Thomas Jefferson University v. Romer, 97-1410

CourtCourt of Appeal of Florida (US)
Citation710 So.2d 67
Decision Date01 April 1998
Docket NumberNo. 97-1410,97-1410
Parties23 Fla. L. Weekly D858 THOMAS JEFFERSON UNIVERSITY, Appellant, v. Lisajane ROMER and Kevin Romer as Natural Parents and Guardians of Mathew Romer, a Minor, and Lisajane Romer and Kevin Romer, individually, Paul M. Tocci, PhD, and University of Miami, etc., et al., Appellees.

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710 So.2d 67
23 Fla. L. Weekly D858
THOMAS JEFFERSON UNIVERSITY, Appellant,
v.
Lisajane ROMER and Kevin Romer as Natural Parents and Guardians of Mathew Romer, a Minor, and Lisajane Romer and Kevin Romer, individually, Paul M. Tocci, PhD, and University of Miami, etc., et al., Appellees.
No. 97-1410.
District Court of Appeal of Florida,
Fourth District.
April 1, 1998.

Page 68

Charles M.P. George and A. Scott Lundeen of George, Hartz, Lundeen, Flagg & Fulmer, Coral Gables, for appellant.

Jane Kreusler-Walsh of Jane Kreusler Walsh, P.A., West Palm Beach, Daniel S. Pearson of Holland & Knight, P.A., Miami, and Neal A. Roth and Gary M. Cohen of Grossman & Roth, P.A., Boca Raton, for Appellees-Lisajane Romer and Kevin Romer.

PER CURIAM.

This is a non-final appeal from a trial court order denying a motion to dismiss for lack of personal jurisdiction over appellant, Thomas Jefferson University. We affirm because there is both long-arm jurisdiction pursuant to section 48.193(1)(f)2, Florida Statutes (1995) and sufficient minimum contacts to satisfy constitutional due process requirements. Asahi Metal Indus. Co. v. Superior Court of California, Solano County, 480 U.S. 102, 108, 107 S.Ct. 1026, 1030, 94 L.Ed.2d 92 (1987); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 296, 100 S.Ct. 559, 566, 62 L.Ed.2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945).

While we affirm, we do so on the basis of section 48.193(1)(f)2, not section 48.193(1)(f)1. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Our review of the record supports the conclusion that Thomas Jefferson processed or serviced the serum in Pennsylvania but that the resulting written report and analysis were used within Florida in the ordinary course of the University of Miami's practice to evaluate the risk of Tay-Sachs.

We also conclude that there were sufficient minimum contacts to satisfy constitutional due process requirements. While there is a dispute between the parties about the number of samples tested by Thomas Jefferson for the University of Miami, we find that Thomas Jefferson's activity with the State of Florida was purposeful such that it could reasonably anticipate being haled into court here. Accordingly, we affirm.

GUNTHER and POLEN, JJ., concur.

FARMER, J., concurs and dissents with opinion.

FARMER, Judge, concurring and dissenting.

The parents of a child who was born with Tay-Sachs disease sued several defendants, alleging the negligent performance and report of incorrect genetic test results. This inaccurate information allegedly led them to believe that they did not carry the Tay-Sachs gene and that there was no risk, therefore, that they would conceive a child having the disease.

The blood sample was taken by a Dr. Tocci of the University of Miami (UM) here in Florida. He then sent the sample to Thomas Jefferson University (TJU), a clinical laboratory located in Pennsylvania, for analysis and a report, which was then in turn furnished to Dr. Tocci in Florida. The parents sued UM, Dr. Tocci and TJU. In its motion to dismiss the complaint, TJU asserted that Florida lacks personal jurisdiction over it and that

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the plaintiffs failed to provide the requisite presuit notice under chapter 766. The trial court denied the motions, finding personal jurisdiction over TJU and also that the presuit notice was not required. This appeal concerns only personal jurisdiction.

Plaintiffs argued that Florida has personal jurisdiction over TJU by virtue of two separate provisions of the Florida long arm statute: subdivision (1)(b), dealing with the commission of a tortious act in Florida; and subdivision (1)(f), dealing with negligent acts or omissions outside the state of Florida that ultimately cause injury to someone within the state. 1 The trial court expressly found jurisdiction under both (1)(b) and (f)(1). In affirming this decision, the majority applies Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if an alternative theory supports it), and concludes that Florida has jurisdiction over TJU only under (f)(2). In other words, the majority has concluded that plaintiffs have failed to establish jurisdiction under (1)(b) and (f)(1). I agree with the majority as to the lack of jurisdiction under subsections (1)(b) and (f)(1), but I disagree as to the assertion of jurisdiction under (f)(2).

The critical facts are largely undisputed. Dr. Tocci was the director of biogenetics at UM. He took blood specimens from the mother for diagnostic purposes. She, in turn, wrote a check to UM for this service. At the time of her blood sampling, UM's lab was experiencing staffing difficulties. Tocci contacted his friend and colleague at TJU, a Dr. Grebner, and requested assistance in performing serum testing on some specimens. Tocci and Grebner agreed that the assistance was not a business venture but just one colleague helping another in a crunch. There was no formal contract between TJU and UM. There were just two instances when UM's lab needed such assistance: once during July-August 1994, and then again in March 1995 after Tocci had a heart attack.

The mother's specimen was one of those sent to TJU in Pennsylvania in July 1994. During this time UM sent 10 to 30 batches of some 13 to 30 tests to TJU. Dr. Grebner estimated that approximately 150 samples were sent during this time. After analyzing the samples, TJU sent a report to UM. TJU then billed UM, not plaintiffs, for the test. According to TJU, as a courtesy to Tocci it billed $40 per test, rather than the $60 it usually charges its own patients and at that price it lost money on each test it performed for UM.

In Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), the supreme court explained that a plaintiff must leap two hurdles in order to establish that Florida has personal jurisdiction over a nonresident defendant. First, the plaintiff must demonstrate that the legislature has actually asserted jurisdiction over the nonresident defendant under an express provision of the long arm statute. Next, the plaintiff must satisfy due process requirements by showing that the defendant has sufficient or "minimum" contacts with the state of Florida, as required by International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In addition to finding both (1)(b) and (f)(1) applicable, the trial court here found that TJU had sufficient contacts with Florida to be fairly

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sued here. I shall consider first the applicability of the statutes and then the sufficiency of TJU's Florida contacts.

I. Subsection 48.193(1)(b)

Although I agree with the majority that subsection (1)(b)--the commission of a tortious act in Florida--does not provide jurisdiction in this case, I think it important to state our reasoning, especially in light of the conflicting decisions from Florida courts on the issue.

A number of Florida appellate decisions have held that (1)(b) applies to conduct outside of Florida where resulting injury occurs within this state. See Wood v. Wall, 666 So.2d 984 (Fla. 3d DCA 1996); Allerton v. State Dept. of Ins., 635 So.2d 36 (Fla. 1st DCA), rev. denied, 639 So.2d 975 (Fla.1994); Int'l Harvester Co. v. Mann, 460 So.2d 580 (Fla. 1st DCA 1984). 2 At least two federal appellate decisions have also reached the same conclusion. See Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996); Sun Bank, N.A. v. E.F. Hutton & Co., 926 F.2d 1030 (11th Cir.1991). On the other hand, several other Florida courts, including this one, have held the contrary and read (1)(b) to require that the defendant's conduct or act take place within this state. See Phillips v. Orange Co., 522 So.2d 64 (Fla. 2d DCA), rev. denied, 531 So.2d 1354 (Fla.1988); McLean Financial Corp. v. Winslow Loudermilk Corp., 509 So.2d 1373 (Fla. 5th DCA 1987); Fitz v. Samuel Friedland Family Enter., 523 So.2d 1284 (Fla. 4th DCA 1988); Freedom Sav. & Loan Ass'n v. Ormandy & Assoc., Inc., 479 So.2d 316 (Fla. 5th DCA 1985); Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla. 1st DCA 1977). 3 The courts in the decisions applying (1)(b) where none of the conduct or acts took place in Florida employ one of two rationales. On the one hand, they distinguish between intentional torts and negligence and conclude that intentional torts are covered by (1)(b) even though the act took place outside Florida. Wood v. Wall, 666 So.2d at 986; Allerton, 635 So.2d at 40; Robinson, 74 F.3d at 257. 4

On the other hand, International Harvester concluded a tort is committed in the place where the injury, or final element, occurs and therefore the tort was committed where the conduct or act causes injury or damage. 460 So.2d at 581. In Doe v. Thompson, 620 So.2d 1004 (Fla.1993), the supreme court held that a nonresident defendant, who had not personally acted in Florida because all of his acts here were on behalf of his corporation, was not subject to (1)(b). The court disapproved International Harvester to the extent of conflict with Doe. In a footnote, the court said that "[a] corporate officer committing fraud or other intentional misconduct can be subject to personal jurisdiction," and cited several out of state cases but did not mention (1)(b). 620 So.2d at 1006. Allerton nonetheless concluded that the intentional tort rationale survived Doe even though it was not an issue in Doe and was therefore not discussed in the opinion. Allerton and similar cases read too much into the actual holding in Doe.

I agree with the majority that (1)(b) should not be read to reach conduct in another state that causes injury to someone in Florida. As

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the statutory text of (1)(b)...

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