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Deborah Eike, An Infant, By Her Guardians, Nancy and Russell Eike v. Institute For Family Health


May 23, 2011


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8401-09. George T. Baxter argued the cause for appellants.

Per curiam.


Argued March 9, 2011

Before Judges Cuff and Simonelli.

Plaintiffs appeal from the April 19, 2010 order dismissing their amended complaint against defendants Mid-Hudson Family Health Institute (Mid-Hudson), Institute for Family Health (Institute), and Harry Janssen, M.D., s/h/a Hans Janssen, M.D.*fn1

Plaintiffs argue that the motion judge erred in dismissing the complaint against Janssen for lack of jurisdiction and the motion judge should have allowed additional time for discovery. We affirm.

On May 1, 2007, plaintiffs Nancy and Russell Eike filed a complaint on behalf of themselves and their daughter, Deborah, against defendant Julia Lange-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 alleged that Lange-Kessler, a midwife, mismanaged the home delivery of Deborah, and Lange-Kessler's negligence caused profound injuries to Deborah, including blindness, quadriplegia, cerebral palsy, and mental retardation. Plaintiffs alleged that Lange-Kessler enlisted Janssen as her back-up obstetrician/gynecologist.

This is the second time this matter has been before this court. Earlier, we granted leave to appeal to review an October 10, 2008 order granting defendant Janssen's motion to dismiss for lack of jurisdiction. We dismissed the appeal as improvidently granted and remanded to allow discovery to run its course. Eike v. Lange-Kessler, No. A-1580-08 (App. Div. Apr. 13, 2009) (slip op. at 3-4). In doing so, we observed that, based on the facts known at the time of the motion, the motion judge properly granted the motion due to the lack of minimum contacts by Janssen with this State. Id. at 3. We also held

If discovery reveals facts of Lange-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. [Id. at3-4.]

On remand, plaintiffs moved to file a fourth amended complaint to name Janssen, Mid-Hudson, and Institute as defendants. Defendant Institute had purchased the assets of defendant Mid-Hudson. The motion was denied and plaintiffs proceeded to file a new complaint naming Institute, Mid-Hudson, Janssen, Lange-Kessler, and Michael Sussman, an attorney, as defendants.

Discovery conducted in this newly filed action revealed that defendant Mid-Hudson operated six health clinics in Dutchess and Ulster counties in New York. No facts emerged during discovery that Mid-Hudson or the Institute had any contact with patients or physicians in this State, with Lange-Kessler, or with plaintiff. At oral argument of defendants' motion, plaintiffs abandoned the allegation that Mid-Hudson was the successor-in-interest to any corporate entity through which Lange-Kessler provided mid-wife services.

Discovery in the previously filed matter and the newly filed matter revealed that Nancy Eike lived in Bergen County. Janssen maintained a medical practice in Kingston, New York. Defendant Lange-Kessler, the midwife, testified at her deposition in December 2007 that Janssen served as am "informal backup" if she had a non-emergent situation during a home delivery in the mid-Hudson region. Lange-Kessler testified that she had never been to Janssen's office.

In her deposition and in a November 26, 2008 certification, Lange-Kessler denied she drove Nancy Eike for an examination by Janssen in Kingston during her pregnancy. She also denied that she recommended that Nancy Eike should see Janssen. Lange-Kessler admitted she had an informal back-up arrangement with Janssen in New York but did not have an arrangement with any physician in New Jersey. In fact, Lange-Kessler testified that she did not send Nancy Eike for a prenatal visit with any physician.

Nancy Eike submitted a contradictory certification in August 2008 in which she stated that Lange-Kessler drove her to see Janssen at his office in Kingston, New York. Her May 15, 2009 deposition relates a visit to Lange-Kessler's back-up physician in New York, but she did not recall his name. She testified that Lange-Kessler drove her to this visit. She thought the trip took about twenty minutes. Her January 5, 2010 certification reiterates that Lange-Kessler drove her to see a physician in New York, but she does not mention Janssen or any other physician by name.

Janssen, who died in 2001, was licensed to practice medicine in New York only. He lived in or near Kingston, New York. He 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. Janssen did not attend the birth of Deborah. Plaintiffs have submitted no evidence to support an allegation that Lange-Kessler spoke to or consulted with Janssen during Deborah's delivery.

Judge Harz dismissed plaintiffs' complaint against Janssen because the single physical examination of Nancy Eike by him in New York, assuming it occurred, did not provide the minimum contacts necessary to exercise personal jurisdiction over him in the courts of this State. The judge also noted that Nancy Eike could not identify the physician who examined her in New York. She further found that the only link of the birth to Janssen is a statement by Lange-Kessler that she had an informal arrangement with him as a back-up physician for births in the mid-Hudson region.

On appeal, plaintiffs argue that the motion judge improperly dismissed the complaint against Janssen for lack of personal jurisdiction. Plaintiffs argue that further discovery may have revealed the necessary link between Nancy Eike and Janssen. They also assert that the motion judge should have followed the holding in Wolpert v. North Shore University Hospital, 231 N.J. Super. 378 (App. Div. 1989), rather than Bovino v. Brumbaugh, 221 N.J. Super. 432 (App. Div. 1987).

Assertion of personal jurisdiction by a State court over a defendant must comport with due process. Charles Gendler & Co. v. Telecom Equip. Corp., 102 N.J. 460, 469 (1986). This State's equivalent to a "long-arm statute," Rule 4:4-4, permits service on non-resident defendants consistent with due process of law. Charles Gendler, supra, 102 N.J. at 469; Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971). Due process requires "certain minimum contacts" so that maintenance of the suit "does not offend 'traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278, 283 (1940)).

Minimum contacts require "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283, 1298 (1958). "It is the purposeful act of the defendant, not the unilateral activity of another who merely claims a relationship to the defendant, that connects the defendant to the forum." Charles Gendler, supra, 102 N.J. at 471 (citing Hanson, supra, 357 U.S. at 253, 78 S. Ct. at 1239-40, 2 L. Ed. 2d at 1298).

If the suit arises out of that single act, the exercise of personal jurisdiction may be proper based on that single contact. Ibid. However, if the suit does not arise out of that act, the contacts with the forum must be greater. Id. at 471-72. The contacts with the forum 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, 501 (1980).

"The purpose of the minimum-contacts test is to insure the fairness and reasonableness of requiring a non-resident to defend a lawsuit in the forum state." Charles Gendler, supra, 102 N.J. at 470 (citing Int'l Shoe, supra, 326 U.S. at 317, 66 S. Ct. at 158, 90 L. Ed. at 102). Therefore, "'the quality and nature of the (defendant's) activity in relation to the fair and orderly administration of the laws' must be examined on a case-by-case basis to determine if the minimum-contacts standard is satisfied." Ibid. (quoting Int'l Shoe, supra, 326 U.S. at 319, 66 S. Ct. at 159-60, 90 L. Ed. at 103-04).

A defendant's contacts with a forum are evaluated on a case-by-case basis. Blakey v. Cont'l Airlines, Inc., 164 N.J. 38, 67 (2000) (citing Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 122 (1994), cert. denied sub nom. WMX Techs. v. Canadian Gen. Ins. Co, 513 U.S. 1183, 115 S. Ct. 1175, 130 L. Ed. 2d 1128 (1995)). The existence of minimum contacts depends on "the presence or absence of intentional acts of the defendant to avail [himself] of some benefit of [the] forum state." Waste Mgmt., supra, 138 N.J. at 126 (citing Calder v. Jones, 465 U.S. 783, 791, 104 S. Ct. 1482, 1488, 79 L. Ed. 2d 804, 813 (1984)).

The application of this rule in the context of a New Jersey resident who obtains medical care from an out-of-state physician has been addressed in two reported cases: Wolpert, supra, and Bovino, supra. In Bovino, the New Jersey plaintiff was referred to the defendant, an out-of-state physician, by her in-state physicians. 221 N.J. Super. at 434. The plaintiff traveled to the defendant's offices in Philadelphia twice for examinations. Ibid. The defendant sent his report to the plaintiff's in-state physicians and consulted with the in-state physicians several times regarding the plaintiff's treatment. Ibid. This court found the contacts between the defendant doctor and this jurisdiction insufficient to exercise personal jurisdiction over the defendant because the defendant did not initiate the consultation, the examination took place at the defendant's office in Philadelphia, and the defendant's later phone calls to the plaintiff's in-state physicians only constituted "follow-ups." Id. at 436-37. Further, this court found that exercise of long-arm jurisdiction over the defendant doctor would be unfair because the defendant doctor's acts were directed toward the plaintiff, not any particular place. Id. at 437-38 (discussing Gelineau v. N.Y. Univ. Hosp., 375 F. Supp. 661 (D.N.J. 1974)).

In Wolpert, the defendants, a New York physician, psychologists, a social worker, and a hospital, issued two reports to a New Jersey court regarding the alleged sexual abuse of the New Jersey plaintiffs' grandson. 231 N.J. Super. at 379-80. The plaintiffs' former daughter-in-law, a New York resident, had raised the allegations in order to prevent visitation by her son with his father and the plaintiffs, who resided in New York. Id. at 380. This court reversed the dismissal of the complaint for lack of personal jurisdiction over the New York defendants finding that "a physician or other health care professional who issues a report, intending that it will be the basis for action in another state, should realize that liability can follow in the courts of that state." Id. at 381. The Wolpert court discussed Bovino, and while appearing to disagree with the holding, declined to determine whether it would "distinguish or disagree" with Bovino. Id. at 382. The Wolpert court did suggest in dicta that personal jurisdiction would not be found where an out-of-state physician examined, treated, and advised a New Jersey patient entirely within an out-of-state office. Ibid.

In Gelineau, the plaintiff, a resident of this State, received a referral to a New York City physician to treat an aneurism. 375 F. Supp. at 663. The plaintiff traveled to New York where the initial diagnosis was confirmed by a New York licensed physician. Ibid. The plaintiff was admitted to a New York City teaching hospital for surgical treatment. Ibid. In the course of this treatment, he received blood transfusions from which he contracted infectious hepatitis. Ibid. Finding undisputed evidence that the New York hospital did not solicit patients in this State and the plaintiff unilaterally sought treatment from a New York licensed physician who admitted him to the New York hospital, the judge found that the hospital did not have the minimum contacts to subject it to jurisdiction in this State. Id. at 665-66. The judge explained the ruling as follows:

When one seeks out services which are personal in nature, such as those rendered by attorneys, physicians, dentists, hospitals or accountants, and travels to the locality where he knows the services will actually be rendered, he must realize that the services are not directed to impact on any particular place, but are directed to the needy person himself. While it is true that the nature of such services is that if they are negligently done, their consequences will thereafter be felt wherever the client or patient may go, it would be fundamentally unfair to permit a suit in whatever distant jurisdiction the patient may carry the consequences of his treatment . . . . [Id. at 667.]

Here, the undisputed facts are closer to the facts of Bovino and Gelineau and markedly similar to the situation discussed in dicta in Wolpert. Assuming Janssen is the physician who examined Nancy Eike, as we must, he saw her once in his New York office. The arrangements for this single examination were made by Lange-Kessler. Janssen was not licensed to practice medicine in New Jersey and did not live in New Jersey. There is nothing in the record to even suggest that he did any act to solicit patients from New Jersey or to encourage a New Jersey resident to seek his care. The record also contains no evidence that Janssen attended the birth or consulted with the midwife during the delivery. In short, the sole contact with Nancy Eike in Kinston, New York, is simply insufficient to exercise personal jurisdiction over Janssen in this State.

Moreover, the facts developed by plaintiffs concerning the contacts of defendants Mid-Hudson and Institute are even sparser than the facts concerning Janssen. Requiring these defendants to respond to this complaint in the courts of this State does not comport with due process.

We, therefore, affirm the April 19, 2010 order dismissing the complaint against defendants Janssen, Mid-Hudson, and Institute.


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