Opinion
DOCKET NO. A-4367-12T1
04-14-2015
BRIAN SCOTT OWENS, SR., and SHANNON EILEEN OWENS, husband and wife, as individuals, as guardians ad litem for their minor children BRIAN SCOTT OWENS, JR., B. MONTANA OWENS and LANE FINLEY OWENS, AS GENERAL ADMINISTRATORS OF THE ESTATE OF MATTHEW OWENS, AND AS ADMINISTRATORS AD PROSEQUENDUM FOR THE ESTATE OF MATTHEW OWENS, DECEASED, Plaintiffs-Appellants/Cross-Respondents, v. GERALD FEIGIN, M.D., WILLIAM D. BOLLETINO, JR., WILLIAM D. BOLLETINO, SR., SUSAN D. BOLLETINO, THEODORE WOODSIDE, WOODSIDE FUNERAL HOME, DODIE BALDWIN, STEVEN SHEEHAN, SALEM MEMORIAL HOSPITAL, TODD WOODSIDE, UNDERWOOD MEMORIAL HOSPITAL AMBULANCE UNIT, ALLOWAY AMBULANCE UNIT, ALLOWAY AMBULANCE, CONNIE QUATHERS, CHERISH POOLE, BENJAMIN THOMPSON, STATE OF NEW JERSEY, jointly, severally or in the alternative, Defendants, and HONDA NORTH AMERICA, INC., Defendant-Respondent/Cross-Appellant, and RICHARD CALLERY, M.D., Defendant-Respondent.
Heidi R. Weintraub argued the cause for appellants/cross-respondents (Van Syoc & Weintraub, L.L.C., attorneys; Ms. Weintraub, of counsel and on the briefs). C. Brian Kornbrek argued the cause for respondent/cross-appellant (Greenbaum, Rowe, Smith & Davis, L.L.P., attorneys; Robert M. Goodman and Mr. Kornbrek, of counsel and on the brief; Stacy M. Manobianca, on the brief). Christopher N. Tomlin argued the cause for respondent (Ballard Spahr, L.L.P., attorneys; John B. Kearney and Mr. Tomlin, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Salem County, Docket No. L-0189-06. Heidi R. Weintraub argued the cause for appellants/cross-respondents (Van Syoc & Weintraub, L.L.C., attorneys; Ms. Weintraub, of counsel and on the briefs). C. Brian Kornbrek argued the cause for respondent/cross-appellant (Greenbaum, Rowe, Smith & Davis, L.L.P., attorneys; Robert M. Goodman and Mr. Kornbrek, of counsel and on the brief; Stacy M. Manobianca, on the brief). Christopher N. Tomlin argued the cause for respondent (Ballard Spahr, L.L.P., attorneys; John B. Kearney and Mr. Tomlin, of counsel and on the brief). PER CURIAM
Plaintiffs Brian Scott Owens, Sr., and Shannon Eileen Owens, individually, as guardians for their children and administrators of their deceased son's estate, appeal from the Law Division's April 11, 2008 dismissal of their complaint against defendant, Richard Callery, M.D., who is licensed to practice medicine (pathology) in Delaware and other states, but not in New Jersey. The Law Division dismissed the complaint for lack of personal jurisdiction. On appeal, plaintiffs argue the dismissal was erroneous because Callery had sufficient minimum contacts with New Jersey to establish specific jurisdiction and, alternatively, plaintiffs should have been allowed the opportunity to engage in jurisdictional discovery to establish jurisdiction over Callery. Callery argues the action was properly dismissed because no facts established personal jurisdiction.
Plaintiffs filed their appeal after resolving their remaining claims against other defendants and the court entered its April 5, 2013 judgment.
Plaintiffs and defendant Honda North America Inc. (Honda) also appealed from an order dismissing plaintiffs' complaint against Honda, without prejudice. At oral argument, plaintiffs' counsel advised plaintiffs were withdrawing their appeal as to Honda. Subsequent to oral argument, those parties entered into a stipulation of dismissal with prejudice in which plaintiffs agreed to the dismissal of their action against Honda, with prejudice, including their appeal, and Honda agreed to withdraw its cross-appeal.
We have considered the parties' arguments in light of our review of the record and applicable legal principles. We affirm.
Plaintiffs' complaint alleged wrongful death, survival and other causes of action arising from the February 9, 2005, tragic death of their thirteen-year-old son, Matthew, as well as various causes of action relating to an alleged conspiracy to cover up the cause of his death. On that day, Matthew and W.B., a friend and classmate, were having a catch outside W.B.'s residence when Matthew collapsed. According to W.B., Matthew "went to get up and throw the football back to me and buckled over." Soon after he collapsed, emergency personnel administered first aid at the scene and transported Matthew to the hospital, where he was pronounced dead.
Earlier that afternoon, neighbors saw the two boys riding an all-terrain vehicle (ATV). The ATV, alleged to be manufactured by Honda, belonged to W.B.'s father.
The next day, Dr. Gerald Feigin, the county medical examiner, performed an autopsy. Feigin concluded Matthew died as a result of natural causes, specifying the boy suffered "cardiac arrhythmia due to a congenital malformation" of his coronary artery. "This malformation resulted in inadequate blood supply to a portion of the heart making it prone to cardiac arrhythmia. There [was] no trauma noted at autopsy."
Cardiac arrhythmia is commonly referred to as an irregular heartbeat. A "congenital malformation" means the physical condition (i.e. the irregular heart beat) existed within Matthew since birth.
Unsatisfied with Feigin's opinion, plaintiffs sought a second opinion. On August 24, 2005, plaintiffs' counsel contacted Callery and advised him "plaintiffs wanted to hire [him] to perform an autopsy on the exhumation of their son . . . . " Callery notified plaintiffs' counsel he could not perform the autopsy in New Jersey as he was not licensed to practice medicine in that state. Plaintiffs made arrangements to transport their son's body to Callery's office in Newark, Delaware, where Callery performed the autopsy. Afterward, Callery corroborated Feigin's opinion, concluding the boy died naturally due to a structural abnormality of his heart. In his report, Callery stated:
It is my opinion that [the] 13 year-old white male, died of a structural abnormality of his heart. The original autopsy found a congenital malformation of the coronary arteriole system particularly involving the left anterior coronary artery which was found to be small in caliber and short in course arborizing into numerous fine branches at 0.5 cm. from the origin. The original heart weight of 370 grams is slightly enlarged. This finding was corroborated at autopsy and will further be refined through specific cardiac pathology consultation. Of significance, there was no evidence of penetrating, perforating or blunt force injury which would have caused or contributed to this child's death.
Following the autopsy and at plaintiffs' request, Callery sent brain tissue samples to a specialist in Tennessee for a specific consultation. Callery also mailed photos taken during the autopsy to plaintiffs' private detective in New Jersey.
In their subsequent complaint against Callery, plaintiffs alleged various claims, including fraud, Consumer Fraud, N.J.S.A. 56:8-2, violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-2 and conspiracy. Most, if not all of their claims, were based on their allegation Callery told them Feigin's conclusions were wrong, and Feigen's autopsy was not performed correctly. They also claimed "Callery has never specified what the alleged structural abnormality [was], nor [was] there any structural abnormality, . . . based upon the findings of . . . [an additional expert]." The additional expert, "a renowned pathologist from UCLA . . . rendered a report . . . which confirm[s] that the heart was completely and utterly normal . . . ."
Plaintiffs alleged Callery did not perform the autopsy correctly and further withheld significant information about other abnormal findings, unrelated to their son's heart. According to plaintiffs, all of Callery's actions were done "[i]n furtherance of his course, scheme, or plan to engage in fraud upon the plaintiffs . . . ."
Callery subsequently filed a motion seeking dismissal for lack of personal jurisdiction, insufficient service of process and failure to state a claim upon which relief could be granted, pursuant to Rule 4:6-2(b), (d) and (e)). In his supporting certification, Callery attached his resume, confirmed he was not licensed in New Jersey, did not have an office or other property in New Jersey or advertise anywhere. He also stated he did not have a website. Other than speaking to plaintiffs' attorney, sending her the report and mailing photographs to the attorney's private investigator, he had no other contact with counsel and, other than a call from Mr. Owens, no other contact with plaintiffs or anyone else related to this matter.
Plaintiffs did not file a certification disputing any of Callery's statements. Rather, they relied upon Callery's contacts with the private detective and Mr. Owens as sufficient minimal contacts to establish long-arm jurisdiction.
On April 11, 2008, the court considered oral argument and specifically discussed Callery's contacts with New Jersey and plaintiffs' demand for discovery on the issue before the court granted Callery's motion. The court concluded:
This is [a] very unusual (inaudible) unfortunate death[,] this is very unusual in terms of we have a doctor who's not licensed in . . . New Jersey, doesn't have an office in . . . New Jersey, doesn't own property in . . . New Jersey, did not advertise in New Jersey or anything else, he's not listed in the yellow pages in New Jersey or anywhere else, he does not have an internet website and because of the unfortunate nature of this (inaudible) literally had to take the body to him[,] to the State of Delaware to have the doctor perform the autopsy.
I [don't] find jurisdiction general or specific in this matter and I think that when (inaudible) elected to under those circumstances take him to -- take the body to the State of Delaware that if they want to pursue any further action against him it should be elsewhere . . . .
The court entered the order granting the motion and dismissed the complaint against Callery. The matter proceeded over the ensuing years to a resolution with the other defendants. This appeal followed.
Plaintiffs argue the court should not have granted Callery's motion because the record established he "purposefully availed" himself of the benefits of New Jersey. Accordingly, plaintiffs allege New Jersey had specific jurisdiction over Callery. We disagree.
We review a trial court's determination as to jurisdiction de novo. YA Global Invest., L.P. v. Cliff, 419 N.J. Super. 1, 8 (App. Div. 2011). The court's factual findings, however, will not be disturbed if "supported by substantial, credible evidence." Ibid. "We will not disturb 'the factual findings and legal conclusions of the trial judge unless . . . they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
New Jersey may exercise long-arm jurisdiction if it comports with due process of law. R. 4:4-4(b)(1); see also Charles Gendler & Co. v. Telecom Equip. Corp., 102 N.J. 460, 469 (1986) (stating New Jersey courts exercise jurisdiction over non-resident defendants "to the uttermost limits permitted by the United States Constitution" (citation and internal quotation marks omitted)). To satisfy due process, the exercise of jurisdiction must be adequate and reasonable; that is, the non-resident defendant must have (1) sufficient minimum contacts with the forum state and (2) reliance upon those contacts to establish personal jurisdiction do not "'offend "traditional notions of fair play and substantial justice.'" Blakey v. Continental Airlines, 164 N.J. 38, 65 (2000) (quoting Int'l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945) (citation and internal quotation marks omitted)).
The "adequacy" of minimum contacts depends on the type of jurisdiction sought. Pressler & Verniero, Current N.J. Court Rules, comment 3.1.1. on R. 4:4-4 (2015). "There are two types of personal jurisdiction: specific and general." Jacobs v. Walt Disney World Co., 309 N.J. Super. 443, 452 (App. Div. 1998).
Specific jurisdiction is established when a defendant's acts within the forum-state give rise to the cause of action. In contrast, when the defendant's presence in the state is unrelated to the subject matter of the lawsuit, general jurisdiction may be
obtained based on the defendant's continuous and substantial contacts with the forum.
[Ibid. (citations and internal quotation marks omitted).]
Inquiry into specific jurisdiction centers around "'the relationship [between] the [non-resident] defendant, the forum[] and the litigation.'" Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323 (1989) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2580, 53 L. Ed. 2d 683, 698 (1977)). Specifically, "[t]he record must demonstrate that the [non-resident] defendant has purposefully availed [him]self of the privilege of engaging in activities within the forum state, thereby gaining the benefits and protections of its laws." Waste Mgmt. v. Admiral Ins. Co., 138 N.J. 106, 120-21 (1994), cert. denied, 513 U.S. 1183, 115 S. Ct. 1175, 130 L. Ed 2d 1128 (1995); see also Lebel, supra, 115 N.J. at 323 ("The question is whether 'the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.'" (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490, 501 (1980))).
The burden to prove the sufficiency of a defendant's contacts with the forum state rests with the plaintiff, most readily accomplished "through the use of sworn affidavits, certifications or testimony." Walt Disney World, supra, 309 N.J. Super. at 454 (citations and internal quotation marks omitted). Where plaintiff cannot prove sufficient contacts to establish specific jurisdiction it makes the existence of continuous and systematic activity highly unlikely. Id. at 453 ("[A] plaintiff seeking to overcome the challenge to general jurisdiction must show substantially more than mere minimum contacts to establish this form of personal jurisdiction." (citation and internal quotation marks omitted)).
We have previously held, where a non-resident provides out-of-state medical services to New Jersey residents, and has no contacts with New Jersey, our courts have no jurisdiction over the non-resident for claims arising from the services provided. Bovino v. Brumbaugh, 221 N.J. Super. 432, 436-38 (App. Div. 1987). In that case, we engaged in a minimum contacts analysis and concluded the defendant's motion to dismiss was improperly denied by the trial court.
Specifically, in Bovino, the New Jersey plaintiff was referred to the defendant, an out-of-state physician, by her in-state physicians. Id. 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. We found the contacts between the defendant doctor and New Jersey insufficient to exercise personal jurisdiction over the defendant because he did not initiate the consultation, the examination took place at his 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, we 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.
The same principles apply here. Callery lives and practices medicine out-of-state. He has never lived, worked or obtained a license to practice in New Jersey. In fact, Callery stated he does not conduct or solicit any business in New Jersey. Rather, plaintiffs, through counsel, initiated contact, requesting he perform a post-exhumation autopsy. Thereafter, plaintiffs made arrangements to transport their son's body to Delaware so that Callery could conduct the autopsy. All services were provided out of state.
Plaintiffs argue Bovino does not control as Callery "purposefully availed" himself in New Jersey by making phone calls to plaintiffs' counsel and private detective. Plaintiffs rely upon our decision in Wolpert v. N. Shore Univ. Hosp., 231 N.J. Super. 378 (App. Div. 1989). We disagree and find plaintiffs' reliance on Wolpert inapposite.
In Wolpert, the plaintiffs appealed from the dismissal of their pleadings for lack of personal jurisdiction over the New York defendants. Id. at 379. The plaintiffs filed suit alleging negligence, gross negligence and intentional conduct stemming from the New York doctors' two reports about the plaintiffs alleged sexual abuse of their grandson. Id. at 380. Both reports were issued directly to the Superior Court of New Jersey during a custody dispute. Ibid. We reversed the order dismissing the pleadings and remanded. Id. at 382-83. We held "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.
We addressed what we described as an "apparently contrary opinion" to our opinion in Bovino. Ibid. Distinguishing our holding in Bovino, we stated:
Bovino implicitly finds that the Pennsylvania physician did not intend his actions to create an effect in the State of New Jersey. The court stressed that jurisdiction should not be exercised over a non-resident physician who renders services in another state to a patient who has voluntarily travelled from the forum state
to benefit from the physician's services. [Bovino, supra,] 221 N.J. Super. at 437. We, however, see a difference between (a) examination, treatment and advice rendered solely in another state to a New Jersey patient, and (b) examination in another state followed by advice to the New Jersey referring doctors concerning how they should treat the patient. The former situation, which the Bovino court discussed, might insulate the physician from our long-arm jurisdiction; the latter characterization, which appears to be justified by the facts in Bovino, should not.
[Id. at 382 (footnote omitted).]
Unlike the defendant doctor in Wolpert, Callery conducted his examination and wrote his report in Delaware. Further, the facts presented in Wolpert differ from the facts at hand in at least two additional significant ways: the nature of the contacts and the purpose of Callery's report.
First, plaintiffs' reliance on Callery's post-autopsy communications as satisfying the necessary minimum contacts is misplaced. Our Supreme Court has cautioned against overemphasizing the use of mail or wire communications under jurisdictional analysis. See Lebel, supra, 115 N.J. at 325 ("[T]he mere transmittal of messages by mail or telephone within the state is not the critical factor [for purposes of establishing personal jurisdiction], it is the nature of the contact." (citation omitted)); but see CitiBank, N.A. v. Est. of Simpson, 290 N.J. Super. 519, 533 (App. Div. 1996) (stating "purposeful, persistent and direct solicitation of New Jersey residents, in the context of the totality of the circumstances, might constitute such purposeful availment" (emphasis added)).
As the United States Supreme Court has observed,
Jurisdiction is proper . . . where the contacts proximately result from actions by the defendant himself that create a substantial connection with the forum State . . . deliberately . . . engag[ing] in significant activities within a [s]tate or has created continuing obligations between himself and residents of the forum he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by the benefits and protections of the forum's laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.
[Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S. Ct. 2174, 2183-84, 85 L. Ed. 2d 528, 542-43 (1985)(citations and internal quotation marks omitted).]
Here, the nature of Callery's contacts with New Jersey were "attenuated" at best. Id. at 475, 105 S. Ct. at 2183, 85 L. Ed. 2d at 542 (1985) ("[The] purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts" (citations and internal quotation marks omitted)). Callery is not licensed to practice nor does he solicit business in the State of New Jersey. Most important, however, the autopsy was not conducted here. Callery contacted plaintiffs (in New Jersey) by phone and sent pictures to plaintiffs' private detective (in New Jersey); however, those were one-time occurrences. Such contacts are more akin to the follow-up phone calls described in Bovino, supra, 221 N.J. Super. at 436. They do not demonstrate the substantial, continuous or deliberate acts necessary to satisfy minimum contacts for purposes of exercising in personum jurisdiction over an out-of-state defendant. See Burger King, supra, 471 U.S. at 475-76, 105 S. Ct. at 2183-84, 85 L. Ed. 2d at 542-43
Plaintiffs' complaint alleged Callery made contradictory statements to Mr. Owens about his findings after conducting the autopsy. These statements, however, cannot form a basis for exercising in personum jurisdiction over Callery as they were made out of state, in Delaware.
Second, the circumstances under which Callery prepared his report are distinguishable from Wolpert. In Wolpert, both reports were issued directly to a New Jersey trial court with "inten[t] that [they] will be the basis for action." Wolpert, supra, 231 N.J. Super. at 381. Here, Callery issued his report on September 20, 2005, over four months prior to plaintiffs filing their initial complaint against Feigin and the other defendants. The fact that counsel contacted Callery and retained him to perform the autopsy did not mean that he should have anticipated he would be involved in a New Jersey litigation. "[A] communication by a defendant that is solicited or initiated by a plaintiff cannot form the basis for jurisdiction.". Walt Disney World, supra, 309 N.J. Super. at 461. Accordingly, the Law Division did not err in granting dismissal as plaintiffs failed to establish sufficient minimum contacts.
Any alleged injury arising out of Callery's autopsy and subsequent report were not pled by plaintiffs until the following year, approximately sixteen months after the report was issued.
--------
Plaintiffs also argue the Law Division erred by not affording them the opportunity to supplement the record and establish a prima facie case of general jurisdiction over Callery. They suggest, given limited discovery, they could have exposed contacts that would establish "continuous and systematic activities" under general jurisdiction. We again disagree.
"Although the plaintiff bears the burden of demonstrating facts that support personal jurisdiction, courts are to assist the plaintiff by allowing jurisdictional discovery unless the plaintiff's claim is clearly frivolous." Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003) (citations and internal quotations marks omitted). "However, [i]f a plaintiff presents factual allegations [suggesting] with reasonable particularity, the possible existence of the requisite contacts between [the party] and the forum state, [] plaintiff's right to conduct jurisdictional discovery should be sustained." Ibid. (second alteration in original) (citation and internal quotation marks omitted). Generally, the record must support the existence of disputed or conflicting facts to warrant jurisdictional discovery. See Reliance Nat'l Ins. Co. In Liquidation v. Dana Transp., 376 N.J. Super. 537, 551 (App. Div. 2005); Walt Disney World, supra, 309 N.J. Super. at 461-62. See, e.g., Citibank, supra, 290 N.J. Super. at 533-34.
Plaintiffs' request for additional discovery was speculative at best, based only on bare allegations. Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 157 (3d Cir. 2010) ("A plaintiff may not . . . undertake a fishing expedition based only upon bare allegations, under the guise of jurisdictional discovery."). There was no basis to allow discovery.
Affirmed. Remanded for the entry of an order dismissing plaintiffs' complaint with prejudice as to defendant Honda Motors Inc. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION