HENRY PULLEN v. DR. AUBREY C. GALLOWAY

 

(NOTE: The status of this decision is Published.)

               NOT FOR PUBLICATION WITHOUT THE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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