Kerger v. Dentsply Int'l Inc
| Citation | 2011 Ohio 84 |
| Decision Date | 13 January 2011 |
| Docket Number | No. 94430,Case No. CV-635068,94430 |
| Parties | JESSICA KERGER, ET AL. PLAINTIFFS-APPELLANTS v. DENTSPLY INTERNATIONAL INC., ET AL. DEFENDANTS-APPELLEES |
| Court | Ohio Court of Appeals |
ATTORNEYS FOR APPELLANTS
Jessica R. Kerger
Mary M. Moriarty
Murray and Murray Co., LPA
ATTORNEYS FOR APPELLEES
For Dentsply Int. Inc., et al.
Robin M. Wilson
For American Dental Association
Jack Bierig
Brian P. Riley
Melanie S. Shaerban
Jeffrey L. Tasse
For Johnson & Johnson Co.
Rita A. Maimbourg
Tucker Ellis & West LLP
For Ohio Dental Assoc.
James K. Reuss
{¶1} Plaintiffs-appellants, Jessica and Richard Kerger (collectively "the Kergers"), individually and on behalf of their minor children, appeal the trial court's dismissal of their complaint for lack of personal jurisdiction under Civ.R. 12(B)(2) and failure to state a claim under Civ.R. 12(B)(6). We find no merit to the appeal and affirm.
{¶2} The Kergers sued the American Dental Association ("ADA"), the Ohio Dental Association ("ODA") and various dental product manufacturers1 in September 2007 alleging that Jessica Kerger ("Jessica") was injured by amalgam fillings her dentist placed in her teeth. The complaint alleged that Jessica's dentist placed twelve mercury-containing dental amalgam fillings in her mouth over a period of years before her twenty-first birthday, where they remained until 2002. Kerger's dentist purchased the amalgam fillings from Johnson & Johnson.
Sometime in 1991, Jessica read an article from which she learned that dental amalgams contain mercury. The article allegedly stated the ADA's view that the use of mercury in amalgam fillings was safe. Based on her trust in the ADA, Jessica accepted and relied upon the ADA's opinion.
{¶3} The complaint further alleged that the ADA never advised dentists to warn patients about the potential hypersensitivity or systemic responses to mercury and actively concealed the risks and dangers of such fillings. The Kergers asserted that the ADA had a financial interest in amalgam because it owned a patent on amalgam and received revenues from amalgam manufacturers who put the ADA seal of acceptance on their products. The Kergers also alleged that the ADA website affirms that "consumers can beconfident that the product meets ADA requirements for safety and effectiveness and that the manufacturer's claims about that product are accurate," and that the seal "symbolizes dentistry's commitment to protect the profession and the public."
{¶4} The complaint also alleged that the ADA's code of ethics prohibits dentists from warning patients about the presence of mercury in amalgam fillings and makes it illegal for dentists to remove fillings due to the presence of mercury. The Kergers maintain that, as a result of the ADA's conduct, they had no reason to believe that the amalgam fillings in Jessica's mouth were hazardous to her health prior to April 2002.
{¶5} According to the complaint, the ADA is not a resident of Ohio. It is a nonprofit corporation headquartered in Illinois, authorized to conduct business in Ohio, and accredits dental schools in Ohio. The complaint alleged that Jessica's dentist was a member of the ADA, and that all Ohio dentists who are members of the ODA are required to be members of the ADA. The amalgam placed in her teeth was allegedly delivered to her dentist's office in packaging containing the ADA's Seal of Acceptance. Finally, the complaint alleged that Jessica bought tubes of Crest toothpaste bearing the ADA's Seal of Acceptance and that Ohio television stations aired Crest commercials promoting their products with the ADA Seal of Acceptance.
{¶6} The record contains an affidavit from Mary K. Logan ("Logan"), the ADA's then-chief operating officer, attached to the ADA's motion to dismiss, in which she describes the ADA's limited contacts with Ohio. Logan states that the ADA has never been incorporated in Ohio, does not transact business in Ohio, and has never had a designated agent for service of process in Ohio. She stated that the ADA does not derive substantial revenue from goods used or consumed or services rendered in Ohio. The ADA has no office, employees, agents, mailing addresses, bank accounts, or telephone service in Ohio and does not own any property in Ohio.
{¶7} Logan also stated that the ADA is a voluntary association, which means that dentists are not required to be ADA members to practice dentistry in Ohio. Further, the ADA cannot grant, revoke, or suspend the licenses of any Ohio dentists, and has not taken or threatened disciplinary action against any Ohio dentist for discussing the safety of amalgam with patients.
{¶8} According to Logan, the ADA does not specifically direct business solicitation efforts in Ohio; does not promulgate and has not promulgated nor issued any policies, procedures, or positions specifically directed to Ohio or Ohio dentists; and does not instruct or order dentists to use any type of fillings.
{¶9} Based on these facts, the trial court granted the ADA's motion to dismiss the Kergers' claims against the ADA for lack of personal jurisdiction over the ADA pursuant to Civ.R. 12(B)(2) and for failure to state a claim against the ADA pursuant to Civ.R. 12(B)(6). The Kergers now appeal, raising two assignments of error.
{¶10} In the first assignment of error, the Kergers argue that the trial court erred in dismissing their claims against the ADA for lack of personal jurisdiction. The Kergers contend the ADA has sufficient contacts with Ohio to confer personal jurisdiction over it because the ADA has solicited membership from all Ohio dentists and promulgated a "gag" rule prohibiting them from warning their patients about the risks associated with amalgam. The Kergers also claim that the ADA has purposely availed itself of doing business in Ohio. We disagree.
{¶11} Personal jurisdiction is a question of law that appellate courts review de novo. Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, ¶27. Matters of jurisdiction are very often not apparent on the face of the summons or complaint. Where a defendant asserts that the court lacks personal jurisdiction over him, the plaintiff has the burden of establishing the court's jurisdiction. Id. In deciding the merits of that defense, the court may hold an evidentiary hearing or "hear" the matter on affidavits, depositions, interrogatories, or receive oral testimony. Id. If the court determines its jurisdiction without an evidentiary hearing, it must view allegations in the pleadings and documentary evidence in the light most favorable to the nonmoving party. Goldstein v. Christiansen, 70 Ohio St.3d 232, 236, 1994-Ohio-229, 638 N.E.2d 541. In the absence of an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdiction to withstand the motion to dismiss. Klug v. Trivison (2000), 137 Ohio App.3d 838, 739 N.E.2d 1243. A prima facie showing exists if a plaintiff produces sufficient evidence to allow reasonable minds to conclude that the trial court has personal jurisdiction. Giachetti v. Holmes (1984), 14 Ohio App.3d 306, 307, 471 N.E.2d 165.
{¶12} In determining whether an Ohio court has personal jurisdiction over a nonresident defendant, the court must ascertain the following: (1) whether Ohio's long-arm statute, R.C. 2307.382(A), and the applicable civil rule, Civ.R. 4.3, permit it to assert personal jurisdiction; and, if so, (2) whether bringing the defendant within the jurisdiction of the Ohio courts would violate traditional notions of fair play and substantial justice under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.Goldstein at 235, citing U.S. Sprint Communications Co., Ltd. Partnership v. Mr. K's Foods, Inc., 68 Ohio St.3d 181, 183-184, 1994-Ohio-504, 624 N.E.2d 1048. Courts must engage in this two-step analysis because the long-arm statute does not give Ohio courts jurisdiction to the same extent as the Due Process Clause. Goldstein at 238, fn. 1.
{¶13} The Due Process Clause protects an individual from being subject to the binding judgments of a forum in which he has not established any meaningful contacts, ties, or relations. Blue Flame Energy Corp. v. Ohio Dept. of Commerce, 171 Ohio App.3d 514, 2006-Ohio-6892, 871 N.E.2d 1227, ¶16, citingBurger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 471-472, 105 S.Ct. 2174, 85 L.Ed.2d 528. Due process is satisfied if a forum has either specific or general jurisdiction over a nonresident defendant. Helicopteros Nacionales de Colombia, S.A. v. Hall (1984), 466 U.S. 408, 414-415, 104 S.Ct. 1868, 80 L.Ed.2d 404, fns. 8 and 9. Specific jurisdiction exists if defendant "purposefully established minimum contacts within the forum State" and if the "litigation results from alleged injuries that 'arise out of or relate to' those activities" creating "minimum contacts." Burger King at 476. In contrast, general jurisdiction is based upon "continuous and systematic" contacts with the forum that are unrelated to the underlying litigation. Helicopteros at 415, fn. 9.
{¶14} To establish specific jurisdiction consistent with due process, a plaintiff must demonstrate (1) that the defendant purposefully availed himself of the privilege of acting in the forum state or caused a consequence in the forum state, (2) the cause of action arose from the defendant's activities in the forum state, and (3) the acts of the defendant or consequences caused by the defendant had a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Fritz-Rumer-Cooke Co., Inc. v. Todd & Sargent (Feb. 8, 2001), Franklin App. No....
To continue reading
Request your trial