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Cerciello v. Canale

United States District Court, Third Circuit

July 31, 2013

MARK J. CERCIELLO, M.D., Plaintiff,
S. TERRY CANALE, M.D., Defendant.


JOEL H. SLOMSKY, District Judge.


After testifying as an expert witness in a medical malpractice case, Plaintiff Mark Cerciello, M.D. ("Plaintiff"), an orthopedic surgeon practicing in Pennsylvania, was suspended by the American Academy of Orthopedic Surgeons and American Association of Orthopedic Surgeons ("AAOS" or the "Association") for violation of the Association's Mandatory Standards of Professionalism on Orthopedic Expert Witness Testimony. The AAOS provides information about suspensions in its monthly newsletter AAOS Now, which is published in Illinois and available on the AAOS website. The suspension of Plaintiff by the AAOS was the subject of an article in AAOS Now.

Defendant S. Terry Canale, M.D. ("Defendant"), is the Editor-in-Chief of AAOS Now, and held this position at the time the article about Plaintiff's suspension from AAOS was published in the December 2011 issue of AAOS Now.[1] Based on this publication, Plaintiff initiated the present action against Defendant alleging tortious interference with contractual relations, commercial disparagement, defamation, and false light invasion of privacy.

Presently before the Court is Defendant's Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction, Rule 12(b)(3) for improper venue, Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and Rule 12(b)(7) for failure to join an indispensable party.

For reasons that follow, the Court will grant Defendant's Motion to Dismiss pursuant to Rule 12(b)(2) for lack of personal jurisdiction because Defendant does not have the minimum contacts with Pennsylvania required for the Court to maintain personal jurisdiction over him.[2]


Plaintiff Mark Cerciello, M.D., is a board certified orthopedic surgeon residing in Pennsylvania. (Doc. No. 1-2 at 2.) He has maintained an orthopedic clinical practice since 1969. (Id.) He also has testified as an orthopedic expert witness and has been a member of AAOS since the early 1970s. (Id.) AAOS is the world's largest medical association of musculoskeletal specialists and has approximately 36, 000 members worldwide. (Doc. No. 4-7 at 2.)

In January 2010, Plaintiff submitted an expert witness report in a medical malpractice case alleging that Menachem Meller, M.D., a fellow AAOS member, deviated from professional standards of care for an orthopedic surgeon, and this deviation caused harm to a patient. (Doc. No. 1-2 at 6, 22.) Thereafter, Dr. Meller filed a grievance with AAOS requesting that AAOS investigate whether Plaintiff had violated the Association's Standards of Professionalism on Orthopedic Expert Witness Testimony. (Id. at 4.) AAOS permits doctors found liable of malpractice to file a grievance against the doctor who assisted the plaintiff as an expert in the medical malpractice case. (Id. at 3.) After the Association determined in accordance with its procedures that Plaintiff had violated certain standards, it sent Plaintiff a letter informing him that he would be suspended from the Association for two years. (Id. at 7.)

Defendant S. Terry Canale, M.D., is an orthopedic surgeon residing and practicing in Memphis, Tennessee. (Doc. No. 11 at 21.) As noted, Defendant is also the Editor-in-Chief of AAOS Now, which is the official monthly news publication of the Association. (Id. at 22.) The position of Editor-in-Chief requires that Defendant "review all the material that goes into the publication" and edit and approve every word that is published. (Doc. No. 11 at 22, 28.) The position is paid and Defendant receives approximately $100, 000 a year for his work as Editor-in-Chief. (Id. at 24.) AAOS's publishing offices are located in Rosemont, Illinois. (Doc. No. 4-7 at 2.)

In December 2011, notice of Plaintiff's suspension was published in AAOS Now. (Doc. No. 1-2 at 7.) AAOS Now is distributed to every orthopedic surgeon who is a member of the Association, including orthopedists in Pennsylvania. (Doc. No. 11 at 27-28.) Each monthly issue also appears on the Internet and can be accessed in any state. (Id.) According to AAOS literature, the publication is sent to approximately 26, 686 people around the world. (Doc. No. 4-7 at 4-5.) Moreover, the AAOS website ( receives approximately 255, 000 unique visitors each month.[3] (Id.) As reported by an AAOS census survey, in 2004 there were approximately 743 practicing orthopedic surgeons in the state of Pennsylvania. (Doc. No. 4-6 at 3.)

After the article was published, Plaintiff contacted the Association and threatened to file a lawsuit. (Doc. No. 3-2 at 2.) In May 2012, AAOS filed a complaint against Plaintiff in the United States District Court for the Northern District of Illinois seeking a declaratory judgment that it had legally suspended Plaintiff's membership. (Doc. No. 4-2 at 3; Doc. No. 4-4 at 2.) In December 2012, Plaintiff filed this suit against Defendant in the Eastern District of Pennsylvania. (Doc. No. 1-2 at 2.) Plaintiff contends he suffered damages as a result of the publication of the article about his suspension, including loss of employment, loss of earnings, loss of future income, pain, suffering, embarrassment, and loss of public reputation. (Id. at 9, 14.) He alleges claims against Defendant, including tortious interference with contractual relations, commercial disparagement, defamation, and false light invasion of privacy. (Id. at 10-14.) Defendant has moved to dismiss the action for, among other reasons, lack of personal jurisdiction. (Doc. No. 3 at 1.) In view of this claim, the Court permitted the parties to engage in limited discovery on the personal jurisdictional issue, namely, deposing Defendant on his Pennsylvania contacts.

At his deposition, Defendant testified that he did his residency and medical internship at Jefferson Medical College in Philadelphia, Pennsylvania, but he has not lived or practiced medicine in Pennsylvania since 1972. (Doc. No. 11 at 22.) The only trips taken by him to Pennsylvania since 1972 have been to speak to the orthopedic department at Jefferson Medical College and to attend the AAOS 2012 Fall Meeting in Philadelphia. (Id. at 24, 29.) Defendant receives updates from his alma mater but does not have contact with anybody at Jefferson Medical College regarding articles for AAOS Now. (Id. at 26.) He has been contacted occasionally by Freddie Fu, M.D., at the University of Pittsburgh regarding five or six articles that Dr. Fu has written. (Id.) In addition, Defendant does not own real estate in Pennsylvania, does not have any interest in any real estate groups that do business in Pennsylvania, and does not have any financial investments with any groups that own or do business in Pennsylvania. (Id. at 22.)

Defendant does not have involvement with the printing or distribution of AAOS Now. He did not author the article about Plaintiff's suspension. (Id. at 27-28.) Although not the author, Defendant did personally edit and oversee the publication of the article describing Plaintiff's suspension. (Id. at 28.) While Defendant is aware that articles he reviews will be posted on the AAOS website, he does not actively solicit any business or advertising in Pennsylvania on the Internet. (Doc. No. 10 at 9; Doc. No. 11 at 27.) Defendant has no role in the design and operation of the AAOS website. (Id. at 27.) Due to his position as Editor-in-Chief, Defendant's picture appears on the AAOS website. The picture is on the same page as the website version of the article discussing Plaintiff's suspension. A caption identifies him as Editor-in-Chief. (Doc. No. 11 at 27; Doc. No. 4-3 at 2.)[4]


"Once a defendant challenges a court's exercise of personal jurisdiction [through a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2)], the plaintiff bears the burden of establishing personal jurisdiction." D'Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd. , 566 F.3d 94, 102 (3d Cir. 2009). To meet this burden, "the plaintiff must present competent evidence' demonstrating that the defendant has the requisite minimal contacts with the forum to warrant the exercise of personal jurisdiction over the defendant." Eubanks v. Filipovich, No. 12-4299, 2012 WL 6731123, at *1 (E.D. Pa. Dec. 27, 2012) (quoting Miller Yacht Sales, Inc. v. Smith , 384 F.3d 93, 101 n.6 (3d Cir. 2004)).

"[I]n reviewing a motion to dismiss [under Rule 12(b)(2)], [a court] must accept all of the plaintiff's allegations as true and construe disputed facts in favor of the plaintiff." Pinker v. Roche Holdings Ltd. , 292 F.3d 361, 368 (3d Cir. 2002) (internal citations and quotations omitted). However, a "plaintiff cannot rely on the bare pleadings alone in order to withstand' a 12(b)(2) motion. Instead, a plaintiff must sustain [his] burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence, ' such as deposition testimony." Simons v. Arcan, Inc., No. 12-1493, 2013 WL 1285489, at * 2 (E.D. Pa. Mar. 28, 2013) (quoting Time Share Vacation Club v. Atlantic Resorts , 735 F.2d 61, 66 n.9 (3d Cir. 1984)).


Defendant contends that the Complaint should be dismissed for lack of personal jurisdiction because he is a resident of Tennessee, practices medicine in Tennessee, works as the Editor-in-Chief of an Illinois publication, and has had few contacts with ...

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