Wesly v. Nat'l Hemophilia Found.

• Decision Date: 09 March 2020
• Docket Number: Appeal No. 3-17-0569
• Citation: 148 N.E.3d 221,2020 IL App (3d) 170569,439 Ill.Dec. 481
• Parties: Osvaldo H. WESLY, M.D., Plaintiff-Appellee, v. The NATIONAL HEMOPHILIA FOUNDATION, Craig M. Kessler, M.D., Georgetown University, Michael Tarantino, M.D., Kollet Koulianos, The Bleeding and Clotting Disorders Institute, an Illinois Not-for-Profit Corporation, Bob Robinson, and Bleeding Disorders Alliance Illinois, an Illinois Not-for-Profit Corporation, Defendants (Craig M. Kessler, M.D., Defendant-Appellant).
• Court: United States Appellate Court of Illinois

2020 IL App (3d) 170569

148 N.E.3d 221

439 Ill.Dec. 481

Osvaldo H. WESLY, M.D., Plaintiff-Appellee,

v. The NATIONAL HEMOPHILIA FOUNDATION, Craig M. Kessler, M.D., Georgetown University, Michael Tarantino, M.D., Kollet Koulianos, The Bleeding and Clotting Disorders Institute, an Illinois Not-for-Profit Corporation, Bob Robinson, and Bleeding Disorders Alliance Illinois, an Illinois Not-for-Profit Corporation, Defendants(Craig M. Kessler, M.D., Defendant-Appellant).

Appeal No. 3-17-0569

Appellate Court of Illinois, Third District.

Opinion filed March 9, 2020

PRESIDING JUSTICE LYTTON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Osvaldo H. Wesly, M.D., filed a defamation complaint in Peoria County against defendant, Craig M. Kessler, M.D., and several others. Kessler, who lives and works in the Washington, D.C., area, filed a motion to dismiss plaintiff's complaint, asserting that the Peoria County circuit court lacked personal jurisdiction over him. The trial court denied the motion and certified the following question: "Can the Circuit Court properly exercise personal jurisdiction in a tort action over Dr. Kessler under the Illinois long-arm statute, and if so, can such an exercise of personal jurisdiction satisfy the requirements for due process?" We answer the certified question in the affirmative and affirm the trial court's denial of Kessler's motion to dismiss.

¶ 2 FACTS

¶ 3 Plaintiff, a physician, became the medical director of the Comprehensive Bleeding Disorders Center in Peoria in 2010. On September 20, 2014, he received the Physician of the Year Award from the National Hemophilia Foundation (NHF). A few days later, NHF issued an e-mail to all of its members stating that it recently discovered that "documents submitted to it in connection with its NHF Physician of the Year Award to Dr. Osvaldo H. Wesly had significant inaccuracies related to Dr. Wesly's background, qualifications and experience." (Emphases in original). The same message was posted on NHF's website and disseminated to other sources, including at least one television station in Peoria.

¶ 4 Plaintiff filed a complaint against NHF and seven other defendants, including Craig M. Kessler, who is the director of the coagulation laboratory at Georgetown University and serves as a volunteer with NHF. Count I of plaintiff's complaint alleged defamation against Kessler.

¶ 5 In the course of discovery, plaintiff obtained two e-mails written by Kessler to Michael Tarantino, a physician and medical director of the Bleeding and Clotting Disorders Institute in Peoria, on September 21, 2014. Kessler sent his first e-mail to Tarantino at 7:37 a.m. on September 21, 2014. It states in pertinent part:

"Dear Mike,

I am at the NHF Board Meeting this morning and spoke to Val, who indicated that the Physician of the Year Award was given to an individual from your area who apparently has turned out to have some background difficulty. Val indicated that the nomination was well supported but apparently the committee (an in-house group) was not aware of some of the legal difficulties he has been associated with. I have suggested to Val that if the accusations against this individual are still active and if he is under OIG investigation, that his ethical situation should invalidate his award. Are you able to provide any information about this off line?

* * *

Furthermore, I have indicated to Val and the NHF the importance of supporting you and your HTC [hemophilia

treatment center] and the value you bring to the * * * hemophilia community. Clearly, they are collectively embarrassed by this and are now looking into the vetting process for the nominees. * * *

Personally, I want to apologize since I would never have let this occur and I believe [it] sends an inappropriate message to the community. Please let me know your thoughts and I will keep you apprised of the situation from my perspective."

Kessler sent his second e-mail to Tarantino at 7:34 p.m. the same day. It provides in pertinent part:

"Dear Mike,

I am so sorry that I was not aware of this situation. I was not part of the nomination committee; however, I am going to discuss with Val that we should withdraw the award based on the false credentials and I will ask that the CV which was sent to NHF as part of the vetting process be retrieved and adjudicated for veracity. If untrue, I will demand that Val withdraw the award. I will be available to you at any time. Please feel free to call me * * * at any time. Be assured that this [sic ] will not let this egregious situation remain and that the vetting process will be tightened up. I will keep you apprised. I agree that this is very embarrassing to NHF."

There is no dispute that Kessler sent the e-mails from outside Illinois or that Tarantino opened and read the e-mails in Illinois.

¶ 6 Kessler filed a motion to dismiss the defamation claim against him, arguing that the Peoria County circuit court lacked personal jurisdiction over him. The trial court denied Kessler's motion to dismiss and made a finding pursuant to Illinois Supreme Court Rule 308(a) (eff. Jan. 1, 2015), certifying the following question: "Can the Circuit Court properly exercise personal jurisdiction in a tort action over Dr. Kessler under the Illinois long-arm statute, and if so, can such an exercise of personal jurisdiction satisfy the requirements for due process?"

¶ 7 ANALYSIS

¶ 8 Illinois Supreme Court Rule 308(a) (eff. Jan. 1, 2015) provides in relevant part:

"When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved."

The scope of review in an interlocutory appeal brought under Rule 308 is limited to the certified question. Spears v. Association of Illinois Electric Cooperatives , 2013 IL App (4th) 120289, ¶ 15, 369 Ill.Dec. 267, 986 N.E.2d 216. A certified question is governed by Rule 308 and reviewed de novo . Barbara's Sales, Inc. v. Intel Corp. , 227 Ill. 2d 45, 57-58, 316 Ill.Dec. 522, 879 N.E.2d 910 (2007).

¶ 9 Illinois courts may assert specific personal jurisdiction over a nonresident defendant if (1) a specific statutory provision of the Illinois long-arm statute has been satisfied and (2) the due process requirements of the United States and Illinois Constitutions have been met. Russell v. SNFA , 2013 IL 113909, ¶ 29, 370 Ill.Dec. 12, 987 N.E.2d 778.

¶ 10 I. Long-Arm Statute

¶ 11 The Illinois long-arm statute provides in relevant part:

"(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State;

* * *

(c) A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States." 735 ILCS 5/2-209 (West 2016).

¶ 12 The tort of defamation occurs where the defamatory statements are published. See Hanson v. Ahmed , 382 Ill. App. 3d 941, 942, 321 Ill.Dec. 475, 889 N.E.2d 740 (2008). Publication is the act by which defamatory matter is conveyed to a third party. Missner v. Clifford , 393 Ill. App. 3d 751, 763, 333 Ill.Dec. 121, 914 N.E.2d 540 (2009).

¶ 13 Here, under section 2-209(a)(2) of the Illinois long-arm statute, plaintiff has asserted jurisdiction over Kessler because he sent the statements to Tarantino, who received and read them in Illinois. Publication of Kessler's statements, therefore, occurred in Illinois. See Hanson , 382 Ill. App. 3d at 943, 321 Ill.Dec. 475, 889 N.E.2d 740 ; Missner , 393 Ill. App. 3d at 763, 333 Ill.Dec. 121, 914 N.E.2d 540. Kessler's alleged defamation was in Illinois and subject to Illinois's jurisdiction under the long-arm statute. See 735 ILCS 5/2-209(a)(2) (West 2016).

¶ 14 Plaintiff also asserted jurisdiction over Kessler under section 2-209(c) of the Illinois long-arm statute, commonly referred to as the "catch-all provision." Section 2-209(c) "effectively collapses the jurisdictional inquiry into the single issue of whether a defendant's Illinois contacts are sufficient to satisfy federal and Illinois due process." Russell , 2013 IL 113909, ¶ 30, 370 Ill.Dec. 12, 987 N.E.2d 778. When a plaintiff argues that personal jurisdiction is proper under section 2-209(c), the sole issue before the court is whether the nonresident defendant's connection or contact with Illinois is sufficient to satisfy federal and Illinois due process. Id.

¶ 15 II. Due Process

¶ 16 Both the Illinois Constitution and the United States Constitution contain independent guarantees of due process. Ill. Const. 1970, art. I, § 2 ; U.S. Const., amend. XIV. "[I]t is generally true that, when federal due process concerns regarding personal jurisdiction are satisfied, so are Illinois due process concerns." Aasonn, LLC v. Delaney , 2011 IL App (2d) 101125, ¶ 13, 356 Ill.Dec. 550, 961 N.E.2d 939.

¶ 17 A. Federal Due Process

¶ 18 Three criteria are considered in determining whether federal due process requirements have been satisfied: (1) whether the nonresident defendant had "minimum contact" with the forum state such that there was "fair warning" that the nonresident defendant may be brought into a forum court, (2) whether the action arose out of or related to the defendant's contacts with the forum state, and (3) whether it is reasonable to require the defendant to litigate in the forum state. Kalata v. Healy , 312 Ill. App. 3d 761, 768-69, 245 Ill.Dec. 566, 728 N.E.2d 648 (2000).

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