Harlow v. Children's Hospital , 432 F.3d 50 ( 2005 )

United States Court of Appeals
For the First Circuit
No. 05-1605
DANIELLE HARLOW,
Plaintiff, Appellant,
v.
CHILDREN'S HOSPITAL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
Adam A. Rowe, with whom Leo J. Dunn, III and Crowe & Dunn
were on brief, for appellant.
James B. Haddow, with whom Bradford A. Pattershall and
Petruccelli, Martin & Haddow, LLP were on brief, for appellee.
December 20, 2005
LYNCH, Circuit Judge. In November 2004, Danielle Harlow
of Turner, Maine, sued Children's Hospital of Boston,
Massachusetts, in the Maine Superior Court for medical malpractice
during a procedure performed at the Hospital on May 10, 1993.
Danielle was six years old at the time of the procedure. The
issues addressed here would never have arisen had she filed suit in
Massachusetts courts, which had jurisdiction over the Hospital,
before the expiration of the Massachusetts three-year statute of
limitations. See Mass. Gen. Laws ch. 231, § 60D. She did not file
such a suit.
Rather, Harlow instituted proceedings in Maine after the
Massachusetts statute had expired. Maine allows minors to commence
an action "within 6 years after the cause of action accrues or
within 3 years after the minor reaches the age of majority,
whichever first occurs." Me. Rev. Stat. Ann. tit. 24, § 2902. The
November 2004 suit was timely filed under Maine law because Harlow
had filed a Notice of Claim before the six years had expired,
thereby tolling the statute of limitations. See id. § 2859. The
question is whether an exercise of personal jurisdiction over the
Hospital in Maine would comport with Maine's long-arm statute and
the Due Process Clause.
The Hospital removed the Maine case to federal court,
invoking diversity jurisdiction. The Hospital then moved to
dismiss the case for lack of personal jurisdiction. The court
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granted that motion, and Harlow appeals. We affirm. In doing so,
we clarify the time frame of the evidence to which a court may look
in deciding whether a defendant's contacts with a state are
sufficient to justify personal jurisdiction, both specific and
general.
I.
In 1993, Danielle Harlow underwent a radiofrequency
cardiac ablation procedure at the Hospital in Boston. The
procedure was performed to treat Harlow's supraventricular
tachyarrhythmia, a condition secondary to Harlow's Wolff-Parkinson-
White syndrome. Allegedly as a result of the Hospital's
negligence, Harlow suffered a stroke during the procedure. Harlow
alleges that the stroke caused brain damage, with the result that
she suffers serious permanent injury in the form of severe left
hemiparesis,1 as well as cognitive and behavioral impairments,
including "cognitive deficits, personality changes, attention and
concentration deficits, impulsivity, and an inability to modulate
her behavior."
In May 1999, Harlow filed a notice of medical malpractice
claim against the Hospital and four affiliated doctors, initiating
1
Hemiparesis is "muscular weakness or partial paralysis
restricted to one side of the body," according to Webster's Third
New International Dictionary 1054 (1993). Harlow says that she
suffers from a deformity in her left hand and from impaired gait
and balance. In particular, according to a doctor who evaluated
Harlow, Harlow has a "claw hand" on the left side and her left foot
turns inward as she walks.
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mandatory prelitigation screening panel proceedings, as required by
Maine law. See Me. Rev. Stat. Ann. tit. 24, §§ 2853, 2903. The
defendants asserted lack of personal jurisdiction over them in
Maine; the panel chair, acting on a joint motion of the parties,
referred the issue of jurisdiction to the Maine Superior Court
pursuant to Me. Rev. Stat. Ann. tit. 24, § 2853(5). In February
2001, after briefing, the Superior Court granted the defendant
doctors' motion to dismiss for lack of personal jurisdiction, but
denied the Hospital's motion, ruling that there was personal
jurisdiction over the Hospital (the court did not specify whether
it was relying on general or specific jurisdiction, and it cited
factors pertinent to both).
In October 2004, the screening panel unanimously decided
that the Hospital's treatment of Harlow had deviated from the
applicable standard of care and had caused her injury. In November
2004, Harlow filed her medical malpractice complaint in Maine
Superior Court. The Hospital removed the case to federal court and
moved to dismiss for lack of personal jurisdiction under Fed. R.
Civ. P. 12(b)(2). Harlow filed an objection on the merits and
under the law of the case doctrine, and the Hospital filed a reply.
In March 2005, the district court granted the Hospital's
motion to dismiss. The court observed that to the extent the "law
of the case" doctrine applied at all, it is "a matter of
discretion," and that it was preferable to resolve the issue. The
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court, sitting in diversity, held that it lacked personal
jurisdiction, both specific and general, over the Hospital.
On appeal, Harlow argues that the district court erred in
two ways: first, the law of the case doctrine precluded the
Hospital from relitigating the issue of personal jurisdiction, and
second, on the merits, Harlow had established personal jurisdiction
over the Hospital.
II.
A. Law of the Case
"[L]aw of the case is an amorphous concept. As most
commonly defined, the doctrine posits that when a court decides
upon a rule of law, that decision should continue to govern the
same issues in subsequent stages in the same case. Law of the case
directs a court's discretion, it does not limit the tribunal's
power." Arizona v. California, 460 U.S. 605, 618 (1983) (citation
and footnote omitted). "Under law of the case doctrine, as now
most commonly understood, it is not improper for a court to depart
from a prior holding if convinced that it is clearly erroneous and
would work a manifest injustice." Id. at 618 n.8.
Whether the law of the case doctrine applies at all is a
question of law, which we review de novo. See Tang v. Dep't of
Elderly Affairs, 163 F.3d 7, 10-11 (1st Cir. 1998). Strictly
speaking, the law of the case doctrine -- understood as a bar to
subsequent review -- was not implicated in this case, because
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"[i]nterlocutory orders, including denials of motions to dismiss,
remain open to trial court reconsideration, and do not constitute
the law of the case." Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42
(1st Cir. 1994). Thus, the district court was free to reconsider
the earlier interlocutory order.
We have sometimes said -- instead of an outright
statement that law of the case is not applicable to interlocutory
orders at all -- that law of the case permits a lower court to
review prior interlocutory orders as long as that review is not an
abuse of discretion. Were the law of the case doctrine even to
apply, then, we would review only for abuse of discretion. See
Geffon v. Micrion Corp., 249 F.3d 29, 38 (1st Cir. 2001) (reviewing
a district court's reconsideration of its own prior ruling on
summary judgment motion for abuse of discretion); see also In re
Cabletron Sys., 311 F.3d 11, 21 n.2 (1st Cir. 2002) ("The law of
the case is a discretionary doctrine, especially as applied to
interlocutory orders such as this one. As Justice Holmes expressed
it, '[T]he phrase, law of the case, as applied to the effect of
previous orders on the later action of the court rendering them in
the same case, merely expresses the practice of courts generally to
refuse to reopen what has been decided, not a limit to their
power.'" (citation omitted) (alteration in original) (quoting
Messenger v. Anderson, 225 U.S. 436, 444 (1912))). As one
commentator has said, the law of the case doctrine involves an
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"effusion of applications," some of which are more discretionary
than others. 18B Wright, Miller, & Cooper, Federal Practice and
Procedure § 4478, at 637 (2d ed. 2002).2 Regardless of phrasing,
the result here is clear. The district court was not barred from
reconsidering the prior decision; at most we review the decision to
reconsider only for a particularly egregious abuse of discretion.
There was no abuse of discretion here.
The district court could have reconsidered this matter
even if the prior decision had been its own, rather than the state
court's. See Perez-Ruiz, 25 F.3d at 42; Cabletron Sys., 311 F.3d
at 21 n.2; Geffon, 249 F.3d at 38. As the district court noted,
there had been no final decision in the state court on personal
jurisdiction. The state court's "[d]enial of the Hospital's motion
2
For more on this "effusion of applications," see Coca-Cola
Bottling Co. v. Coca-Cola Co., 988 F.2d 386, 411 n.25 (3d Cir.
1993) (noting that although standard of review might be plenary on
question of whether district court applied correct law on remand
from court of appeals, review is for abuse of discretion on
question of whether second judge may hear reargument on an issue
already ruled upon by first judge); 18B Wright, Miller, & Cooper,
supra, § 4478, at 637 (discussing "the 'mandate rule' that binds a
lower court on remand to the law of the case established on
appeal"); id. § 4478.1, at 694 ("[R]econsideration often is better
deserved, and more important, while an action wends its way toward
the first final judgment in the trial court. The balance that must
be struck between stability and reaching the right decision is
different than the balance to be struck when successive appeals are
taken in the same case, or when a trial court faces the mandate of
an appellate court, or when different courts come to take part in
deciding a single case. Discretion is built into law-of-the-case
doctrine, but the measure of discretion is different in these
different settings.").
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to dismiss was not an appealable order. In fact, the Hospital
tried to appeal, but the Maine Law Court dismissed the appeal as
interlocutory . . . ." The district court put the point well:
"Although it is late in the case to re-examine the question, it
will be later still on appeal, an avenue open to the Hospital
because the personal jurisdiction ruling has never yet been
appealable."
One might think there could be a federalism objection to
a federal court's reconsidering a state court's interlocutory order
entered before removal of the case. Harlow's absolutist argument
against allowing the Hospital to reargue the matter suggests such
a consideration. But the argument proves too much: federalism does
not require more deferential treatment of a state-court
interlocutory order in a case removed to federal court than it
would have required had the order originated in federal court.
The Hospital, for its part, argues that the "law of the
case" doctrine does not apply at all in this case, because the
doctrine applies "only to those situations in which a court is
considering a matter that has already been the subject of a ruling
by a coordinate court," and "a state court is not 'coordinate' with
a federal court on matters of federal law." In effect, the
Hospital -- without citing any decisions of this court (the
Hospital cites only district court decisions for this proposition)
-- is arguing for a per se rule that when the prior ruling on an
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issue of federal law comes from a state court, law-of-the-case
considerations in a removed case are never applicable. Since state
courts are also obligated to apply federal law, the premise of the
argument is fatally flawed.
In any case, "it would hardly do to reverse a correct
ruling . . . on the simplistic ground that it departed from the
'law of the case' established by an earlier ruling," especially
where "the order challenged on appeal is subject to de novo review
in any event." 18B Wright, Miller, & Cooper, supra, § 4478.1, at
707-09.
B. Personal Jurisdiction
Harlow argues that both specific and general personal
jurisdiction exist over the Hospital.
The district court analyzed Harlow's claim of personal
jurisdiction under the prima facie standard of Boit v. Gar-Tec
Products, Inc., 967 F.2d 671 (1st Cir. 1992).3 Under that
3
In Boit, this court stated:
The most commonly used method of
determining a motion to dismiss for want of
personal jurisdiction is for the district
court to consider only whether the plaintiff
has proffered evidence that, if credited, is
enough to support findings of all facts
essential to personal jurisdiction. To defeat
a motion to dismiss when the court uses this
method the plaintiff must make the showing as
to every fact required to satisfy "both the
forum's long-arm statute and the due process
clause of the Constitution." This standard
for deciding a motion to dismiss is commonly
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standard, the "properly supported proffers of evidence" by the
plaintiff are taken as true, without the need for an evidentiary
hearing. Id. at 675; see also Jet Wine & Spirits, Inc. v. Bacardi
& Co., 298 F.3d 1, 4 (1st Cir. 2002) (where district court applied
prima facie standard as described in Boit, facts for purpose of
appeal from dismissal are "[plaintiff's] allegations so far as
evidence supports them after preliminary jurisdictional discovery,
supplemented by [defendant's] uncontested allegations").
This court reviews de novo a "district court's decision
to dismiss for lack of personal jurisdiction when the court held no
evidentiary hearing but instead conducted only a prima facie review
of the jurisdictional facts." Jet Wine & Spirits, 298 F.3d at 6-7
(citing Boit, 967 F.2d at 675).
An exercise of jurisdiction must be authorized by state
statute and must comply with the Constitution. See Noonan v.
Winston Co., 135 F.3d 85, 89 (1st Cir. 1998). The Maine long arm
statute extends "to the fullest extent permitted by the due process
clause of the United States Constitution." Me. Rev. Stat. Ann.
referred to as the "prima facie" standard or a
standard requiring a "prima facie" showing.
. . .
The prima facie showing of personal
jurisdiction must be based on evidence of
specific facts set forth in the record.
Boit, 967 F.2d at 675 (citations and footnote omitted) (quoting
U.S.S. Yachts, Inc. v. Ocean Yachts, Inc., 894 F.2d 9, 11 (1st Cir.
1990)).
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tit. 14, § 704-A(1). This leaves us with the constitutional
inquiry. Two types of personal jurisdiction, general and specific,
are at issue here. See United Elec., Radio and Mach. Workers of
Am. v. 163 Pleasant St. Corp. (Pleasant Street I), 960 F.2d 1080,
1088-89 (1st Cir. 1992) (distinguishing the two types). The
plaintiff need not prove the existence of both types of
jurisdiction; either one, standing alone, is sufficient. See Mass.
Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st
Cir. 1998).
The due process clause imposes several requirements on
the exercise of personal jurisdiction over out-of-state defendants.
First, the defendant must have sufficient "minimum contacts" with
the state. For specific jurisdiction, the plaintiff's claim must
be related to the defendant's contacts. For general jurisdiction,
in which the cause of action may be unrelated to the defendant's
contacts, the defendant must have continuous and systematic
contacts with the state. Second, for either type of jurisdiction,
the defendant's contacts with the state must be purposeful. And
third, the exercise of jurisdiction must be reasonable under the
circumstances. See Cambridge Literary Props., Ltd. v. W. Goebel
Porzellanfabrik G.m.b.H & Co. Kg., 295 F.3d 59, 63 (1st Cir. 2002);
Noonan, 135 F.3d at 89; Pleasant Street I, 960 F.2d at 1087-89; see
also Donatelli v. Nat'l Hockey League, 893 F.2d 459, 462-65 (1st
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Cir. 1990) (examining historical development of personal
jurisdiction jurisprudence).
1. Minimum Contacts
"The minimum contacts standard requires that a court
asserting personal jurisdiction determine that the nonresident
defendant possesses sufficient contacts with the forum state so
that subjecting him, her, or it to the forum's jurisdiction does
not offend 'traditional notions of fair play and substantial
justice.'" Pleasant Street I, 960 F.2d at 1087 (quoting Int'l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945)). Plaintiffs cannot
create jurisdiction by their unilateral activity:
The unilateral activity of those who claim
some relationship with a nonresident defendant
cannot satisfy the requirement of contact with
the forum State. The application of that rule
will vary with the quality and nature of the
defendant's activity, but it is essential in
each case that there be some act by which the
defendant purposefully avails itself of the
privilege of conducting activities within the
forum State, thus invoking the benefits and
protections of its laws.
Hanson v. Denckla, 357 U.S. 235, 253 (1958).
a. Contacts as Alleged by Harlow
We review the facts in two different categories: first,
the evidence before and around the alleged tort, and second, the
evidence after and unrelated to the alleged tort.
i. Evidence From Before and During the Period of the
Alleged Tort
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Harlow's pediatrician in Maine was the person who
recommended that Harlow be examined at the Hospital; the referral
was made in the spring of 1993. After recommending an examination
at the Hospital and before Harlow's first appointment there,
Harlow's pediatrician sent Harlow's medical records from Maine to
the Hospital. Harlow had her first appointment at the Hospital on
April 27, 1993, and she underwent the contested procedure there on
May 10, 1993. It appears that the Hospital discharged Harlow on
May 19 or 20, 1993. It is unclear whether Harlow visited the
Hospital again after being discharged. The district court believed
that there were some follow-up visits, but Harlow did not so
allege.4
At Harlow's April 27, 1993, appointment, her mother
explained to the doctor that she was concerned about the family's
ability to pay for the recommended procedure, and the doctor stated
that his office would take care of making the necessary
arrangements. Before Harlow underwent the procedure, the Hospital
obtained authorization from the Maine Medical Assistance Program
("Maine Medicaid"), which approved and agreed to pay for the
4
Harlow alleged only that the Hospital "sought and obtained
authorization from" Maine Medicaid for "follow-up care at the
Hospital." From the part of the record to which she cites, it
appears that the Hospital obtained authorization for a visit during
April or May 1995, but Harlow does not claim (or cite any part of
the record to show) that such a visit, or any other visit, in fact
occurred. There are only two actual visits, then, that Harlow has
alleged and provided record support for: the first appointment, and
the procedure itself.
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procedure.5 Ultimately, Maine Medicaid paid over $20,000 to the
Hospital for Harlow's procedure and immediate follow-up care at the
Hospital. It appears that the Hospital, before discharging Harlow,
performed various tests, including a cerebral CT scan, an MRI, and
an ultrasound study of the carotid artery, and that it administered
phenobarbital treatment (for an unspecified length of time, but at
least on May 17) for left-sided simple partial seizures.
If the state of Maine had not paid for the procedure at
the Hospital, the Harlows would not have been able to afford it,
and they would have sought other treatment. After Harlow was
discharged from the Hospital, she received "most of her follow up
care" from Maine health care practitioners. Harlow was discharged
from the Hospital to the Maine Medical Center for an extensive
course of rehabilitation. Since then, she has been in a special
education program and requires a one-on-one aide at school.
According to a physician who evaluated Harlow and reviewed her
records, Harlow "needs individual psychological counseling as well
as a group social training program," and she will have difficulty
5
The district court correctly refused to consider Harlow's
contention that the Hospital has maintained "for decades" an
"active relationship" with Maine Medicaid, that it had a Provider
ID Number before and after May 1993, and that under Maine law it
was required to regularly submit documentation to the State of
Maine in order to keep its active Provider ID number. This was
because Harlow failed to cite any record evidence to support this
contention. Harlow did cite record evidence to support, and the
district court did consider, the Hospital's arranging for Maine
Medicaid to pay for Harlow's own treatment.
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living independently, maintaining family and social relationships,
and earning a living. Harlow alleged that the cost of her future
care will be over $800,000.
Harlow alleged a number of communications between the
Hospital and various individuals in Maine. There is a letter,
dated April 30, 1993,6 from a Hospital doctor to Harlow's
pediatrician, which refers to a prior phone call that the writer
made to the pediatrician, and which thanks the pediatrician for
referring Harlow to the Hospital. The evidence as to post-
procedure communications is sparse. After the procedure, Hospital
staff had further communications with Harlow's pediatrician,
another pediatrician in Maine, Harlow's mother, and Maine Medicaid.
Harlow states that the Hospital "sent multiple correspondence to
[these] individuals regarding Danielle," and that when a Hospital
doctor spoke with Harlow's mother on the telephone in January 1997,
he also sent correspondence, including "various medical articles."
ii. Evidence From After the Alleged Tort
Much of Harlow's evidence concerned the second category:
for periods after and unrelated to the alleged malpractice on May
6
Harlow alleged only one pre-1993 contact: that since 1988,
the Hospital has sent "relations specialists" to meet with
pediatricians and family practitioners. The district court did not
consider this contention, because Harlow had not indicated "that
these relations specialists ever visited or had any connection with
Maine (or even New England)." On appeal, Harlow has still failed
to specify whether this outreach program ever included Maine
doctors in general or her pediatrician in particular.
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10, 1993. We detail the evidence before we address whether the
post-tort evidence can be considered for either the specific
jurisdiction analysis or the general jurisdiction analysis.
Harlow presented evidence that in 1998 and 1999, roughly
100 inpatients per year were referred to the Hospital from Maine.
In 1998, the Hospital charged $2.4 million to Maine Medicaid. In
1999, the Hospital charged $1.6 million to Maine Medicaid for
inpatient services plus another $500,000 for outpatient services.
The Hospital was not incorporated in Maine and is not
registered to do business there. Harlow alleged that,
nevertheless, the Hospital "actively markets and promotes its
business and services within Maine's borders." Her proffered
evidentiary materials are largely undated and, to the extent they
are dated, they post-date her May 1993 procedure.
In particular, Harlow alleged, the "Hospital's marketing
department specifically targets physicians located in Maine."
Harlow alleged that the Hospital has "initiated a campaign to mail
every single pediatrician located in the State of Maine an
informational packet." Harlow alleged no time frame here; her only
record citation reveals that eighty-two copies of a "Pediatric
Specialist Guide" were mailed to Maine pediatricians in 2000, and
the Hospital's representative testified that he was unaware of any
other referral guides being sent. The Hospital also publishes a
monthly newsletter on pediatrics that, since 1999, has been mailed
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to "pediatricians who practice in Maine." The Hospital has also
mailed a number of brochures to Maine pediatricians. Harlow did
not allege any specific dates on which brochures were mailed; at
the Hospital's deposition, the Hospital's representative testified
that some brochures were mailed on one occasion in the spring of
2000 to eighty-two pediatricians in Maine, and that "none of these
items that have been marked as exhibits go to patients or
consumers." The Hospital has advertised in the Journal of
Pediatrics. The exhibit Harlow cited for this allegation does not
indicate when (or, for that matter, whether) the advertisement was
published. The Hospital's representative testified at the
Hospital's July 2000 deposition that "this advertisement is the
first I've ever heard of" in a national magazine, and the
advertisement had only been created "around two or three weeks
ago."
The Hospital has run advertisements in the Boston Globe,
which is "widely circulated in Maine." Harlow alleged that this
was "in the 1990's." At the Hospital's deposition, the
representative testified that he was only aware of one paid
advertising campaign in the Boston Globe, and it ran for a "three-
or four-week period" in 1997. Harlow also alleged that the
Hospital has run an advertisement in a Maine newspaper "on at least
one occasion" in October 1996. She also alleged that the Hospital
has advertised on Maine television and radio stations. She gives
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no dates, and the exhibit she cites is a webpage that was
apparently last updated in August 2002 and printed in February
2005; the webpage describes then-current and planned broadcast
promotions. Harlow also pointed to other parts of the Hospital's
website that "provide information for Maine physicians to refer
patients to Children's Hospital, as well as driving directions from
Maine to Massachusetts."
b. Specific Jurisdiction
i. Waiver
The Hospital initially argues that Harlow's claim of
specific jurisdiction is raised for the first time on appeal, and
that she therefore waived any specific jurisdiction argument she
might have. The Hospital overstates the record, and, in any event,
its own argument on waiver is perfunctory, and so has been waived.7
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The
district court addressed both claims. We follow suit.
ii. Standards for Specific Jurisdiction
The evidence produced to support specific jurisdiction
must show that the cause of action either arises directly out of,
or is related to, the defendant's forum-based contacts. Pleasant
7
As the district court noted, Harlow relied on general
jurisdiction in the state court proceeding. Harlow's reply to the
Hospital's motion to dismiss in the district court does not
expressly argue for "specific jurisdiction," but it also does not
expressly argue for "general jurisdiction." Without using either
of those terms, the substance of the reply plainly invokes both
forms of personal jurisdiction.
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Street I, 960 F.2d at 1088-89. The relatedness requirement is not
an open door; it is closely read, and it requires a showing of a
material connection. This court "steadfastly reject[s] the
exercise of personal jurisdiction whenever the connection between
the cause of action and the defendant's forum-state contacts seems
attenuated and indirect." Id. at 1089 (citing Donatelli, 893 F.2d
at 463). "Instead, the defendant's in-state conduct must form an
'important, or [at least] material, element of proof' in the
plaintiff's case." Id. (alteration in original) (quoting Marino v.
Hyatt Corp., 793 F.2d 427, 430 (1st Cir. 1986)). A broad "but-for"
argument is generally insufficient. Because "'but for' events can
be very remote, . . . due process demands something like a
'proximate cause' nexus." Cambridge Literary Props., 295 F.3d at
65. And although "strict adherence to a proximate cause standard
in all circumstances is unnecessarily restrictive," in most cases
"the proximate cause standard better comports with the relatedness
inquiry because it so easily correlates to foreseeability, a
significant component of the jurisdictional inquiry." Nowak v. Tak
How Invs., Ltd., 94 F.3d 708, 715 (1st Cir. 1996). "A 'but for'
requirement . . . has in itself no limiting principle; it literally
embraces every event that hindsight can logically identify in the
causative chain." Id. In sum, although proximate causation is not
a per se requirement of specific jurisdiction, its presence or
absence is still important. Id. at 715-16.
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iii. Timing of Contacts -- Specific Jurisdiction
There is a preliminary question regarding the universe of
facts pertinent to the specific jurisdiction analysis. Three key
themes of specific jurisdiction analysis require that the proper
focus be on those contacts leading up to and surrounding the
claimed injury which are related to the alleged malpractice. Those
three concepts are that there be fair notice to the defendant, that
the defendant must have purposefully availed itself of the forum
state, and that the forum-based activity be truly related to the
cause of action. The bulk of Harlow's post-tort evidence of the
Hospital's activity in Maine is simply not related at all to the
alleged malpractice.
As to the time frame for evidence, we have rejected an
argument from a defendant that specific jurisdiction should be
measured by contacts after the alleged wrongdoing, where those
contacts were more limited than those at the time of the event.
See Cambridge Literary Props., 295 F.3d at 66 ("[F]or purposes of
specific jurisdiction, contacts should be judged when the cause of
action arose, regardless of a later lessening or withdrawal."). A
defendant cannot avoid jurisdiction by shrinking its contacts with
the forum after the tort.
This case presents the mirror-image question. The
district court understood Harlow, the plaintiff, to be asking that
specific jurisdiction be measured in part by contacts after the
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cause of action arose, when those later contacts with the forum
state increased. This presents a slightly different set of
problems -- particularly as to fair notice to the defendant,
purposeful availment, and relatedness.
These three concepts are all related, and they mean that
in analyzing specific jurisdiction, contacts must generally be
limited to those before and surrounding the accrual of the cause of
action. This court has noted, for instance, that "'foreseeability'
and 'purposeful availment' bear a family resemblance (the former
defining the latter to a considerable extent)," Donatelli, 893 F.2d
at 464, and that "foreseeability is critical" in analyzing the
relatedness requirement, Pleasant Street I, 960 F.2d at 1089. At
heart, these concepts are all designed to ensure that exercises of
jurisdiction comport with due process. The Due Process Clause
requires fair warning as to where individuals' conduct will subject
them to suit, and for purposes of specific jurisdiction, "this
'fair warning' requirement is satisfied if the defendant has
'purposefully directed' his activities at residents of the forum,
and the litigation results from alleged injuries that 'arise out of
or relate to' those activities." Burger King Corp. v. Rudzewicz,
471 U.S. 462, 471-72 (1985) (citations omitted); see also Pleasant
Street I, 960 F.2d at 1088 (citing Hanson's purposeful availment
requirement); id. (citing concepts of reasonableness and
foreseeability and requirement "that a defendant's 'conduct and
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connection with the forum State [be] such that he should reasonably
anticipate being haled into court there'" (alteration in original)
(quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980))). The relatedness requirement, in particular, "ensures
that the element of causation remains in the forefront of the due
process investigation." Ticketmaster-New York, Inc. v. Alioto, 26
F.3d 201, 207 (1st Cir. 1994). Because causation is central to the
relatedness inquiry, see, e.g., Nowak, 94 F.3d at 714-16; Pleasant
Street I, 960 F.2d at 1089, in most cases, contacts coming into
existence after the cause of action arose will not be relevant.
iv. Analysis
Harlow's argument in support of specific jurisdiction is
that "[s]imply stated, but for Children's Hospital's contacts with
the State of Maine, Danielle Harlow never would have undergone the
surgical procedure that she did, and she never would have suffered
her injuries." Harlow points to the following facts: (1) the
Hospital's staff communicated by telephone and by written
correspondence with Harlow's doctor in Maine before and after the
procedure; (2) the Hospital scheduled the surgery in advance and
knew that Harlow was coming from Maine; (3) Harlow's pediatrician,
who referred her to the Hospital, was a target of the Hospital's
"outreach program"; (4) before the procedure, and during her first
visit, Harlow's mother informed the Hospital's staff that the
family was of modest means, and the Hospital responded by
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contacting Maine Medicaid to obtain prior approval for the
procedure; (5) after the procedure, the Hospital arranged for
Harlow to receive inpatient rehabilitation at the Maine Medical
Center; and (6) a doctor at the Hospital communicated with Harlow's
physicians in Maine "on repeated occasions" and contacted the Maine
government to obtain approval for follow-up care. Harlow stresses
the Hospital's contacts with Maine Medicaid, arguing that those
contacts were financially beneficial to the Hospital and
constituted purposeful availment of the benefits and protections of
Maine law.
When the post-event evidence unrelated to the alleged
malpractice is excluded, Harlow has not made out an adequate case
for specific jurisdiction. Harlow's "but-for" theory -- that but
for the referral from a Maine pediatrician, the harm would never
have happened -- is insufficient to give Maine specific
jurisdiction over the Hospital. The place of the alleged tort was
not Maine but Massachusetts. There is no evidence that the
Hospital purposefully induced Harlow to leave Maine to come to
Massachusetts. There is not even any evidence that the Hospital
induced the pediatrician to refer the patient to Maine. That the
reputation and expertise of an institution lead to referrals from
out of state cannot be enough to establish specific jurisdiction.
Harlow makes much of the uncontested fact that the
Hospital was "well aware that [she] was coming from Maine" and
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would likely return there. If that rationale -- an out-of-state
plaintiff availing herself of services in Massachusetts -- were
sufficient, then the Hospital would be subject to suit for merely
taking a patient from elsewhere. That the consequences of medical
care remain with a patient throughout her lifetime provides even
less of a basis to assert jurisdiction. Jurisdiction cannot be
created by and does not travel with the plaintiff patient wherever
she goes.
The nature of the activity in which the defendant is
engaged is important. The Hospital is not engaged in the
interstate sale of tangible goods, capable of doing harm elsewhere.
Even if it were, "'mere awareness' that a product may end up in the
forum state does not constitute 'purposeful availment.'" Boit, 967
F.2d at 683; id. at 682-83 (discussing Asahi Metal Indus. Co. v.
Superior Court of Cal., 480 U.S. 102 (1987)). Compare Int'l Shoe
Co., 326 U.S. at 314-15, 320 (personal jurisdiction proper where
defendant's salesmen resided in state, they displayed samples and
engaged in "regular and systematic solicitation of orders in the
state," "a substantial volume of merchandise [was] regularly
shipped by [defendant] to purchasers within the state," and cause
of action arose out of defendant's in-state activities), with
Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 85 (1st Cir. 1997)
(stating that even if third-party defendant had specific knowledge
that the stream of commerce would move its product into the forum
-24-
state, "this awareness alone would not be enough to constitute the
purposeful availment which is necessary for a showing of minimum
contacts" (emphasis added)).
Rather than putting goods into the "stream of commerce,"
the Hospital rendered medical care, a professional and highly
personal service, and it did so entirely in Massachusetts. As the
Ninth Circuit has explained:
In the case of personal services focus must be
on the place where the services are rendered,
since this is the place of the receiver's
(here the patient's) need. The need is
personal and the services rendered are in
response to the dimensions of that personal
need. They are directed to no place but to
the needy person herself. It is in the very
nature of such services that their
consequences will be felt wherever the person
may choose to go. However, the idea that
tortious rendition of such services is a
portable tort which can be deemed to have been
committed wherever the consequences
foreseeably were felt is wholly inconsistent
with the public interest in having services of
this sort generally available.
Wright v. Yackley, 459 F.2d 287, 289-90 (9th Cir. 1972). We reject
Harlow's portable tort theory.
Harlow also relies on other contacts, such as the
Hospital's dealings with Maine Medicaid and a handful of personal
communications about Harlow's treatment between the Hospital and
various individuals in Maine. The fact that Maine, through the
Maine Medicaid program, paid for the surgery is not a great deal
different for specific jurisdiction purposes than if Harlow's
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parents had written in Maine and mailed to the Hospital a check on
their Maine bank account. A Maine patient will presumably pay,
either through insurance or otherwise, for services at the
Hospital. In Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408 (1984), the Supreme Court said that the defendant's
acceptance of checks drawn on a forum-based bank was "of negligible
significance for purposes of determining whether [the defendant]
had sufficient contacts in [the forum]." Id. at 416. The Court
observed that "[c]ommon sense and everyday experience suggest that,
absent unusual circumstances, the bank on which a check is drawn is
generally of little consequence to the payee and is a matter left
to the discretion of the drawer."8 Id. at 416-17 (footnote
omitted). While the utilization of Medicaid from the patient's
state may cause extra communication and paperwork, it does not by
itself rise to the level of importance necessary to establish
specific jurisdiction.
We affirm the finding of lack of specific jurisdiction.
c. General Jurisdiction
General jurisdiction may exist "when the litigation is
not directly founded on the defendant's forum-based contacts, but
8
In Helicopteros, there was "no indication that [the
defendant] ever requested that the checks be drawn on a [forum]
bank or that there was any negotiation between [the parties] with
respect to the location or identity of the bank on which checks
would be drawn." 466 U.S. at 416. Here, the Hospital did arrange
for payment from Maine Medicaid, but this was at the plaintiff's
request.
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the defendant has nevertheless engaged in continuous and systematic
activity, unrelated to the suit, in the forum state." Pleasant
Street I, 960 F.2d at 1088 (citing Helicopteros, 466 U.S. at 414-16
& n.9); see also Helicopteros, 466 U.S. at 416 (focusing on
question of whether defendant's contacts with forum state
"constitute the kind of continuous and systematic general business
contacts the Court found to exist in" Perkins v. Benguet
Consolidated Mining Co., 342 U.S. 437 (1952)). "The standard for
evaluating whether . . . contacts satisfy the constitutional
general jurisdiction test 'is considerably more stringent' than
that applied to specific jurisdiction questions." Noonan, 135 F.3d
at 93 (quoting Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st
Cir. 1984)).
i. Timing of Contacts -- General Jurisdiction
We first resolve a preliminary matter. At oral argument,
the parties disputed which time frame of evidence was relevant in
deciding whether the Hospital's contacts with Maine are sufficient
to justify general jurisdiction. Harlow argued that for purposes
of general jurisdiction, we should look at the Hospital's contacts
up to the time of the filing of the complaint, well beyond the time
of the alleged tort. The Hospital relied by analogy on Cambridge
Literary Properties for the proposition that, even when general
jurisdiction is alleged, "contacts should be judged when the cause
of action arose." 295 F.3d at 66. We disagree with the Hospital.
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It is settled law that unrelated contacts which occurred after the
cause of action arose, but before the suit was filed, may be
considered for purposes of the general jurisdiction inquiry.
In Noonan, we expressly rejected the argument now made by
the Hospital. See 135 F.3d at 93 n.8 ("The parties clash over
which contacts should be considered in the general jurisdiction
analysis. . . . [T]hey dispute whether a foreign corporation's
contacts with the forum should be measured up to the time of the
alleged tort, up to the time the complaint is filed, or at any
time. We have considered all contacts established up to the time
[the plaintiff] filed his complaint."). In Helicopteros, where the
helicopter crash at the center of the lawsuit had occurred in
January 1976, the Supreme Court considered contacts through the
year 1977. See 466 U.S. at 410-11. On the other hand, contacts
after the filing of the complaint are not considered. See, e.g.,
United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 619 n.4 (1st
Cir. 2001) ("[W]e consider only contacts established before the
government filed its complaint in December 1997 . . . .").
The reason for this approach stems from the basic
distinction between specific and general jurisdiction. Wright and
Miller, in discussing this distinction, state:
As a practical matter, a general jurisdiction
inquiry is very different from a specific
jurisdiction inquiry. As one Court of Appeals
put it,
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Unlike the specific jurisdiction
analysis, which focuses on the cause
of action, the defendant and the
forum, a general jurisdiction
inquiry is dispute blind, the sole
focus being on whether there are
continuous and systematic contacts
between the defendant and the forum.
Accordingly, a court should consider all of a
defendant's contacts with the forum state
prior to the filing of the lawsuit, rather
than just those contacts that are related to
the particular cause of action the plaintiff
asserts.
4 Wright & Miller, Federal Practice and Procedure § 1067.5, at 520-
21 (3d ed. 2002) (footnote omitted) (quoting Dickson Marine, Inc.
v. Panalpina, Inc., 179 F.3d 331, 339 (5th Cir. 1999)); see also
Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569-70
(2d Cir. 1996) ("In general jurisdiction cases, district courts
should examine a defendant's contacts with the forum state over a
period that is reasonable under the circumstances -- up to and
including the date the suit was filed -- to assess whether they
satisfy the 'continuous and systematic' standard.").
ii. Analysis
In support of general jurisdiction, Harlow points to the
Hospital's "ongoing relationship" with Maine Medicaid, the fact
that the Hospital derives "substantial and consistent revenue" from
Maine, the Hospital's active marketing and advertising to
physicians and the general public in Maine, and the fact that the
Hospital "holds itself [out] as the regional pediatric trauma
-29-
center." Harlow argues that all of this amounts to "engag[ing] in
the 'continuous and systematic' pursuit of general business
activities" in Maine. Glater, 744 F.2d at 216 (quoting Perkins,
342 U.S. at 448).9
The Hospital, for its part, points to other facts which
have not been disputed: the Hospital is organized under
Massachusetts law and has its principal place of business in
Boston, Massachusetts; the Hospital does not own or use real estate
or maintain branch offices or other places of business in Maine; it
provides no medical services in Maine; and it "participates in no
arrangements to provide consultation, advice, services, or use of
its equipment or facilities to Maine health care providers."
Although it has on occasion sent mailings to 82 pediatricians in
Maine and it maintains a website accessible in Maine, the Hospital
does not actually do business through its website, and Maine
residents account for only about 100 out of 18,000 annual patient
admissions in Massachusetts. The Hospital argues that its contacts
fall "well below the levels of contacts that [have] previously
[been] found insufficient to support general jurisdiction." We
agree.
9
Harlow argues that her case is analogous to the case of
Kenerson v. Stevenson, 604 F. Supp. 792 (D. Me. 1985), which held
that general jurisdiction in Maine existed over a New Hampshire
hospital that had treated a Maine resident who had arrived with
injuries received in New Hampshire. Whether Kenerson is correct or
not, the evidence here does not establish general jurisdiction.
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As we have held in other cases, "where 'defendant's only
activities consist of advertising and employing salesmen to solicit
orders, we think that fairness will not permit a state to assume
jurisdiction.'" Glater, 744 F.2d at 217 (quoting Seymour v. Parke,
Davis & Co., 423 F.2d 584, 586-87 (1st Cir. 1970)). We repeat
Glater's summary of Seymour, because we are facing an essentially
similar fact pattern:
In Seymour, a manufacturer and distributor of
[a] drug was sued in New Hampshire for
injuries occurring in Massachusetts. The
defendant maintained no office and engaged in
no manufacturing in New Hampshire; it held no
property there; it was not registered to do
business there. Its only contacts with New
Hampshire consisted of advertising and the
activities of a half dozen salesmen, mostly
New Hampshire residents, who accepted orders
and disseminated product information to New
Hampshire physicians, hospitals and retail
pharmacies.
Id. at 217.
Harlow argues that a nontrivial number of the Hospital's
patients come from Maine and have their treatment paid for by Maine
Medicaid. The Hospital points out that using Harlow's figures --
she alleges that Maine Medicaid pays the Hospital roughly $2
million annually, and that the Hospital's total annual revenue is
almost $400 million -- Maine Medicaid payments account for only
0.5% of the Hospital's revenues.
Treating patients from Maine in Massachusetts, even on a
regular basis, is not the same as engaging in continuous and
-31-
systematic activity in Maine. A hospital that treats Maine
residents in Massachusetts is, quite simply, in a different
position from a hospital that treats Maine residents in Maine, or
a firm that sells products to Maine residents in Maine. That the
Hospital derives revenue from treating Maine patients, sometimes in
the form of payments from Maine Medicaid, does not alter the basic
fact that the Hospital is not "engaged in continuous and systematic
activity, unrelated to the suit, in [Maine]." Pleasant Street I,
960 F.2d at 1088; see also Wolf v. Richmond County Hosp. Auth., 745
F.2d 904, 906, 910 (4th Cir. 1984) (no general jurisdiction even
though, among other things, defendant hospital "treats [forum-
state] residents and receives payments (either from state or local
governmental bodies or from the residents themselves) for services
rendered," some of the payments included "medicaid/medicare
reimbursements," and "approximately one-fifth" of defendant's
income came from forum-state residents); 4 Wright & Miller, supra,
§ 1067.5, at 507 ("[T]he defendant must be engaged in longstanding
business in the forum state, such as marketing or shipping
products, or performing services or maintaining one or more offices
there; activities that are less extensive than that will not
qualify for general in personam jurisdiction.").
2. Reasonableness of Exercise of Jurisdiction
Even if the Hospital's contacts with Maine were minimally
sufficient for either specific or general jurisdiction, we would
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still conclude that the exercise of jurisdiction here would be
unreasonable. "[E]ven where purposefully generated contacts exist,
courts must consider a panoply of other factors which bear upon the
fairness of subjecting a nonresident to the authority of a foreign
tribunal." Pleasant Street I, 960 F.2d at 1088. "[G]auging
fairness requires an assessment of reasonableness for, in certain
circumstances, unreasonableness can trump a minimally sufficient
showing of relatedness and purposefulness." Ticketmaster-New York,
26 F.3d at 210. The factors to be considered, known as the
"Gestalt factors," Pleasant Street I, 960 F.2d at 1088 (quoting
Donatelli, 893 F.2d at 465), include:
(1) the defendant's burden of appearing, (2)
the forum state's interest in adjudicating the
dispute, (3) the plaintiff's interest in
obtaining convenient and effective relief, (4)
the judicial system's interest in obtaining
the most effective resolution of the
controversy, and (5) the common interests of
all sovereigns in promoting substantive social
policies.
Id. (citing Burger King, 471 U.S. at 477).
"[T]he reasonableness prong of the due process inquiry
evokes a sliding scale." Ticketmaster-New York, 26 F.3d at 210.
In other words, "the weaker the plaintiff's showing on the first
two prongs (relatedness and purposeful availment), the less a
defendant need show in terms of unreasonableness to defeat
jurisdiction. The reverse is equally true: an especially strong
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showing of reasonableness may serve to fortify a borderline showing
of relatedness and purposefulness." Id.It is true that Harlow "has an interest in litigating
conveniently in [her] home state, which in turn has an interest in
affording its citizens a convenient forum." Cambridge Literary
Props., 295 F.3d at 66. But even though Maine has an interest in
protecting its residents, Massachusetts has a like interest, one
made stronger by the fact that it has an interest as a sovereign in
a case arising from the conduct -- here, medical practice -- that
occurs within its borders. Of course, "[t]he purpose of the
inquiry is not to compare the forum's interest to that of some
other jurisdiction, but to determine the extent to which the forum
has an interest," Foster-Miller, Inc. v. Babcock & Wilcox Can., 46
F.3d 138, 151 (1st Cir. 1995), but here Maine has only a slight
interest. "Although a forum state has a significant interest in
obtaining jurisdiction over a defendant who causes tortious injury
within its borders, that interest is diminished where the injury
occurred outside the forum state." Nowak, 94 F.3d at 718(citations omitted).
Further, Massachusetts law, not Maine law, would govern
this dispute. See Daynard v. Ness, Motley, Loadholt, Richardson &
Poole, P.A., 290 F.3d 42, 62 (1st Cir. 2002) (citing the fact that
forum state's law governs the dispute as one factor in favor of
exercising personal jurisdiction there); Estate of Johnson, 2001 ME
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39, ¶ 6, 766 A.2d 592, 594 (Maine has adopted the "most significant
contacts and relationships" test for choice of law, providing that
"[i]n an action for a personal injury, the local law of the state
where the injury occurred determines the rights and liabilities of
the parties, unless, with respect to the particular issue, some
other state has a more significant relationship . . . to the
occurrence and the parties" (quoting Restatement (Second) of
Conflict of Laws § 146 (1969))). As in Donatelli, Maine's
"sovereignty is not threatened; apart from a generalized concern
for the rights of its own domiciliaries, the state has no real
interest in adjudicating the controversy. In point of fact, the
opposite seems true . . . ." 893 F.2d at 472.
Harlow argues that recognizing jurisdiction in Maine
would be fair, because her family is of limited means, whereas the
Hospital has annual revenues of $400 million. Harlow also argues:
"Whereas litigating this case in Maine will cause little, if any,
inconvenience to the Children's Hospital, Danielle Harlow has no
other forum for her case to be heard." The argument is exactly
backwards. Harlow did have an obvious and readily available forum
in Massachusetts. The fact that she missed the statute of
limitations in Massachusetts does not add to her argument at all.
To hold otherwise would encourage plaintiffs to deliberately miss
-35-
a statute of limitations for purposes of forum manipulation.10 Such
a practice should be discouraged, not rewarded.
Another interest is at stake -- "the common interest[] of
all sovereigns in promoting substantive social policies." Pleasant
Street I, 960 F.2d at 1088. This factor weighs against the
reasonableness of exercising personal jurisdiction in Maine. All
sovereigns share an interest in promoting the social policy of
having quality health care available to those who need it. One way
to promote this policy is to limit the length of time during which
health care providers are exposed to lawsuits arising from the care
they provide. Here, for instance, Massachusetts has set a three-
year statute of limitations for malpractice claims against its
hospitals. See Mass. Gen. Laws ch. 231, § 60D. Maine has a
minimal interest in seeing that this limit be avoided, and the
common interest of all sovereigns (including Maine) in seeing that
this limit be observed is strong, especially in light of the fact
that the Hospital did not purposefully conduct business in or
10
This court has addressed concerns about manipulation and
statutes of limitations in other contexts. Cf. Noonan, 135 F.3d at
95 (discussing, in the context of temporal limitations on
jurisdictional discovery, the risk that "undesirable exploitation
of statute of limitations periods" will occur and that "[s]avvy
plaintiffs who wait until the end of the limitations period to
maximize the chance of asserting jurisdiction will be rewarded for
their dilatory tactics"); Seymour, 423 F.2d at 585-86 (exercise of
jurisdiction unfair where "plaintiff . . . is unconnected with the
forum and is not 'convenienced' by being able to sue there except
that she has lost her right to sue in what would otherwise have
been the fair and convenient state" because of the expiration of
that state's statute of limitations).
-36-
specifically direct its activities toward another state which has
a longer statute of limitations.
As to the disparity in resources, that has little to do
with due process limits on the extension of long-arm jurisdiction.
The law is not oblivious to financial considerations. But even
though the defendant's burden of appearing and the plaintiff's
interest in obtaining convenient and effective relief are included
among the "Gestalt factors" for the personal jurisdiction analysis,
see Pleasant Street I, 960 F.2d at 1088, sheer disparity in wealth
is not.
The argument Harlow raises of relative convenience and
burden is more appropriately dealt with under the law of forum non
conveniens or change of venue. Where a plaintiff properly
establishes jurisdiction in one federal district court, she is free
to argue for a transfer to another federal district court. See 28
U.S.C. § 1404(a) ("For the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any civil
action to any other district or division where it might have been
brought."). Even under the doctrines of forum non conveniens and
change of venue, it is not clear that sheer disparity in wealth is
legally relevant, without proof of hardship. See Iragorri v. Int'l
Elevator, Inc., 203 F.3d 8, 17 (1st Cir. 2000).
In the end, this case is about a patient who lives in
Maine and was referred by a Maine doctor to a hospital in Boston,
-37-
and who underwent a medical procedure in Boston which gave rise to
a cause of action; she returned to Maine and the procedure was paid
for from Maine. That cannot be enough to subject the Hospital to
suit in Maine. The question is not whether hospitals may be held
responsible in lawsuits for their activities, but whether they may
be haled into court out of state because they accept out-of-state
patients. It would be unreasonable to conclude that they could.
III.
The district court's order granting the Hospital's motion
to dismiss for lack of personal jurisdiction is affirmed. Each
side shall bear its own costs.
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