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Bovino v. Brumbaugh

Decided: December 7, 1987.

JEANNETTE BOVINO, PLAINTIFF-RESPONDENT,
v.
DR. BRUMBAUGH; SANAN ATAMIAN, M.D., JOEL PORTER, M.D.; POLINA KARMAZIN, M.D.; VESNA MIHAILOVIC, M.D.; DR. STEIN; AND JOHN DOE PHYSICIANS, DEFENDANTS, AND ROBERT C. SERGOTT, M.D., DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Camden County.

Michels, Gaynor and A. M. Stein. The opinion of the court was delivered by Gaynor, J.A.D.

Gaynor

[221 NJSuper Page 433] In this medical malpractice case, defendant Robert C. Sergott, M.D., a licensed physician of the Commonwealth of Pennsylvania, who resides and practices in that State, by leave

granted appeals from the denial of his motion for the dismissal of the complaint for lack of in personam jurisdiction. It is contended that the motion judge erred in failing to apply the proper test in determining this jurisdictional issue.*fn1 We agree that the motion was erroneously denied and reverse.

Plaintiff, a subscriber to the Health Care Plan of New Jersey, came under the care of the plan and several affiliated physicians for treatment of a condition in her left eye. During the course of the treatment, plaintiff was referred by one of the doctors to Dr. Sergott for a neuro-opthalmic evaluation. Dr. Sergott's examination of plaintiff was conducted on two dates in his office in Philadelphia. A written report containing his evaluation of plaintiff's condition and suggesting a course of treatment was thereafter forwarded by Dr. Sergott to the referring physician. Subsequently, Dr. Sergott communicated by telephone with the plan physicians on several occasions concerning the treatment being rendered to plaintiff.*fn2 Contending that she had suffered serious injury to her eye because of improper treatment, plaintiff seeks recovery in this action against the plan physicians and Dr. Sergott.

In support of his motion for dismissal on jurisdictional grounds, Dr. Sergott certified that he is a resident of the Commonwealth of Pennsylvania and a duly licensed physician of that State; that he does not, nor did he ever, practice medicine in New Jersey; that he is not professionally affiliated with any hospital, health care institution, or physician in New Jersey and he conducts no business in New Jersey, either individually or through any agents, servants, workmen or employees; that he does not, nor did he ever, solicit, consult or treat patients in New Jersey or maintain any offices in New

Jersey for the solicitation, consultation or treatment of patients; that he does not, nor did he ever, advertise in New Jersey; that he never examined, treated or saw plaintiff within New Jersey, nor did he have any connection whatsoever with the plaintiff in this State; and that any professional contact he had with plaintiff occurred solely within the Commonwealth of Pennsylvania.

On this appeal, Dr. Sergott contends the motion judge erred in denying his motion as the facts disclosed there was no transactional basis for the exercise of jurisdiction nor did his conduct involve sufficient contact with New Jersey to warrant subjecting him to this State's in personam jurisdiction. It is plaintiff's position that the extent and nature of the effects caused in this State by Dr. Sergott's participation with the plan's physicians in the evaluation and treatment of her condition were sufficient to meet the "minimum contacts" test for jurisdictional purposes. Further, to require Dr. Sergott to answer in New Jersey for the results of his conduct pertaining to the treatment of plaintiff assertedly would not offend traditional notions of fair play and substantial justice.

It is well established that New Jersey permits long-arm jurisdiction over nonresidents to the utmost limits allowed by the due process clause of the United States Constitution. R. 4:4-4(c); Charles Gendler & Co. v. Telecom Equipment Corp., 102 N.J. 460, 469 (1986); Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971). Due process requires only that in order to subject a foreign defendant to a judgment in personam there must be certain minimum contacts with the forum so that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945). As explained in Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958) this requires "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Id. at 253, 78 S. Ct. at 1240. If

the suit arises out of a single act or transaction having a substantial connection with the forum, jurisdiction may be founded upon this transactional contact. Charles Gendler 102 N.J. at 471. As stated in Avdel, 58 N.J. 264, "a non-resident defendant who is not doing business in a state in the traditional sense may nonetheless be amenable to suit in that state where he enters into a contract which will have significant effects in that state." 58 N.J. at 272. However, the mere foreseeability that the conduct of a defendant would have some effects in the forum state is not sufficient to support jurisdiction. Rather, the connection with that state must be such that the defendant "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980).

Thus, the first step in such a jurisdictional inquiry is to determine whether the defendant has sufficient contacts with the forum state. If so, it is then necessary to evaluate those contacts in light of other factors to ascertain whether it would be fair and reasonable to assert personal jurisdiction over the nonresident defendant. Charles Gendler, 102 N.J. at 472; ...


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