On August 1, 2003, Lisa M. Holsomback and her husband, Bobby, sued LifeLink Foundation, Inc., Alabama Organ Center, and others, alleging that a kidney she had received by transplant at University of Alabama at Birmingham Hospital was infected with hepatitis C. By amendment, the Holsombacks substituted Auxilio Mutuo for the fictitiously named defendant who was identified in the complaint as the entity "responsible for the testing and suitability of the donor kidney." The Holsombacks allege that Auxilio Mutuo negligently or wantonly caused or allowed "inadequate, improper, and erroneous testing to be performed on the serology tests for the donor kidney."
Auxilio Mutuo moved to dismiss the complaint on the basis that the trial court lacked in personam jurisdiction over it. Auxilio Mutuo stated:
"[The Holsombacks] attempt to invoke the jurisdiction of this Court by alleging that Auxilio Mutuo's testing of the subject donor kidney in the Commonwealth of Puerto Rico for Defendant LifeLink constitutes sufficient contact with the State of Alabama. While Auxilio Mutuo denies that it engaged in forum activities which would make it amenable to suit in this state, Auxilio Mutuo would further show unto this Court that [the Holsombacks] cannot establish specific jurisdiction or general jurisdiction over [Auxilio Mutuo]. Specific jurisdiction over Auxilio Mutuo is unwarranted because this cause of action did not arise out of, nor is it related to, any contact of Auxilio Mutuo to the State of Alabama. General jurisdiction is also unwarranted, because there are no systematic and continuous contacts between Auxilio Mutuo and the State of Alabama. Courts can exercise general jurisdiction only when the [d]efendant is domiciled in the forum or its activities in the forum are `substantial, continuous and systematic.' Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 415-416, 104 S.Ct. 1868, 1872-73, 80 L.Ed.2d 404 (1984)."
(Auxilio Mutuo's petition, Appendix 3.) In support of its motion, Auxilio Mutuo attached an affidavit from the hospital administrator at Auxilio Mutuo, stating:
"1. My name is Jorge L. Matta and I am the Administrator of Hospital Espanol Auxilio Mutuo de Puerto Rico, Inc., which is also known as Auxilio Mutuo. I have personal knowledge of the facts stated in this Affidavit.
"2. Auxilio Mutuo is a Puerto Rican corporation, with its principal place of business located in San Juan, Puerto Rico.
"3. Auxilio Mutuo does not have, and never has had, any employees or officers permanently engaged in business in the State of Alabama.
"4. Auxilio Mutuo does not engage in any persistent course of conduct or derive substantial revenue from goods used or consumed or services rendered in the State of Alabama.
"5. Auxilio Mutuo does not own real property or personal property within the State of Alabama and has never done so.
"6. Auxilio Mutuo is not authorized, licensed or registered to do business in the State of Alabama and has never been so authorized, licensed or registered.
"7. Auxilio Mutuo pays no business taxes in the State of Alabama.
"8. Auxilio Mutuo is not engaged in substantial, continuous or systematic activities in the State of Alabama.
"9. Auxilio Mutuo does not engage in television or radio advertising in the State of Alabama.
"10. Auxilio Mutuo has never voluntarily consented to jurisdiction of the State of Alabama in any lawsuit.
"11. Auxilio Mutuo did not have knowledge on September 29, 2001, that the donor kidney which is the subject of this lawsuit was going to be transported to the State of Alabama for transplantation.
"12. Auxilio Mutuo did not have a contract to perform testing of the donor kidney which is the subject of this lawsuit with any patient, hospital or health care provider who resides or has its principal place of business in the State of Alabama."
(Auxilio Mutuo's petition, Appendix 4.)
The trial court conducted a hearing on Auxilio Mutuo's motion to dismiss. At the hearing, the Holsombacks opposed the dismissal of Auxilio Mutuo, arguing that the court had in personam jurisdiction over Auxilio Mutuo because, they said, "its contacts with Alabama, while few, gave rise to this lawsuit" and its "conduct and connection with Alabama are such that [Auxilio Mutuo] should reasonably anticipate being haled into court there." In support of their argument, the Holsombacks submitted an affidavit from Jean A. Davis, the executive vice president, OPO (organ procurement organization) services of LifeLink Foundation. She stated:
"LifeLink Foundation, Inc., and its affiliate, LifeLink of Puerto Rico, are members of the United Network for Organ Sharing (UNOS), which segregates its member organizations into designated regions identified for organ recovery and distribution. UNOS Region 3 is one of the 11 UNOS Regions, and includes transplant centers located in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, and Puerto Rico. Organs recovered for transplant are most frequently allocated/shared for transplant on a local, then a regional basis. LifeLink of Puerto Rico has been in operation since 1994. Significant increases in organ/tissue recovery have occurred in this time frame.
"Auxilio Mutuo Hospital is a transplant center member of UNOS located within Region 3. The Auxilio Mutuo Hospital Clinical Laboratory is a CLIA [Clinical Laboratory Improvement Amendments, 42 U.S.C. § 263a et seq.] certified laboratory[1] owned and operated by Auxilio Mutuo Hospital. Auxilio Mutuo Hospital Clinical Laboratory routinely performs serological testing on organ/tissue donors recovered in Puerto Rico. These organs are shared throughout the United States, with the significant majority being placed in Region 3.
"Any Region 3 UNOS member and participant in the organ sharing network is well aware that organs and tissue it procures or tests are routinely sent to and utilized by transplant centers throughout Region 3, including Alabama. In addition to this systematic sharing of organs and tissue procured from donors it has tested, Auxilio Mutuo Hospital routinely receives organs (kidneys) for transplant from outside Puerto Rico. UNOS data available to UNOS members such as LifeLink and Auxilio Mutuo shows that in calendar year 2004, thirteen (13) kidneys were imported to Auxilio Mutuo Hospital for transplant, and for calendar year 2005, through October 5, 2005, six (6) kidneys were imported for transplant at Auxilio Mutuo.
"LifeLink Foundation, Inc., maintains computer-stored data concerning the organs and tissue recovered and transplanted through its affiliate organizations, including LifeLink of Puerto Rico. . . .
"Between January 1, 1994 and September 29, 2001 of the 342 kidneys recovered in Puerto Rico and transplanted, twenty-five (25), or 7%, were transplanted in Alabama. This is the highest number/percentage for any area outside of Puerto Rico. If a kidney was obtained from a donor and did not stay in Puerto Rico, Alabama was the most likely place it would be sent for transplant.
"Between September 30, 2001, and September 12, 2005, forty-three (43) organ/bone donors were recovered through LifeLink of Puerto Rico. Auxilio Mutuo Hospital Clinical Laboratory provided serological testing in all such cases. The resulting organs/tissue recovered are often placed outside of Puerto Rico and many within UNOS Region 3. The donor whose kidney was transplanted to Lisa Holsomback at the Alabama Organ Center on September 30, 2001, whose serum was tested by Auxilio Mutuo Clinical Laboratory, was also an organ/bone donor.
"Approximately 1720 bone grafts were produced from these forty-three (43) organ/tissue donors tested by Auxilio Mutuo Clinical Laboratory; 341 of which, or 19.8% were placed in Alabama. This means that approximately one fifth of all of the bone grafts produced from Auxilio Mutuo tested organ/bone donors were shipped to and utilized in Alabama. Of the forty-three (43) organ/bone donors tested by Auxilio Mutuo Hospital Clinical Laboratory twenty-five (25) donors generated at the least one bone graft placed in Alabama. That is, when Auxilio Mutuo Clinical Laboratory performs testing on an organ/bone donor like the donor in this case, there is a 58% (3 out of 5) likelihood that one or more grafts
from that donor will end up in Alabama."
(Auxilio Mutuo's petition, Appendix 7.) Auxilio Mutuo submitted another affidavit from its hospital administrator, Jorge L. Matta, in response to Davis's affidavit; that affidavit stated:
"2. I have reviewed the affidavit of Jean Davis which is dated October 11, 2005 and which has been filed by [the Holsombacks'] counsel in this litigation.
"3. The affidavit of Jean Davis is apparently being used by [the Holsombacks] in an effort to show that Auxilio Mutuo has sufficient...
