Opinion
No. CV05-500 04 71 S
May 20, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS (Motion #122.00)
The plaintiffs, Maria and Andrew Marcoccia, brought a medical malpractice claim against several defendants, including Kalmon D. Post, M.D., and Mount Sinai Medical Center, Inc. In addition to other surgeries and treatment provided by other defendants in this case, Maria Marcoccia underwent four separate brain surgeries specifically performed by Dr. Post — with all four of those surgeries taking place at Mount Sinai Medical Center. Post and Mount Sinai moved to dismiss the complaint against them on the grounds that the Superior Court lacks personal jurisdiction over them. Post is a New Jersey resident who works in New York, and Mount Sinai Medical Center, Inc. is a hospital based in New York. Neither of these defendants claims to reside, own property, do business or solicit business in Connecticut, or otherwise engage in an activity or practice that would lead them to be foreseeably haled into a Connecticut state court.
A motion to dismiss, according to Practice Book § 10-30, is the required procedure when a defendant challenges the jurisdiction of a court. Additionally, "[i]f a challenge to the court's personal jurisdiction is raised by a defendant, either by a foreign corporation or by a nonresident individual, the plaintiff must bear the burden of proving the court's jurisdiction." Knipple v. Viking Communications, Ltd, 236 Conn. 602, 607, 674 A.2d 426 (1996). It is, therefore, incumbent that the plaintiffs provide to the court evidence that would satisfy the claim of personal jurisdiction over the defendant.
The evidence presented must satisfy a two-part test set forth by the Supreme Court in Knipple v. Viking Communication, Ltd, supra, 236 Conn. 606. That test requires that the state's longarm statute "authorizes the assertion of jurisdiction" and that, if this first step is satisfied, the court must then decide whether conferring such jurisdiction "would violate constitutional principles of due process." Id. The plaintiffs argued that the application of this test should validate the extension of jurisdiction because doing so would not violate traditional notions of fair play and substantial justice.
The plaintiffs find statutory authority in two longarm statutes. Regarding the defendant Mount Sinai, the authoritative statute is General Statutes § 33-1219. Whereas, to assert jurisdiction over the defendant Post, the applicable law is General Statutes § 52-59b. The court will first address the issue of jurisdiction regarding the defendant Mount Sinai.
(f) Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is conducting or has conducted affairs in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; (2) out of any solicitation in this state by mail or otherwise if the corporation has repeatedly so solicited, whether the orders or offers relating thereto were accepted within or without the state; (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.
(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, foreign partnership or foreign voluntary association, or over the executor or administrator of such nonresident individual, foreign partnership or foreign voluntary association, who in person or through an agent: (1) Transacts any business within the state; (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; (3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if such person or agent (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; (4) owns, uses or possesses any real property situated within the state; or (5) uses a computer, as defined in subdivision(l) of subsection (a) of section 53-451, or a computer network, as defined in subdivision (3) of subsection (a) of said section, located within the state.
The key clause in § 33-1219 states that a Connecticut court may have jurisdiction over a foreign corporation if the cause of action arose out of "any solicitation in this state by mail or otherwise if the corporation has repeatedly so solicited, whether the orders or offers relating thereto were accepted within or without the state." Thus, the plaintiffs must present evidence demonstrating Mount Sinai's repeated solicitation of Connecticut residents to seek that hospital's services. The plaintiffs presented evidence relating to print and broadcast advertising by the defendant, as well as its internet web site. Including among the exhibits are statistics relating to placement and frequency of print advertising, copies of print ads, and a transcript of a broadcast ad.
The contents of the advertisements are insufficient to support the plaintiffs' arguments that such ads could be expected to draw patients from Connecticut. The transcript of the radio broadcast never once mentions Connecticut or that Mount Sinai serves the greater New York metropolitan area. Among the print advertisements provided by the plaintiffs are phrases such as "Mount Sinai Heart. The Heart of New York;" "Contrary to popular belief, living in New York isn't the leading cause of heart problems in New York. But there's no denying that it's a stressful place to live." "We [image of a human heart] NY." The advertisements also make mention of the New York Marathon, a patient who attended Columbia University, and that Mount Sinai is "the only hospital in New York that's been ranked in the nation's top 10 for 10 straight years." Among the sample of advertisements presented to the court, the only mention of a non-New York geographic locale is that of a patient who lived in Romania. However, the plaintiffs plainly state in their own memorandum of law of February 15, 2008, that "Mount Sinai is attempting to cast a much wider net than just Connecticut, and as such, reference to Connecticut would likely diminish their claim of an international presence and possibly relegate it to regional status." Such an argument does not strengthen plaintiff's contention that jurisdiction is valid in Connecticut. The plaintiffs have not demonstrated that the contents of these advertisements were fashioned in a manner intended or likely to draw patients from Connecticut.
However, the frequency of the advertising and the natural audience of the medium in which the advertising appeared is something to be considered apart from mere content. Connecticut courts, in determining whether to assert personal jurisdiction over a defendant, have examined the frequency of a defendant's advertising in conjunction with whether those advertisements can naturally be expected to be observed by Connecticut residents. "[P]lacing at least six franchise ads over a six-month period in a newspaper whose circulation clearly includes Connecticut satisfies repeated solicitation requirement." (Internal quotation marks omitted.) O'Brien v. Okemo Mountain, Inc., 17 F.Sup.2d 98, 101 (D.Conn. 1998). Another court, however, recognized that "[i]t is possible for a defendant to advertise too infrequently to satisfy the requirements of Connecticut's long-arm statute." Mallon v. Walt Disney World Corp., 42 F.Sup.2d 143, 145 n. 1 (D.Conn. 1998). The Supreme Court indicated that jurisdiction might be possible if infrequent advertising was supplemented by other methods of solicitation. "The only conduct of the defendant that can even arguably be characterized as solicitation is its placement, sporadically, of advertisements in the New York Times and the Wall Street Journal. Such advertisements, without more, cannot constitute repeated solicitation of business." Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 257, 460 A.2d 481 (1983). The defendant, in interrogatories, admitted that, over a three-year period, it advertised in several print publications whose circulation included the state of Connecticut. In Newsweek, New York Magazine, the New York Post, the New York Daily News, the Wall Street Journal, the New York Times, and Time Out NY, Mount Sinai placed a total twenty-four advertisements. This total number of advertisements averages to fewer than one advertisement per month over the stated period. This situation is similar to what the Supreme Court deemed, in Lombard Bros., Inc. v. General Asset Management Co., supra, 190 Conn. 257, as sporadic advertising — and, thus, inadequate for personal jurisdiction. This stands in contrast to the concentrated advertising campaign contained within one particular publication that the federal court in O'Brien v. Okemo Mountain, Inc., supra, 17 F.Sup.2d 101 indicated would support the grant of personal jurisdiction. Mount Sinai, however, also placed fifty-six advertisements in the New York Times Magazine over that same period of time. This averages to more than one advertisement per month. This magazine, distributed as part of the weekly Sunday edition of the New York Times, is marketed nationally, if not globally. The New York Times Magazine, according to public information provided by the New York Times Company, in September 2007 circulated to more than 340 markets. Such broad circulation would indicate that the New York Times Magazine is not a publication aimed primarily at Connecticut, or even just the local New York City market. As a result, the plaintiff has failed to demonstrate either the jurisdictional requirements or that due process concerns are satisfied.
For the period of February 2004 through January 2007, Mount Sinai admitted to placing the following number of advertisements in these publications: Newsweek: 1 advertisement; New York Magazine: 9; New York Post: 2; New York Daily News: 2; Wall Street Journal: 1; New York Times: 8; Time Out NY: 1.
The New York Times Media Kit, available at http://www.nytimes.whsites.net/mediakit/magazines/circulationlindex.php.
Regarding the plaintiffs' contention that the defendant's use of a web site may be grounds for the exercise of personal jurisdiction, it is important to look at the nature of the web site. In Zippo Mfr. Co. v. Zippo Dot Com, Inc., 952 F.Sup. 1119 (W.D.Pa. 1997), the court described various categories of web sites and the likelihood of each to incur personal jurisdiction. "[T]he likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet . . . At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper . . . At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction . . . The middle ground is occupied by interactive sites where a user can exchange information with the host computer. In those cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site." Id., 1124. In The Mashantucket Pequot Tribe v. Redican, 309 F.Sup.2d 309 (D.Conn. 2004), the court found a web site can lead to the exercise of personal jurisdiction when "individuals can directly interact with a company over their Internet site, download, transmit or exchange information, and enter into contracts with the company via computer . . . particularly when combined with evidence of sales from the forum state." Id., 317. The Mount Sinai web site, based on the information provided to the court, does nothing more than provide information to the public without little or no exchange of information between parties. The evidence provided by the plaintiffs fails to show that the web site maintained by Mount Sinai fits any category other than the second, passive category. Therefore, due to a lack of evidence of interactivity, the web site offers no grounds for the grant of personal jurisdiction. Additionally, the plaintiffs claim that an advertisement broadcast over a New York radio station whose audience may extend to Connecticut carries little weight as no information regarding the frequency of that advertising, as well as the geographic scope of the broadcast has been presented to the court.
Additionally, the plaintiffs cite the defendant's use of Connecticut collection services to collect unpaid bills, as well as the fact that they engaged attorneys based in and licensed to practice law in Connecticut as further support for the grant of personal jurisdiction. Such facts are not persuasive in this matter.
Though the plaintiffs correctly points out that Connecticut courts could properly exercise jurisdiction over an out-of-state hospital in certain situations, this is not one of them. See Frazer v. McGowan, 198 Conn. 243, 502 A.2d 905 (1986). In Frazer, a Rhode Island hospital made specific advertisements aimed specifically at Connecticut residents. Id., 251. The Supreme Court in that case stated that the activities of the hospital should be looked at in totality. When examining the activities of the defendant in the present matter in their totality, such activities are insufficient to satisfy the solicitation and due process requirements necessary for this court to exert jurisdiction over the defendant Mount Sinai.
Regarding the defendant Kalman D. Post, the longarm statute states, in pertinent part, that personal jurisdiction may be had over a foreign defendant when that defendant "commits a tortious act outside the state causing injury to person or property within the state." General Statutes § 52-59b(a)(3). The defendant cites a Supreme Court case indicating that Connecticut's longarm statute is rooted in a New York statute, C.P.L.R. 302(a)(3), indicating that, for legal purposes, an injury is deemed to have occurred wherever it was that the injurious activity took place, regardless of where the victim is when the injury is manifested. In this case, the place of the original event claimed to cause the injury would be New York. Further, the defendant contends that he has not engaged in the kind of contact with the state of Connecticut that would enable this court to assert jurisdiction over him. The plaintiffs had the burden to demonstrate that the defendant solicited business in Connecticut, sought to derive income from Connecticut residents, or would have engaged in any other activity that would place him in such contact with residents of this state so as to expect to be brought within its jurisdiction. See General Statutes 52-59b. It appears that all of the defendant's treatment of the plaintiffs occurred within the state of New York. While the plaintiffs argue that Maria Marcoccia was referred to the defendant via a Connecticut doctor and the defendant knew the plaintiff was a Connecticut resident, these facts do not rise to the type of activity required under § 52-59b. No other evidence was provided that the defendant entered into referral contracts in Connecticut, had places of business in Connecticut, or advertised with Connecticut media. Without evidence of a stronger relationship between the defendant and the forum, the plaintiffs have not met their burden to demonstrate that personal jurisdiction over this defendant is proper.
For the foregoing reasons, the motion to dismiss on the grounds of lack of personal jurisdiction over the defendants Mount Sinai Medical Center, Inc. and Kalmon D. Post, M.D. is granted.