Creech v. Roberts
| Decision Date | 07 September 1990 |
| Docket Number | 89-3096,Nos. 88-4180,s. 88-4180 |
| Citation | 908 F.2d 75 |
| Parties | Ruth H. CREECH, Plaintiff-Appellee, Cross-Appellant, v. Oral ROBERTS, Richard Roberts, City of Faith Hospital, Oral Roberts Evangelistic Association, Brent Bennett, M.D., Michael Laughlin, M.D., Defendants, City of Faith Medical and Research Center, Michael McGee, M.D., Defendants-Appellants, Cross-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
T. David Burgess, Williamsburg, Ohio, Lawrence R. Fisse (argued), Batavia, Ohio, for plaintiff-appellee, cross-appellant.
Joseph M. Best, John H.T. Sheridan, Best, Sharp, Sheridan & Stritzke, Tulsa, Okl., Charles E. Brown, Brian E. Hurley, Crabbe, Brown, Jones, Potts & Schmidt, Cincinnati, Ohio, Joseph A. Sharp (argued), Richard D. Wagner (argued), Wagner, Stuart & Cannon, Tulsa, Okl., for defendants-appellants, cross-appellees.
Before GUY and BOGGS, Circuit Judges, and COHN, District Judge *.
The plaintiff and two of the defendants appeal from the judgment in this medical malpractice action, brought pursuant to Oklahoma law. For the reasons that follow, we affirm in part, vacate in part, and remand for a new trial on the issue of damages.
In the beginning, plaintiff-appellee and cross-appellant Ruth Creech (Creech), an Ohio resident, filed this action in state court in Ohio, raising medical malpractice and lack of informed consent claims against the City of Faith Hospital (the Hospital), the City of Faith Clinic (the Clinic), defendant-appellant and cross-appellee the City of Faith Medical and Research Center (the Center), and physicians Brent Bennett, Michael Laughlin, and defendant-appellant and cross-appellee Michael McGee (McGee). All of the claims arose out of injuries incurred while Creech was a patient at the Hospital in Tulsa, Oklahoma. The Hospital removed the action to federal court. Creech subsequently amended her complaint, adding defendants Oral Roberts and Richard Roberts, and raised fraud claims against them. After further discovery, Creech again amended her complaint, adding the Oral Roberts Evangelical Association (OREA) as a defendant, removed the Clinic as a defendant, and raised a fraud claim against OREA. 1
The district court bifurcated trial into a liability phase and a damages phase. Just prior to the beginning of the liability phase, Creech voluntarily dismissed the claims against Michael Laughlin and Brent Bennett. The trial began August 1, 1988. Seven days later, the district court granted a motion for a directed verdict on the issue of fraud and directed the jury to find in favor of the defendants Oral Roberts, Richard Roberts, OREA, the Hospital, and the Center. In exchange for a covenant not to appeal the directed verdict, OREA paid Creech valuable consideration and agreed to indemnify her against any attempts by the Hospital or the Center to collect her outstanding hospital bills. 2 On August 10, 1988, near the completion of the liability phase of the trial, the district court granted the Hospital's motion to dismiss the claim of lack of informed consent. On August 11, 1988, the jury returned a verdict against McGee and the Center on the claim of lack of informed consent.
On August 19, 1988, the Center filed a motion to dismiss for lack of jurisdiction or, in the alternative, for judgment notwithstanding the verdict. McGee also filed a motion to dismiss for lack of jurisdiction. The district court orally denied the motions.
The damages portion of the trial began on September 1, 1988. On September 2, 1988, the jury returned a verdict awarding $50,000 in damages against McGee and the Center. On September 13, 1988, the Center filed a motion for judgment notwithstanding the verdict and to reopen the judgment to grant credit for the amount of the settlement paid by OREA. McGee moved to alter and amend the judgment or, in the alternative, for judgment notwithstanding the verdict. Creech moved for a new trial. The district court denied all of the motions.
Creech, McGee, and the Center now appeal. Creech seeks a new trial on the issue of damages, arguing that the amount of the award is contrary to the great weight of the evidence and so inadequate as to shock the conscience. She also claims that the inadequacy of the verdict can be linked to the improper questions and remarks of McGee's counsel and to the district court's ruling excluding any mention of her hospital bill from the trial.
Both McGee and the Center seek a dismissal of Creech's claims on the ground that the district court's exercise of jurisdiction over them violated their constitutional right to due process under the Fourteenth Amendment. They assert that the district court could not exercise jurisdiction over them under the Ohio long-arm statute because they did not have sufficient minimum contacts with Ohio to confer such jurisdiction. Both also argue that the damages awarded by the jury should be reduced by the amount of a settlement entered into by Creech with defendants OREA, Oral Roberts, and Richard Roberts. Finally, the Center argues that it cannot be held liable for McGee's negligence on the theory of vicarious liability because his actions were not within the scope of his employment.
For the reasons stated below, McGee is dismissed from the case, and the matter is remanded to the district court for a new trial on the issue of damages.
Creech is a citizen and resident of the state of Ohio. McGee and the Center are citizens and residents of the state of Oklahoma. Both have at all times denied that they were subject to the district court's in personam jurisdiction. Therefore, the Court will address the assertions of both defendants as to personal jurisdiction in a single discussion.
Creech's cause of action arose from medical care and treatment she received in Tulsa, Oklahoma, at the Center. Her cause of action against McGee was based on an alleged failure to obtain informed consent prior to performing surgery, and her cause of action against the Center was based on a vicarious liability theory. McGee provided no medical care or treatment to Creech in Ohio, has never practiced medicine in Ohio, is not licensed to practice medicine in Ohio, and has not maintained any office, facility, or business within Ohio. The Center provided no treatment to Creech in Ohio, has not mailed information to or received mail from Ohio, or had agents or employees physically present in Ohio.
Creech initially became aware of the Hospital and the Center through the "Expect a Miracle" television program featuring Oral and Richard Roberts. Through the program, Oral Roberts, the spokesperson for OREA, the Hospital, and the Center, invited people to come from around the country, as well as from other countries, to the Hospital and the Center for treatment. Each broadcast would begin by showing the City of Faith logo above the words "City of Faith." During the broadcasts, the words "City of Faith Clinic Appointments" and a telephone number appeared on the television screen, accompanied by various pictures of the facilities at the Hospital and the Center.
The "Expect a Miracle" broadcasts solicited patients and funds for the Hospital and the Center. Ohio was one of the states receiving the broadcasts, and, in fact, Ohio residents other than Creech were convinced to go to the Hospital and the Center for treatment. Creech testified at trial that the broadcasts made her aware of the Hospital and the Center and provided her with information that enabled her to contact the Center and make an appointment for a medical examination.
In determining whether it can assert personal jurisdiction over a nonresident defendant in a diversity case, a district court must apply the law of the state in which it sits, subject to due process limitations. Welsh v. Gibbs, 631 F.2d 436, 439 (6th Cir.1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981). Because Creech chose Ohio as the forum for her cause of action, the district court derived its jurisdiction from the provisions of Ohio's long-arm statute, Ohio Rev.Code Sec. 2307.382 (Anderson 1988 & Supp.1989). That statute confers on the district court the ability to exercise specific or limited personal jurisdiction over a nonresident defendant where the cause of action arises out of an act or acts creating one of several designated relationships.
Here, Creech argues that the district court properly exercised specific jurisdiction on the grounds that the Center transacted business in Ohio, Ohio Rev.Code Ann. Sec. 2307.382(A)(1) (Anderson 1988 & Supp.1989). 3 The question thus becomes whether the broadcasts televised in Ohio constitute "transacting business" for purposes of the statute. Because it is a settled proposition of Ohio law that the portion of the long-arm statute cited above was intended to extend to the constitutional limits of due process, we must determine whether a decision that the Center and McGee transacted business in Ohio would violate due process. See In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 224-25 (6th Cir.1972). To comport with due process, three criteria must be met:
First, the defendant must purposely avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.
LAK, Inc. v. Deer Creek Enterprises, 885 F.2d 1293, 1299 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1525, 108 L.Ed.2d 764 (1990) (citing Southern Machine Co. v. Mohasco Industries, 401 F.2d 374, 381 (6th Cir.1968)).
McGee and the Center argue that none of the criteria applies to them because they were...
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