HENRY PULLEN VS. DR. AUBREY C. GALLOWAY (L-1768-18, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1373-18T2
HENRY PULLEN, as Executor of
the ESTATE OF JEANNE PULLEN, APPROVED FOR PUBLICATION
deceased, and individually, December 9, 2019
Plaintiffs-Appellants, APPELLATE DIVISION
v.
DR. AUBREY C. GALLOWAY,
LOUIS STEIN, ROBERT M.
APPLEBAUM, EDWIN BLUMBERG,
MARK S. LIFSHITZ, and NEW YORK
UNIVERSITY MEDICAL CENTER,
Defendants-Respondents.
________________________________
Argued October 16, 2019 – Decided December 9, 2019
Before Judges Fisher, Accurso and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-1768-18.
Kenneth Wesley Thomas argued the cause for
appellants (Lanza Law Firm, LLP, attorneys; Kenneth
Wesley Thomas, of counsel and on the briefs).
Walter F. Kawalec, III argued the cause for respondents
Dr. Aubrey C. Galloway, Louis Stein, Robert M.
Applebaum, Mark S. Lifshitz, and New York
University Medical Center (Marshall Dennehey Warner
Coleman & Goggin, attorneys; Walter F. Kawalec, III,
and Julia A. Klubenspies, on the brief).
The opinion of the court was delivered by
GILSON, J.A.D.
In this medical malpractice action, plaintiff appeals from an order
dismissing with prejudice his complaint for lack of personal jurisdiction over a
New York licensed doctor who provided medical treatment at a New York
hospital. We affirm the dismissal of the complaint for lack of personal
jurisdiction, but remand with instructions that the complaint be dismissed
without prejudice.
I.
We take the facts from the record developed on the motion to dismiss and
view those facts in the light most favorable to plaintiff. On March 29, 2016,
Jeanne Pullen (the deceased) underwent surgery to replace her aortic valve. The
surgery was performed by Dr. Aubrey Galloway at New York University
Langone Medical Center (NYU Medical Center). Dr. Robert Applebaum also
provided care to the decedent while she was at NYU Medical Center.
Dr. Galloway and Dr. Applebaum are physicians licensed to practice
medicine in New York. They also both live in New York. Decedent was a New
Jersey resident who was referred to Dr. Galloway by her New Jersey licensed
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doctor, Dr. Edwin Blumberg. It is undisputed that Dr. Galloway and Dr.
Appelbaum treated decedent only in New York and did not provide any care to
her in New Jersey.
Decedent was discharged from NYU Medical Center on April 5, 2016.
She died nine days later on April 14, 2016, after she developed blood clots.
On March 23, 2018, plaintiff Henry Pullen filed a complaint in the Law
Division alleging malpractice against Dr. Galloway, Dr. Applebaum, Dr. Louis
Stein, Dr. Mark Lifshitz, Dr. Edwin Blumberg, and NYU Medical Center.
Plaintiff, who is the widower of the decedent and the executor of her estate,
asserted claims of wrongful death and survivor claims of pain and suffering.
Thereafter, plaintiff dismissed with prejudice his complaints against Dr. Stein,
Dr. Lifshitz, and Dr. Blumberg.
Dr. Galloway filed an answer on May 1, 2018, and asserted, as an
affirmative defense, that he was not subject to personal jurisdiction in New
Jersey. Dr. Applebaum served his answer on July 27, 2018. Like Dr. Galloway,
Dr. Applebaum asserted that he was not subject to personal jurisdiction in New
Jersey.
In the meantime, in May 2018, plaintiff served an affidavit of merit
concerning the treatment provided by Dr. Galloway. Dr. Galloway challenged
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the credentials of the physician who prepared the affidavit of merit, contending
that he did not have the appropriate qualifications. In response, plaintiff filed a
motion seeking a court order that the original affidavit of merit was valid and
appropriate. In June 2018, the trial court denied plaintiff's motion finding that
the physician who served the original affidavit of merit was not qualified.
Thereafter, on August 24, 2018, plaintiff served a second affidavit of merit.
On September 24, 2018, Dr. Galloway, Dr. Applebaum, and NYU Medical
Center filed a motion to dismiss plaintiff's complaints against them for lack of
personal jurisdiction. Both doctors certified that they lived in New York, they
were licensed to practice medicine in New York, and that they never lived or
practiced medicine in New Jersey. Both doctors also certified that they never
treated decedent in New Jersey, they were not affiliated with any hospitals in
New Jersey in 2016, and they did not solicit or otherwise contact decedent,
plaintiff, or any other New Jersey residents for the purpose of rendering medical
treatment.
Dr. Galloway also explained that he had been licensed to practice
medicine in New Jersey between June 2004 and June 2009. He certified that he
had obtained that New Jersey license because NYU Medical School had an
arrangement with AtlanticCare Regional Medical Center in Atlantic City, New
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Jersey, but he never examined patients in New Jersey and he did not travel to
New Jersey to care for any patients.
In opposition to defendants' motion, plaintiff argued that Dr. Galloway
waived his personal jurisdiction defense by failing to file a timely motion to
dismiss. Plaintiff also argued that Dr. Galloway had sufficient contacts with
New Jersey to establish personal jurisdiction. In that regard, plaintiff filed a
certification claiming that Dr. Blumberg, the New Jersey cardiologist who had
treated decedent, had a "personal relationship/friendship" with Dr. Galloway.
Plaintiff also asserted that Dr. Galloway advertised his services to solicit
business through commercials on local television stations. Finally, plaintiff
certified that Dr. Galloway advertised his services via the internet to solicit
business. To support that claim, plaintiff attached copies of an NYU internet
posting and a print-out of a YouTube video uploaded by NYU Medical Center
on August 31, 2017.
On October 26, 2018, the trial court heard oral argument and, on that same
day, it entered an order granting the motion to dismiss plaintiff's complaint with
prejudice. The court also issued a written statement of reasons.
The trial court rejected plaintiff's waiver argument, pointing out that it had
the authority to extend the deadline for filing a motion to dismiss. The court
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then ruled that there was insufficient evidence to establish personal jurisdiction
over the defendants. With regard to plaintiff's contentions about Dr. Galloway's
advertising, the trial court found that those general contentions, which did not
establish any direct contact with decedent, were too vague to establish personal
jurisdiction over Dr. Galloway.
II.
On appeal, plaintiff makes two arguments. First, he contends that Dr.
Galloway waived his personal jurisdiction defense by failing to file a timely
motion within ninety days of filing his answer. Second, plaintiff argues that
New Jersey courts have personal jurisdiction over Dr. Galloway. We are not
persuaded by either argument.
Initially, we note that on this appeal plaintiff has focused all of his
arguments on the dismissal of his claims against Dr. Galloway. Plaintiff
concedes that Dr. Applebaum filed his motion to dismiss within ninety days of
filing an answer. Moreover, plaintiff made no arguments concerning personal
jurisdiction over Dr. Applebaum or NYU Medical Center. Indeed, at oral
argument before us, plaintiff's counsel conceded that NYU Medical Center
would only be vicariously liable for the alleged malpractice of Dr. Galloway.
Thus, we deem plaintiff to have abandoned any appeal of the order dismissing
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Dr. Applebaum or NYU Medical Center. See N.J. Dep't of Envtl. Prot. v.
Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2015) (holding that an
issue that is not briefed is deemed waived upon appeal); Fantis Foods, Inc. v. N.
River Ins. Co., 332 N.J. Super. 250, 266-67 (App. Div. 2000).
A. The Waiver Issue
Rule 4:6-2(b) requires the defense of lack of personal jurisdiction to be
asserted in a defendant's answer. Rule 4:6-3 then requires that a motion to
dismiss based on the lack of personal jurisdiction "shall be raised by motion
within 90 days after service of the answer . . . ." Rule 4:6-7 goes on to state that
the defense of personal jurisdiction is "waived if not raised by motion pursuant
to R. 4:6-3 . . . ." Nevertheless, all those rules are subject to Rule 1:1-2, which
states that the trial court can relax or dispense with any rule "if adherence to it
would result in an injustice." See also R. 1:3-4(a) (allowing a court to enlarge
the time for taking an action).
Dr. Galloway expressly asserted the defense of lack of personal
jurisdiction in his answer filed on May 1, 2018. Thereafter, the parties disputed
the validity of plaintiff's first affidavit of merit as it related to Dr. Galloway.
That issue was not resolved until plaintiff filed a new affidavit of merit on
August 24, 2018. Dr. Galloway, together with Dr. Applebaum and NYU
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Medical Center, then moved to dismiss for lack of personal jurisdiction on
September 24, 2018.
Between May 1, 2018, and September 24, 2018, Dr. Galloway took no
action that would constitute a waiver of his defense of personal jurisdiction. To
the contrary, he disputed plaintiff's first affidavit of merit, which went to the
very question of whether plaintiff had a valid claim against Dr. Galloway.
Consequently, we discern no error or abuse of discretion in the trial court's
decision to address Dr. Galloway's motion to dismiss for lack of personal
jurisdiction. See Byrnes v. Landrau, 326 N.J. Super. 187, 193 (App. Div. 1999)
(explaining that when dealing with a constitutionally-based defense, such as
personal jurisdiction, waiver of that defense should be clear and any contention
that the defense has been waived should be strictly scrutinized).
B. Whether There Is Personal Jurisdiction
"A court's jurisdiction is 'a mixed question of law and fact' that must be
resolved at the outset, 'before the matter may proceed . . . .'" Rippon v. Smigel,
449 N.J. Super. 344, 359 (App. Div. 2017) (quoting Citibank, N.A. v. Estate of
Simpson, 290 N.J. Super. 519, 532 (App. Div. 1996)). We review de novo the
legal aspects of personal jurisdiction. Id. at 358 (citing Mastondrea v.
Occidental Hotels Mgmt. S.A., 391 N.J. Super. 261, 268 (App. Div. 2007)). We
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will not disturb a trial court's factual findings concerning jurisdiction if they are
supported by substantial credible evidence. Ibid. Moreover, "[a] trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference [on appeal]." Manalapan Realty,
L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
New Jersey courts "may exercise in personam jurisdiction over a non-
resident defendant 'consistent with due process of law.'" Bayway Refining Co.
v. State Utils., Inc., 333 N.J. Super. 420, 428 (App. Div. 2000) (alterations in
original omitted) (quoting R. 4:4-4(b)(1)). A two-part test governs that analysis:
[D]ue process requires only that in order to subject a
defendant to a judgment in personam, if he [or she] be
not present within the territory of the forum, [(1)] he [or
she] have certain minimum contacts with [the forum
(2)] such that the maintenance of the suit does not
offend "traditional notions of fair play and substantial
justice."
[International Shoe Co. v. Washington, 326 U.S. 310,
316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457,
463 (1940)).]
"[T]he requisite quality and quantum of contacts is dependent on whether
general or specific jurisdiction is asserted . . . ." Citibank, N.A., 290 N.J. Super.
at 526.
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General jurisdiction exists when the plaintiff's claims arise out of the
defendant's "continuous and systematic" contacts with the forum state.
Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984);
Baanyan Software Servs., Inc. v. Kuncha, 433 N.J. Super. 466, 474 (App. Div.
2013). For general jurisdiction to attach, a defendant's activities must be "so
continuous and systematic as to render [it] essentially at home in the forum
State." FDASmart, Inc. v. Dishman Pharm. & Chems., Ltd., 448 N.J. Super.
195, 202 (App. Div. 2016) (alteration in original) (citation omitted) (quoting
Daimler AG v. Bauman, 571 U.S. 117, 128 (2014)).
Specific jurisdiction is available when the "cause of action arises directly
out of defendant's contacts with the forum state . . . ." Waste Mgmt., Inc. v.
Admiral Ins. Co., 138 N.J. 106, 119 (1994), cert. denied, 513 U.S. 1183 (1995).
In examining specific jurisdiction, the "minimum contacts inquiry must focus
on 'the relationship among the 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 (1977)). The minimum contacts requirement is satisfied if
"the contacts expressly resulted from the defendant's purposeful conduct and not
the unilateral activities of the plaintiff." Ibid. (citing World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297-98 (1980)). "In determining whether the
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defendant's contacts are purposeful, a court must examine the defendant's
'conduct and connection' with the forum state and determine whether the
defendant should 'reasonably anticipate being haled into court [in the forum
state].'" Bayway Refining Co., 333 N.J. Super. at 429 (alteration in original)
(quoting World-Wide Volkswagen Corp., 444 U.S. at 297).
Applying these well-established standards, Dr. Galloway is not subject to
personal jurisdiction in New Jersey. Dr. Galloway does not have the continuous
and substantial contacts that would subject him to general jurisdiction in New
Jersey. Dr. Galloway 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 contends that Dr. Galloway advertised on local television stations
and published information on the internet. Those general contentions, however,
are insufficient to establish general jurisdiction. Plaintiff did not identify any
actual advertising on local television stations. Instead, plaintiff merely asserted
that Dr. Galloway had engaged in such advertisement. That contention is not
supported by any specific facts such as the nature of the advertising, when and
where the advertising was actually aired, and whether the advertisement was
directed at New Jersey residents.
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Plaintiff's certification also included a screen shot of a YouTube video
entitled, "Meet Cardiothoracic Surgeon Dr. Aubrey Galloway." The video was
uploaded by NYU Medical Center in August 2017, more than a year after
decedent's surgery. Plaintiff also references Dr. Galloway's listing on NYU
Medical Center's website. We have 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." Wilson v. Paradise Village Beach Resort & Spa, 395 N.J. Super.
520, 532-33 (App. Div. 2007) (collecting cases). In short, plaintiff's general
allegations do not satisfy the rigorous standard for establishing general
jurisdiction through substantial and sustained contacts.
Dr. Galloway is also not subject to specific jurisdiction based on his
treatment of decedent. It is undisputed that Dr. Galloway treated and operated
on decedent in New York. He had no contact with decedent in New Jersey. We
have previously held that a doctor's out-of-state treatment of a New Jersey
resident does not, in and of itself, establish personal jurisdiction. Bovino v.
Brumbaugh, 221 N.J. Super. 432, 437 (App. Div. 1987). In Bovino, we
explained that when a patient seeks personal services from an out-of-state
physician, those services are not directed towards a particular place; rather, they
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are directed at the needs of the patient. In that regard, we noted that it is
fundamentally unfair to subject an out-of-state physician to jurisdiction in New
Jersey when treatment is provided exclusively in another state. Ibid.Plaintiff contends that the decedent's New Jersey doctor was a friend of
Dr. Galloway. In that regard, plaintiff suggests that the decedent's New J ersey
doctor referred decedent to Dr. Galloway for treatment. Such a referral does not
establish specific personal jurisdiction. See id. at 436-37. Dr. Galloway did not
initiate or seek the referral. Instead, a New Jersey doctor, who apparently knew
Dr. Galloway, referred decedent to Dr. Galloway. Such a referral is not
purposeful conduct by Dr. Galloway with New Jersey.
While we affirm the order dismissing defendants for lack of personal
jurisdiction, the dismissal should not have been with prejudice. The dismissal
of the complaint was not an adjudication on the merits. R. 4:37-2(d) ("any
dismissal not specifically provided for by R. 4:37, other than a dismissal for lack
of jurisdiction, operates as an adjudication on the merits."); Exxon Research and
Eng'g Co. v. Indus. Risk Ins'rs, 341 N.J. Super. 489, 519 (App. Div. 2001)
(finding that a dismissal for lack of jurisdiction should be without prejudice
because such a dismissal is not an adjudication on the merits). Accordingly, we
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remand for the limited purpose of entering an amended order dismissing the
complaint without prejudice.
Affirmed and remanded. We do not retain jurisdiction.
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