HENRY PULLEN, as Executor of the ESTATE OF JEANNE PULLEN, deceased, and individually v. DR. AUBREY C. GALLOWAY, LOUIS STEIN, ROBERT M. APPLEBAUM, EDWIN BLUMBERG, MARK S. LIFSHITZ, and NEW YORK UNIVERSITY MEDICAL CENTER
DOCKET NO. A-1373-18T2
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
December 9, 2019
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1373-18T2
HENRY PULLEN, as Executor of the ESTATE OF JEANNE PULLEN, deceased, and individually,
Plaintiffs-Appellants,
v.
DR. AUBREY C. GALLOWAY, LOUIS STEIN, ROBERT M. APPLEBAUM, EDWIN BLUMBERG, MARK S. LIFSHITZ, and NEW YORK UNIVERSITY MEDICAL CENTER,
Defendants-Respondents.
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APPROVED FOR PUBLICATION December 9, 2019 APPELLATE DIVISION
Argued October 16, 2019 – Decided December 9, 2019
Before Judges Fisher, Accurso and Gilson.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1768-18.
Kenneth Wesley Thomas argued the cause for appellants (Lanza Law Firm, LLP, attorneys; Kenneth Wesley Thomas, of counsel and on the briefs).
Walter F. Kawalec, III argued the cause for respondents
Dr. Aubrey C. Galloway, Louis Stein, Robert M.
Applebaum, Mark S. Lifshitz, and New York
University Medical Center (Marshall Dennehey Warner
The opinion of the court was delivered by
GILSON, J.A.D.
In this medical malpractice action, plaintiff appeals from an order dismissing with prejudice his complaint for lack of personal jurisdiction over a New York licensed doctor who provided medical treatment at a New York hospital. We affirm the dismissal of the complaint for lack of personal jurisdiction, but remand with instructions that the complaint be dismissed without prejudice.
I.
We take the facts from the record developed on the motion to dismiss and view those facts in the light most favorable to plaintiff. On March 29, 2016, Jeanne Pullen (the deceased) underwent surgery to replace her aortic valve. The surgery was performed by Dr. Aubrey Galloway at New York University Langone Medical Center (NYU Medical Center). Dr. Robert Applebaum also provided care to the decedent while she was at NYU Medical Center.
Dr. Galloway and Dr. Applebaum are physicians licensed to practice
medicine in New York. They also both live in New York. Decedent was a New
Jersey resident who was referred to Dr. Galloway by her New Jersey licensed
Decedent was discharged from NYU Medical Center on April 5, 2016. She died nine days later on April 14, 2016, after she developed blood clots.
On March 23, 2018, plaintiff Henry Pullen filed a complaint in the Law Division alleging malpractice against Dr. Galloway, Dr. Applebaum, Dr. Louis Stein, Dr. Mark Lifshitz, Dr. Edwin Blumberg, and NYU Medical Center. Plaintiff, who is the widower of the decedent and the executor of her estate, asserted claims of wrongful death and survivor claims of pain and suffering. Thereafter, plaintiff dismissed with prejudice his complaints against Dr. Stein, Dr. Lifshitz, and Dr. Blumberg.
Dr. Galloway filed an answer on May 1, 2018, and asserted, as an affirmative defense, that he was not subject to personal jurisdiction in New Jersey. Dr. Applebaum served his answer on July 27, 2018. Like Dr. Galloway, Dr. Applebaum asserted that he was not subject to personal jurisdiction in New Jersey.
In the meantime, in May 2018, plaintiff served an affidavit of merit
concerning the treatment provided by Dr. Galloway. Dr. Galloway challenged
On September 24, 2018, Dr. Galloway, Dr. Applebaum, and NYU Medical Center filed a motion to dismiss plaintiff‘s complaints against them for lack of personal jurisdiction. Both doctors certified that they lived in New York, they were licensed to practice medicine in New York, and that they never lived or practiced medicine in New Jersey. Both doctors also certified that they never treated decedent in New Jersey, they were not affiliated with any hospitals in New Jersey in 2016, and they did not solicit or otherwise contact decedent, plaintiff, or any other New Jersey residents for the purpose of rendering medical treatment.
Dr. Galloway also explained that he had been licensed to practice
medicine in New Jersey between June 2004 and June 2009. He certified that he
had obtained that New Jersey license because NYU Medical School had an
arrangement with AtlanticCare Regional Medical Center in Atlantic City, New
In opposition to defendants’ motion, plaintiff argued that Dr. Galloway waived his personal jurisdiction defense by failing to file a timely motion to dismiss. Plaintiff also argued that Dr. Galloway had sufficient contacts with New Jersey to establish personal jurisdiction. In that regard, plaintiff filed a certification claiming that Dr. Blumberg, the New Jersey cardiologist who had treated decedent, had a “personal relationship/friendship” with Dr. Galloway. Plaintiff also asserted that Dr. Galloway advertised his services to solicit business through commercials on local television stations. Finally, plaintiff certified that Dr. Galloway advertised his services via the internet to solicit business. To support that claim, plaintiff attached copies of an NYU internet posting and a print-out of a YouTube video uploaded by NYU Medical Center on August 31, 2017.
On October 26, 2018, the trial court heard oral argument and, on that same day, it entered an order granting the motion to dismiss plaintiff‘s complaint with prejudice. The court also issued a written statement of reasons.
The trial court rejected plaintiff‘s waiver argument, pointing out that it had
the authority to extend the deadline for filing a motion to dismiss. The court
II.
On appeal, plaintiff makes two arguments. First, he contends that Dr. Galloway waived his personal jurisdiction defense by failing to file a timely motion within ninety days of filing his answer. Second, plaintiff argues that New Jersey courts have personal jurisdiction over Dr. Galloway. We are not persuaded by either argument.
Initially, we note that on this appeal plaintiff has focused all of his
arguments on the dismissal of his claims against Dr. Galloway. Plaintiff
concedes that Dr. Applebaum filed his motion to dismiss within ninety days of
filing an answer. Moreover, plaintiff made no arguments concerning personal
jurisdiction over Dr. Applebaum or NYU Medical Center. Indeed, at oral
argument before us, plaintiff‘s counsel conceded that NYU Medical Center
would only be vicariously liable for the alleged malpractice of Dr. Galloway.
Thus, we deem plaintiff to have abandoned any appeal of the order dismissing
A. The Waiver Issue
Dr. Galloway expressly asserted the defense of lack of personal
jurisdiction in his answer filed on May 1, 2018. Thereafter, the parties disputed
the validity of plaintiff‘s first affidavit of merit as it related to Dr. Galloway.
That issue was not resolved until plaintiff filed a new affidavit of merit on
August 24, 2018. Dr. Galloway, together with Dr. Applebaum and NYU
Between May 1, 2018, and September 24, 2018, Dr. Galloway took no action that would constitute a waiver of his defense of personal jurisdiction. To the contrary, he disputed plaintiff‘s first affidavit of merit, which went to the very question of whether plaintiff had a valid claim against Dr. Galloway. Consequently, we discern no error or abuse of discretion in the trial court‘s decision to address Dr. Galloway‘s motion to dismiss for lack of personal jurisdiction. See Byrnes v. Landrau, 326 N.J. Super. 187, 193 (App. Div. 1999) (explaining that when dealing with a constitutionally-based defense, such as personal jurisdiction, waiver of that defense should be clear and any contention that the defense has been waived should be strictly scrutinized).
B. Whether There Is Personal Jurisdiction
“A court‘s jurisdiction is ‘a mixed question of law and fact’ that must be
resolved at the outset, ‘before the matter may proceed . . . .‘” Rippon v. Smigel,
449 N.J. Super. 344, 359 (App. Div. 2017) (quoting Citibank, N.A. v. Estate of
Simpson, 290 N.J. Super. 519, 532 (App. Div. 1996)). We review de novo the
legal aspects of personal jurisdiction. Id. at 358 (citing Mastondrea v.
Occidental Hotels Mgmt. S.A., 391 N.J. Super. 261, 268 (App. Div. 2007)). We
New Jersey courts “may exercise in personam jurisdiction over a non-
resident defendant ‘consistent with due process of law.‘” Bayway Refining Co.
v. State Utils., Inc., 333 N.J. Super. 420, 428 (App. Div. 2000) (alterations in
original omitted) (quoting
[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he [or she] be not present within the territory of the forum, [(1)] he [or she] have certain minimum contacts with [the forum (2)] such that the 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) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).]
“[T]he requisite quality and quantum of contacts is dependent on whether general or specific jurisdiction is asserted . . . .” Citibank, N.A., 290 N.J. Super. at 526.
Specific jurisdiction is available when the “cause of action arises directly
out of defendant‘s contacts with the forum state . . . .” Waste Mgmt., Inc. v.
Admiral Ins. Co., 138 N.J. 106, 119 (1994), cert. denied, 513 U.S. 1183 (1995).
In examining specific jurisdiction, the “minimum contacts inquiry must focus
on ‘the relationship among the defendant, the forum, and the litigation.‘” Lebel
v. Everglades Marina, Inc., 115 N.J. 317, 323 (1989) (quoting Shaffer v. Heitner,
433 U.S. 186, 204 (1977)). The minimum contacts requirement is satisfied if
“the contacts expressly resulted from the defendant‘s purposeful conduct and not
the unilateral activities of the plaintiff.” Ibid. (citing World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297-98 (1980)). “In determining whether the
Applying these well-established standards, Dr. Galloway is not subject to personal jurisdiction in New Jersey. Dr. Galloway does not have the continuous and substantial contacts that would subject him to general jurisdiction in New Jersey. Dr. Galloway lives and practices medicine in New York. He certified he held a New Jersey medical license only between 2004 and 2009, and never actually practiced medicine in New Jersey.
Plaintiff contends that Dr. Galloway advertised on local television stations and published information on the internet. Those general contentions, however, are insufficient to establish general jurisdiction. Plaintiff did not identify any actual advertising on local television stations. Instead, plaintiff merely asserted that Dr. Galloway had engaged in such advertisement. That contention is not supported by any specific facts such as the nature of the advertising, when and where the advertising was actually aired, and whether the advertisement was directed at New Jersey residents.
Dr. Galloway is also not subject to specific jurisdiction based on his
treatment of decedent. It is undisputed that Dr. Galloway treated and operated
on decedent in New York. He had no contact with decedent in New Jersey. We
have previously held that a doctor‘s out-of-state treatment of a New Jersey
resident does not, in and of itself, establish personal jurisdiction. Bovino v.
Brumbaugh, 221 N.J. Super. 432, 437 (App. Div. 1987). In Bovino, we
explained that when a patient seeks personal services from an out-of-state
physician, those services are not directed towards a particular place; rather, they
Plaintiff contends that the decedent‘s New Jersey doctor was a friend of Dr. Galloway. In that regard, plaintiff suggests that the decedent‘s New Jersey doctor referred decedent to Dr. Galloway for treatment. Such a referral does not establish specific personal jurisdiction. See id. at 436-37. Dr. Galloway did not initiate or seek the referral. Instead, a New Jersey doctor, who apparently knew Dr. Galloway, referred decedent to Dr. Galloway. Such a referral is not purposeful conduct by Dr. Galloway with New Jersey.
While we affirm the order dismissing defendants for lack of personal
jurisdiction, the dismissal should not have been with prejudice. The dismissal
of the complaint was not an adjudication on the merits.
Affirmed and remanded. We do not retain jurisdiction.