Brew v. Ferraro CV-96-615-JD 10/16/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary J. Brew

v. Civil No. 95-615-JD

Thomas Ferraro, M.D., et al.

O R D E R

The plaintiff, Mary Brew, brought this tort action alleging

inter alia, that defendant Dr. Guy W. Leadbetter, Jr., harmed he

through negligent and intentional acts while providing her with

medical treatment. Before the court is Leadbetter's motion to

dismiss the case for lack of personal jurisdiction (document no.

19) .

Background

The plaintiff, currently a resident of Washington, D.C.,

resided in New Hampshire when she was first treated by

Leadbetter, a urologist, in 1963. Leadbetter then resided in

Massachusetts but since 1967 has resided in Vermont. Leadbetter

treated the plaintiff in both Massachusetts and Vermont but not,

he attests, in New Hampshire, where he has never been licensed t

practice medicine. His objection to the court's exercise of

personal jurisdiction over him in New Hampshire reguires the court to recount the plaintiff's relevant medical history as

alleged by the plaintiff.

In 1963, Dr. Thomas Ferraro diagnosed the plaintiff, at the

time a four-year-old suffering from urinary tract infections

("UTIs") and incontinence, with a congenital defect in her

bladder neck. In February 1963, Ferraro performed an operation

on the plaintiff to correct this condition but negligently

destroyed her urethra during the operation. Ferraro then

concealed his negligence from the plaintiff and her parents. As

a result, the plaintiff and her parents believed that all

subseguent medical treatment the plaintiff received represented

continuing efforts to correct her congenital bladder neck defect.

In June 1963, Ferraro referred the plaintiff to Leadbetter

in Massachusetts, where, in July 1963, Leadbetter first treated

her. After an initial consultation at which Leadbetter placed

the plaintiff on a six-month drug therapy regimen to ascertain

the cause of her incontinence, the plaintiff returned to New

Hampshire. On May 6, 1964, the plaintiff went back to

Massachusetts where Leadbetter performed a new experimental

surgery, now known as the Leadbetter procedure, on her in an

effort to reconstruct her urethra. Leadbetter failed to provide

the plaintiff with adeguate post-operative care and did not

inform the plaintiff or her parents at any time either that she

2 had suffered injury from Ferraro's initial surgery or that

Leadbetter had reconstructed her urethra. After a twenty-three-

day hospital stay in Massachusetts, the plaintiff was discharged

to Ferraro's care in New Hampshire.

On March 26, 1965, the plaintiff returned to Massachusetts

to undergo a procedure for which Leadbetter had referred her.

Despite treatment, the plaintiff continued to suffer from UTIs,

and Ferraro consulted with Leadbetter about how best to treat

her. An August 4, 1968, medical record prepared by Ferraro

indicates that Leadbetter suggested a treatment, "bi-monthly

dilatations," which Ferraro performed. Plaintiff's Affidavit in

Support of Opposition to Defendant's Motion to Dismiss for Lack

of Personal Jurisdiction ("Brew Aff."), Ex. 9.

The plaintiff's medical problems continued, allegedly in

part because of Leadbetter's procedure and lack of disclosure

about it. During the course of her treatment, the plaintiff

underwent freguent catheterizations so that her urine could be

tested, but her reconstructed urethra was narrower and set at a

different angle than a normal urethra. Leadbetter's failure to

inform other health care professionals of the details of the

plaintiff's surgically reconstructed urethra exacerbated the pain

of the catheterizations. Beginning in 1968, the catheterizations

also caused kink-like blockages called strictures in the

3 plaintiff's urethra, making it progressively more difficult for

her to void urine and reducing the functionality of her

reconstructed urethra.

During the winter of 1968 and again in December 1973,

Ferraro sent the plaintiff to see Leadbetter in Vermont, where

Leadbetter treated her. The plaintiff's condition temporarily

improved, but by September, 1974, her difficulty urinating had

increased. She again saw Ferraro, and in July, 1975, he again

referred the plaintiff to Leadbetter in Vermont. On this

occasion, apparently the last time Leadbetter saw the plaintiff,

he advised her that her best option was to self-catheterize on a

regular and permanent basis.

Although he avows that he never treated the plaintiff in New

Hampshire,1 Leadbetter was paid for the medical services he

provided to the plaintiff by a New Hampshire health insurance

company. After he performed the Leadbetter procedure on the

plaintiff, Leadbetter wrote at least two articles for medical

journals concerning the procedure and reporting on the

plaintiff's progress. One article was published in 1967, about

three years after her operation, and the other in 1985, some

1The plaintiff contests this assertion and has produced a hospital record in which Ferraro states that Leadbetter once treated the plaintiff in New Hampshire. Brew Aff., Ex. 16. The court discusses its treatment of this conflicting evidence infra note 5.

4 twenty years after the initial surgery and ten years after

Leadbetter had last treated the plaintiff. Leadbetter did not

advertise or otherwise solicit business in New Hampshire and did

not regularly receive referrals from New Hampshire doctors. The

plaintiff is the only patient Ferraro referred to Leadbetter.

Ultimately, the plaintiff discovered the facts that form the

basis of her complaint and brought this action.2 Leadbetter

moved to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(2), asserting that the court cannot properly exercise

personal jurisdiction over him as to the plaintiff's claims.

Discussion

Leadbetter asserts that the plaintiff's claims against him

should be dismissed for lack of personal jurisdiction because he

committed no tort in New Hampshire and the mere treatment of a

New Hampshire resident by an out-of-state physician is

insufficient to form a constitutional basis for the exercise of

jurisdiction. The plaintiff asserts that Leadbetter's super-

2The plaintiff alleges a total of six counts against Leadbetter: (1) he wrongfully concealed and failed to disclose Ferraro's negligence and his own role in her treatment; (2) he failed to provide adeguate post-operative care; (3) his surgery was a medical battery because he failed to disclose its true nature and purpose; (4) he committed malpractice in his diagnosis and treatment of her; and (5 & 6) he intentionally and negligently inflicted emotional distress on her.

5 vision of Ferraro amounted to a principal-agent relationship,

making Ferraro's New Hampshire contacts attributable to

Leadbetter and resulting in sufficient contacts with New

Hampshire to justify the court's exercise of specific personal

jurisdiction in this action.3

The "preferred" method of deciding a motion to dismiss for

lack of personal jurisdiction in cases that do not involve

conflicting versions of the facts is the "prima facie" approach.

Faigin v. Kelly,

(D.N.H. 1996).4 Under

this method, the plaintiff has the burden of demonstrating facts

sufficient to raise a reasonable inference that the court has

personal jurisdiction over Leadbetter. E.g., Bolt v. Gar-Tec

Prods., Inc.,

(1st Cir. 1992). The plaintiff

may establish jurisdiction through specific facts alleged in the

pleadings, affidavits, and exhibits.

The decision to

exercise jurisdiction based on a prima facie showing is

3Ihe plaintiff asserts in the alternative that Leadbetter and Ferraro were jointly treating the plaintiff. However, due to its holding, the court need not consider the ramifications of that theory at this time.

4Although alternative methods of resolving jurisdictional guestions exist, neither party has reguested that the court use another method to resolve the instant motion. Thus, the court uses this method despite the fact that some factual issues in this case are contested. In doing so, the court does not resolve the factual disputes, but "accepts properly supported proffers of evidence by a plaintiff as true." Bolt v. Gar-Tec Prods., Inc., 967 F .2d 671, 675 (1st Cir. 1992).

6 provisional, for if a district court "applies the prima facie

standard and denies the motion to dismiss, it is implicitly, if

not explicitly, ordering 'that hearing and determination [of the

motion to dismiss] be deferred until the trial.'"

(guoting Fed. R. Civ. P. 12(d)) (alteration in original).

Specific personal jurisdiction over a defendant may be

appropriate when the cause of action arises directly out of, or

relates to, the defendant's contacts with the forum state.

Ticketmaster -- New York, Inc. v. Alioto,

(1st

Cir. 1994); United Elec. Workers v. 163 Pleasant St. Corp.,

, 1088-89 (1st Cir. 1992). In determining whether

specific personal jurisdiction is proper, the court initially

determines whether the applicable long-arm statute is satisfied,

Kowalski v. Doherty, Wallace, Pillsbury & Murphy,

(1st Cir. 1986),5 and then determines whether the exercise of

personal jurisdiction is consistent with the Due Process Clause

of the Fourteenth Amendment to the United States Constitution.

5Because

(1983), the New Hampshire long-arm statute applicable to individuals, affords jurisdiction "to the full extent that the statutory language and due process will allow," Sawtelle v. Farrell,

(1st Cir. 1995); Faigin,

; Phelps v. Kingston,

,

(1987), the court need only consider whether the exercise of personal jurisdiction comports with the reguirements of due process. See, e.g.. Interadd v. Foreign Motors, Inc., No. C-94-560-SD,

, at *5, (D.N.H. Feb. 2, 1995); Estate of Mullen v. Click, No. C-94-377-L,

, at *2 (D.N.H. Nov. 3, 1994).

7 Boit,

; Omni Hotels Mqmt. Corp. v. Round Hill

Devs. Ltd.,

(D.N.H. 1987); see

International Shoe Co. v. Washington,

(1945).

Under International Shoe,

due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."

(quoting Milliken v. Mever,

(1940)).

Jurisdiction is proper only when "'the defendant's conduct and

connection with the forum State are such that he should

reasonably anticipate being haled into court there.'" Burger

King Corp. v. Rudzewicz,

(1985) (quoting World-

Wide Volkswagen Corp. v. Woodson,

(1980)).

As a threshold matter in determining whether the defendant's

contacts with a forum are sufficient to comport with the

requirements of due process, the court must define the relevant

forum-related conduct. Mitrano v. Jerry's Ford Sales, Inc., No.

95-266-JD, slip op. at 11 (D.N.H. Oct. 6, 1995). The relevant

forum-related conduct includes not only the acts of the

individual to be haled into court, but also the acts of agents of

that individual. See Kennedy v. Ziesmann,

,

1329 n.l (E.D. Ky. 1981) (affidavit asserting that doctors were

acting as agents of hospital justified exercise of personal jurisdiction over hospital); Soares v. Roberts,

(D.R.I. 1976) (activities of agents may be attributed as

relevant contacts to principal corporation, but not vice versa);

see also Salpoglou v. Shlomo Widder, M.D., P.A., 8

(D. Mass. 1995) (contacts of doctor's agents with forum

analyzed as part of personal jurisdiction analysis for doctor).

One doctor can act as the agent of another where the principal-

doctor exercises control as to the manner in which the work of

the agent-doctor is performed. See Gilinskv v. Indelicato,

(E.D.N.Y. 1995) (physician who subordinates

independent professional judgment to the direction of another

physician acts as agent of the directing physician); Restatement

(Second) of Agency § 223 cmt. a (1958) (hospital physician may be

servant of hospital if "subject to directions as to the manner in

which [the] work is performed").

The First Circuit employs a tripartite test for determining

whether relevant forum-related conduct constitutes sufficient

minimum contacts to justify the exercise of specific juris­

diction. United Elec. Workers, 960 F.2d at 1089; see also

Ticketmaster,

. First, the plaintiff must allege

that the claim underlying the litigation directly arises out of,

or relates to, the defendant's forum-state activity. Ticket­

master ,

. To satisfy this reguirement, the defendant's in-state conduct must form an important or material

element of proof in the plaintiff's case. United Elec. Workers,

960 F.2d at 1089. The First Circuit has analogized this

requirement to the causation requirement in tort law, and has

suggested that it requires a showing of both but-for and

proximate causation, i.e., "that the injury would not have

occurred 'but for' the defendant's forum-state activity," and

that "the defendant's in-state conduct gave birth to the cause of

action." Id.; see Pritzker v. Yari,

(1st Cir.

1994) (relatedness element satisfied where contract at issue

arose from the defendant's in-forum activity, and that the

dispute would not have occurred but for such activity), cert.

denied, 115 S. C t . 1959 (1995).

Second, the plaintiff must show that "the defendant's in­

state contacts . . . represent a purposeful availment of the

privilege of conducting activities within the forum state,

thereby invoking the benefits and protection of that state's laws

and making the defendant's involuntary presence before the

state's courts foreseeable." United Elec. Workers, 960 F.2d at

1089. Third, even if the plaintiff succeeds in establishing

relatedness and purposeful availment, the defendant may still

avoid the exercise of jurisdiction if allowing the action to

proceed would be "inconsistent with fair play and substantial

10 justice." Ticketmaster,

; see also United Elec.

Workers, 960 F.2d at 1089. This determination involves

consideration of the "gestalt" factors -- five criteria

identified by the United States Supreme Court as relevant in

determining whether asserting personal jurisdiction over a

defendant is fundamentally fair -- in light of the strength or

weakness of the relatedness and purposeful availment

demonstrations. Ticketmaster,

-10 .6 The gestalt

factors are

(1) the defendant's burden of appearing, (2) the forum state's interest in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and effective relief, (4) the judicial system's interest in obtaining the most effective resolution of the controversy, and (5) the common interests of all sovereigns in promoting substantive social policies.

United Elec. Workers, 960 F.2d at 1088 (citing Burger King,

).

In this case, the outcome of the minimum contacts analysis

depends on the threshold guestion of what constitutes the

61he First Circuit has made clear that a weak demonstration of relatedness or purposeful activity will be relevant in the third prong of the inguiry, i.e., whether exercising jurisdiction over the defendant comports with traditional notions of fair play and substantial justice. Ticketmaster,

. However, a complete failure to demonstrate relatedness or purposeful availment does not merely "carry over" into the third part of the inguiry. Rather, such a failure is dispositive of the jurisdictional issue. See

(permitting the court to "dismiss a . . . case for lack of relatedness per se") .

11 relevant forum-related conduct. In resolving this issue, the

court first analyzes Leadbetter's own contacts with New

Hampshire, and then addresses the impact of the plaintiff's

agency argument.

I. Leadbetter Contacts

Leadbetter's relevant contacts with New Hampshire include:

telephone conversations with Ferraro in New Hampshire in which he

discussed the plaintiff's treatment; his one-time treatment of

the plaintiff in New Hampshire sometime shortly before January

20, 1975 ("Leadbetter's New Hampshire visit"); Ferraro's

continuing referrals of the plaintiff to Leadbetter for

treatment; and, receipt of payment for medical services he

provided to the plaintiff from a New Hampshire insurance company.

Although these contacts in some sense relate to or arise from the

plaintiff's cause of action, see Ticketmaster,

,

and form an important or material element of proof in the

plaintiff's case. United Elec. Workers, 960 F.2d at 1089, it is

less clear that they are the legal and factual cause of the

plaintiff's cause of action, see id. Leadbetter's New Hampshire

visit was ten years after the initial Leadbetter procedure. Some

of the plaintiff's counts against Leadbetter allege harm caused

by his ongoing failure to disclose, but none of the plaintiff's

12 claims arise directly from Leadbetter's New Hampshire visit.

Similarly, although both the conversations between Leadbetter and

Ferraro and Leadbetter's receipt of payments are relevant to the

plaintiff's cause of action, neither created it. The court finds

Leadbetter's contacts to be slightly related, at best, to the

plaintiff's cause of action.

The contacts also amount to only a slight showing of

purposeful availment. The court acknowledges that Ferraro

referred the plaintiff to Leadbetter on several occasions,

Leadbetter had several conversations with Ferraro about the

plaintiff's treatment, and Leadbetter was paid for his services

by a New Hampshire insurance company, thereby raising the

inference that Leadbetter purposefully availed himself of the

privilege of doing business in New Hampshire. However, the

record indicates that Ferraro referred the plaintiff to

Leadbetter and that Leadbetter did not actively advertise in New

Hampshire or take any affirmative acts to seek out the plaintiff

or any other New Hampshire residents. The court finds that

Leadbetter's contacts satisfy the purposeful availment

reguirement, but amount only to a slight showing on this prong.

The court now turns to the third prong of the test,

evaluation of the gestalt factors. Gestalt factor one reguires

the court to consider Leadbetter's burden of appearing. It is in

13 some sense never convenient for a party to mount a defense in a

remote forum, but Leadbetter, a Vermont resident, has not

demonstrated that it would pose any "special or unusual burden"

for him to defend against this action in neighboring New

Hampshire. See Sawtelle v. Farrell,

(1st Cir.

1995) (guoting Pritzker v. Yari,

(1st Cir. 1994)

cert, denied, 115 S. C t . 1959 (1995)). With no evidence to

suggest that mounting a defense in New Hampshire would pose any

special burden, the court finds that gestalt factor one points in

favor of the exercise of personal jurisdiction.

Gestalt factor two reguires the court to consider New

Hampshire's interest in adjudicating the dispute. Each state has

"a demonstrable interest in exercising jurisdiction over one who

causes tortious injury within its borders." Ticketmaster,

. However, the court notes that New Hampshire also

has an interest in assuring that its residents continue to have

access to medical care otherwise unavailable in New Hampshire, a

policy that might be undermined by aggressive assertion of

personal jurisdiction over out-of-state physicians. At least one

other court has expressed a reluctance to hale before it an out-

of-state doctor when the doctor has done little more than provide

care to a resident who sought treatment in the doctor's state for

fear that as a result out-of-state doctors would refuse to

14 provide needed and otherwise unavailable medical care to the

residents of that state. See Kennedy v. Ziesmann,

(E.D. Ky. 1981). The court finds that these two

policies offset each other, so that gestalt factor two points

neither for nor against the exercise of personal jurisdiction.

Gestalt factor three reguires the court to consider the

plaintiff's interest in obtaining convenient and effective

relief. Both the general directive that "courts considering

jurisdictional issues generally should 'accord plaintiff's choice

of forum a degree of deference in respect to the issue of [her]

own convenience,'" Foster-Miller, Inc. v. Babcock & Wilcox

Canada,

(1st Cir. 1995) (guoting Ticketmaster,

), and the specific concern that to decline to

exercise jurisdiction over Leadbetter might reguire the plaintiff

to pursue two separate actions support the proposition that

allowing this action to go forward serves the plaintiff's

interest in obtaining convenient and effective relief. The court

finds that gestalt factor three points in favor of the exercise

of personal jurisdiction.

Gestalt factor four reguires the court to consider the

judicial system's interest in obtaining the most effective

resolution of the controversy. As noted above, if the court

declines to exercise personal jurisdiction over Leadbetter in New

15 Hampshire, the plaintiff will be forced to bring her claims

against him elsewhere. This would impose on the judicial system

the burden of two simultaneous litigations dealing with similar

legal and factual issues. While this is a substantial burden on

the plaintiff, it is a lesser, but not insignificant burden on

the judicial system. Thus, the court finds that gestalt factor

four points moderately in favor of the exercise of personal

jurisdiction.

Gestalt factor five reguires the court to consider the

common interests of all sovereigns in promoting substantive

social policies. Under this factor, the policies in conflict

under gestalt factor two are again relevant. For the same

reasons discussed above, the court finds that gestalt factor five

points neither for nor against the exercise of personal

jurisdiction.

The court finds that all five gestalt factors taken together

point only moderately in favor of the exercise of jurisdiction.

Given the slight showings of relatedness and purposeful availment

and the moderate showing on the gestalt factors, the court finds

that Leadbetter lacks sufficient minimum contacts with New

Hampshire for this court to exercise jurisdiction over him on the

plaintiff's claims based solely on his forum-related conduct.

Accordingly, the court turns to the plaintiff's argument that the

16 acts of Ferraro can be attributed to Leadbetter for the purposes

of the minimum contacts analysis because Ferraro was acting as

Leadbetter's agent.

II. Ferraro-Leadbetter Contacts

Two sets of facts support the plaintiff's contention that

Ferraro was acting as Leadbetter's agent: 1) facts indicating

that it was foreseeable to Leadbetter when he performed the

initial operation on the plaintiff that continuing medical care

and monitoring of her would be reguired; and 2) facts indicating

that an agency relationship was formed to provide this care. The

record indicates that when Leadbetter performed his new experi­

mental surgery on the plaintiff in 1964, he knew or should have

known that the surgery would reguire continued monitoring of her.

Leadbetter had already written one article on the Leadbetter

procedure noting the need for further trial and monitoring of the

procedure's outcome, see Brew Aff., Ex. 21 (journal article

written by defendant about procedure prior to plaintiff's

operation stating that "followup reports are [based on short

observation times] but we believe results indicate that further

trial of this new procedure is deserved."), and went on to write

additional articles about the procedure, see

Ex. 22 (journal

article written by defendant after plaintiff's operation

17 reporting on her outcome noting that "[c]areful followup

evaluation is now available on more patients and for a longer

period")a Ex. 23 (journal article reporting plaintiff's outcome

describing itself as a "retrospective 10 to 22-year followup

study"). The ongoing nature of the physician-patient

relationship is demonstrated by the fact that Leadbetter

continued to publish articles about the plaintiff a decade after

he last treated her as a patient, see Brew Aff., Ex. 23 (1985

journal article written by defendant after plaintiff's operation

reporting on her outcome), and the fact that Leadbetter

personally treated the plaintiff at least three times after he

performed the Leadbetter procedure, see Brew Aff. 5 4 (treatment

for which plaintiff has not yet received medical records), Ex. 14

(12/17/73 medical record showing treatment by Leadbetter), Ex. 18

(7/14/75 medical record showing treatment by Leadbetter).

Other evidence shows that rather than performing all of the

monitoring function himself, Leadbetter directed Ferraro's

treatment, reaching into New Hampshire to do so by having Ferraro

act as his agent. The plaintiff has produced numerous hospital

records in which Ferraro, providing treatment to the plaintiff in

New Hampshire, refers to Leadbetter and his suggestions for

treatment. See Brew Aff., Exs. 7, 8, 9, 12, 13, 15, 16, 17, 19,

20 (plaintiff's hospital records prepared by Ferraro referring to

18 Leadbetter despite the fact that Ferraro treated the plaintiff).

This evidence is sufficient to raise a reasonable inference that

Leadbetter was directing Ferraro's treatment of the plaintiff in

New Hampshire. Based on this evidence, which has not been

controverted, the court makes a preliminary finding that Ferraro

was acting as Leadbetter's agent. Thus, it is not only

Leadbetter's personal contacts with New Hampshire but also

Ferraro's contacts attributable to Leadbetter that are relevant

to the court's minimum contacts analysis. See Kennedy,

9 n.l; Soares,

; see also

Salpoglou, 899 F. Supp. at 838.

Ferraro's forum-related conduct attributable to Leadbetter

for minimum contacts analysis includes: continued monitoring of

the plaintiff after the experimental Leadbetter surgery; the

administration, in New Hampshire, of treatments recommended by

Leadbetter; and, an ongoing failure to disclose to the plaintiff

the cause of her continued medical difficulty.7 The court now

7Leadbetter is not subject to general personal jurisdiction in New Hampshire because of his association with Ferraro, a New Hampshire resident presumably subject to general jurisdiction here. It is Ferraro's conduct in New Hampshire related to the agency relationship, not all his New Hampshire conduct, that is relevant to the court's analysis. For that reason, the negligent surgery performed by Ferraro is not attributable to Leadbetter as a relevant contact because it happened before the creation of the principal-agent relationship, but Ferraro's ongoing acts of concealing that negligence are attributable to Leadbetter.

19 considers the added effect of this additional conduct on the

minimum contacts analysis of relatedness, purposeful availment,

and the gestalt factors established by Leadbetter's contacts

alone.

Although Leadbetter's personal contacts with New Hampshire

are only slightly related to the plaintiff's cause of action, the

Leadbetter-Ferraro contacts are more directly related. By

performing the procedure on the plaintiff, Leadbetter began what

he knew or should have known would be a continuing relationship

with the plaintiff reguiring years of monitoring and follow-up

treatment, in which Ferraro was actively engaged as Leadbetter's

New Hampshire agent. Thus, it appears that the Leadbetter-

Ferraro treatment of the plaintiff was not a series of isolated

and unconnected incidents, but a single, related program of

treatment. It follows that the Leadbetter-Ferraro treatment of

the plaintiff and their ongoing failure to disclose information

to her gave birth to her cause of action in a way that

Leadbetter's isolated contacts with New Hampshire did not. The

court finds the Leadbetter-Ferraro contacts to be related to the

plaintiff's cause of action.

Similarly, although Leadbetter's personal contacts with New

Hampshire amount only to a slight showing of purposeful

availment, the Leadbetter-Ferraro contacts support a stronger

20 showing of purposeful availment. The evidence produced by the

plaintiff indicates that Leadbetter accepted as a patient for an

experimental surgery a New Hampshire resident who he knew would

reguire years of monitoring. By accepting the plaintiff as a

patient and selecting Ferraro to act as an agent to provide

treatment in New Hampshire, Leadbetter purposefully availed

himself of the New Hampshire forum. His actions make it

foreseeable that he would be subject to suit here. The court

finds that the Leadbetter-Ferraro contacts demonstrate purposeful

availment of the New Hampshire forum.

Although the gestalt factors based on Leadbetter's personal

contacts point moderately in favor of the exercise of personal

jurisdiction, the Leadbetter-Ferraro contacts point more strongly

in favor of the exercise of personal jurisdiction. Inclusion of

Ferraro's contacts leaves the analysis of gestalt factors one,

three, and four, which already point toward the exercise of

jurisdiction, unchanged. However, it influences factors two and

five. When a doctor in one state acts as the agent of a doctor

in another state, the concern for threatening the availability of

out-of-state medical care for residents disappears. Under those

circumstances, doctors can be assured that they will not be haled

into court merely because they provided medical treatment to an

out of state patient, so long as they do not reach into that

21 patient's state to provide continued medical care, either in

person or through an agent. Accordingly, the court finds that

gestalt factors two and five point in favor of the exercise of

personal jurisdiction.

Based on the Leadbetter-Ferraro contacts, the court finds

that the gestalt factors taken together indicate that the

exercise of jurisdiction in this case would not violate notions

of fundamental fairness. In addition, considering the showings

of relatedness and purposeful availment as bolstered by the

gestalt factors, the court finds that the plaintiff has produced

sufficient evidence that the court may constitutionally exercise

personal jurisdiction over Leadbetter.8

The court's finding of jurisdiction is provisional -- the court will be unable to exercise personal jurisdiction over Leadbetter unless development of the factual record provides support for her agency theory or yields other facts justifying the exercise of personal jurisdiction. See Boit,

.

22 Conclusion

Leadbetter's motion to dismiss the case for lack of personal

jurisdiction (document no. 19) is denied.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge October 16, 1996

cc: William D. Pandolph, Esquire Ronald L. Snow, Esquire John Friberg, Esquire Michael Callahan, Esquire John Traficonte, Esquire Robert Backus, Esquire

23