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Nyerges v. Lavigne

Decided: November 8, 1991.

GEORGE NYERGES AND ANN NYERGES, PLAINTIFFS,
v.
JEFFREY E. LAVIGNE, M.D., LEONORA M. WEISSMAN, M.D., LASER MEDICAL ASSOCIATES, JOHN DOE, M.D. AND ABC, HEALTH CARE PROVIDER, FICTITIOUS NAMES WHOSE ACTUAL IDENTITY IS UNKNOWN TO PLAINTIFF AT THIS TIME, DEFENDANTS



UNION COUNTY

Alley, J.s.c.

Alley

ALLEY, J.S.C.

In this medical malpractice action, plaintiff George Nyerges alleges that he received negligent treatment in November 1989 from the moving defendants, Jeffrey E. Lavigne, M.D., and Laser Medical Associates. These defendants have moved to dismiss on the ground that the court lacks in personam jurisdiction over them. For the reasons set forth below, the motion is denied.

Defendant Lavigne is a resident of New York and sole proprietor of defendant Laser Medical Associates. Although licensed to practice in New Jersey, Lavigne asserts that he has never practiced in the State and that only about 2-3% of his surgical practice comes from New Jersey. His affidavit lays out in detail his alleged lack of New Jersey contacts, and in sum he contends that Nyerges, a New Jersey resident, affirmatively sought advice and travelled to New York for treatment from a New York doctor at a New York facility and that the moving defendants never purposefully availed themselves of the laws and benefits of New Jersey.

Plaintiffs assert, however, that defendants purposely sought to obtain patients from the tri-state area, including New Jersey. Plaintiff George Nyerges has shown that he went to defendants after reading an advertisement in the Daily News and telephoning them from New Jersey by way of a toll free "800" number (1-800-MD-TUSCH) advertised therein. Although the Daily News may be styled a New York paper, for purposes of this motion plaintiff has established that it has a large circulation in New Jersey -- approximately 200,000 in 1989.

Discussion.

A state court's assertion of personal jurisdiction over a defendant must comport with the due process requirements of the Fourteenth Amendment, for as noted in International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945):

Due process requires only that in order to subject the defendant to a judgment in personam if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." [at 326, 66 S. Ct. at 163]

Our Supreme Court has addressed the question of a court's power to exercise personal jurisdiction over a non-resident defendant. In Avdel Corp. v. Mecure, 58 N.J. 264, 277 A.2d 207 (1971), the court in addressing the holding in McGee v.

International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), stated:

It is clear from McGee that due process is satisfied if a contract sued upon has a "substantial connection" with the forum state. The interest of the forum state in the regulation of a special industry such as insurance may be a relevant factor in determining whether the state may constitutionally exercise jurisdiction, but it is only one factor. The absence of such an interest surely does not defeat jurisdiction, and the question remains whether the contact or contacts are sufficient to give the forum state a substantial connection with the contract such that maintenance of the suit does not offend principles of fairness. [58 N.J. at 270, 277 A.2d 207]

A subsequent New Jersey Supreme Court decision, Charles Gendler & Co. v. Telecom Equipment Corp., 102 N.J. 460, 508 A.2d 1127 (1986), set forth the analytical approach to be taken in addressing questions of personal jurisdiction. The Court held that "the stream-of-commerce theory supports the exercise of jurisdiction . . . [over a non-resident defendant if it] knew or should have known of the distribution system through which its products were being sold in the forum state." Id. at 480, 508 ...


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