223 A.3d 625
N.J. Super. Ct. App. Div.2019Background
- Decedent, a New Jersey resident, underwent aortic‑valve replacement on March 29, 2016 at NYU Langone Medical Center in New York; surgery and post‑op care were provided by Dr. Aubrey Galloway and Dr. Robert Applebaum, both New York residents and New York‑licensed physicians.
- Decedent was discharged from NYU and died in New Jersey nine days later; plaintiff (widower and executor) filed wrongful‑death and survivor malpractice claims in New Jersey (Middlesex County) on March 23, 2018.
- Drs. Galloway and Applebaum answered; both asserted lack of personal jurisdiction. Plaintiff served an initial affidavit of merit (challenged as deficient), later served a second affidavit on August 24, 2018.
- Defendants moved to dismiss for lack of personal jurisdiction on September 24, 2018; plaintiff opposed, arguing (1) waiver of the jurisdictional defense and (2) sufficient New Jersey contacts based on advertising, an NYU web/video presence, and a referral relationship with the decedent’s New Jersey doctor.
- Trial court dismissed the complaint with prejudice for lack of personal jurisdiction; on appeal the Appellate Division affirmed dismissal for lack of jurisdiction but ordered the dismissal to be without prejudice and remanded to amend the order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant waived the personal‑jurisdiction defense by failing to move within 90 days after answer | Pullen: failure to file motion within 90 days waived the defense | Galloway: defense preserved in answer; motion filed after affidavit‑of‑merit dispute resolved; no waiver | No waiver; trial court did not abuse discretion in hearing the motion |
| Whether New Jersey courts have personal jurisdiction over an out‑of‑state surgeon who treated a NJ resident exclusively in NY | Pullen: Galloway had sufficient contacts via advertising, NYU web presence/YouTube, and referral relationship with decedent’s NJ physician | Galloway: practices and resides in NY; treated patient only in NY; no purposeful availment or systematic contacts with NJ | No personal jurisdiction (neither general nor specific); dismissal affirmed but should be without prejudice |
Key Cases Cited
- International Shoe Co. v. Washington, 326 U.S. 310 (established minimum‑contacts due‑process standard for in‑personam jurisdiction)
- Daimler AG v. Bauman, 571 U.S. 117 (general jurisdiction requires contacts so continuous and systematic defendant is essentially at home in the forum)
- World‑Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (specific jurisdiction requires purposeful availment, not unilateral plaintiff actions)
- Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (contrast of general jurisdiction and insufficient contacts)
- Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106 (specific‑jurisdiction requires causal link between forum contacts and claim)
- Bovino v. Brumbaugh, 221 N.J. Super. 432 (out‑of‑state physician treating a NJ resident exclusively elsewhere does not, by that fact alone, submit to NJ jurisdiction)
- Wilson v. Paradise Village Beach Resort & Spa, 395 N.J. Super. 520 (mere accessibility of a website is insufficient alone to establish general jurisdiction)