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

May 23, 2011

DEBORAH EIKE, AN INFANT, BY HER GUARDIANS, NANCY AND RUSSELL EIKE, PLAINTIFFS-APPELLANTS,
v.
INSTITUTE FOR FAMILY HEALTH, SUCCESSOR-IN-INTEREST OF MID-HUDSON FAMILY INSTITUTE, AND ITS AFFILIATES HANS JANSSEN, M.D., DEFENDANTS-RESPONDENTS, AND HUDSON VALLEY WOMEN'S HEALTH ASSOCIATES, P.C., SUCCESSOR-IN-INTEREST OF ALL WOMANCARE, INC., JULIA LANGE-KESSLER, AND MICHAEL SUSSMAN, ESQ., DEFENDANTS.



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.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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