895 F.2d 213 (5th Cir. 1990), 89-1841, Bullion v. Gillespie
|Citation:||895 F.2d 213|
|Party Name:||Carol BULLION, Plaintiff-Appellant, v. Larrian GILLESPIE, M.D., Defendant-Appellee.|
|Case Date:||February 28, 1990|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Todd N. Wade, Brown, Maroney, Oaks, Hartline, Douglas L. Hilleboe, Austin, Tex., for plaintiff-appellant.
Glen M. Wilkerson, Davis, Welch, Patricia M. McClung, Austin, Tex., for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This case presents a jurisdictional question of whether a Texas resident, allegedly injured as a consequence of her participation in an experimental medical program based in California, can force that program's nonresident administrator to defend medical malpractice and deceptive-trade-practice claims in Texas. Concluding that the plaintiff has established a prima facie case of jurisdiction sufficient to avoid dismissal without a hearing, we reverse and remand.
The plaintiff, Carol Bullion, is a Texas resident who suffers from the urological disorder known as "interstitial cystitis." The defendant, Dr. Larrian Gillespie, is a California urologist whose expertise extends to the disease afflicting Bullion and who has authored the nationally-distributed book, You Don't Have To Live with Cystitis!
Bullion was introduced to Gillespie's work by her local urologist, Dr. Reeves, who had read the book and was favorably impressed by the treatments offered by Gillespie for certain urological ailments. Reeves advised Bullion to purchase Gillespie's book for her own personal benefit, an invitation which Bullion accepted. Reeves then proceeded to contact Gillespie in California in order to review Bullion's particular urological problem. As a consequence of those conversations, a professional relationship developed between Bullion and the two doctors. 1 In fact, Reeves referred Bullion to Gillespie in California for an in-person consultation.
Bullion traveled to California in March 1987 to be examined and treated by Gillespie. There, it was confirmed that she indeed suffered from interstitial cystitis. In addition, Bullion was screened for her possible participation in an experimental treatment program being administered by the defendant with the approval of the Food and Drug Administration. Concluding that she was a suitable candidate, Gillespie invited Bullion to participate in the program; Bullion accepted Gillespie's invitation and returned to Texas.
As part of the program, it was envisioned that Bullion would receive the drug "angiostat" through the mail in Texas and that she would continue her medical visits locally with Reeves, who agreed to supervise Bullion's progress and report his findings to Gillespie in California. Accordingly, Bullion received, in Texas, three separate mail deliveries of angiostat, and some related correspondence, from Gillespie. In return, Bullion made a series of payments to Gillespie for the medical services and drugs received.
Bullion alleges that she was injured by a steroid contained in the experimental drug provided by Gillespie. She originally filed suit in Texas state court, raising claims against Gillespie involving medical malpractice and violations of the Texas Deceptive Trade Practices-Consumer Protection Act. There being complete diversity between the parties, Gillespie removed this action to federal court in Texas, then successfully moved the district court to dismiss the lawsuit for want of personal jurisdiction.
On appeal, Gillespie maintains that she lacks sufficient contacts with the state to be sued there. She alleges in her affidavit and pleadings that she is licensed to practice medicine in California and not in Texas; that she does not advertise or solicit patients in Texas; that she served as only a consultant to Reeves; that she did not profit from her relationship with Bullion; that she has rarely visited Texas, and never for the purpose of treating patients; and that her book was a scholarly endeavor and not one designed to solicit business.
Bullion claims that Gillespie directly shipped the drugs to her Texas home, that Gillespie repeatedly talked to Reeves on the telephone about her medical condition, and that Gillespie mischaracterizes their professional relationship in labeling herself a "consultant" to...
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