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May 10, 2001


The opinion of the court was delivered by: Giles, C.J.


I. Introduction

Maria and Alfredo Guardi bring this diversity action for negligence and bailment against Defendant Paula Desai, M.D., seeking compensatory and exemplary damages as well as interest, costs, and attorney's fees. Now before the court is a motion of Defendant to dismiss the complaint for lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). For the reasons that follow, Defendant's motion to dismiss is denied.


The material facts are not in contention. On June 9, 1997, Plaintiffs' counsel, Joanna Hamill Flum ("Ms. Flum") sent Defendant Paula Desai ("Dr. Desai") an unsolicited package to her home in Colorado containing (1) a letter asking Dr. Desai whether she would be willing to review certain materials in connection with Maria Guardi's ("Mrs. Guardi") potential medical negligence action in Pennsylvania; (2) a letter setting forth the facts of Mrs. Guardi's potential medical negligence action; and (3) the original mammogram films of Mrs. Guardi from September 21, 1990, September 20, 1991, October 27, 1992, and June 29, 1995. (Compl. ¶ 8; Pls.' Br. in Supp. of Resp. to Def.'s Mot. to Dismiss at 1-2.) The letter relating the basis for the potential medical negligence action stated, "I would ask that you please return these films to me [Ms. Flum] at the completion of your review, as they are the original films from the hospital and we have no other copies in our office." (Pls.' Br. in Supp. of Resp. to Def.'s Mot. to Dismiss, Ex. C.)

On August 26, 1997, Dr. Desai mailed to Ms. Flum her report, dated July 27, 1997, opining that the June 29, 1995 mammogram was improperly interpreted by Dr. Bernard Lewin ("Dr. Lewin"). (Compl. ¶ 9.) Dr. Desai sent a letter accompanying this report which included the following statement: "I hope that you will consider me for the evaluation of future cases for which you will need the assistance of a radiologist." (Pls.' Br. in Supp. of Resp. to Def.'s Mot. to Dismiss, Ex. D.) Ms. Flum's law partner did attempt to use Dr. Desai as an expert in a later case. (Id. at 2.)

After Plaintiffs received Dr. Desai's report, Ms. Flum contacted Dr. Desai to discuss the report in late August 1997. (Id.) During this conversation, Ms. Flum requested that Dr. Desai keep the mammograms for a short period of time in case Plaintiffs needed an addendum to Dr. Desai's report. (Id.) Dr. Desai agreed to keep the mammogram films but apparently lost them. (Id.)

A medical negligence action was filed by Plaintiffs on March 5, 1998 in a Pennsylvania state court against various defendants including Dr. Lewin, alleging that Dr. Lewin failed to properly interpret the mammogram performed on June 29, 1995. (Compl. ¶ 5.) On December 8, 2000, the instant action was filed against Dr. Desai alleging that without the original mammogram films, Plaintiffs will be deprived of monetary damages that would have been obtained through a lawsuit because they are unable to prosecute their claim against Dr. Lewin. (Id. ¶ 10.)


• Personal Jurisdiction

Defendant moves to dismiss the complaint on the grounds that the court may not exercise personal jurisdiction over her. When a defendant raises the defense of the court's lack of personal jurisdiction, the plaintiff has the burden of bringing forward sufficient jurisdictional facts to establish with reasonable particularity that there were sufficient contacts between the defendant and the forum to make jurisdiction proper. See Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). For purposes of this motion, the court must accept as true the plaintiff's version of the facts, and draw all inferences from the pleadings, affidavits, and exhibits in plaintiff's favor. See DiMark Mktg., Inc. v. Louisiana Health Serv. & Indem. Co., 913 F. Supp. 402, 405 (E.D.Pa. 1996). The third circuit has repeatedly held that courts should take a "highly realistic" view when deciding whether to assert personal jurisdiction over a non-resident defendant. Farino, 960 F.2d at 1224. Courts should take into account "the relationship among the forum, the defendant and the litigation . . ." Id.

There is a two-part test to determine if personal jurisdiction exists over an out-of-state defendant. First, the court must determine whether the long-arm statute of the forum state would allow courts of that state to exercise jurisdiction over the defendant. Fed.R.Civ.P. 4(e). Second, if the forum state would allow jurisdiction, then the court must determine if exercising personal jurisdiction comports with the due process clause of the U.S. Constitution. See IMO Indus. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998). Since the Pennsylvania long-arm statute, 42 Pa. C.S.A. § 5322(b), permits Pennsylvania courts to exercise personal jurisdiction to the constitutional limits, the jurisdictional inquiry turns on whether the exercise of personal jurisdiction complies with constitutional due process.*fn1 See Verotex Certainteed Corp. v. Consolidates Fiber Glass Prods. Co., 75 F.3d 147, 150 (3d Cir. 1996); Farino, 960 F.2d at 1221.

There are two distinct bases upon which personal jurisdiction can be premised — general jurisdiction and specific jurisdiction. General jurisdiction exists when, regardless of where the particular events giving rise to the litigation occurred, the non-resident defendant has continuous and systematic contacts with the forum state. See Provident Nat'l Bank v. California Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987) (citing Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 & n. 9 (1984)). In contrast, specific jurisdiction exists when there are no continuous and systematic contacts, but a controversy is related to or "arises out of" a defendant's contacts with the forum. See Helicopteros, 466 U.S. at 414 & n. 8. Both parties agree that only specific jurisdiction is possibly relevant so the court will dispense with a discussion of general jurisdiction.

There is a two-part test for a court to apply in determining whether the court can exercise specific jurisdiction. First, a plaintiff must demonstrate that the defendant has sufficient "minimum contacts" with Pennsylvania. See IMO, 155 F.3d at 259 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)). A defendant establishes minimum contacts with the forum state through affirmative acts directed at residents of the forum; there must be some act by which the defendant purposefully avails him or herself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. See Burger King, 471 U.S. at 474-75. Minimum contacts are established where "defendant's conduct and connection are such that [defendants] should reasonably anticipate being haled into court there." Burger King, 471 U.S. at 474. Second, if minium contacts exist, the court must ...

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