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 determine if exercising jurisdiction over the
defendant would comport with "traditional notions of fair play and
substantial justice." Verotex, 75 F.3d at 150-51 (quoting International
Shoe Co. v. Washington, 326 U.S. 310, 316 (1954)).
1. Minimum Contacts Analysis
The contacts between the Defendant and Plaintiffs and Defendant and
Pennsylvania in terms of this cause of action are as follows: (1) Ms.
Flum sending letters and a package with the films to Dr. Desai requesting
her review for a potential medical negligence action in Pennsylvania, (2)
Dr. Desai mailing a report to Ms. Flum opining that the June 29, 1995
mammogram was misinterpreted and offering her services in future
matters, (3) Ms. Flum calling Dr. Desai to discuss the report and asking
the doctor to retain the films for a potential future addendum, (4) Dr.
Desai agreeing to keep the films in case a further report was necessary,
and (5) Dr. Desai informing Ms. Flum that she had lost the films.
Plaintiffs argue that Dr. Desai should have reasonably expected that
she could be sued in Pennsylvania. Dr. Desai (1) was willing to render
her services to the Guardis in connection with litigation in
Pennsylvania, (2) knew that the litigation was either contemplated or
pending in Pennsylvania based on the alleged misinterpretation of the
mammogram films by Dr. Lewin, (3) knew the Guardi mammograms were needed
in Pennsylvania to prosecute the litigation, (5) could foresee that the
loss of the mammograms in Colorado would cause harm to the Plaintiffs in
Pennsylvania and (6) purposely availed herself of the opportunity of
conducting an activity with consequences in Pennsylvania by accepting
review of the Guardi case and by actively soliciting from Pennsylvania
other cases for review. (Pls.' Br. in Supp. of Resp. to Def.'s Mot. to
Dismiss at 16-17.)
Dr. Desai argues that there is no reason that she would expect to be
sued in Pennsylvania. (Mot. to Dismiss at 4.) Dr. Desai was a resident of
Colorado during the entire matter in question. (Id.) She is not licensed
to practice medicine in Pennsylvania and has never advertised her
services as a potential expert witness in Pennsylvania. (Id.) Dr. Desai
did not solicit the opportunity from either Plaintiffs or Plaintiffs'
counsel to author the
report or to review the films that are the basis of
the cause of action. (Id.)
The court finds that Plaintiffs have established that Defendant has
sufficient minimum contacts with Pennsylvania to exercise personal
jurisdiction.*fn2 Defendant's contacts with Pennsylvania, while few in
number, still created a substantial connection with Pennsylvania. As
Burger King, states:
Jurisdiction is proper . . . where the contacts
proximately result from actions by the defendant
himself that create a `substantial connection' with
the forum State. Thus where the defendant . . . has
created `continuing obligations' between himself and
residents of the forum, he manifestly has availed
himself of the privilege of conducting business there
471 U.S. at 475-76.
Even though the Guardis initiated the first contact with Dr. Desai,
Dr. Desai, (1) by reviewing the films and writing a report for the
Guardis in their potential medical malpractice action; (2) by requesting
future opportunities from Plaintiffs' counsel to write expert reports;
and (3) by agreeing to retain the mammogram films to write an addendum
for the Guardis, "reach[ed] out beyond one state and creat[ed] continuing
relationships and obligations with citizens of another state." Farino.
960 F.2d at 1222 (quoting Burger King, 471 U.S. at 473-74).
Defendant should reasonably have anticipated being haled into court in
Pennsylvania since she purposefully availed herself of the privilege of
doing business in Pennsylvania. See Farino, 960 F.2d at 1221. Defendant
participated in an on-going business relationship with Plaintiffs to
provide a report that would influence Plaintiffs' litigation in
Pennsylvania. Dr. Desai held herself out as an expert willing to opine
that the 1995 report was misread when she agreed to retain the mammogram
films in case an addendum to her report was necessary. Plaintiffs
believed that Defendant would be paid for her review of the films and her
report as well as for any other professional services that she rendered.
Plaintiffs' counsel believed, based on her contacts with Dr. Desai, that
her relationship with Dr. Desai would be governed by the standard
practices between an expert witness and counsel and acted accordingly.
(Pls.' Br. in Supp. of Resp. to Def.'s Mot. to Dismiss, Ex. A. Ms. Flum's
Affidavit at 3.) Ms. Flum stated that it is customary for experts to
submit bills for review of medical films and services connected with such
review and Ms. Flum expected to receive such a bill and compensate Dr.
Desai upon receipt of the bill. (Id. at 4.)
By her conduct in at least ostensibly serving as the Guardis' expert in
the potential malpractice case, Dr. Desai created a continuing obligation
between herself and the Guardis. Dr. Desai knew from her contacts with
Plaintiffs that they were relying on her report and the original
mammogram films in her possession for their litigation in Pennsylvania.
Plaintiffs believed that they were under an obligation to compensate Dr.
Desai for her work on their case.
Further, Plaintiffs have submitted evidence that Defendant deliberately
engaged in a course of conduct designed to cultivate this on-going
relationship. Rotando Weinrich
Enter, Inc. v. Global Employment
Solutions, No.CIV.A.99-3661, 1999 WL 1077078, at *4 (E.D.Pa. Nov. 22,
1999.) In her cover letter accompanying the report for Mrs. Guardi, Dr.
Desai requested that Plaintiffs' counsel consider her for the evaluation
of future cases for which counsel might need an expert radiologist. In
addition, Dr. Desai agreed to retain the mammogram films in case an
addendum to her report was necessary.
Finally, Dr. Desai should have expected that her activities involving
the mammogram films could cause her to be haled into court in
Pennsylvania. That harm in Pennsylvania would occur if anything were to
happen to the original mammogram films, particularly the one that Dr.
Desai determined was misinterpreted, was foreseeable. Time Share Vacation
Club v. Atlantic Resorts, LTD, 735 F.2d 61, 65-66 (3d Cir. 1984) (In
determining whether a Pennsylvania court can exercise in personam
jurisdiction, "[w]hat is required . . . is actual evidence that, by
entering into the contract, the particular defendant could foresee impact
within Pennsylvania.") Defendants relied on Dr. Desai to safeguard the
films and to render a further opinion to influence Plaintiffs' litigation
in Pennsylvania and Dr. Desai knew that the Plaintiffs were relying on
her to safeguard the films and to provide a further report if necessary.
Dr. Desai could foresee that loss of the mammogram films would cause
negative impact in Pennsylvania.
2. The Assertion of Personal Jurisdiction Comports With Fair Play
and Substantial Justice
The court now considers whether exercise of jurisdiction over Dr. Desai
comports with notions of fair play and substantial justice. Once a
plaintiff has made out a prima facie case of minimum contacts, a defendant
bears a heavy burden to show an absence of fairness or justice since the
defendant must present a compelling case that the presence of other
considerations would render jurisdiction unreasonable. Carteret Sav.
Bank, 954 F.2d at 150. In this part of the analysis, a court may examine
factors, often called "fairness factors," from World-Wide Volkswagon
Corp. v. Woodson, 444 U.S. 286, 292 (1908). These factors include:
(1) the burden on the defendant;
(2) the forum State's interest in adjudicating the
(3) the plaintiff's interest in obtaining convenient
and effective relief;
(4) the interstate judicial system's interest in
obtaining the most effective resolution of
(5) the shared interest of the several States in
furthering fundamental substantive social policies.
Once plaintiff establishes that minimum contacts exist, as Plaintiffs
did in this case, a defendant bears the burden of showing that exercise
of jurisdiction is unreasonable. See Farino, 960 F.2d at 1227. The
Defendant in this case has limited her argument to whether she has
sufficient minimum contacts with Pennsylvania to support personal
jurisdiction and has not provided any evidence that jurisdiction would be
unfair or improper. The third circuit has stated that even though
application of the "fair play and substantial justice prong" is
technically discretionary, the third circuit favors its application and
has even referred to it as mandatory. See Pennzoil Products Co. v.
Colelli & Assocs, Inc., 149 F.3d 197, 201 (3d Cir. 1998.) Thus, the court
undertakes this analysis even though the Defendant has not really
addressed this prong of the analysis.
The court notes that none of the factors outlined above leads to the
that exercising jurisdiction in this case would be
unreasonable. While Defendant does have the burden of coming to
Pennsylvania from Colorado, given her actions impacting on Pennsylvania
residents, it is not unfair to require that she conduct her defense in
Pennsylvania. Pennsylvania does have an interest in adjudicating this
dispute since Dr. Desai's contacts with Plaintiffs and Pennsylvania was
neither "fortuitous" nor "the result of a single transaction." Max
Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 295 (3d Cir. 1985.) Finally,
there does not seem to be any efficiency or social policy argument
against exercising jurisdiction.
For the foregoing reasons, Defendant's motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(2) is denied. An appropriate order follows.