Pullen v. Galloway, ___ N.J. Super. ___ (App. Div. 2019). This medical malpractice/wrongful death appeal involved the question of whether New Jersey state courts had personal jurisdiction over defendant doctors who were licensed in New York and performed their only services for plaintiff’s decedent, a New Jersey citizen who was referred to those doctors by her New Jersey, physician, in New York. Also named as a defendant, and also contesting personal jurisdiction, was NYU Medical Center, where the medical services were performed. Today, the Appellate Division, speaking through Judge Gilson, affirmed a Law Division ruling that personal jurisdiction was lacking.
Plaintiff made two arguments. The first was that one of the doctors had waived any personal jurisdiction argument by not having made it within the 90 days after service of an Answer afforded by Rule 4:6-3. Judge Gilson noted that this argument did not apply to the other doctor, whom plaintiff conceded had file a motion to dismiss for lack of personal jurisdiction within the 90-day window. Nor did plaintiff make any argument on appeal as to NYU Medical Center. The Appellate Division thus considered that plaintiff had abandoned any appeal as to that doctor or NYU Medical Center.
As to the remaining doctor, Judge Gilson quickly rejected the contention that he had waived the defense of lack of personal jurisdiction. The doctor had asserted the defense of lack of personal jurisdiction in his Answer, and he then moved to dismiss on that basis a little more than four months later. In between, the parties fought over the validity of plaintiff’s affidavit of merit.
The doctor “took no action that would constitute a waiver of his defense of personal jurisdiction,” and the fight over the affidavit of merit “went to the very question of whether plaintiff had a valid claim” against the doctor. The Law Division had discretion to accept and address the motion to dismiss, and that court did not abuse that discretion.
On the merits, Judge Gilson applied de novo review. After summarizing the law of general and specific personal jurisdiction, the Appellate Division found that the doctor lacked “the continuous and substantial contacts that would subject him to general jurisdiction in New Jersey. [He] lives and practices medicine in New York. He certified he held a New Jersey medical license only between 2004 and 2009, and never actually practiced medicine in New Jersey.”
Plaintiff also argued that the doctor had advertised on local television and had published information on the internet. But Judge Gilson observed that plaintiff had not provided any specific information about the alleged television advertising, so that contention was unsupported.
The fact that the doctor appeared on NYU Medical Center’s website did not create general jurisdiction either. Judge Gilson noted that the Appellate Division had “adopted the federal courts’ view that “the mere accessibility of a foreign business’ website through which customers may obtain information . . . is insufficient contact by itself to support general jurisdiction,” citing Wilson v. Paradise Village Beach Resort & Spa, 395 N.J. Super. 520 (App. Div. 2007).
Nor was there specific jurisdiction. The doctor treated and operated on plaintiff’s decedent only in New York. He had no contact with decedent in New Jersey. Judge Gilson cited Bovino v. Brumbaugh, 221 N.J. Super. 432 (App. Div. 1987), where a doctor’s treatment of a New Jersey citizen out of state was held not to create personal jurisdiction.
Finally, the fact that decedent’s New Jersey doctor referred her to the New York defendant doctor did not create specific personal jurisdiction. The New York doctor did not “initiate or seek the referral,” so that did not subject him to jurisdiction.
The Appellate Division affirmed the ruling below, except for one thing. The Law Division had dismissed the case with prejudice. The Appellate Division revised that to without prejudice, since this was not an adjudication on the merits.