Marler v. Hiebert, WD

• Decision Date: 22 April 1997
• Docket Number: No. WD,WD
• Citation: 943 S.W.2d 853
• Parties: David MARLER, surviving spouse of Brandi Marler, Deceased, Appellant, v. John HIEBERT, M.D., Respondent. 52422.
• Court: Missouri Court of Appeals

Page 853

943 S.W.2d 853

David MARLER, surviving spouse of Brandi Marler, Deceased, Appellant, v. John HIEBERT, M.D., Respondent.

No. WD 52422.

Missouri Court of Appeals Western District.

April 22, 1997.

Stephen Six, Overland Park, for appellant.

William Logan, Topeka, for respondent.

HANNA, Judge.

The issue on appeal is whether the Missouri court has personal jurisdiction over defendant- /respondent, John Hiebert, M.D. This determination involves the Missouri long-arm statute, § 506.500, RSMo (1994), and the due process clause of the Fourteenth Amendment of the United States Constitution.

The plaintiff/appellant, David Marler, is the surviving spouse of Brandi Marler. He filed a wrongful death suit against Dr. Hiebert in the Jackson County circuit court. Upon being served with process in Kansas pursuant to the long-arm statute, § 506.500, RSMo 1994, the defendant filed a motion to dismiss arguing that the court lacked personal jurisdiction. The trial court heard limited evidence which consisted of deposition testimony, affidavits, and other documents. The court concluded that Dr. Hiebert was not subject to personal jurisdiction in the state of Missouri.

The plaintiff and his wife were residents of Lawrence, Kansas. On January 17, 1994, Brandi Marler began experiencing chest discomfort and was admitted to Lawrence Memorial Hospital under the care of Dr. Hiebert, a cardiologist. Tests indicated an unstable cardiac condition which was assessed by Dr. Hiebert as a "critical coronary stenosis involving the left anterior descending distribution with unstable angina." Dr. Hiebert began a cardiac cauterization procedure during which Ms. Marler experienced cariogenic shock requiring emergency cardiac surgery. All of the pleaded acts and omissions of negligence occurred during Dr. Hiebert's treatment of Ms. Marler in Kansas. When complications arose with the cardiac cauterization, Dr. Hiebert telephoned a Kansas City, Missouri physician with Cardiovascular Consultants to make arrangements for the patient's transfer to St. Luke's Hospital because Lawrence Memorial Hospital did not have the necessary facilities to handle the case. Ms. Marler was transferred by emergency helicopter to St. Luke's Hospital in Jackson County, Missouri. Portions of her medical records were faxed to St. Luke's Hospital where she died the next day.

In 1993, Dr. Hiebert entered into an employment contract with Cardiovascular Consultants, Inc., which is a Missouri corporation having its principal place of business in Missouri. Patient services are billed through Cardiovascular Consultants' Missouri office. Dr. Hiebert's medical practice is conducted entirely in the state of Kansas, and he has never accompanied a patient to Missouri except on one occasion in 1975. He did not participate in the care of Ms. Marler after she left Lawrence Memorial Hospital.

Dr. Hiebert's letterhead lists physicians employed at Cardiovascular Consultants' Missouri office, and the Lawrence, Kansas yellow pages phone directory lists St. Luke's Hospital, Missouri physicians who are affiliated with Cardiovascular Consultants, Inc. However, the yellow page advertisements are published only in Kansas, and they list only the Kansas office address and telephone number. The Missouri offices of Cardiovascular Consultants are not mentioned in the Kansas yellow page advertisements. Cardiovascular Consultants distributes a brochure which describes its principal Missouri office but makes no mention of Dr. Hiebert or the Lawrence office.

Dr. Hiebert's income is dependent to some extent on his productivity in his Lawrence office, where he is one of four physicians. Dr. Hiebert has no policy or pattern of referring patients to Missouri, and his patients are not transferred to any specific hospital, including St. Luke's. His referral pattern does not affect his compensation. Prior to treatment at Lawrence Memorial Hospital and while consulting with Dr. Hiebert, the plaintiff and Ms. Marler insisted that, in the event of a medical emergency, Ms. Marler be transferred immediately to St. Luke's Hospital.

The plaintiff has the burden of showing that the court's exercise of jurisdiction is proper. State ex rel. William Ranni Assocs., Inc. v. Hartenbach, 742 S.W.2d 134, 137 (Mo. banc 1987). The plaintiff must show that the transaction between the parties fits into one of the subsections of the statute. State ex rel. Metal Serv. Ctr., Inc. v. Gaertner, 677 S.W.2d 325, 327 (Mo. banc 1984). Assuming that the plaintiff is successful, the plaintiff then must show that the assumption of long-arm jurisdiction accords with due process requirements of the Fourteenth Amendment. Id.

Our inquiry is limited to whether the exercise of personal jurisdiction over the defendant comports with the requirements imposed by the due process clause of the Fourteenth Amendment to the United States Constitution. The proper focus for analyzing the sufficiency of the defendant's contacts with the forum state is whether the contacts represent an effort by the defendant to purposefully "avail [him]self 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); see also Peabody Holding Co., Inc. v. Costain Group PLC, 808 F.Supp. 1425, 1436 (E.D.Mo.1992).

A defendant must have certain minimum contacts with the forum state 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, 102 (1945). This "minimum contacts" test is not susceptible to mechanical application; rather, "the facts of each case must be weighed to determine whether the requisite 'affiliating circumstances' are present." Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132, 141 (1978) (citing Hanson, 357 U.S. at 246, 78 S.Ct. at 1235, 2 L.Ed.2d at 1293 (1958)); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86, 105 S.Ct. 2174, 2189, 85 L.Ed.2d 528, 549-50 (1985). The defendant's contacts with the forum state also must be purposeful and such that the defendant "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980); see also Hanson, 357 U.S. at 253, 78 S.Ct. at 1240. In reviewing minimum contacts to satisfy the due process requirements, a court focuses on the relationship among the defendant, the forum, and the litigation. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579-80, 53 L.Ed.2d 683 (1977).

The plaintiff argues that Dr. Hiebert directed purposeful acts into the state of Missouri by being employed by the Missouri corporation, Cardiovascular Consultants, by transferring Ms. Marler to a Missouri physician, and by representing to Ms. Marler his relationship with St. Luke's Hospital and the Cardiovascular Consultants' physicians in Missouri to emphasize his ties with Missouri. The plaintiff's argument continues that Dr. Hiebert transacted business in Missouri and thereby subjected himself to the minimum contacts requirement by transmitting Ms. Marler's medical data by telephone and fax to the Missouri doctor at the time of referral. In other words, the plaintiff argues that Dr. Hiebert's contacts with Missouri are developed through his contractual relationship with his Missouri employer and through his representations to the Marlers about his connections with Missouri in order to persuade them to allow him to perform the procedures at the Lawrence hospital.

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