Segal McCambridge Legal Blog

From the Madison County Record

Med mal case belonged in Missouri – not Madison County, appellate court rules

10/18/2011 By Steve Korris

MOUNT VERNON – Madison County Circuit Judge Andy Matoesian kept a medical malpractice case that belonged in Missouri, Fifth District appellate justices ruled.

On Oct. 14, they directed Matoesian to dismiss a suit Cheryl Unterreiner filed against Missouri physician David Pernikoff and his professional corporation.

They rejected Matoesian’s conclusion that a telephone call from Pernikoff’s office to Unterreiner’s home in Highland established sufficient contact with Illinois.

“Cheryl could have returned the defendants’ phone call from any number of jurisdictions, including Missouri,” Justice Stephen Spomer wrote.

“A rule of law that allowed personal jurisdiction over a physician on the basis of a single phone call would effectively ensure that no physician ever delivered instructions over the telephone, or via email, for that physician could never know with certainty where they might eventually be haled into court as a result of those instructions,” he wrote.

“The defendants have never advertised for clients in Illinois and have never owned or leased any real or personal property in Illinois,” he wrote.

“The defendants’ contact with Illinois is simply far too attenuated and fortuitous to support jurisdiction,” he wrote.

Justices James Donovan and James Wexstten agreed.

Unterreiner underwent a heart valve replacement in 2002, and for the next six years she took Warfarin as an anticoagulant.

She traveled to Missouri for appointments at Pernikoff’s office.

In 2008, an employee left a phone message that her anticoagulant levels were low.

Unterreiner returned the call, and an employee told her to keep taking Warfarin and return in a month.

Within a month, Unterreiner suffered a stroke resulting in serious injuries.

She and husband Kim Unterreiner sued two years later, and Pernikoff moved to dismiss.

Matoesian denied the motion last December, but now he must grant it.

Spomer wrote, “Before an Illinois court may exercise jurisdiction over a nonresident defendant, that court must ensure its exercise of jurisdiction comports with traditional notions of fair play and substantial justice.

“A plaintiff may not lure a nonresident defendant into a jurisdiction, and the mere unilateral action of the plaintiff in seeking and obtaining the service of the defendant cannot serve to satisfy the jurisdictional requirement of minimum contacts.”

He wrote that Unterreiner sought out Pernikoff and traveled to Missouri for treatment.

He wrote that he couldn’t equate a solitary phone call with voluntary invocation of the protections and benefits of Illinois laws.

Lisa Howe and Thaddeus Eckenrode represented Pernikoff.

Drew Baebler and Philip Denton represented the Unterrreiners.

Whether a foreign corporation is subject to general personal jurisdiction, on causes of action not arising out of or related to any contacts between it and the forum state, merely because other entities distribute in the forum state products placed in the stream of commerce by the defendant? (in other words, is a foreign company subject to suit in the United States solely because another entity sells that foreign company’s products in the United States?)

That is the issue before SCOTUS in the Goodyear Dunlop Tires Operations, S.A., et al., Petitioners v. Edgar D. Brown, et ux., Co-Administrators of the Estate of Julian David Brown, et al. matter. The SCOTUS docket entry can be found here

As summarized by Forbes.com On the Docket:

The lawsuit centers on an allegedly defective tire manufactured in Turkey and involved in an auto accident in France. None of the events giving rise to the accident occurred in the United States, and none of the defendants–three tire manufacturers operating in Luxembourg, Turkey, and France–are citizens or residents of the United States. These tire manufacturers took no affirmative action to cause their tires to be distributed in North America, and the type of tire involved in the accident is not distributed in the United States. Yet, despite the absence of any meaningful connection between the three foreign tire companies and the United States, plaintiffs sought to hale each of them into a North Carolina state court.

The case raises important issues about the continued viability of the Supreme Court’s longstanding protections against the exercise of personal jurisdiction by U.S. courts over foreign corporations.

The entire Forbes.com On The Docket article can be found here