432 F.3d 50 (1st Cir. 2005), 05-1605, Harlow v. Children's Hosp.

Docket Nº:05-1605.
Citation:432 F.3d 50
Party Name:Danielle HARLOW, Plaintiff, Appellant, v. CHILDREN'S HOSPITAL, Defendant, Appellee.
Case Date:December 20, 2005
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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432 F.3d 50 (1st Cir. 2005)

Danielle HARLOW, Plaintiff, Appellant,


CHILDREN'S HOSPITAL, Defendant, Appellee.

No. 05-1605.

United States Court of Appeals, First Circuit.

December 20, 2005

Heard Oct. 3, 2005.


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Adam A. Rowe, with whom Leo J. Dunn, III and Crowe & Dunn were on brief, for appellant.

James B. Haddow, with whom Bradford A. Pattershall and Petruccelli, Martin & Haddow, LLP were on brief, for appellee.

Before Lynch, Circuit Judge, Campbell and Stahl, Senior Circuit Judges.

LYNCH, Circuit Judge.

In November 2004, Danielle Harlow of Turner, Maine, sued Children's Hospital of Boston, Massachusetts, in the Maine Superior Court for medical malpractice during a procedure performed at the Hospital on May 10, 1993. Danielle was six years old at the time of the procedure. The issues addressed here would never have arisen had she filed suit in Massachusetts courts, which had jurisdiction over the Hospital, before the expiration of the Massachusetts three-year statute of limitations. See Mass. Gen. Laws ch. 231, § 60D. She did not file such a suit.

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Rather, Harlow instituted proceedings in Maine after the Massachusetts statute had expired. Maine allows minors to commence an action "within 6 years after the cause of action accrues or within 3 years after the minor reaches the age of majority, whichever first occurs." Me. Rev. Stat. Ann. tit. 24, § 2902. The November 2004 suit was timely filed under Maine law because Harlow had filed a Notice of Claim before the six years had expired, thereby tolling the statute of limitations. See id. § 2859. The question is whether an exercise of personal jurisdiction over the Hospital in Maine would comport with Maine's long-arm statute and the Due Process Clause.

The Hospital removed the Maine case to federal court, invoking diversity jurisdiction. The Hospital then moved to dismiss the case for lack of personal jurisdiction. The court granted that motion, and Harlow appeals. We affirm. In doing so, we clarify the time frame of the evidence to which a court may look in deciding whether a defendant's contacts with a state are sufficient to justify personal jurisdiction, both specific and general.


In 1993, Danielle Harlow underwent a radiofrequency cardiac ablation procedure at the Hospital in Boston. The procedure was performed to treat Harlow's supraventricular tachyarrhythmia, a condition secondary to Harlow's Wolff-Parkinson-White syndrome. Allegedly as a result of the Hospital's negligence, Harlow suffered a stroke during the procedure. Harlow alleges that the stroke caused brain damage, with the result that she suffers serious permanent injury in the form of severe left hemiparesis, 1 as well as cognitive and behavioral impairments, including "cognitive deficits, personality changes, attention and concentration deficits, impulsivity, and an inability to modulate her behavior."

In May 1999, Harlow filed a notice of medical malpractice claim against the Hospital and four affiliated doctors, initiating mandatory prelitigation screening panel proceedings, as required by Maine law. See Me. Rev. Stat. Ann. tit. 24, §§ 2853, 2903. The defendants asserted lack of personal jurisdiction over them in Maine; the panel chair, acting on a joint motion of the parties, referred the issue of jurisdiction to the Maine Superior Court pursuant to Me. Rev. Stat. Ann. tit. 24, § 2853(5). In February 2001, after briefing, the Superior Court granted the defendant doctors' motion to dismiss for lack of personal jurisdiction, but denied the Hospital's motion, ruling that there was personal jurisdiction over the Hospital (the court did not specify whether it was relying on general or specific jurisdiction, and it cited factors pertinent to both).

In October 2004, the screening panel unanimously decided that the Hospital's treatment of Harlow had deviated from the applicable standard of care and had caused her injury. In November 2004, Harlow filed her medical malpractice complaint in Maine Superior Court. The Hospital removed the case to federal court and moved to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12 (b) (2) . Harlow filed an objection on the merits and under the law of the case doctrine, and the Hospital filed a reply.

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In March 2005, the district court granted the Hospital's motion to dismiss. The court observed that to the extent the "law of the case" doctrine applied at all, it is "a matter of discretion," and that it was preferable to resolve the issue. The court, sitting in diversity, held that it lacked personal jurisdiction, both specific and general, over the Hospital.

On appeal, Harlow argues that the district court erred in two ways: first, the law of the case doctrine precluded the Hospital from relitigating the issue of personal jurisdiction, and second, on the merits, Harlow had established personal jurisdiction over the Hospital.


A. Law of the Case

" [L]aw of the case is an amorphous concept. As most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Law of the case directs a court's discretion, it does not limit the tribunal's power." Arizona v. California, 460 U.S. 605, 618 (1983) (citation and footnote omitted) . "Under law of the case doctrine, as now most commonly understood, it is not improper for a court to depart from a prior holding if convinced that it is clearly erroneous and would work a manifest injustice." Id. at 618 n.8.

Whether the law of the case doctrine applies at all is a question of law, which we review de novo. See Tang v. Dep't of Elderly Affairs, 163 F.3d 7, 10-11 (1st Cir. 1998). Strictly speaking, the law of the case doctrine -- understood as a bar to subsequent review -- was not implicated in this case, because "[i]nterlocutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the case." Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994). Thus, the district court was free to reconsider the earlier interlocutory order.

We have sometimes said -- instead of an outright statement that law of the case is not applicable to interlocutory orders at all -- that law of the case permits a lower court to review prior interlocutory orders as long as that review is not an abuse of discretion. Were the law of the case doctrine even to apply, then, we would review only for abuse of discretion. See Geffon v. Micrion Corp., 249 F.3d 29, 38 (1st Cir. 2001) (reviewing a district court's reconsideration of its own prior ruling on summary judgment motion for abuse of discretion); see also In re Cabletron Sys., 311 F.3d 11, 21 n.2 (1st Cir. 2002) ("The law of the case is a discretionary doctrine, especially as applied to interlocutory orders such as this one. As Justice Holmes expressed it, ' [T]he phrase, law of the case, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.'" (citation omitted) (alteration in original) (quoting Messenger v. Anderson, 225 U.S. 436, 444 (1912))). As one commentator has said, the law of the case doctrine involves an "effusion of applications," some of which are more discretionary than others. 18B Wright, Miller, & Cooper, Federal Practice and Procedure § 4478, at 637 (2d ed. 2002) .2 Regardless of phrasing, the result

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here is clear. The district court was not barred from reconsidering the prior decision; at most we review the decision to reconsider only for a particularly egregious abuse of discretion. There was no abuse of discretion here.

The district court could have reconsidered this matter even if the prior decision had been its own, rather than the state court's. See Perez-Ruiz, 25 F.3d at 42; Cabletron Sys., 311 F.3d at 21 n.2; Geffon, 249 F.3d at 38. As the district court noted, there had been no final decision in the state court on personal jurisdiction. The state court's "[d]enial of the Hospital's motion to dismiss was not an appealable order. In fact, the Hospital tried to appeal, but the Maine Law Court dismissed the appeal as interlocutory . . . ." The district court put the point well: "Although it is late in the case to re-examine the question, it will be later still on appeal, an avenue open to the Hospital because the personal jurisdiction ruling has never yet been appealable."

One might think there could be a federalism objection to a federal court's reconsidering a state court's interlocutory order entered before removal of the case. Harlow's absolutist argument against allowing the Hospital to reargue the matter suggests such a consideration. But the argument proves too much: federalism does not require more deferential treatment of a state-court interlocutory order in a case removed to federal court than it would have required had the order originated in federal court.

The Hospital, for its part, argues that the "law of the case" doctrine does not apply at all in this case, because the doctrine applies "only to those situations in which a court is considering a matter that has already been the subject of a ruling by a coordinate court," and "a state court is not 'coordinate' with a federal court on matters of federal law." In effect, the Hospital -- without citing any decisions of this court (the Hospital cites only district court decisions for this proposition) -- is arguing for a per se rule that when the prior ruling on an issue of federal law comes from a state court, law-of-the-case considerations...

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