-4-

May 22, 2001) (citing PepsiCo, Inc. v. Marion Pepsi-Cola Bottling

Co., No. 99 C 3939, 2000 WL 263973, at *7 (N.D. Ill. Mar. 6,
2000)).

The U.S. Constitution permits the court to exercise
jurisdiction over defendants who have purposefully established
“minimum contacts" with the forum state, Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 472 (1985); Central States, Southeast and

Southwest Areas Pension Fund v. Reimer Express World Corp., 230

F.3d 934, 943 (7** Cir. 2000), such that 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
(1945). What that means depends on whether general or specific
jurisdiction is being asserted against the defendant. RAR, 107 F.3d
at 1277.

"General jurisdiction ... is for suits neither arising out of
or related to the defendant's contacts [with the forum], and it is
permitted only where the defendant has ‘continuous and systematic
general business contacts' with the forum." RAR, 107 F.3d at 1277.
Specific jurisdiction, on the other hand, refers to jurisdiction
over a defendant in a suit arising out of or related to the
defendant's contacts with the forum. See id.

The plaintiff does not argue that Dr. Green has “continuous

and systematic business contacts” with Illinois. See RAR, 107 F.3d

at 1277 (noting that plaintiff waived any general jurisdiction


-9-
the requirement of contact with the forum state.” Id. (quoting
Hanson, 357 U.S. at 253). In fact, a number of cases have held that
personal jurisdiction does not exist over a nonresident doctor
simply because he or she treated an Illinois resident outside

Illinois and the treatment caused injury. See, e.g., Rogers v.

Furlow, 699 F. Supp. 672 (N.D. Ill. 1988) (finding no personal
jurisdiction even though letters and telephone calls were exchanged
between the parties, and even though 10 - 12% of the defendant’s
patients were Illinois residents referred by Illinois doctors);
Veeninga, 444 N.E.2d 780 (finding no personal jurisdiction even
though Indiana doctor knew patient was an Illinois resident,
prescribed a drug for him that was filled in Illinois, and patient
alleged damage from use of the drug); Ballard v. Rawlins, 428
N.E.2d 532 (App. Ct. Ill. 1981) (finding no personal jurisdiction
even though nonresident doctor called prescription in to an
Illinois pharmacy and plaintiff claimed the doctor had solicited
her as a patient).

As to the plaintiff’s claim that Dr. Green solicited Mrs.
Curry as a patient, there is no suggestion that he did so while she
was in Illinois, and even if he did, we doubt that would be
sufficient to subject him to personal jurisdiction in Illinois. In

Hendry v. Ornda Health Corp., Inc., 742 N.E.2d 746 (App. Ct. Ill.

2001), the defendant actively solicited business in Illinois by

advertising its surgical weight loss program on television and


~6-
(citing Burger King 471 U.S. at 474). The critical inquiry is
whether the defendant's conduct and connection with Illinois are
such that he should reasonably anticipate being haled into court in
Illinois, id., because he has “purposely availed” himself “of the
privilege of conducting activities” there. RAR, 107 F.3d at 1277.
Moreover, the suit must “arise out of” or “be related to” these
minimum contacts with the forum state. Id.

Dr. Green has only the slightest contact with Illinois: for
several months he treated an Illinois resident who was temporarily
living in Arkansas. It is undisputed that the treatment of Mrs.
Curry took place entirely in Arkansas. Dr. Green did not even have
contact with the doctors who treated Mrs. Curry in Illinois. See
Deposition Transcript of Dr. Green, at 17. While the plaintiff
argues that Dr. Green solicited Mrs. Curry as a patient, the
solicitation did not occur in Illinois but Arkansas. As to the
argument that Dr. Green provided a referral to Mrs. Curry - the
Currys themselves initiated the contact, not Dr. Green: “they

telephoned Dr. Green’s office and requested a referral for

Y the plaintiff attaches an affidavit stating that Dr. Green knew the Currys
were Chicago residents. Dr. Green testified at his deposition that Mrs. Curry had
told him “she was from [Arkansas], had worked in Chicago, but [she] had retired
and moved back to Arkansas, and bought a house in Beaumont.” Deposition
Transcript of Dr. Green, at 7. She told him that her reason for returning was to
care for her parents so they would not have to go to a nursing home. Id. The
plaintiff has not produced evidence showing that Dr. Green knew they were current
Chicago residents. On the forms Mrs. Curry filled out at Dr. Green’s office, she
identified her address as being in Arkansas. See Dep. Tr. at 18. Mr. Curry, who
appears to have been treated by Dr. Green as well, argues that he provided an
Illinois address on an intake form. However, the form he produced only shows that
Mr. Curry gave two street addresses and zip codes but did not include a city or
state. See Pl.’s Ex. D.


~5-
argument by failing to raise it). Indeed, Dr. Green is not licensed
to practice medicine in Illinois and has never practiced medicine
in Illinois. See Green Affidavit, @ 2. The plaintiff makes no
contrary assertion except to note that Dr. Green continued to
refill medicine prescriptions for Mrs. Curry’s mother, Mrs. Walker,
when Mrs. Walker went to Chicago in June of 1999. However, the
evidence submitted by the plaintiff shows only that Mrs. Walker had
prescriptions filled by a pharmacy located in Arkansas between
January of 1999 and January of 2000. See Pl.’s Ex. F. In any event,
refilling prescriptions for a single patient traveling to Illinois
for a limited period of time cannot be sufficient to establish
“continuous and systemic business contacts” in Illinois. Cf. Rogers
v. Furlow, 699 F. Supp. 672, 676-77 (N.D. Ill. 1988) (finding that
defendants were not “doing business” in Illinois even though a 10-
12% of their patients were Illinois residents referred by Illinois
doctors, and they hold medical seminars and make presentations in
Illinois).

The next question is whether the state has specific
jurisdiction over Dr. Green. Defendants need not be physically
present in the jurisdiction to have sufficient "minimum contacts"
with the state. See Hanson v. Denckla, 357 U.S. 235, 251-53 (1958).
On the other hand, “the generalized foreseeability of the
defendant's action causing harm in the forum is not sufficient for

the exercise of jurisdiction.” Central States, 230 F.3d at 943


-8-
patient in Arkansas who ultimately died in Illinois as a result of
his alleged negligence. In support of its argument, the plaintiff
cites two cases finding personal jurisdiction where the defendant
shipped products into Illinois or sold products to Illinois
residents that were used in Illinois. See Mergenthaler, 383 N.E.2d
at 1382 (finding personal jurisdiction over defendant in unfair
competition claim where defendant shipped goods into Illinois);
Gray, 176 N.E.2d at 765 (“As a general proposition, if a
corporation elects to sell its products for ultimate use in another
State, it is not unjust to hold it answerable there for any damage
caused by defects in those products.”).

However, treating a patient who might of her own initiative
travel to any of the fifty states is entirely different from
distributing products into a state to achieve financial benefit.¥
In Veeninga v. Alt, 444 N.E.2d 780, 782 (App. Ct. Ill. 1982), the
plaintiff alleged that he had suffered injury from using a drug in
Illinois that had been prescribed by an Indiana doctor. Noting
that, as in Gray, the plaintiff’s injury occurred in Illinois, the
court nevertheless held that due process precluded finding personal
jurisdiction over the doctor: “the unilateral activity of those who

claim some relationship with a nonresident defendant cannot satisfy

2/ tn World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), the United
States Supreme Court held that Oklahoma had no personal jurisdiction over a New
York defendant, an automobile wholesaler and retailer, who sold a car to New York
residents in New York. It was insufficient that the New York residents “happened
to suffer an accident while passing through Oklahoma.” Id. at 295.


+. Minute Oxger Form (06197)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John P. Grady than Assigned Judge
CASE NUMBER 01 C 4256 DATE March 6, 2002
CASE Curry v. Vencor Hospital and Green
TITLE
{n the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented.)
DOCKET ENTRY:
qd) Q Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) ia Answer brief to motion due . Reply to answer brief due
(4) a Ruling/Hearing on set for at
(5) q Status hearing[held/continued to] [set for/re-set for] on setfor at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) a Trial[set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
O FRCP4(m) O General Rule21 OO FRCP41(a)(1) © FRCP41(a)(2).
(0) of [Other docket entry] Defendant Green’s motion to dismiss the complaint for lack of personal
jurisdiction [] is granted. ENTER MEMORANDUM OPINION. [Lto- Ww
db [For further detail see order (on reverse side of/attached to) the original minute order.]
No notices required, advised in open court. Document
N . Number
lo notices required.
umber of notices
x | Notices MAILED by judge’s staff. MAR 1 4 200
Notified counsel by telephone. date docketea
Docketing to mail notices.
Mail AO 450 form.
les EOS eitials
Copy to sons
LEsh Md €| date mailed notice
courtroom
KAM deputy’s ave ; KAM
inivals Date/iime received bir
central Clerk’s Office mailing deputy initials

(Reserved for use by the Court)



John E% Grady, United States Distrigt Judge



~10-
sending a videotaped promotion to the plaintiff. Id. at 748. The
court found that personal jurisdiction existed over the defendant,
but not because of the solicitation.
The corporate defendant did not merely solicit plaintiff.
They did not merely passively accept the patronage of
plaintiff. They sought plaintiff’s business and
physically brought her to Iowa to partake of their
services. This entry into Illinois through the use of the
hired limousine service provides sufficient contact with
Illinois for us to conclude that the corporate defendants
transacted business in Illinois and are subject to
personal jurisdiction in this state.
Id. at 750. By contrast, Dr. Green did not enter Illinois, cause
any one else to enter Illinois, send any mail to Illinois, or even
place a single telephone call into Illinois for the purpose of
treating Mrs. Curry.
Therefore, we hold that Dr. Green has not “purposefully
availed” himself of “the privilege of conducting activities” in
Illinois. It would be not be “fair, just, [or] reasonable” to

require Dr. Green to defend this action in Illinois. See Rollins,

565 N.E.2d at 1316.
CONCLUSION

For the reasons explained above, we dismiss the complaint

against Dr. Green for lack of personal jurisdiction.

DATE: March 6, 2002


-7-
radiation treatment. Dr. Green provided the referral.” Plaintiff's
Response to Defendant Roger Green, M.D.’s Motion to Dismiss, at 4.
Moreover, the referral was clearly for a doctor in Arkansas. See
Pl.’s Ex. E (referring Julia Curry to “Carti” at “Searcy”); Green's
Deposition Transcript, p. 9 (explaining that Carti was located in
Searcy, Arkansas).

Apart from failing to show that Dr. Green did anything in
Illinois, the plaintiff has failed to show that the injury arose
out of any of Dr. Green’s supposed connections with Illinois. The
wrongful death claim against him has nothing to do with a referral
that he provided to Mrs. Curry, nor does it have anything to do
with the prescriptions he allegedly refilled for Mrs. Walker while
she stayed in Illinois. The claim arises out of Dr. Green's
treatment of Mrs. Curry, which took place entirely in Arkansas.

The plaintiff insists, however, that personal jurisdiction
exists because the tort occurred in Illinois. The situs of the tort
is the state where the “last event takes place which is necessary

to render the actor liable.” Gray v. American Radiator & Standard

Sanitary Corp., 176 N.E.2d 761, 762-63 (Ill. 1961); Mergenthaler

Linotype, Co. v. Leonard Storch Enter., 383 N.E.2a 1379, 1384 (App.

Ct. Ill. 1978). This is true even though the wrongful conduct
occurred outside Illinois. Gray, 176 N.E.2d at 762. The plaintiff's
argument thus boils down to this: Dr. Green could reasonably have

anticipated being haled’ into Illinois court because he treated a


-3-

factual conflicts in favor of the plaintiff. See Nelson by Carson

v. Park Indus., Inc., 717 F.2d 1120, 1123 (7th Cir.1983).

A federal district court sitting in diversity in Illinois has
jurisdiction over a non-consenting, non-resident defendant if an
Illinois state court would have jurisdiction. See McIlwee v. ADM
Indus., Inc., 17 F.3d 222, 223 (7th Cix.1994). "Three distinct
obstacles to personal jurisdiction must generally be examined: (1)
state statutory law, (2) state constitutional law, and (3) federal
constitutional law." RAR, 107 F.3d at 1276. As for state statutory
law, the Illinois long-arm statute provides that an Illinois state
court may exercise jurisdiction on any basis "now or hereafter
permitted" by the state and federal constitutions. 735 ILCS
5/2-209(c). Because § 2~-209(c) authorizes personal jurisdiction to
the constitutional limit, we need only inquire whether the Illinois
and federal constitutions permit personal jurisdiction over Dr.
Green. See RAR, 107 F.3d at 1276. As to the state constitution,

[t]he Illinois courts have given little guidance as to

how state due process protection differs from federal

protection in the context of personal jurisdiction. We

are told that “[j]Jurisdiction is to be asserted only when

it is fair, just, and reasonable to require a nonresident

defendant to defend an action in Illinois, considering

the quality and nature of the defendant’s acts which

eccur in Illinois or which affect interests located in

Illinois.” [Rollins v. Ellwood, 565 N.E.2d 1302, 1316

(Ill. 1990)).

Id. Typically, the courts look to the federal due process clause

to construe the Illinois due process clause. See McMurray v.

Improvenet, Inc., No. 00 C 7137, 2001 WL 561376 at *1 (N.D. Ill.


~2-
him for lack of personal jurisdiction. There is no dispute that Dr.
Green treated Mrs. Curry exclusively at his family practice clinic
in Newport, Arkansas. The plaintiff argues, however, that Dr. Green
had sufficient contacts. with Illinois to subject him to personal
jurisdiction in this state. For example, the plaintiff asserts that
Dr. Green knew Mrs. Curry was a resident of Chicago and was only in
Arkansas temporarily, but nevertheless, he actively solicited Mrs.
Curry as his patient. After the Currys returned to Chicago, Dr.
Green provided a referral for Mrs. Curry. Dr. Green points out that
the referral he provided was for an oncologist located in Searcy,
Arkansas. The plaintiff also argues that Dr. Green refilled
prescriptions for Mrs. Curry’s mother, Senoria Walker, while she
was in Illinois. The plaintiff's evidence, however, shows that
prescriptions for Mrs. Walker were filled by S & H Pharmacy, which
is located not in fIliinois, but in Augusta, Arkansas. See

Plaintiff’s Ex. F.

ANALYSIS
On a motion to dismiss for lack of personal jurisdiction, the
plaintiff bears the burden of making a prima facie showing that
jurisdiction over the defendant is proper. See RAR, Inc. v. Turner
Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997). In deciding such
a motion, the court may receive and consider evidence in the form

of written materials from both parties, and will resolve all


01-4256.021-MV March 6, 2002

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CHARLES CURRY, as Special
Administrator of the Estate of
JULIA CURRY, Deceased,

Plaintiff,

"OCT

MA
v. No. 01 C 4256 "14 ayy
VENCOR HOSPITAL, a Delaware
corporation, and ROGER GREEN,
M.D.,

Defendants.

MEMORANDUM OPINION

Before the court is defendant Roger Green’s motion to dismiss
the complaint against him for lack of personal jurisdiction. For
the reasons explained below, the motion is granted.

BACKGROUND

The plaintiff, Charles Curry, alleges that defendant Roger
Green, M.D., negligently failed to order a lung biopsy on Curry’s
wife, Julia Curry, when radiological studies conducted between
October of 1998 and March, 15, 1999 showed a mass on her lung. Mrs.
Curry was later diagnosed with lung cancer and died from
bronchopneumonia in October of 1999. The plaintiff filed this
action for wrongful death against Dr. Green and defendant Vencor
Hospital, which is not a party to this motion.

Dr. Green now moves this court to dismiss the claim against

Ww