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Eike v. Kessler

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 13, 2009

NANCY AND RUSSELL EIKE, PARENTS AND GUARDIANS OF DEBORAH EIKE, AN INFANT, PLAINTIFFS-APPELLANTS,
v.
JULIA LANG KESSLER, D/B/A ALL WOMENCARE, INC., MICHAEL H. SUSSMAN, AND ENGLEWOOD HOSPITAL, DEFENDANTS, AND HARRI JANSSEN, M.D., DECEASED, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3185-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 18, 2009

Before Judges Cuff, Baxter and King.

We granted leave to appeal the October 10, 2008 order granting defendant Harri Janssen's motion to dismiss for lack of personal jurisdiction. We dismiss the appeal as improvidently granted.

On May 1, 2007, Nancy and Russell Eike filed a complaint on behalf of themselves and their daughter, Deborah, against defendant Julia Lang Kessler, d/b/a All Womencare, Inc. On February 8, 2008, a second amended complaint was filed, naming Michael H. Sussman, Englewood Hospital, and Harri Janssen, M.D. as defendants. Nancy and Russell Eike complained that Kessler, a midwife, mismanaged the home delivery of Deborah and Kessler's negligence caused profound injuries to Deborah, including blindness, quadriplegia, cerebral palsy and mental retardation. Plaintiffs also alleged that Kessler enlisted Janssen as her backup obstetrician/gynecologist.*fn1

For purposes of the motion to dismiss, it is undisputed that early in her pregnancy, Nancy Eike was driven by Kessler for a medical examination by Janssen. Nancy Eike lived in Bergen County. Janssen maintained a medical practice in Kingston, New York. Nancy Eike did not see Janssen following this initial examination. Janssen was licensed to practice medicine in New York. He maintained his medical practice in Kingston, New York, and lived in or near Kingston. Janssen never provided medical services in New Jersey. He did not advertise his services in New Jersey, see patients from New Jersey, or maintain any professional affiliation with any hospital, health care institution or physician in New Jersey. He was not licensed to practice medicine in New Jersey. Plaintiffs assert, but Janssen's estate contests, that Kessler called Janssen during the home birth. It is undisputed, however, that Janssen did not attend the birth of Deborah.

Relying on these undisputed facts, Janssen filed a motion to dismiss for lack of personal jurisdiction. Judge Jonathan Harris granted this motion. In his oral opinion, Judge Harris concluded that the contacts "could not reasonably give rise to enough connectivity with this state or even the consequences that might flow from this state" to justify the exercise of personal jurisdiction.

Based on the facts known at the time of the motion, Judge Harris correctly concluded that there were insufficient contacts within this state to maintain this negligence action against Janssen. Rather than affirm this order, we conclude the better course is to dismiss the appeal as improvidently granted. Plaintiffs informed us that discovery continues. If discovery reveals facts of Kessler's professional relationship with Janssen that may alter the minimum contacts analysis, plaintiffs may file a motion for reconsideration because a motion to reconsider an interlocutory order may be made at any time until final judgment in the court's discretion and in the interests of justice. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 263-64 (App. Div. 1987), certif. denied, 110 N.J. 96 (1988).

Appeal dismissed.


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