Glover v. Wagner

• Decision Date: 14 December 1978
• Docket Number: 375.,Civ. No. 78-0-374
• Citation: 462 F. Supp. 308
• Parties: Ardith A. GLOVER, Plaintiff, v. Donald J. WAGNER and St. Luke's Medical Center, Defendants.
• Court: U.S. District Court — District of Nebraska

462 F. Supp. 308

Ardith A. GLOVER, Plaintiff, v. Donald J. WAGNER and St. Luke's Medical Center, Defendants.

Civ. No. 78-0-374, 375.

United States District Court, D. Nebraska.

December 14, 1978.

Marshall A. Sullivan, Omaha, Neb., for plaintiff.

Ronald H. Stave, Omaha, Neb., for defendants.

MEMORANDUM

DENNEY, District Judge.

This matter comes before the Court upon the defendants' motions to dismiss for lack of jurisdiction.

This is a wrongful death action brought by Ardith A. Glover, the decedent's wife, in her individual capacity, and as personal representative of the decedent's estate.

In October of 1976, Verlyn Glover, the decedent, consulted with certain physicians at the University of Nebraska Medical Center at Omaha, Nebraska, and was diagnosed as having Hodgkins' disease. A course of chemotherapy for the treatment of the decedent was outlined by the physicians.

Since Sioux City, Iowa, was physically more convenient to the decedent than was Omaha, Nebraska, the decedent consulted with the defendant, Donald Wagner, a physician licensed to practice medicine in the State of Iowa, for the purpose of having Dr. Wagner administer portions of the chemotherapy program outlined by the physicians at the University of Nebraska Medical Center.

Subsequently, plaintiff alleges that the decedent, while an outpatient at St. Luke's Medical Center, and being under the care of Dr. Wagner, was given an injection of a drug, vincristine sulfate. Plaintiff alleges that an employee of St. Luke's prepared the injection with the wrong dosage, injected it into the decedent, and as a result of the excessive dosage, the Hodgkins' disease advanced into a chronic progressive stage, forcing the decedent to undergo a long course of treatment and numerous hospitalizations until his death.

In response, the defendants point out that the plaintiff, in her various complaints, alleges as follows:

That the plaintiff is and was at all times mentioned herein a citizen and resident of the State of Nebraska; that the defendant, Donald J. Wagner, is and was at all times mentioned herein a citizen and resident of a state other than the State of Nebraska; that the defendant, St. Luke's Medical Center, is a corporation organized and existing under the laws of a state other than the State of Nebraska and has it sic principal place of business in a state other than the State of Nebraska; ....

Accordingly, the defendants have filed various motions to dismiss, contending that the Court lacks jurisdiction over the person of each of these defendants.

Long-Arm Statute

The issue in this case, as the Court perceives it, is whether the application of the Nebraska long-arm statute to the facts of this case offends due process. Neb.Rev. Stat. § 25-536 (Reissue 1975), the primary statutory grant of extraterritorial personal jurisdiction, provides as follows:

Jurisdiction over a person. (1) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person's:

(a) Transacting any business in this state;

(b) Contracting to supply services or things in this state;

(c) Causing tortious injury by an act or omission in this state;

(d) Causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;

(e) Having an interest in, using, or possessing real property in this state; or

(f) Contracting to insure any person, property, or risk located within this state at the time of contracting.

(2) When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him.

Minimum Contacts Theory

In considering the Nebraska long-arm statute, this Court in Hetrick v. American Honda Motor Co., Inc., 429 F.Supp. 116, 118 (D.Neb.1976), summarized the development of the applicable law as follows:

When a plaintiff seeks to bring a defendant into court under a long-arm statute, he must state sufficient facts in the complaint to invoke jurisdiction. Once jurisdiction has been denied, plaintiff has the burden of proving such facts. Block Industries v. DHJ Industries, Inc., 495 F.2d 256 (8th Cir. 1974); Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973).

Amenability to extra-territorial personal jurisdiction is a question of due process. A defendant must "have certain minimum contacts with the forum such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). This Court has previously held that Nebraska's Long Arm Statute is as broad as the constitutional standard of due process. Vergara v. Aeroflot "Soviet Airlines," 390 F.Supp. 1266 (D.Neb.1975). See also Morton Buildings of Neb., Inc. v. Morton Buildings, Inc., 333 F.Supp. 187 (D.Neb. 1971); Von Seggern v. Saikin, 187 Neb. 315, 189 N.W.2d 512 (1971).

In the Eighth Circuit, personal jurisdiction under long-arm statutes must meet due process requirements governed by the following guidelines: (1) the nature and quality of the contacts with the forum state; (2) the quanity of contacts with the forum state; (3) the relation of the cause of action to the forum state; (4) the interest of the forum state in providing a forum for its residents; (5) the convenience of the parties. Electro-Craft Corp. v. Maxwell Electronics Corp., 417 F.2d 365, 368 (8th Cir. 1969).

See also Aaron Ferer & Sons Co. v. Atlas Scrap Iron & Metal Co., 558 F.2d 450, 453-55 (8th Cir. 1977); Ag-Tronic, Inc. v. Frank Paviour, Ltd., 70 F.R.D. 393, 398-99 (D.Neb. 1976).

Applying these principles to the facts of this case, the Court is convinced that the defendants' contacts with the State of Nebraska are insufficient to satisfy due process.

Discussion

The plaintiff alleges several factual contacts in support of this Court's long-arm jurisdiction over the defendant.

1. The decedent was a resident of Nebraska.

2. The defendants knew that the decedent was a resident of Nebraska and would continue to reside there immediately following his medical treatments.

3. The results of the allegedly negligent treatment furnished to the decedent were manifested and endured within the State of Nebraska.

However, the facts also show that the activities of the defendants were extremely localized and confined to the State of Iowa. Neither of these defendants regularly transacts or solicits business in Nebraska or engages in any other persistent course of conduct in this state. Nor do the defendants derive substantial revenue from goods used or consumed or services rendered in Nebraska. It is not alleged that either of the defendants has an agent located in this state. Furthermore, the allegedly negligent actions took place in Iowa. There is no allegation that a tortious injury occurred in this state.

Apparently, the plaintiff would have this Court analogize this case to those cases where a product is manufactured in one state and put into the stream of commerce where it eventually ends up in another state and causes an injury to a resident of that forum. In those cases, personal jurisdiction over the defendant has been upheld, see, e. g., Hetrick v. American Honda Motor Co., Inc., supra; Reilly v. Phil Tolkan Pontiac, Inc., 372 F.Supp. 1205 (D.N.J.1974), and with good reason. In the product cases, the manufacturer knows that the product, traveling through interstate commerce, will ultimately reach a consumer in any state of the United States. The manufacturer derives revenue from sales to the residents of the foreign forum. In sum, the manufacturer has performed "some act by which he has purposefully availed himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). Consequently, since he actively seeks and receives benefits from the other state, he must also abide by the laws of that state and be subjected to its jurisdiction when his product causes injury to an individual residing there. See 6 Creighton L.Rev. 357, 377-79 (1975).

However, there are significant facts in this case which distinguish it from the product cases described above. Most significantly, this case does not involve a product; it involves the rendering of personal services by a physician and a hospital. Neither def...