forum non conveniens, constituted an abuse of discretion.

Defendant is a Delaware corporation which maintains its principal place of business in Skokie, Illinois. It developed and patented certain active ingredients contained in Ovulen, Conovid and Metrulen, the oral contraceptives in question. Defendant granted a license to G. D. Searle & Co., Ltd. (Limited), its wholly owned subsidiary located in Britain, to use the patented ingredients in manufacturing pharmaceuticals for sale in the United Kingdom. Plaintiffs seek to hold defendant liable, on various tort theories, for improperly developing the contraceptives, failing to provide adequate warnings as to their harmful side effects, and releasing the pharmaceuticals for public consumption. Whether or not Searle is liable is not presently at issue. We are here concerned only with the propriety of plaintiffs’ choice of forum.

Defendant cites a number of factors in support of its motion to dismiss. It claims that all of the plaintiffs and most of the witnesses reside in the United Kingdom; most of the evidence is located in the United Kingdom; the contraceptives were manufactured, prescribed, and sold in the United Kingdom; and British law would apply to these cases. For these reasons, defendant asserts that trial in Illinois would be burdensome, inconvenient and expensive.

Plaintiffs oppose defendant’s motion to dismiss on the grounds that it has its principal place of business in Skokie, Illinois, and the allegedly tortious conduct occurred in Illinois. Plaintiffs emphasize that they are primarily challenging defendant’s failure to provide adequate warnings regarding the hazardous nature of the product. The allegedly defective warnings were, for the most part, promulgated by defendant. Thus, it is argued, the evidence and witnesses necessary to establish this theory of liability are located in Illinois.

The doctrine of forum non conveniens presupposes the existence of at least two forums in which the defendant is amenable to jurisdiction. (People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052; Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599.) There is no reason to believe that plaintiffs could not litigate these actions in England, where they reside. Further, defendant has agreed to submit to the jurisdiction of the United Kingdom and to comply with any discovery orders of those courts. The inquiry therefore concerns the relative convenience of the available forums. As stated in Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514:

“Forum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration. In the application of these basic considerations a court may decline jurisdiction of a case ‘even though it may have proper jurisdiction over all parties and the subject matter involved’ [Whitney v. Madden (1948), 400 Ill. 185, 189, cert. denied, 335 U.S. 828, 93 L. Ed. 382, 69 S. Ct. 55), whenever it appears that there is another forum that can better ‘serve the convenience of the parties and the ends of justice.’ [Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 606.)”

The factors to consider in determining a forum non conveniens motion were set forth at length in Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843:

“An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.
Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.”

(See also Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 118-19; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 110-11, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052.) In order to retain flexibility, no one factor should be accorded central emphasis. Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 249-50, 70 L. Ed. 2d 419, 431-32, 102 S. Ct. 252, 262.

The trial court, after balancing these factors, determined that Illinois was a forum non conveniens. This court has consistently indicated that “[wjhether particular facts and circumstances warrant dismissal of a case on the ground of forum non conveniens rests primarily within the discretion of the trial court. The court’s decision will be reversed on review if it can be said that in deciding as it did there was an abuse of discretion.” People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 110, citing Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 4; Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 606; Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 159; Whitney v. Madden (1948), 400 Ill. 185, 190; see also Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 257, 70 L. Ed. 2d 419, 436, 102 S. Ct. 252, 266; Restatement (Second) of Conflict of Laws sec. 84b (1971).

We turn, then, to a consideration of whether the trial court abused its discretion in balancing the relevant factors. As previously noted, all of the plaintiffs are residents of the United Kingdom. The contraceptives which allegedly caused the injuries were manufactured, marketed, sold, prescribed and used in the United Kingdom. Consequently, most of the evidence pertaining to the issues of causation and damages is located there. Further, the majority of witnesses, such as plaintiffs’ treating physicians, reside in the United Kingdom. As noted by the trial judge:

“Searle, *** in order to adequately defend the action, must seek knowledge of each Plaintiff’s pre-existing medical condition, the knowledge of each treating or prescribing physician concerning the drug and concerning the particular Plaintiff, the nature of the injury allegedly incurred, the nature of the medical treatment given, and the nature of the damages allegedly sustained.
The sources of proof concerning all these issues are exclusively within the confines of the United Kingdom.”

There is no compulsory process to secure the attendance of unwilling witnesses. Although defendant could depose these witnesses, depositions have been deemed an inadequate substitute for live testimony. (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 511, 91 L. Ed. 1055, 1064, 67 S. Ct. 839, 844; Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc. (1978), 66 Ill. App. 3d 789, 802.) Also, the cost of transporting to Illinois those witnesses who agree to testify is substantial. It is doubtful that plaintiffs, residents of the United Kingdom, will have the same difficulty in securing the attendance of witnesses. The individuals in Illinois who would be called upon to testify are employees of the defendant.

Further, it is apparent that, if the causes were tried in Illinois, the judge would be required to apply the law of the United Kingdom. That country has the most significant contacts with this litigation. (See Ingersoll v. Klein (1970), 46 Ill. 2d 42; see also Harrison v. Wyeth Laboratories Division of American Home Products Corp. (E.D. Penn. 1980), 510 F. Supp. 1, affd (3d Cir. 1982), 676 F.2d 685 (finding United Kingdom law applicable under virtually identical circumstances).) The need to apply foreign law has frequently been deemed an important factor favoring dismissal of the suit. See, e.g., Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252; Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839; Calavo Growers of California v. Belgium (2d Cir. 1980), 632 F.2d 963, cert. denied (1981), 449 U.S. 1084, 66 L. Ed. 2d 809, 101 S. Ct. 871; see People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052.

In terms of public interest factors, this court has previously taken notice of the congested dockets of the circuit court of Cook County. (74 Ill. 2d 90, 112; see Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 6.) Also, members of the community would be required to perform jury services for a cause in which Hlinois’ interest is minimal. The warnings herein challenged are those which are issued in the United Kingdom. Although we do not feel that these factors are among the most significant, nevertheless they weigh, to some extent, in defendant’s favor.

Finally, the record reveals that defendant did not have unfettered control over the warnings issued by Limited. Limited was permitted to delete indications (purposes for which the product may be used) and add contra-indications (medical risks associated with use of the product). One purpose for this policy was to allow Limited to conform to the rules of local regulatory authorities. Conceivably, then, a court in Illinois could determine that defendant’s warnings were inadequate although they conformed to the law of the country in which the drugs were marketed. As noted by at least one court, “ [I]t is manifestly unfair to the defendant, as well as an inappropriate usurpation of a foreign court’s proper authority to decide a matter of local interest, for a court in this country to set a higher standard of care than is required by the government of the country in which the product is sold and used.” (Harrison v. Wyeth Laboratories Division of American Home Products Corp. (E.D. Penn. 1980), 510 F. Supp. 1, 5, affd (3d Cir. 1982), 676 F.2d 685.)

The appellate court apparently determined that trial in the United Kingdom would be more convenient. However, it concluded that this action should not be dismissed because there is a “relevant connection” between Illinois and the litigation. In so holding, the appellate court primarily relied on the facts that defendant is a resident in Illinois having its principal place of business here, and that “the alleged commission of the tort” occurred in this State.

We recognize that certain appellate court cases have deemed dispositive the fact that there was or was not a connection between the litigation and the chosen forum. (E.g., American Home Assurance Co. v. Northwest Industries, Inc. (1977), 50 Ill. App. 3d 807, 813; see Sears, Roebuck & Co. v. Continental Insurance Co. (1972), 9 Ill. App. 3d 287, 290. But cf. Grant v. Starck (1981), 96 Ill. App. 3d 297, 305 (wherein the court considered other factors after finding a relevant connection); Stone Container Corp. v. Industrial Risk Insurers (1980), 91 Ill. App. 3d 807, 812 (same principle).) This court has dismissed actions in which Illinois had virtually no relationship to the parties or the litigation. (E.g., People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052.) However, this does not necessarily mean that any time such a relationship exists, the chosen forum is appropriate. To so hold would certainly cast doubt upon the continued vitality of the forum non conveniens doctrine. This is not the test. If so, any time there is a “relevant connection” between the forum and the litigation, defendant would be subject to suit in that forum regardless of the inconvenience. This result is contrary to the purpose of the doctrine, which is to avoid litigation in an unduly inconvenient forum. See Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514.

We note parenthetically that it is not at all clear that the tort was committed in Illinois. Even assuming that Searle issued defective warnings in this State, “[i]t is well established *** that in law the place of a wrong is where the last event takes place which is necessary to render the actor liable.” (Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 435.) In this case, there is no tort until there is an injury, and any alleged injuries occurred in the United Kingdom.

It should not be inferred from our discussion that the place of defendant’s residence, or the situs of the tort, are of no significance. They may properly be considered, along with other connections which exist between the litigation and chosen forum. However, all other factors relevant to a forum non conveniens motion must also be balanced in determining whether to dismiss an action.

It is unclear exactly how the appellate court weighed the relevant factors, except to indicate that an “unequal” balancing test is to be applied. “Unless the balance of [the] factors is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.” (100 Ill. App. 3d 165, 168, citing People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052.) However, there are numerous cases which properly accord less deference to a foreign plaintiff’s choice of forum. (E.g., Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252, and cases cited therein; see Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 121 (plaintiff’s nonresidence is a factor favoring dismissal).) Further, the trial court found that the factors enunciated in Gulf Oil do substantially favor defendant.

It is conceivable that, on these facts, a different result could have been reached. However, the question is not whether a reviewing court would have weighed the factors differently or would have resolved the issue as did the trial court. As previously noted, the only concern on review is whether the trial court’s decision constituted an abuse of discretion. Here, the record indicates that the trial court carefully balanced the relevant factors. Under these circumstances, we are not prepared to conclude that there was an abuse of discretion. See Harrison v. Wyeth Laboratories Division of American Home Products Corp. (E.D. Penn. 1980), 510 F. Supp. 1, aff'd (3d Cir. 1982), 676 F.2d 685 (dismissal for forum non conveniens under virtually identical facts); Holmes v. Syntex Laboratories, Inc. (Cal. Super. Ct. July 15, 1982), Docket Nos. 425268, 430351 (same).

Accordingly, the judgment of the appellate court is reversed. The judgment of the circuit court of Cook County is affirmed, and the cause is remanded to the circuit court with directions to dismiss the action.

Appellate court reversed; circuit court affirmed; cause remanded, with directions.

JUSTICE GOLDENHERSH,

dissenting:

I dissent and would affirm the judgment of the appellate court. Missing in this case, and apparently in several of the authorities upon which the majority relies, is an element essential to the application of the doctrine of forum non conveniens. In Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 506-07, 91 L. Ed. 1055, 1061, 67 S. Ct. 839, 842, the court said:

“In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.”

There is nothing before us to show that defendant is amenable to process in the United Kingdom. Obviously, the willingness to accept process is not the equivalent of a defendant’s being amenable to process. Defendant’s consent to accept process and submit to the jurisdiction of the courts of Great Britain is not an adequate basis for the allowance of a motion to dismiss on the ground of forum non conveniens. It in effect permits a defendant to select the forum in which it wishes to have its cause tried and then become “amenable to process” by consenting to submit to the jurisdiction of its courts.

Defendant and the majority rely on Harrison v. Wyeth Laboratories Division of American Home Products Corp. (E.D. Penn. 1980), 510 F. Supp. 1. The order entered in that case upon allowance of the motion to dismiss demonstrates the inadequacy of the forum to which the plaintiffs are relegated. The order of dismissal is conditioned upon the defendant’s consenting “to suit and acceptance of process in the United Kingdom ***.” Defendant also agrees “to make available at its own expense any documents or witnesses within its control that are needed for fair adjudication of any action brought in the United Kingdom by the plaintiffs on their claims.” This order hardly presupposes the existence of a forum in which the defendant is amenable to process and demonstrates that available discovery is inadequate in litigation of this type.

I would note further that there is nothing before us to show that the courts in Great Britain will necessarily assume and retain jurisdiction in a cause of action where the defendant is not amenable to, but must consent to, its jurisdiction. On this record the presupposition that there are at least two forums in which the defendant is amenable to process is wholly without support.

Assuming, arguendo, that the necessary elements are present, the record fails to support the circuit court’s conclusion that the circuit court of Cook County is an inconvenient forum. This action presents issues of the adequacy of the warnings given physicians and patients, and it is apparent from the record that defendant’s decisions controlling those matters are made in Cook County and not in Great Britain. The product is manufactured and marketed in Great Britain by a wholly owned subsidiary of defendant with only limited authority to modify the instructions and warnings.

Finally, it should be noted that the decisions upon which the majority relies are decisions of United States district courts, reached without the guidance of definitive decisions of the appellate courts of the States whose law they purport to apply. Unlike those jurisdictions, this court has held that the doctrine of forum non conveniens may be applicable when an appropriate forum other than the courts of this State is available and when the relief sought here is by a nonresident against a nonresident. Whitney v. Madden (1948), 400 Ill. 185.

We have before us a defendant sued "in its own backyard” in the county in which it maintains its principal offices and in which most of its decisions are made. To permit the type of forum shopping shown by this record will require these plaintiffs to try their cases in a jurisdiction that denies them a jury trial and affords them admittedly inadequate discovery. For those reasons I dissent.

JUSTICE SIMON joins in this dissent.

      The Attorney General and a number of Illinois corporations have filed amicus curiae briefs with this court, asserting that the appellate court opinion will cause businesses to be hesitant to incorporate in this State if they are required to defend “foreign suits.” Further they contend that Illinois corporations may refrain from providing their overseas subsidiaries with any warnings relating to the particular product. However, we do not take these points into consideration in reaching a decision on the merits.