Schwilm v. Holbrook
| Decision Date | 28 September 1981 |
| Docket Number | No. 81-1357,81-1357 |
| Citation | 661 F.2d 12 |
| Parties | Rosemarie T. SCHWILM, Administratrix of the Estate of Carrol A. Schwilm, Deceased, Appellant, v. Thomas J. HOLBROOK, M.D. and Cabell Huntington Hospital. |
| Court | U.S. Court of Appeals — Third Circuit |
J. Jerome Mansmann, (argued), Gondelman Baxter Mansmann & McVerry, Pittsburgh, Pa., for appellant.
Avrum Levicoff, (argued), Egler & Reinstadtler, Pittsburgh, Pa., for appellee.
Before GIBBONS and HUNTER, Circuit Judges and GERRY, District Judge. *
Rosemarie T. Schwilm, Administratrix of the Estate of Carroll A. Schwilm, appeals from a judgment dismissing her diversity wrongful death and survivorship action on the ground of lack of personal jurisdiction over the nonresident defendant. Thomas J. Holbrook, M.D. She also appeals from the denial of her motion to transfer the action to an appropriate district court in West Virginia, Dr. Holbrook's home state. Because we conclude that West Virginia is the more appropriate forum for this action, we do not decide whether personal jurisdiction could properly have been asserted in Pennsylvania. We hold that the district court abused its discretion in denying plaintiff's transfer motion, and remand for entry of an appropriate order under 28 U.S.C. § 1404(a).
On June 9, 1977, plaintiff's decedent, Carrol A. Schwilm, sustained injuries in a West Virginia diving accident. He was admitted to Cabell Huntington Hospital in West Virginia (Cabell), where Dr. Holbrook treated him. Mr. Schwilm was a Pennsylvania resident; Dr. Holbrook is a West Virginia resident. On the basis of x-rays taken in West Virginia, Dr. Holbrook diagnosed Schwilm's injury as a neck sprain, and treated him accordingly. In fact, Schwilm had suffered a fracture of the odontid process. Plaintiff maintains that the treatment Schwilm received from Dr. Holbrook thus was inappropriate to the injury actually sustained. 1
Following almost two weeks of treatment in West Virginia, Dr. Holbrook arranged for Schwilm's transfer to St. Francis Hospital in Pittsburgh, Pa. Dr. Holbrook telephoned a doctor at the Pittsburgh hospital to set up the transfer, Complaint P 9, and subsequently mailed to the Pittsburgh hospital Schwilm's x-rays and other medical records. Complaint P 10. The transfer arrangements and dispatch of medical records are Dr. Holbrook's only direct contacts with Pennsylvania.
On June 22, 1977, Schwilm was admitted to St. Francis Hospital. Subsequent medical tests in Pittsburgh revealed Dr. Holbrook's misdiagnosis. Schwilm's Pennsylvania doctors eventually determined that only orthopedic surgery could correct his injury. During surgery, Schwilm's left vetebral artery was entered, causing blood losses and neurological deficits which resulted in Schwilm's death on October 11, 1977.
On June 25, 1979, Rosemarie T. Schwilm, as administratrix of her husband's estate, filed suit against Dr. Holbrook and against Cabell in the Commonwealth of Pennsylvania Arbitration Panels for Health Care. 2 On July 23, 1979, Cabell successfully petitioned for removal to the United States District Court for the Western District of Pennsylvania. On September 8, 1979 Cabell filed an uncontested motion to dismiss for lack of personal jurisdiction which the district court granted.
On October 31, 1980, Dr. Holbrook filed a petition for removal from Allegheny County Common Pleas to the Western District of Pennsylvania. On November 20, 1980, Dr. Holbrook filed in federal court a motion to dismiss for lack of personal jurisdiction. On January 20, 1980, the court granted Holbrook's motion, and denied Ms. Schwilm's motion for transfer of venue pursuant to 28 U.S.C. §§ 1404(a) and 1406(a). 3 This appeal followed.
Ms. Schwilm alleges that the Western District of Pennsylvania may assert personal jurisdiction over Dr. Holbrook on the basis of the Pennsylvania long arm statute, 42 Pa.C.S. §§ 5322(a)(4) and 5322(b). Section 5322(a)(4) permits assertion of personal jurisdiction over a nonresident defendant when the claim arises out of a harm or tortious injury occurring in Pennsylvania due to an act or omission occurring outside Pennsylvania. Section 5322(b) authorizes exercise of personal jurisdiction "to the fullest extent allowed under the Constitution of the United States ... based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States."
Ms. Schwilm's complaint states that Dr. Holbrook is a nonresident who has caused harm in Pennsylvania. Complaint P 11; that he engaged in numerous negligent activities, including misdiagnosing Schwilm, affording substandard medical care, failing to prevent future harm resulting from the misdiagnosis, negligently rendering services to Schwilm, and causing Schwilm to undergo surgery in Pennsylvania due to improper care in West Virginia. Complaint PP 12, 13.
When personal jurisdiction over a nonresident defendant is asserted on a basis other than consent, physical presence, or doing business, the claim must arise from a specific forum-related act. Minimum contacts analysis is inappropriate where defendant's forum activities do not give rise to the claim. Instead, when pressing a nonforum-related claim, plaintiff must demonstrate that the defendant maintained "continuous and substantial" forum affiliations. See, International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Compagnie des Bauxites de Guinea v. Ins. Co. of North America, 651 F.2d 877 at 889-891, (3d Cir. 1981), (Gibbons, J., dissenting). Dr. Holbrook maintains that the alleged negligence occurred in West Virginia, that plaintiff thus sues on a nonforum-related injury, and that the "continuous and substantial" test must therefore apply. He further observes that under no construction of the facts alleged in the complaint could the court divine his continuous and substantial Pennsylvania presence. Finally, Dr. Holbrook argues, the phone calls and mailing of the medical records Dr. Holbrook's only direct associations with Pennsylvania were not themselves elements of Schwilm's injury, and cannot be counted toward accrual of an action against him in Pennsylvania. Therefore they do not constitute "minimum contacts" giving rise to a Pennsylvania claim.
Plaintiff's construction of the injury differs. According to plaintiff's view, a harm occurred in West Virginia, but separate, albeit continuing, harms occurred in Pennsylvania when Dr. Holbrook sent Schwilm back to Pennsylvania, and misinformed Schwilm's Pennsylvania doctors by phone and by mail of Schwilm's condition. While the original tortious conduct occurred in West Virginia, an adequate Pennsylvania nexus developed when Holbrook exported his misdiagnosis to Pennsylvania, where it delayed discovery of Schwilm's actual injury. Moreover, plaintiff contends, Dr. Holbrook knowingly treated a Pennsylvania resident in West Virginia, and purposefully sent both Schwilm and Schwilm's misleading medical records back to Pennsylvania.
While plaintiff's construction of the facts does not set out an unshakable case for assertion of long arm jurisdiction, it does establish a good faith basis for belief that Dr. Holbrook could be compelled to defend in Pennsylvania. In the commercial context, caselaw addressing negligence occurring out of state, coupled with deliberate or knowing exportation to the forum of a defective article generally gives rise to qualitatively sufficient forum contacts to permit assertion of long arm jurisdiction consonant with the fourteenth amendment. Compare Sunn Classic Pictures, Inc. v. Budco Inc., 481 F.Supp. 382 (E.D.Pa.1979) () with Davis v. C. & N.W. Transport Co., 259 Pa.Super. 544, 405 A.2d 959 (Pa.Super.1979) (). The Supreme Court's recent decision in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), does not limit the reach of a "tort out/harm in" long arm, when the place of the harm was clearly and specifically foreseeable. See 444 U.S. at 297, 100 S.Ct. at 567. Under that standard, Dr. Holbrook's knowing treatment of a Pennsylvanian, combined with his transfer of Schwilm and Schwilm's medical records back to Pennsylvania, would seem to satisfy any "specifically foreseeable" test.
On the other hand, World-Wide Volkswagen emphasized the potential due process infirmity of assertion of personal jurisdiction over a "local dealer" on the basis of negligence originating outside the forum. The local dealer limitation, while conceived as a modification of the "stream of commerce" basis for assertion of personal jurisdiction, is also compelling in the noncommercial personal injury context. Many doctors maintain an essentially local practice. They do not solicit patients from out of state, nor do they derive special benefits from treating nonresidents. Unlike a commercial enterprise, which may tailor its business to avoid dealing with out of state customers, a physician, and especially one on a hospital emergency room staff, is obliged to treat whoever requires medical attention. The doctor's professional obligations substantially dilute the "purposefulness" of caring for a foreign patient. Similarly, it is questionable whether transferring a patient back to his home state constitutes purposeful activity in the patient's home state, at least when the patient has requested the transfer. 4
In the case at hand, however, these considerations are not dispositive. They merely outline the bases and problems of asserting personal jurisdiction in Pennsylvania over Dr. Holbrook. We need not determine...
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