NO. 83--102 

IIJ THE SUPREME COURT OF THE STATE OF MOIJTANA 

1953 

DAN SII@4ONS, as Guardian Ad Litem 

of Breton Simmons, A Minor, 

Plaintiff and Appellant, 

-vsSTATE OF MONTANA and STATE OF OREGON, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Douglas R. Austin, Missoula, Montana 

Alan G. Starkoff argued; Starkoff & Starkoff Co., 

Cleveland, Ohio 

For Respondents: 

Garlington, Lohn & Robinson; Larry E. Riley, >'Iissoula, 

Montana 

Pamela L. Abernathy argued, Asst. Atty. General, Salem, 

Oregon 

Boone, Karlberg & Haddon; Tom Boone, Missoula, Montana 

- .- 

Submitted: June 10, 1983 

Decided: October 17, 1983 

Clerk 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

Plaintiff, acting as guardian ad litem for his minor 

son, appeals from an order of the District Court of the 

Fourth Judicial District, Missoula County, granting 

defendant State of Oregon's motion to dismiss plaintiff's 

lawsuit on grounds that Oregon did not have sufficient 

minimum contacts with Montana so as to subject it to this 

state's jurisdiction, and also that, in any event, 

considerations of comity warranted dismissal. (The action 

by plaintiff against the State of Montana is still pending 

in the District Court). We affirm the District Court on 

both grounds. 

The following pertinent facts are taken from the 

transcript of proceedings before the District Court, the 

pleadings, and relevant exhibits. Unless otherwise stated, 

these facts are not disputed or controverted by the 

respective parties. 

Section 50-19-203, MCA, requires that a test designed 

to detect inborn metabolic disorders be performed on all 

children born in Montana. The attending physician or person 

responsible for birth registration must ensure that a blood 

sample is taken from each child so that a test can be done. 

The Montana Department of Health and Environmental Sciences 

is responsible for either conducting the tests itself or 

contracting with an approved laboratory to perform the 

tests. Since 1977, the department has contracted with the 

Health Division of the Oregon Department of Human Resources 

to perform the test in its laboratory in Portland. Oregon 
also performs this service for Idaho, Nevada, and Alaska. 

Public health officials from all five states apparently 

decided that it was more cost effective to have the Oregon 

laboratory conduct the tests for the entire region. 

Montana, for example, has such a low yearly birth rate that 

it is cheaper to have the samples sent to the Oregon 

laboratory for analysis. 

Under the terms of the interstate contract, first 

entered into in June, 1977, Oregon agreed to supply lab 

screening of all blood samples for metabolic disorders, 

according to standards set forth in M.A.C. section 

16-2.18(6)-S1820 [now A.R.M. section 16.24.201-2131. 

Analysis was to take place in Oregon. The Montana 

Department of Health and Environmental Sciences was to be 

notified by mail or by telephone of any abnormal test 

results according to the urgency of laboratory findings. 

Normal test results were to be reported at weekly intervals 

by mail. Oregon maintained an in-house specialist in 

metabolic disorders, who would be available for consultation 

with the State of Montana or the Montana physician who took 

blood samples. The State of Montana agreed to collect the 

blood samples for forwarding to Oregon, and agreed to notify 

hospitals or physicians of significant findings. Montana 

agreed to pay Oregon $27,000 per year, in four quarterly 

installments, based on an average of 12,000 tests performed 

per year. Montana would pay an additional $2.25 for each 

sample in excess of 12,000. Oregon has argued, and the 

plaintiff has not disagreed, that the contract fees cover 

nothing more than the marginal cost of lab testing 

procedures. Montana does not contribute to the cost of 
maintaining the laboratory or the establishing of the test 

procedures. Furthermore, Oregon does not profit from the 

contractual arrangement. The contract was signed in Montana 

and Oregon, and finally approved by Oregon budget 

authorities in 1977. 

Breton Simmons was born in Missoula, Montana, on June 

22, 1977. Shortly thereafter, a sample of his blood was 

taken and forwarded to Oregon not long after the interstate 

contract was signed. For some reason, however, the 

laboratory failed to detect the presence of a particular 

metabolic disorder, congenital athyrotic hypothyroidism, the 

symptoms of which became apparent a few months after Breton 

was born. Breton did not receive initial treatment for the 

illness until late September, 1977. As a consequence, the 

boy has allegedly suffered permanent and irreparable brain 

and neuromuscular damage. 

Dan Simmons, as guardian ad litem for the boy, filed 

an action in Oregon District Court in August, 1979, alleging 

negligence on the part of Oregon authorities with respect to 

conduct of the lab test. Plaintiff's counsel in Oregon did 

not pursue the case, and it was subsequently dismissed for 

want of prosecution, although plaintiffs apparently have the 

option to refile in Oregon within the next few months. This 

appeal stems from a related suit filed in Montana, naming 

the State of Montana and the State of Oregon as defendants. 

Oregon filed a motion to dismiss the suit on grounds that it 

had not purposely availed itself of the privilege of 

conducting activities in Montana, and that the assertion of 

jurisdiction would be unreasonable and contrary to due 

process. In the alternative, Oregon argued that Montana 
should decline jurisdiction as a matter of comity. 

Plaintiff countered that Oregon has sufficient minimum 

contacts with this State, and that comity did not preclude 

jurisdiction in this instance. 

The trial court granted Oregon's motion to dismiss on 

both grounds. Plaintiff appealed from the trial court's 

order, asserting that the trial court erred by not finding 

that there were sufficient minimum contacts, and that comity 

did not preclude jurisdiction. This appeal was dismissed 

because it lacked proper certification under Rule 54(b), 

t4.R.Civ.P. Subsequently, the appeal was properly certified, 

and plaintiff again asks us to reverse the trial court on 

the issues of minimum contacts and comity. 

In a recent decision, the United States Supreme Court 

has emphasized that the reasonableness of asserting 

jurisdiction over a nonresident defendant must be assessed 

in the context of our federal system of government. See, 

World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 

100 S.Ct. 559, 62 L.Ed.2d 490. In other words, we are 

obliged to give serious consideration to the consequences 

acquiring jurisdiction will have on the maintenance of 

harmonious relations with other states. 

For a Montana court to exercise jurisdiction over a 

nonresident defendant, two questions must be considered. 

(1) Does the nonresident defendant come within the 

provisions of Montana's long-arm jurisdiction statutes; and 

(2) would exercise of long-arm jurisdiction over the 

nonresident comport with traditional notions of fair play 

and substantial justice. May v. Figgins (Mont. 1980), 607 

P.2d 1132, 37 St.Rep. 493; Haker v. Southwestern Ry. Co. 
(1978), 176 Mont. 364, 578 P.2d 724. See, generally, 

International Shoe Co. v. Washington (1945), 326 U.S. 310, 

66 S.Ct. 154, 90 L.Ed. 95. If we find, as a matter of 

statutory construction, that the nonresident does not engage 

in any of the several activities enumerated in our long-arm 

statute, then our analysis ends and we must decline 

jurisdiction. However, even if the nonresident has done 

something which potentially confers jurisdiction, we must 

advance to the due process component which is ultimately 

determinative of the jurisdictional question. 

The relevant statute is Rule 4B(1), M.R.Civ.P., which 

provides, in pertinent part, that: 

"All persons found within the state of 

Montana are subject to the jurisdiction 

of the courts of this state. In 

addition, any person is subject to the 

jurisdiction of the courts of this state 

as to any claim for relief arising from 

the doing personally, through an 

employee, or through an agent, of any of 

the following acts: 

"(b) the commission of any act which 

results in accrual within this state of a 

tort action; 

"(e) entering into a contract for 

services to be rendered or for materials 

to be furnished in this state by such 

person; 

Oregon cannot be said to be "found within" Montana, so our 

attention is turned to subsections (b) and (e). Neither 

plaintiff nor the State of Oregon has devoted much space to 

this aspect of the statutory question, as both appear to 

agree that either one or both subsections potentially 

confers jurisdiction over Oregon. Therefore, we turn our 
attention to the crucial constitutional inquiry. 

The Due Process Clause of the Fourteenth Amendment to 

the United States Constitution limits the power of a state 

court to render a valid personal judgment against a 

nonresident defendant. Due process requires that a state 

may exercise personal jurisdiction over the nonresident only 

so long as there exist "minimum contacts" between the 

defendant and the forum state. See, International Shoe, 

supra, 326 U.S. at 316, 66 S.Ct. at 158, 90 L.Ed. at 102. 

See also, Benham v. Woltermann(Mont. 1982), 653 P.2d 135, 39 

St.Rep. 2017; Reed v. American Airlines, Inc. (Mont. 1982), 

640 P.2d 912, 39 St.Rep. 335; 'May v. Figgins, supra. The 

concept of "minimum contacts" has undergone development 

since International Shoe, and the latest phase of that 

development must be examined here. In World-Wide Volkswagen 

Corp. v. Woodson, supra, the United States Supreme Court 

held that an Oklahoma court could not exercise personal 

jurisdiction over New York wholesale and retail auto dealers 

who transacted no business in that state and whose only 

"contact" with Oklahoma consisted of an automobile, 

purchased in New York by New York residents, that exploded 

in a collision in Oklahoma. The court rejected any attempt 

to connect the dealers to the Oklahoma forum on the basis 

that their product might foreseeably end up in that state 

and cause injury there. World-Wide Volkswagen, supra, 444 

U.S. at 288-97, 100 S.Ct. at 562-7, 62 L.Ed.2d at 495-502. 

In its opinion, the court elaborated on the concept of 

minimum contacts, to wit: 

"The concept of minimum contacts . . . can be seen to perform two related, but 

distinguishable, functions. It protects 

the defendant against the burdens of 
litigating in a distant or inconvenient 

forum. And it acts to ensure that the 

States, throuqh -- ...................... their courts, do not 

reach out beyond the limits imposed on 

............................ 

them by their status as co-equal --- 

sovereigns in a federal system." 

444 U.S. at 291-2, 100 S.Ct. at 564, 62 L.Ed.2d at 498. 

(emphasis added) Thus, there is a "federalism component" 

which we are bound to consider in our constitutional 

inquiry. Before examining this component in some detail, we 

first look to the considerations relevant to protecting 

nonresident defendants from inconvenient litigation in the 

forum state. In World-Wide Volkswagen, supra, the Supreme 

Court enumerated these criteria: 

"We have said that the defendant's 

contacts with the forum State must be 

such that maintenance of the suit 'does 

not offend "traditional notions of fair 

play and substantial justice."' 

Internatio a Shoe Co. v. Washington [326 

U.S. &3&31@ 161, quoting Milliken v. 

Meyer, 311 U.S. 457, 463 (1940). The 

relationship between the defendant and 

the forum state must be such that it is 

'reasonable . . to require the 

corporation to defend the particular suit 

which is brought there.' [citation 

omitted] Implicit in this emphasis on 

reasonableness is the understanding that 

the burden on the defendant, while always 

a primary concern, will in an appropriate 

case be considered in light of other 

relevant factors, including the forum 

state's interest in adjudicating the 

dispute [citation omitted] ; the 

plaintiff's interest in obtaining 

convenient and effective relief [citation 

omitted], at least when that interest is 

not adequately protected by the 

plaintiff s power to choose the forum 

[citation omitted]; the interstate 

judicial system's interest in obtaining 

the most efficient resolution of 

controversies; and the shared interest of 

the several States in furthering 

fundamental substantive social policies 

[citation omitted]." 

444 U.S. at 292, 100 S.Ct. at 564, 62 L.Ed.2d at 498. 

The court observed that "limits imposed on state 
jurisdiction by the Due Process Clause, in its role as a 

guarantor against inconvenient litigation, have been 

substantially relaxed over the years." World-Wide 

Volkswagen, supra, 444 U.S. at 292, 100 S.Ct. at 565, 62 

L.Ed.2d at 498. This relaxation has been effected by 

improvement in transportation and communication, as well as 

advancements in the field of interstate commercial 

transactions. 444 U.S. at 292-3, 100 S.Ct. at 565, 62 

L.Ed.2d at 498-9. But these historical changes have not 

rendered the "federalism component" less critical to the due 

process inquiry. On the contrary, the court emphasized 

that: 

". . . we have never accepted the 

proposition that state lines are 

irrelevant for jurisdictional purposes, 

nor could we, and remain faithful to the 

principles of interstate federalism 

embodied in the Constitution. . . . [Tlhe 

Framers also intended that the States 

retain many essential attributes of 

sovereignty, including, in particular, 

the sovereign power to try causes in 

their own courts. The sovereignty of 

each State, in turn, implied a limitation 

on the sovereignty of all of its sister 

States --- a limitation express or 

implicit in both the original scheme of 

the Constitution and the Fourteenth 

Amendment." 

444 U.S. at 293;100 S.Ct. at 565, 62 L.Ed.2d at 499. 

Furthermore, the Court indicated that the 

reasonableness of asserting jurisdiction over a nonresident 

defendant had to be assessed "in the context of our federal 

system of government . . ." 444 U.S. at 293-4, 100 S.Ct. at 

565, 62 L.Ed.2d at 499, (citing International Shoe, supra, 

326 U.S. at 317, 66 S.Ct. at 158, 90 L.Ed. at 102). That 

this observation is to be construed as a requirement that 

the "federalism component" be controlling in the due process 
inquiry is supported by the Court's closing remarks on the 

relevant constitutional test of appropriate jurisdiction: 

"Even if the defendant would suffer 

minimal or no inconvenience from being 

forced to litigate before the tribunals 

of another State; even if the forum State 

has a strong interest in applying its law 

to the controversy; even if the forum 

state is the most convenient location for 

litigation, the Due Process Clause, 

acting as an instrument of interstate 

federalism, may sometimes act to divest 

the State of its power to render a valid 

judgment. " 

444 U.S. at 294, 100 S.Ct. at 565-6, 62 L.Ed.2d at 499-500 

(citing Hanson v. B%+dGh (1958), 357 U.S. 235, 251, 254, Denc-his. 

78 S.Ct. 1228, 1238, 1240, 2 L.Ed.2d 1283, 1296,1298. 

To summarize: our constitutional inquiry must 

recognize that the United States Supreme Court has "cut 

short any trend toward unlimited personal jurisdiction and 

emphasized that an isolated and unanticipated injury within 

the foreign state is not sufficient to support in personam 

jurisdiction." Taubler v. Giraud (9th Cir. 1981), 655 F.2d 

991, 993. Because this Court has not had an opportunity to 

consider the effect of World-Wide Volkswagen on due process 

analysis, we look to opinions from federal and other state 

courts for persuasive guidance. 

The Court of Appeals for the Ninth Circuit has 

developed a standard of review commensurate with traditional 

due process analysis and the concerns expressed in 

World-Wide Volkswagen: 

"If the nonresident defendant's 

activities within a state are 

'substantial' or 'continuous and 

systematic,' there is a sufficient 

relationship between the defendant and 

the state to support jurisdiction even if 

the cause of action is unrelated to the 

defendant's forum activities. [citations 

omitted] 
"If, however, the defendant's activities 

are not so pervasive as to subject him to 

general jurisdiction, the issue whether 

jurisdiction will lie turns on the nature 

and quality of the defendant's contacts 

in relation to the cause of action. In 

our circuit, we use the following 

approach in making this evaluation: (1) 

The nonresident defendant must do some 

act or consumate some transaction with 

the forum or perform some act by which he 

purposefully avails himself of the 

privilege of conducting activities in the 

forum, thereby invoking its laws. (2) 

The claim must be one which arises out of 

or results from the defendant's 

forum-related activities. (3) Exercise 

of jurisdiction must be reasonable. 

[citations omitted]." 

Data Disc, Inc. v. Systems Tech. Assoc., Inc. (9th Cir. 

1977), 557 F.2d 1280, 1287. See, also, Ins. Co. of North 

America v. Marina Salina Cruz (9th Cir. 1981), 649 F.2d 

1266, 1270; Plant Food Co-op v. Wolfkill Feed & Fertilizer 

(9th Cir. 1980), 633 F.2d 155, 158-9; Panos Inv. Co. v. 

District Court (1983), Colo. , 662 P.2d +8=&; 

180 

Schlatter v. Mo-Comm Futures, Ltd. (1983), Kan. I 

662 P.2d 553, 562; Markby v. St. Anthony Hosp. Systems (Wyo. 

1982), 647 P.2d 1068, 1073. Inherent in this approach is 

the recognition that while a nonresident defendant may be 

found to have purposely availed itself of activities within 

a forum state, the exercise of jurisdiction may still be 

unreasonable. 

The threshold question, then, is whether Oregon's 

activities in Montana are so pervasive as to subject it to 

the general personal jurisdiction of our courts. We cannot 

say that Oregon's contract with the Department of Health and 

Environmental Sciences amounts to "substantial" activity 

within this State. Nor can we say that this contract and 

the transactions related to it are "continuous and 
systematic" in the sense this concept is usually applied. 

Cases cited by plaintiff for the proposition that Oregon has 

either substantial or continuous and systematic connections 

with Montana generally involve individual or commercial 

enterprises that actively solicit business within other 

states and derive substantial revenue from their activities. 

There is, in other words, a conscious effort to be involved 

in the economic life of a particular state. See, Southern 

Machine Co. v. Mohasco Industries, Inc. (6th Cir. 1968), 401 

F.2d 374 (nonresident company actively transacting machinery 

parts business in Tennessee); Electric Regulator Corp. v. 

St2rling Extruder Corp. (D.Conn. 1968), 280 F.Supp. 550 

e 

(nonresident defendant contracts for machinery in 

Connecticut); Reed v. American Airlines, Inc., supra 

(nonresident airline company advertising and doing business 

in Montana, training instate travel agents, and deriving 

substantial revenue therefrom); State of North Dakota v. 

Newberger (Mont. 1980), 613 P.2d 1002, 37 St.Rep. 1119 

(nonresident rock concert promoter actively promoting 

concerts & contracting for services in Montana). Oregon, on 

the other hand, has apparently been sought out by Montana 

and other states to perform a public health service for 

these states - in Oregon and for a price not designed to 

generate a profit. This is not the same as deliberate, 

focused commercial activity. 

Plaintiff's reliance on Wendt v. County of Osceola, 

Iowa (Minn. 1979), 289 N.W.2d M, is misplaced. In Wendt, 

b7 

the Minnesota Supreme Court held that a political 

subdivision of Iowa was subject to the jurisdiction of 

Minnesota courts in a tort action arising from a road 
accident along the Minnesota-Iowa border. Plaintiffs in 

that case were injured on a road one-half of which lay on 

the Iowa side of the border. Osceola County, Iowa, had a 

long-standing contract with a neighboring Minnesota county 

to maintain the entire road. The Minnesota high court held 

that the maintenance contract amounted to continuous and 

systematic contract with Minnesota, and that this factor, 

inter alia, made personal jurisdiction possible and 

reasonable. Nevertheless, Wendt is distinguishable from the 

facts at bar. Osceola County was obliged to perform 

services - in the State of Minnesota on a continuing basis, 

whereas Oregon has contracted to conduct its activities 

within that state. In World-Wide Volkswagen, supra, the 

Supreme Court reasoned that nonresident defendants can 

usually foresee that their conduct or actions may ultimately 

have an impact in another state, but that the crucial factor 

with respect to due process analysis was that "the 

defendant's conduct and connection with the forum state are 

such that he should reasonably anticipate being haled into 

Court there." 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d 

at 501. While it is reasonable for an Iowa county to 

ancitipate being called into a Minnesota court located 

scarcely a few miles away to defend itself in an action 

related to work done in Minnesota, we think it less 

reasonable for Oregon to assume that it should expect to 

defend a similar action in Montana on the basis of 

activities performed in Oregon. Even if Wendt can fairly be 

read to support plaintiff's contention, personal 

jurisdiction over Oregon in this case would still be 

unreasonable for reasons expressed later in this opinion. 
Because Oregon's activities in Montana are not so 

pervasive, we turn to an analysis of that state's contacts 

under the three-prong test enunciated by the Ninth Circuit 

and deemed persuasive here. Because Oregon concedes that 

plaintiff's claim arises out of or results from Oregon's 

contract with the State of Montana, we need only consider 

the first and third prongs of the test. 

Turning to the first prong, we consider whether Oregon 

has done something by which it has purposely availed itself 

of the privilege of conducting activities in Montana, 

thereby invoking the benefits and protections of our laws. 

See Data Disc. and related cases, supra. Case law from 

other jurisdictions involving commercial contracts and 

provision of medical services are most apropos for 

evaluating Oregon's activities under the first prong. 

It is well-settled that a nonresident defendant's mere 

act of entering into a contract with a forum resident does 

not provide the necessary jurisdictional contact between the 

defendant and the forum state. See, e.g., Iowa Electric 

Light and Power Co. v. Atlas Corp. (8th Cir. 1979), 603 

F.2d 1301; Lakeside Bridge and Steel v. Mountain State 

Construction (7th Cir. 1979)! 597 F.2d 596; Barnstone v. 

Congregation Am Echad (5th Cir. 1978), 574 F.2d 286; 

Anderson v. Schiflett (10th Cir. 1971), 435 F.2d 1036. Most 

of these cases involved situations where nonresident 

defendants and forum state plaintiffs contracted for various 

goods and services, but where all or most of defendant's 

performance took place outside the forum state. The 

defendants did not maintain businesses, property, or agents 

in the forum state, and they did not actively transact 
commercial or industrial activity therein. As such, their 

activities were structured around the prospect that they 

would not be litigating contract disputes in the courts of 

another state. The knowledge that the defendant's "product" 

was "destined" in some form for the forum was not a 

sufficient contact with that state so as to confer personal 

jurisdiction over the defendant, as the critical performance 

had taken place outside the forum. Iowa Electric, supra, 

603 F.2d at 1306. Accord: Charia v. Cigarette Racing Team, 

Inc. (5th Cir. 1978), 583 F.2d 184, 189; Benjamin v. Western 

Boat Building Corp. (5th Cir. 1973), 472 F.2d 723, 730, 

cert. denied, 414 U.S. 830, 94 S.Ct. 60, 38 L.Ed.2d 64. 

Similarly, Oregon has no property or agents in 

Montana, and transacts no business here. Oregon was sought 

out by the State of Montana to conduct lab testing for 

metabolic disorders, and this service is conducted in 

Oregon. Although it is aware that test results are destined 

for Montana, this is not enough contact to warrant a holding 

that it has purposely availed itself of the privilege of 

conducting activities in the forum state. Telephone and 

mail communication of test results do not transform the 

nature of the contact into a purposeful injection into 

Montana. Interstate communication is an almost inevitable 

accompaniment to doing business in the modern world, and 

cannot by itself be considered a "contact" for justifying 

the exercise of personal jurisdiction. See, e .g., Scullin 

Steel Company v. National Railway Utilization Corp. (8th 

Cir. 1982), 676 F.2d 309; Sporting Good Distributors, Inc. 

v. Whitney (N.D.Fla. 1980), 498 F.Supp. 1088. As the Eighth 

Circuit noted in Scullin Steel, supra, telephonic and mail 
communication are generally "secondary or ancillary factors" 

to underlying transactions, and therefore do not provide the 

crucial minimum contacts. 676 F.2d at 314. In the 

immediate case, Oregon's mail and telephone communications 

merely confirm results reached in Oregon from tests 

performed there. (And, it is the Montana Department of 

Health and Environmental Sciences -- not the State of Oregon 

-- that has agreed to contact Montana physicians directly 

concerning test results.) These communications are within 

the realm of "secondary or ancillary factors." 

An examination of cases involving the interstate 

provision of medical services also suggests that Oregon, in 

its role as a regional provider of lab testing for metabolic 

disorders, cannot be said to have purposely availed itself 

of the benefits and protections of the Montana forum. In 

Wright v. Yackley (9th Cir. 1972), 459 F.2d 287, the Ninth 

Circuit explored the ramifications of interstate medical 

services and their connections to a particular state. Mina 

Wright, while a resident of South Dakota, had been treated 

by Yackley, a South Dakota doctor, and at his urging had 

taken medication prescribed and obtained in South Dakota. 

Wright later moved to Idaho, and when her prescription 

expired, sought to have it filled in Idaho. The local 

druggist required confirmation of the prescription, so 

Wright wrote the South Dakota doctor for a copy of the old 

prescription, which he provided at no charge. Wright had 

the old prescription filled in Idaho, but later alleged that 

she had suffered injury as a consequence of using the drugs. 

She filed a malpractice action in Federal District Court in 

Idaho, asserting that the court had jurisdiction over the 
South Dakota doctor by virtue of the prescription mailed to 

her. 459 F.2d at 288. 

Both the District Court and the Ninth Circuit 

disagreed with plaintiff's assertion. The Ninth Circuit 

held that: 

"[ilf [the doctor] was guilty of 

malpractice, it was through acts of 

diagnosis and prescription performed in 

South Dakota. The mailing of the 

prescriptions to Idaho did not constitute 

new prescription. It was not diagnosis 

and treatment by mail. It was simply 

confirmation of the old diagnosis and 

prescription and was recognized by the 

druggist as such. It did, of course, put 

the doctor on notice that consequences of 

his South Dakota services would be felt 

in Idaho and that it was by his very act 

of mailing that this would be made 

possible. In our view, however, this 

does no more than put the doctor in the 

position of one who, in South ------------ Dakota, 

treats an Idaho resident with knowledge 

of her imminent return to Idaho and that 

his treatment thus may cause effects 

there." 

'f@ 

43% F.2d at 288-9. (emphasis added) Furthermore, the 

exercise of personal jurisdiction would be unreasonable: 

"In the case of personal services focus 

must be on the place where the services 

are rendered, since this is the place of 

the receiver's (here the patient's) need. 

The need is personal and the services 

rendered are in response to the 

dimensions of that personal need. They 

are directed to no place but to the needy 

person herself. It is in the very nature 

of such services that their consequences 

will be felt wherever the person may 

choose to go. However, the idea that 

tortious rendition of such services is a 

portable tort which can be deemed to have 

been committed whenever the consequences 

foreseeably were felt is wholly 

inconsistent with the public interest in 

having services of this sort generally 

available. Medical services in 

particular should not be proscribed by 

the doctor's concerns as to where the 

patient may carry the consequences of his 

treatment and in what distant lands he 

may be called upon to defend it. . . . 
The scope of medical treatment should be 

defined by the patient's needs, as 

diagnosed by the doctor, rather than by 

geography." 

The reasoning of the Ninth Circuit has been followed 

in similar circumstances in other jurisdictions. See, e.g., 

Lemke v. St. Margaret Hosp. (N.D. Ill. 1982), 552 F.Supp. 

833 (alleged negligence in Indiana -- injury in Illinois) ; 

Kennedy v. Ziesmann (E.D.Ky. 1981), 526 F.Supp. 1328 

(alleged negligence in Ohio -- injury in Kentucky); Jackson 

v. Wileman (W.D.Ky. 1979), 468 F.Supp. 822 (alleged 

negligence in Ohio -- injury in Kentucky); Glover v. Wagner 

(D.Neb. 1978), 462 F.Supp. 308 (alleged negligence in Iowa 

-- injury in Nebraska); Kurtz v. Draur (E.D.Pa. 1977), 434 

F.Supp. 958 (alleged negligence in Nebraska -- injury in 

Pennsylvania). These courts have uniformly distinguished 

voluntary interstate economic activity, directed at the 

forum state's economic markets, from the provision of 

medical services outside of the forum state where the 

provider has not solicited clientele. Under these 

circumstances, the courts conclude that the aggrieved 

plaintiff "ought to expect that he [or she] will have to 

travel again if he [or she] thereafter complains that the 

services sought by him in the foreign jurisdiction were 

therein rendered improperly." Gelineau v. New York 

University Hosp. (D.N.J. 1974), 375 F.Supp. 661, 667. 

We believe that the facts in Wright, supra, and later 

cases, closely resemble those of the immediate case. The 

residence of plaintiff here is not totally irrelevant as it 

was in the cited cases, because his child was entitled to 

the testing procedure as part of the Oregon-Montana 
contract. As in the case of personalized medical services, 

however, the plaintiff, or more specifically, the blood 

sample, "traveled" to Oregon for tests conducted there. The 

results were then returned to Montana for the ultimate 

benefit of the child, while Oregon was compensated only for 

its marginal costs of operation. Oregon is certainly aware 

that the negative as well as positive consequences of its 

service will be felt in Montana, but, like the typical 

nonresident physician in the above-cited cases, it 

reasonably expects liability for the negative consequences 

only in its own state. In short, we think the facts of this 

case are more akin to the services discussed in Wright v. 

Yackley, supra, wherein the Ninth Circuit concluded that, 

because of the locus of performance and nature of the 

contract, the physician had not "purposely avail [ed] itself 

of the privilege of conducting activities within the forum 

State." 459 F.2d at 290, quoting Hanson v. Beak&+ (1958), 

DenckIs, 

357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 

Plaintiff insists that the facts of the immediate case 

are virtually the same as those in McGee v. Riekhof (D.Mont. 

1978), 442 F.Supp. 1276, and that the other medical services 

cases are therefore inapplicable. In McGee, the Federal 

District Court held a Utah physician subject to its 

jurisdiction on the basis of a telephone call made to his 

patient in Montana regarding a previously treated eye 

condition. But the plaintiff's only claim of negligence in 

that case was the new diagnosis given over the telephone; 

plaintiff was not resting any claim on the previous 

treatment in Utah. Thus, McGee is distinguishable from the 
facts of the immediate case. Indeed, the court in McGee 

noted the relevant difference between cases involving 

negligent diagnosis and/or treatment in the defendant's 

state, and negligent diagnosis and/or treatment in the forum 

state: 

"In each of these cases [Aylstock v. Mayo 

Found. (D.Mont. 1972), 341 F.Supp. 560; 

McAndrew v. Burnett (M.D.Penn. 1974), 374 

F.Supp. 460; Gelineau v. New York 

University Hosp. (D.N.J. 1974), 375 

F.Supp. 6611 the plaintiff had traveled 

out of the forum state to seek medical 

services elsewhere. While they were 

outside the forum, alleged negligent acts 

occured, and upon returning to the forum, 

they suffered injury. In each case the 

-------------- basis for the Eroximate ---------- cause of the 

injuries occured outside the forum. It 

------------ is to these cases, that the 'portable 

tort' language of Wright [v. Yackley] - is 

most apropos. The case at bar is 

singularly distinguishable because the 

alleged negligent act -- advising 

plaintiff to return to work prematurely 

-- occured in Montana. This is not a 

case of defendant treating plaintiff in 

Utah and then having the effects of the 

treatment felt only after plaintiff 

returned to Montana. Plaintiff McGee was 

in Montana when the diagnosis was 

rendered." 

442 F.Supp. at 1278. The court observed that if the 

plaintiff had based his complaint upon the previous 

treatment in Utah, then the court would have declined 

jurisdiction. 442 F.Supp. at 1278. 

Plaintiff in the immediate case is claiming negligence 

in the testing procedure and the diagnosis derived therefrom 

in Oregon, unlike McGee who could point to a new diagnosis 

which was rendered where it was received -- in Montana. In 

sum, we find McGee to be inapposite under the facts of the 

immediate case. 

Thus, we cannot say that Oregon has purposely availed 

itself of the privilege of conducting activities in this 
forum. Admittedly, a fair argument to the contrary can be 

made if one accepts an analogy between Oregon's contractual 

obligations and those of a private company interjecting 

itself into the Montana economy. Nevertheless, even if we 

accept this analogy for the purpose of argument, the 

assertion of jurisdiction would not pass muster under the 

"reasonableness" aspect of the three-pronged test. It is to 

the question of reasonableness that we now turn our 

attention. 

As the United States Supreme Court observed in 

World-Wide Volkswagen, supra, the burdens imposed on 

nonresidents while defending lawsuits in a foreign State 

have diminished markedly through the years. 444 U.S. at 

292-3, 100 S.Ct. at 565, 62 L.Ed.2d at 498. Oregon, without 

great difficulty, can adequately prepare for out-of-state 

suits and fairly defend its interests beyond its borders. 

But, this factor alone does not render it reasonable to 

subject the state to jurisdiction. Other criteria 

enumerated in -- World-Wide Volkswagen, supra, need to be 

considered here. 

Montana courts certainly have an interest in allowing 

Montana plaintiffs to seek restitution for tortious conduct. 

See, World-Wide Volkswagen, supra, 444 U.S. at 292, 100 

S.Ct. at 564, 62 L.Ed.2d at 498; cf. Kulko v. California 

Superior Court (1978), 436 U.S. 84, 98, 98 S.Ct. 1690, 1700, 

56 L.Ed.2d 132, 145. (forum state has legitimate interest 

in protecting child welfare in interstate custody dispute.) 

However, it can almost always be said that a state has a 

legitimate interest in protecting legal rights. And this 

right may not be so compelling "as to outweigh the factors 
militating against jurisdiction." Ins. Co. of North 

America v. Marina Salina Cruz (9th Cir. 1981), 649 F.2d 

1266, 1273, citing Kulko, supra, 436 U.S. at 92, 98-101, 98 

S.Ct. at 1696, 1700-1701, 56 L.Ed.2d at 141, 145-146. 

Likewise, the Montana forum may provide both convenient and 

effective relief for plaintiff, especially if a multiplicity 

of lawsuits can be avoided. But as the Supreme Court noted 

in World-Wide Volkswagen, supra, and the Ninth Circuit 

reiterated in Marina Salina Cruz, supra, 649 F.2d at 1273, 

this interest of plaintiff's might not be as significant if 

the plaintiff has the power to select a different forum. It 

is clear from the record that plaintiff had that choice and 

exercised it in favor of the Oregon forum in 1979. And, the 

option to refile in the near future is still open. Indeed, 

in its reply brief, plaintiff argues that "the imposition of 

personal jurisdiction would better serve the interests of 

justice" because in Montana, plaintiff could receive up to 

$300,000 under our state's tort claims law, as opposed to 

$100,000 under Oregon's tort liability statute. 

Or.Rev.Stat., Section 30.270 (1982). (We note here that in 

our recent decision in White v. State of Montana (Mont. 

1983), 661 P.2d 1272, 40 St.Rep. 507, we held that the 

limitation on governmental liability for tort damages was 

unconstitutional, although the Montana legislature 

subsequently restored this limitation. See, S.B. 465, 48th 

Mont.Leg., Reg. Sess., Section 2(1), (to be codified at 1983 

Mont. Laws 675)). We cannot say whether the evidence points 

to the justice of any particular award -- that is for a jury 

to decide. We can say, however, that predicating 

jurisdiction on which forum provides the highest possible 
damage award would be conducive to the unacceptable practice 

of "forum-shopping." 

From the standpoint of efficient resolution of this 

case, it is clear that Oregon may provide a better forum for 

adjudication. Plaintiff seems to focus his complaint almost 

solely on allegedly negligent acts committed within the 

State of Oregon. The lab tests and diagnosis were conducted 

there. Apparently, the most important witnesses for both 

parties will be located there. Since the case would most 

likely turn on testimony of these witnesses, a hearing in 

the nonresident's home state may be more advantageous. See, 

Marina Salina Cruz, supra, 649 F.2d at 1273. 

The reasonableness of asserting jurisdiction over 

Oregon must also be assessed in light of the shared interest 

of both Montana and Oregon in advancing the state of quality 

medical testing technology. See, World-Wide Volkswagen 

supra, 444 U.S. at 292, 100 S.Ct. at 564, 62 L.Ed.2d at 498; 

Kulko, supra, 436 U.S. at 98, 98 S.Ct. at 1700, 56 L.Ed.2d 

at 145. The regional metabolic disorder testing program 

provided by Oregon is a by-product of the spirit of 

"co-operative federalism" as discussed by the U.S. Supreme 

Court. Because of our state's low birth-rate and the 

apparently high start-up costs of developing lab facilities 

and procedures, Montanans would normally not have the 

benefit of suitable testing procedures without access to 

Oregon's program. In expressing support for access to 

progressive out-of-state medical services, however, we do 

not belittle the significance of having those services 

performed according to the highest quality standards. See, 

e-g., McGee, supra, 442 F.Supp. at 1279. Justice undeniably 
would be defeated if the refusal to assert jurisdiction 

would insulate Oregon from any malpractice claims. 

Nevertheless, we conclude that acquiring in personam 

jurisdiction over Oregon under the facts of this case would 

be unreasonable. 

We emphasize that the services being attacked here 

were performed in Oregon, and that Oregon courts are open to 

vindicate the interests in quality medical care. 

Furthermore, courts have recognized that, in the situation 

where medical services have been performed outside the forum 

state, considerations of due process require more than an 

appreciation for quality medical care. In Wright, supra, 

the Ninth Circuit reasoned that: 

"the forum state's natural interest in 

the protection of its citizens is here 

countered by an interest in their access 

to medical services whenever needed. In 

our opinion, a state's dominant interest 

on behalf of its citizens in such a case 

as this is not that they should be free 

from injury by out-of-state doctors, but 

rather that they should be able to secure 

adequate medical services to meet their 

needs wherever they may go. This state 

------------------- interest necessarily --- rejects -------- the 

Eroposition -- that the sufficiency of ........................... --- 

out-of-state treatment is subject to ......................... 

in-state inquiry." 

459 F.2d at 291 (emphasis added). See also Kennedy, supra, 

We find the reasoning of the Ninth Circuit persuasive, 

and conclude that the concern for keeping this interstate 

medical testing program available weighs against any 

interest in asserting jurisdiction over Oregon. To find 

otherwise under these facts might ultimately have a 

"chilling effect on the availability of professional 

services to nonresidents," Gelineau, supra, 375 F. Supp. at 
667, to say nothing for the negative impact on the spirit of 

"co-operative federalism." If we found that jurisdiction 

was reasonable under the given facts, we would be creating 

precedent for jurisdiction over Oregon by other states that 

contracted with it for regional blood testing services. In 

that event, we think it highly likely that Oregon might 

refrain from providing the service rather than risk 

defending its interests in several foreign states. Thus, we 

find that proper respect for the mutual interests of 

interstate access to medical services and quality rendering 

of those same services requires that plaintiff pursue his 

malpractice claim in the Oregon courts. 

The previous discussion leads us to consider the 

"federalism componet" given high credence by the United 

States Supreme Court in World-Wide Volkswagen. The focus of 

our discussion here is not that the defendant is a sovereign 

state, but rather, the right of Oregon courts to try actions 

pertaining to those entities "found within" it. World-Wide 

Volkswagen, supra, 444 U.S. at 293, 100 S.Ct. at 565, 62 

L.Ed.2d at 499. In Marina Salina Cruz, supra, the Ninth 

Circuit, in construing World-Wide Volkswagen, observed that 

"it may be unreasonable to subject an out-of-state defendant 

to jurisdiction where the allegedly tortious act is 

committed outside of the forum state, having only an effect 

within the state, if the act is negligent rather than 

purposeful." 649 F.2d at 1271, quoting Data Disc., supra, 

557 F.2d at 1288. By analogy, the court reasoned that the 

"reasonableness of jurisdiction . . . depends also in part 

upon the seriousness of the potential affront to the 

sovereignty of a defendant's state." 649 F.2d at 1272. 
In the immediate case, the alleged negligent acts of 

the Oregon laboratory were apparently committed in that 

state and without intention of creating injury in Montana. 

It would, therefore, seem unwise to subject the State of 

Oregon to the jurisdiction of the courts of Montana. 

Plaintiff might still insist that the higher limitation on 

damage awards against the State of Montana would better 

serve the interests of justice. Under the particular facts 

of this case, however, a de-emphasis on sovereignty 

interests in order to insure the possibility of higher 

monetary damages would serve as an affront to the political 

decisions of Oregon, whose legislature has decided that a 

$100,000 limitation in suits against governmental agencies 

is appropriate . 

In summary, Oregon has not structured its activities 

in such a way as to purposely avail itself of the privilege 

of functioning in Montana. More importantly, careful 

evaluation of the interests of sovereighty, efficiency of 

resolution, and provision of important interstate medical 

services, compel the conclusion that subjecting Oregon to 

jurisdiction under these facts would be unreasonable. 

Even if we assume, for the purpose of argument, that 

the nature of Oregon's contacts with Montana are such that 

asserting jurisdiction would not offend due process, 

considerations of comity would compel dismissal of the suit. 

In Ehrlich-Bober & Co. v. University of Houston (1980), 49 

N.Y.2d. 574, 404 N.E.2d 726, 427 N.Y.S.2d 604, the Court of 

Appeals of New York defined comity as: 

"'not a rule of law, but one of practice, 

convenience, and expediency' (Mast, Foos 

& Co. v. Stover Mfg. Co., 177 U.S. 485, 

488, 20 S.Ct. 708, 710, 44 L.Ed 856). It 
does not of its own force compel a 

particular course of action. Rather, it 

is an expression of one state's entirely 

voluntary decision to defer to the policy 

of another (Zeevi & Sons v. Grindlay's 

Bank [Uganda], 37 N.Y.2d 220, 371 

N.Y.S.2d 892, 333 N.E.2d 168 cert. den. 

423 U.S. 866, 96 S.Ct 126, 46 L.Ed2d 95). 

Such a decision may be perceived as 

promoting uniformity of decision, as 

encouraging harmony among participants in 

a system of co-operative federalism, or 

as merely an expression of hope for 

reciprocal advantages in some future case 

in which the interests of the forum are 

more critical." 

Evaluation of these factors in the context of the immediate 

case lead us to the conclusion that plaintiff's lawsuit 

should be dismissed. 

We agree with plaintiff that a state like Oregon is 

not constitutionally immune from suit in another state, see 

Nevada v. Hall (1979), 440 U.S. 410, 99 S.Ct. 1182, 59 

L.Ed2d 416, and we recognize that some state courts have, in 

light of the Hall decision, rejected comity arguments and 

asserted personal jurisdiction over other states, see, e.g., 

Mianecki v. Second Judicial Dist. Ct. (1983), Nev. I 

658 P.2d 422; Wendt v. County of Osceola, Iowa, supra. 

However, even plaintiff notes that the rule expressed in 

Hall does not require this court to assume jurisdiction over 

Oregon. Indeed, the Hall court reasoned that " [i] t may be 

wise policy, as a matter of harmonious interstate relations, 

for states to accord each other immunity or to respect any 

established limits on liability. They are free to do so." 

Hall, supra, 440 U.S. at 426, 99 S.Ct. at 1191, 59 L.Ed2d at 

429. Thus, we are "free to close [our] courts to suits 

against a sister state as a matter of comity rather than 

constititional command." Struebin v. State (Iowa 1982), 322 
N.W.2d 84, 87. 

We find that our earlier observations with respect to 

due process apply with comparable force to the matter of 

comity . The instant case does not, so far as we can 

surmise, involve facts like those of Hall and related cases 

wherein non-resident defendants were clearly engaging in 

activities within the forum states. See Hall, supra, 

(Nevada employee involved in automobile collision with 

California residents on California highway); Mianecki, supra 

(Wisconsin parolee in Nevada involved in criminal conduct in 

Nevada); Wendt, supra (Iowa county involved in contract work 

in Minnesota). On the contrary, Oregon is performing a 

regional medical service within its boundaries. 

Furthermore, assumption of jurisdiction under these facts 

would impinge unnecessarily upon the harmonious interstate 

relations which are part and parcel of the spirit of 

co-operative federalism. Principles of comity, as well as 

due process, require that we not subject Oregon to the 

possibility of lawsuits in every state served by its medical 

testing facilities. To do otherwise could conceivably 

jeopardize the availability of this service. Contrary to 

plaintiff's assertions, our unwillingness to assume 

jurisdiction would not undermine the quality of this 

service. The Oregon forum is still open to vindicate any 

claim of negligence on the part of that state's medical 

laboratory. And, as we emphasized earlier in this opinion, 

the locus of the alleged negligent acts warrant 

consideration of the Oregon forum as the most convenient and 

efficient for resolution of this claim. Critical evidence 

and witnesses are located there, and therefore Oregon courts 
have just as much, if not more, interest in adjudicating 

this dispute. 

Once again, we note a special emphasis by plaintiff on 

the fact that Montana has a higher limit on tort liability 

for negligent acts by public agencies than that adopted by 

the Oregon legislature, and that plaintiff would therefore 

receive a more just compensation in Montana. We are 

reluctant to use this as justification for hauling Oregon 

before a Montana district court. We are in no position now 

to determine what constitutes a "just" award in this case, 

as there has been no trial on the merits of plaintiff's 

claim. Moreover, under the facts of this case, assertion of 

personal jurisdiction would unnecessarily project Montana 

law onto the alleged acts of another sovereign state. 

Comity urges us, at least in this instance, to give Oregon 

courts the opportunity to hear this case under the laws of 

that state. 

In conclusion, we hold that assertion of jurisdiction 

over Oregon in this case would not comport with principles 

of due process. The matters considered in our 

constitutional inquiry also convince us that personal 

jurisdiction should not be allowed in the interests of 

comity. Accordingly, the judgment of the district court is 

a£ f irmed. ,?' 

We concur: 

Justice ,/ 
Justices 

Mr. Justice Fred J. Weber specially concurs as follows: 

I concur in the foregoing majority opinion only on the 

ground that we should decline jurisdiction as a matter of 

comity.