Etra v. Matta

• Decision Date: 14 July 1983
• Citation: 94 A.D.2d 581,464 N.Y.S.2d 1001
• Court: New York Supreme Court — Appellate Division
• Parties: Blanche ETRA, Max Etra and Marshall Etra, as Executors of the Estate of Harry Etra, deceased, Plaintiffs, v. Raymond MATTA and Eli Lilly & Company, Defendants. Raymond MATTA, Third-Party Plaintiff-Respondent, v. Bernard LOWN, Third-Party Defendant-Appellant.

Page 1001

464 N.Y.S.2d 1001

94 A.D.2d 581

Blanche ETRA, Max Etra and Marshall Etra, as Executors of

the Estate of Harry Etra, deceased, Plaintiffs, v. Raymond MATTA and Eli Lilly & Company, Defendants.

Raymond MATTA, Third-Party Plaintiff-Respondent, v. Bernard LOWN, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

July 14, 1983.

Steven J. Ahmuty, Jr., New York City, of counsel (Bower & Gardner, New York City), for third-party defendant-appellant.

Frederick N. Gaffney, New York City, of counsel (Ann R. Goodwin with him on brief Costello & Shea, New York City), for third-party plaintiff-respondent.

Before KUPFERMAN, J.P., and ROSS, CARRO, ASCH and SILVERMAN, JJ.

CARRO, Justice.

This appeal presents the novel question of whether a non-resident physician who has never entered this State may be subject to New York jurisdiction on the theory that his out-of-state medical treatment with an experimental drug on a patient, and the subsequent shipment by the physician to the New York patient of renewed supplies of that drug, coupled with telephonic and written communication with the patient's New York physician, constitutes either, the contracting to supply goods or services in the state within the meaning of CPLR 302 or commission of a tortious act without the state causing injury to a person within the state where the physician should have reasonably expected his acts to have consequences in this state and he derived substantial revenue from interstate commerce, CPLR 302 We hold that the facts of this case do not justify such an assertion of jurisdiction, and accordingly we reverse the order appealed from.

Plaintiffs are the executors of the estate of Harry Etra, a New York attorney who prior to 1977 suffered from a heart ailment characterized by arrhythmia. In January of 1977 Mr. Etra went to the Peter Bent Brigham Hospital in Boston, Massachusetts, where he came under the care and treatment of appellant. Doctor Lown is an attending physician at that hospital and a professor of Cardiology at Harvard University School of Public Health, and is licensed to practice medicine in Massachusetts and Maryland. Although he maintains his practice solely within the State of Massachusetts, approximately one-third of his patients come to him from outside of that state.

Mr. Etra's New York physician had referred him to Dr. Lown, a nationally recognized specialist in the treatment of heart disorders. After a regimen of therapy with other antiarrhythmics had failed, Lown suggested treatment with an experimental drug known as Aprindine. Dr. Lown was the clinical investigator for this drug, by arrangement with its manufacturer, Eli Lilly and Co. Although irrelevant for purposes of this appeal, we know that Mr. Etra signed a consent form for treatment with this drug, and that he responded positively to the therapy with it. Indeed, he was released from the hospital in February and provided with a supply of the drug to take back with him to New York. Since Etra did not wish to return to the care of his previous New York physician, Lown recommended another New York doctor to him, Dr. Matta. Matta and Lown conferred by telephone and correspondence concerning Etra's continued use of the Aprindine. It is further alleged, and we deem it true for purposes of this appeal, that Lown shipped at least one renewal supply of Aprindine directly to Mr. Etra.

In April of 1977 Mr. Etra developed a fever and was admitted to the hospital by Dr. Matta. Among his symptoms was a depressed white blood cell count, and because of the possibility that this condition was related to the experimental drug, Matta discontinued the Aprindine on April 14, 1977. Mr. Etra died of cardiac arrest the following day. The underlying action was commenced six months later, alleging medical malpractice against Dr. Matta and Dr. Lown, and strict product liability against Eli Lilly and Co. The basis for jurisdiction against Dr. Lown was the attachment of a New York insurance policy. When it was subsequently discovered that no such policy existed, the complaint as to Dr. Lown was dismissed for lack of jurisdiction.

Dr. Matta thereafter brought a third-party action against Dr. Lown, serving him personally in Massachusetts and asserting CPLR 302 as a jurisdictional predicate. Dr. Lown moved to dismiss the third-party complaint for lack of personal jurisdiction and defendant/third-party plaintiff Matta cross-moved to compel Lown to answer the third-party complaint without the affirmative defense of lack of personal jurisdiction. Special Term (per Andrew Tyler, J.) denied the first and granted the second motion, finding that Lown's communication with Matta and the shipment of the Aprindine to Etra satisfied the requirements of paragraph 1 of CPLR 302 and that Lown's "tortious act of prescribing Aprindine in Massachusetts by which decedent was injured through his ingestion of Aprindine and subsequent death in New York," coupled with the significant percentage of Lown's gross income which was derived from private patients who resided outside of Massachusetts, satisfied the requirement of paragraph 3(ii) of the long-arm statute. Although we find Special Term's decision to be well reasoned and the question presented to be a close one, we cannot conclude that this defendant had those "certain minimum contacts" with New York such "that the maintenance of this suit does not offend 'traditional notions of fair play and substantial justice' ". International Shoe Company v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95.

It can be argued persuasively, as done by Special Term here, that viewed in the light most favorable to third-party plaintiff, Dr. Lown's activity comes within the purview of the long-arm statute. Although we ultimately disagree with this analysis, we also note the command of the United States Supreme Court that "all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 2584, 53 L.Ed.2d 683.

Although physical presence in New York is not a prerequisite for finding personal jurisdiction under the long arm provisions of CPLR 302 (see Parke-Bernet Galleries v. Franklyn, 26 N.Y.2d 13 Rothschild, Unterberg, Towbin v. Thompson, 78 A.D.2d 795 ), 'it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws' (Hanson v. Denckla, 357 U.S. 235, 253 Ford v. Unity Hospital, 32 N.Y.2d 464, 471 Longines-Wittnauer Watch Company v. Barnes and Reinecke, 15 N.Y.2d 443 cert. den. sub nom. Estwing Manufacturing Co. v. Singer, 382 U.S. 905 ).

Cato Show Printing Company v. Lee, 84 A.D.2d 947, 949, 446 N.Y.S.2d 710. It is not disputed that appellant maintains no office, business affiliations, nor does he own any real or personal property located in New York State. He did not solicit Etra as a patient nor did he, not being licensed in New York, agree to remain his attending physician. Certainly standing alone, appellant's treatment of or hospitalization of a New York resident cannot be deemed a purposeful act by which he availed himself of the privilege of conducting activities here, thus invoking the benefits and protections of this state's laws. Cf. Attanasio v. Ferre, 93 Misc.2d 661, 666, 401 N.Y.S.2d 685 (Sup.Ct. Schenectady 1977), appeal dismissed for want of prosecution, 68 A.D.2d 981, 414 N.Y.S.2d 232. Even though the "mere shipment" rule has been abrogated by the 1980 amendment to CPLR 302 West Mountain Corp. v. Seasons of Leisure International, Inc., 82 A.D.2d 931, 440 N.Y.S.2d 729, the basis and motivation for Dr. Lown's relationship with either Etra or Dr. Matta are not such that we find it reasonable to hold the mere shipment of Aprindine to Etra in New York to constitute the supply of goods within the meaning of that section of CPLR 302. Similarly, telephone calls and letters exchanged between Lown and Matta do not amount to the supply of services under that section. In other words, although most certainly appellant was paid for his services to Etra in Massachusetts, it does not appear to us to be the kind of activity which amounts to the transaction of business, such that the follow-up contacts with defendant and his New York doctor can be seen as an extension of prior business transactions. And, even if they were, these contacts into New York State were for Etra's benefit, and not for the purpose of transacting business in the state. Compare Meyer v. Gas Magazines, 49 A.D.2d 864, 374 N.Y.S.2d 322; See also Mc Kee Electric Company v. Rauland-Borg Corp., 20 N.Y.2d 377, 283 N.Y.S.2d 34, 229 N.E.2d 604. And see Mayes v. Leipziger, 674 F.2d 178 (2nd Circuit 1982); Perlman v. Martin, 70 Misc.2d 169, 171, 332 N.Y.S.2d 360 (Sup.Ct. Nassau 1972).

Similarly, we disagree with the analysis finding jurisdiction under subdivision (a) 3, since the finding that Dr. Lown derives substantial revenue from interstate commerce rests upon the assumption that his income from treating patients who come from outside Massachusetts to him constitutes doing business on an interstate level. While clearly appellant is alleged to have committed a tortious act outside of the state causing injury in the state, and he most likely should have expected his acts to have consequences in the state from whence his patient came, the treatment of unsolicited patients in one's own home state should not support the imputation of interstate commercial activity. Accord Hutton v. Piepgras, 451 F.Supp. 205 (SDNY 1978) (Duffy, District Judge); Compare Porcello v. Brackett, 85 A.D.2d 917, 918, 446 N.Y.S.2d 780, aff'd 57 N.Y.2d 962, 457 N.Y.S.2d 243, 443 N.E.2d 491; Weiss v. Greenberg, Traurig, Askew et al, 85 A.D.2d 861, 446 N.Y.S.2d 447.

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