Bertolini-Mier et al v. Upper Valley Neurology Neurosurgery, P.C.

Filing 51

OPINION AND ORDER granting 19 MOTION to Dismiss for lack of specific personal jurisdiction. Signed by Judge Geoffrey W. Crawford on 9/13/2017. (esb)

U.S. DISTRICT COURT
DISTRICT OF VERMONT
F·' ;!_, f'~ ;-=1
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
KIM BERTOLINI-MIER and ROGER
MIER,
Plaintiffs,
v.
UPPER VALLEY NEUROLOGY
NEUROSURGERY, P.C., DONALD W.
AYRES, M.D., and ALICE PECK DAY
MEMORIAL HOSPITAL,
Defendants.

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20 l1 SEP 13 PH 2: I 0

Case No. 5:16-cv-35

OPINION AND ORDER
(Doc. 19)
In this diversity action, Plaintiffs Kim Bertolini-Mier and her husband Roger Mier sue
Upper Valley Neurology Neurosurgery, P.C. ("UVNN"), UVNN physician Dr. Donald W.
Ayres, and Alice Peck Day Memorial Hospital ("APD") for medical malpractice and loss of
consortium. They allege that, between 2007 and 2011, APD improperly administered and
interpreted radiologic studies as indicating that Ms. Bertolini-Mier suffered from multiple
sclerosis (MS). (See Doc. 8.) Plaintiffs further allege that Dr. Ayres mistakenly relied on APD's
findings, misdiagnosed her with MS, and improperly treated her with an MS drug that caused her
harm, including a neurological event in 2014 that required extended hospitalization. (See id.)
APD has filed a Motion to Dismiss under Fed. R. Civ. P. 12(b)(2), asserting that it is not subject
to personal jurisdiction in Vermont. (Doc. 19.)
In an Opinion and Order dated December 7, 2016, the court concluded that APD had not
consented to personal jurisdiction and that APD is not subject to general jurisdiction in Vermont
under the restrictive test announced in Daimler AG v. Bauman, 134 S. Ct. 746 (2014).

(See Doc. 31.) The court granted Plaintiffs an opportunity to conduct jurisdictional discovery on

the question of specific jurisdiction. (Id. at 13.) Plaintiffs have now completed that jurisdictional
discovery, and have filed a supplemental opposition to APD's motion. (Doc. 41.) APD has filed
a supplemental reply (Doc. 44), and the court agreed to consider Plaintiffs' sur-reply (Doc. 45)
and APD's response (Doc. 47).
Background

The court reviews the relevant facts set forth in the December 7, 2016 Opinion and
Order, with additional facts presented by the parties in their supplemental filings. Ms. BertoliniMier first met with Dr. Ayres on August 16, 2007, after being referred to him by her Vermontbased neurologist and primary care physician. (See Doc. 44-4 ,-r 2.) Dr. Ayres treated Ms.
Bertolini-Mier between August 16, 2007 and April 22, 2014. (Id.) During that time, Dr. Ayres
and other UVNN physicians ordered MRis of Ms. Bertolini-Mier. (Id. ,-r 3; see also Doc. 44-6.)
Some of those studies were performed at APD's facility in Lebanon, New Hampshire.
(See Doc. 44-4 ,-i 4.) According to Mr. Mier, his wife was directed to APD for radiology

services, not to any individual physician. (Doc. 41-1,-r2.) Ms. Bertolini-Mier believed that APD
was providing those services, and was not told by anyone at any time that she was receiving
services from anyone who did not work for APD. (Id. ,-i,-i 3, 5.)
APD's principal place of business is in Lebanon, New Hampshire; it is a non-profit
corporation incorporated in New Hampshire and registered in Vermont to do business as a
foreign corporation. (See Doc. 8 ,-r 7; Doc. 19-1,-r2; Doc. 21-1 ,-r 8, Doc. 21-7.) APD provides
medical services to Vermont patients, advertises in Vermont, and consults with the Vermont
Department of Health. (Doc. 8 ,-r 7.) APD has a radiology department, which it advertises on its
website. (Doc. 41-8 at 2; Doc. 41-11 at 3.) The website states that APD's "experienced team

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performs imaging and interprets results---often serving as the first step to patients' improved
health and recovery." (Doc. 41-8 at 2) According to the website, APD's radiology department is
"staffed by skilled technologists and physicians who are invested in our community." (Id.) The
website does not indicate that anyone in the radiology department is an independent contractor.
In fact, APD has an arrangement with Valley Radiologists, P.A., under which APD runs
the radiology department and produces images, and doctors employed by Valley Radiologists
interpret (or "read") the images. (Doc. 41-4 at 5; Doc. 41-11 at 3; see also Doc. 44-4

~

5 (the

MRis performed at APD were interpreted by radiologists affiliated with an independent entity
that provides radiology services to APD); Doc. 44-5 ~ 2.) 1 According to Valley Radiologists
president Mark Hansberry, M.D., Valley Radiologists is a New Hampshire professional
association of radiologists that performs interpretations for diagnostic imaging studies for the
Mt. Ascutney Hospital in Vermont, plus three hospitals in New Hampshire, including APD.
(Doc. 44-2 at 3; Doc. 44-5

~~

1-2.)

Valley Radiologists assigns its doctors to particular hospitals, and during the daytime the
radiologists are "almost always" physically present at their assigned hospitals. (Doc. 44-2 at 4;
see also Doc. 44-5

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3.) If the radiologist is on call and covering for colleagues, she might read

images from one of the other hospitals. Sometimes a radiologist works from home to help with
balancing the workload or when working only part of a day. During the nighttime, Valley
Radiologists personnel work from home. (See Doc. 44-2 at 4; see also Doc. 44-5

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3.)

APD asserts that it did not have a contract with Valley Radiologists or Valley
Radiologists personnel. (Doc. 44 at 4-5.) Plaintiffs agree that there was "nothing in writing,"
but contend that "there was a very specific understanding, which has since been reduced to
writing." (Doc. 45 at 3.) The court does not perceive the dispute over how to characterize the
medical privileges arrangement to be material to the specific-jurisdiction issue.
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Improved technology has made it possible for the radiologists to work remotely or from
home. (See Doc. 44-2 at 4; Doc. 44-5 if 3.) APD uses a system that allows radiology images (or
"films") taken at one location to be read at another location. (See Doc. 41-4 at 3.) When a
radiologist reads the images, she creates a report. (Id. at 3--4; see also Doc. 44-4 if 5.) The
reports are produced on APD letterhead. (See Doc. 41-12.) According to Valley Radiologists
manager John Rousseau, there is no way to tell where a report was signed. (Doc. 41-11 at 6.)
Mr. Rousseau describes the Valley Radiologists personnel as the "Medical Directors" or
"Chief Medical Officers" of APD's radiology department. (Doc. 41-11 at 3; Doc. 44-3 at 4.)
The Valley Radiologists personnel are not compensated by APD, nor are they employees of
APD. (Doc. 41-4 at 6; Doc. 41-11 at 3; see also Doc. 44-5 if 2.) For radiology patients, APD
bills a "technical fee" for its service as the provider of the exam. (Doc. 41-11 at 4.) Valley
Radiologists separately bills patients a "physician fee" for providing the reading. (Id.; see also
Doc. 44-5 if 2.)
According to Dr. Hansberry, all but two of Ms. Bertolini-Mier's MRis performed at APD
were interpreted in New Hampshire by Valley Radiologists personnel. (Doc. 44-5 if 3.)
Dr. Hansberry states that, "[o]n October 5, 2010, Katherine Gerke, M.D., of Valley Radiologists,
used a computer presumably at her home in Vermont when she interpreted Ms. Bertolini-Mier's
MRI performed at Alice Peck Day Memorial Hospital the same date." (Id.) In a "Third
Declaration" dated September 6, 2016, APD President Susan E. Mooney, M.D. concurs that
Dr. Gerke read the October 5, 2010 MRI, and that she "most likely" did so from her residence in
Vermont. (Doc. 29-1

if 4.) Dr. Mooney asserts that, since Dr. Gerke passed away in July 2013,

APD "is unable to say with absolute certainty where she was physically located at that time."
(Id.) According to Dr. Hansberry, APD had no role in selecting who from Valley Radiologists

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would interpret the October 5, 2010 MRI or where the radiologist would be physically located
when doing that interpretation. (Doc. 44-5

if 3.)

Plaintiffs criticize APD for misstating facts. (See Doc. 41 at 3; Doc. 45 at 1 n.1.)
Plaintiffs note that in a prior declaration, Dr. Mooney had asserted that the radiology studies at
issue were performed and interpreted "exclusively in New Hampshire." (Doc. 19-1

if 4.)

Plaintiffs further contend that Dr. Mooney's September 6, 2016 declaration is also inaccurate
insofar as it asserts that the October 5, 2010 MRI was the only study that was interpreted outside
of New Hampshire. It appears to be undisputed that, in addition to the image that Dr. Gerke read
on October 5, 2010, an MRI of Ms. Bertolini-Mier was performed on September 14, 2011 and
was read by Alexei Viazmenski, M.D., using a computer located at Mt. Ascutney Hospital in
Vermont. (Doc. 41-5 at 3; Doc. 44-5

if 3.) As with the October 5, 2010 MRI, Dr. Hansberry

states that APD had no role in selecting who from Valley Radiologists would interpret the
September 14, 2011 MRI or where the radiologist would be physically located when doing that
interpretation. (Doc. 44-5 if 3.)
Finally, Plaintiffs suggest that Dr. Mooney cannot claim uncertainty about where the
October 5, 2010 MRI was interpreted. Plaintiffs have presented evidence that the October 5,
2010 film was read on a computer identified as "GERKEDESKTOP." (Doc. 41-3 at 2.)
Dr. Hansberry testified that, given the name "GERKEDESKTOP," the computer was likely a
desktop computer that belonged to Dr. Gerke located at her home in Vermont. (Doc. 41-4 at 3;
see also Doc. 44-5

if 3 (computer was "presumably" at Dr. Gerke's home in Vermont).)

Aside from the issue of the location where MRis were interpreted, Plaintiffs have
supplied evidence that APD called Ms. Bertolini-Mier's health insurance carrier, Blue Cross
Blue Shield of Vermont (BCBS), on a number of occasions between 2009 and 2014 seeking

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verification of insurance coverage and pre-approval for various tests and procedures.

(See Doc. 41-7.)
Analysis
I.

Rule 12(b )(2) Standard

Under Fed. R. Civ. P. 12(b)(2), a party may move for dismissal for lack of personal
jurisdiction. The court may determine a Rule 12(b)(2) motion on the basis of pleadings and
affidavits alone, or it may permit discovery, or it may conduct an evidentiary hearing.

Dorchester Fin. Sec., Inc. v. Banco BRJ, SA., 722 F.3d 81, 84 (2d Cir. 2013) (per curiam). Here,
since the court has allowed jurisdictional discovery, Plaintiffs must make a prima facie showing
of jurisdiction that includes "an averment of facts that, if credited by the trier, would suffice to
establish jurisdiction over the defendant." Id. at 85 (quoting Ball v. Metallurgie Hoboken-

Overpelt, SA., 902 F.2d 194, 197 (2d Cir. 1990)).
II.

Specific Jurisdiction

Generally, "in resolving questions of personal jurisdiction in a diversity action, a district
court must conduct a two-part inquiry." Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d
560, 567 (2d Cir. 1996). "First, it must determine whether the plaintiff has shown that the
defendant is amenable to service of process under the forum state's laws; and second, it must
assess whether the court's assertion of jurisdiction under these laws comports with the
requirements of due process." Id. Vermont's long-arm statute, 12 V.S.A. § 913(b), reflects a
"clear policy to assert jurisdiction over individual defendants to the full extent permitted by the
Due Process Clause." Id. (quoting Bechardv. Constanzo, 810 F. Supp. 579, 582-83 (D. Vt.
1992)). Thus the two inquiries in this case merge into one: "whether the court's exercise of
personal jurisdiction over the defendant satisfies the requirements of due process." Id.

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"To establish personal jurisdiction over a defendant, due process requires a plaintiff to
allege (1) that a defendant has 'certain minimum contacts' with the relevant forum, and (2) that
the exercise of jurisdiction is reasonable in the circumstances." Eades v. Kennedy, PC Law

Offices, 799 F.3d 161, 168-69 (2d Cir. 2015) (quoting In re Terrorist Attacks on Sept. 11, 2001,
714 F.3d 659, 673 (2d Cir. 2013)). The court begins with the first requirement. "Where the
claim arises out of, or relates to, the defendant's contacts within the forum-i.e., specific
jurisdiction [is asserted]-minimum contacts [necessary to support such jurisdiction] exist where
the defendant purposefully availed itself of the privilege of doing business in the forum and
could foresee being haled into court there." Licci ex rel. Licci v. Lebanese Canadian Bank, SAL,
732 F.3d 161, 170 (2d Cir. 2013) (alterations in original) (quoting Bank Brussels Lambert v.

Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d Cir. 2002)). The contacts must not be
"random, fortuitous or attenuated." Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir.
2004) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 480 (1985)). This test includes a
"nexus" requirement: the cause of action must "relate to" the defendant's minimum contacts with
the forum. Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 166-67 (2d Cir. 2010).
Plaintiffs assert that their claims arise out of APD's contacts with Vermont "because
APD improperly read some of the radiology studies in Vermont, and because APD
communicated with Blue Cross of Vermont on behalf of Ms. Mier a number of times." (Doc. 41
at 4.) APD asserts that its communications with BCBS are irrelevant to the specific-jurisdiction
analysis because Plaintiffs' claims do not arise out of those communications. (Doc. 44 at 14
n.5.) Plaintiffs do not respond to that point in their sur-reply, and the court agrees with APD that
the communications with BCBS are not sufficiently related to Plaintiffs' cause of action to
satisfy the nexus requirement.

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Regarding the radiology studies that were read in Vermont, APD maintains that the
Valley Radiologists personnel, including Dr. Gerke, are independent radiologists, and that
specific jurisdiction over APD cannot be asserted based on the unilateral actions of those
individuals. (See Doc. 44 at 2.) Anticipating that argument, Plaintiffs contend that APD cannot
avoid liability because the non-delegable duty doctrine and the doctrines of apparent and actual
authority are applicable in this case. (Doc. 41 at 5.) APD asserts that none of those doctrines
apply. (Doc. 44 at 2.)
Generally, the "unilateral activity of another party or a third person is not an appropriate
consideration when determining whether a defendant has sufficient contacts with a forum State
to justify an assertion of jurisdiction." Helicopteros Nacionales de Columbia, S.A. v. Hall,
466 U.S. 408, 417 (1984); see also Bristol-Myers Squibb Co. v. Superior Court of Calif., San
Francisco Cty., 137 S. Ct. 1773, 1781 (2017) ("[A] defendant's relationship with a ... third

party, standing alone, is an insufficient basis for jurisdiction." (ellipsis in original) (quoting
Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014))). However, agency relationships "may be

relevant" to the issue of specific jurisdiction, and "a corporation can purposefully avail itself of a
forum by directing its agents or distributors to take action there." Daimler, 134 S. Ct. at 759
n.13 (emphasis added); see also Celgard, LLC v. SK Innovation Co., 792 F.3d 1373, 1379
(Fed. Cir. 2015) ("For purposes of specific personal jurisdiction, the contacts of a third-party
may be imputed to the defendant under either an agency or alter ego theory. In order to establish
jurisdiction under the agency theory, the plaintiff must show that the defendant exercises control
over the activities of the third-party.").2

2

This court's cases-predating and postdating Daimler-have entertained the possibility
that a purported agency relationship could support the assertion of specific
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Whether the acts of agents are sufficient to confer jurisdiction depends on the particular
circumstances. See Int'! Shoe Co. v. Washington, 326 U.S. 310, 318 (1945) ("[A]lthough the
commission of some single or occasional acts of the corporate agent in a state sufficient to
impose an obligation or liability on the corporation has not been thought to confer upon the state
authority to enforce it, ... other such acts, because of their nature and quality and the
circumstances of their commission, may be deemed sufficient to render the corporation liable to
suit."); see also In re Chinese-Manufactured Drywall Prods. Liab. Litig., 753 F.3d 521, 531
(5th Cir. 2014) ("Daimler . .. embraces the significance of a principal-agent relationship to the
specific-jurisdiction analysis, though it suggests that an agency relationship alone may not be
dispositive.").
Here, the parties have argued about whether the radiologists at Valley Radiologists are
agents of APD. Plaintiffs have supplied evidence to prove a variety of facts about APD's
arrangement with Valley Radiologists and the practices of APD's radiology department.
(See Doc. 41 at 11.) The court is not persuaded that any of the facts about the arrangement

between APD and Valley Radiologists are sufficient for agency in the jurisdictional context.
The important question for present purposes is whether APD directed Valley Radiologists or its
personnel to take action in Vermont with respect to Ms. Bertolini-Mier's imaging. On that issue,
the court concludes that Plaintiffs have failed to make the requisite showing.
There is simply no evidence that, in any way relevant to Ms. Bertolini-Mier's treatment,
APD directed Valley Radiologists or any of the Valley Radiologists personnel to take action in
Vermont. Plaintiffs have presented evidence from which a factfinder could conclude that
Dr. Gerke read the October 5, 2010 in Vermont. And Dr. Viazmenski read the September 14,
jurisdiction. See Cernansky v. Lefebvre, 88 F. Supp. 3d 299, 307-08 (D. Vt. 2015); Jenkins v.
Miller, 983 F. Supp. 2d 423, 447 (D. Vt. 2013).
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2011 MRI using a computer located at the Mt. Ascutney hospital in Vermont. But there is no
evidence that APD actually directed that either of those films--or any of Ms. Bertolini-Mier's
other films-be read in Vermont. Indeed, according to Dr. Hansberry, APD did not have any
role in selecting who from Valley Radiologists would interpret the relevant MRis or where the
radiologist would be physically located when doing that interpretation.
At best, Plaintiffs have shown that APD knew (and facilitated) that some of the images
produced at the APD radiology department in Lebanon, New Hampshire might be read by Valley
Radiologists personnel at other locations, such as the Mt. Ascutney hospital where Valley
Radiologists personnel also worked, or at the radiologists' homes. (See Doc. 45 at 2 (noting that
APD transmitted images to all of its "spokes," and that an APD computer was involved in each
of Ms. Bertolini-Mier's studies, including those read in Vermont); id. at 3 (asserting that APD
knew that studies were read in Vermont from time to time).) That contact with Vermont, the
court concludes, is insufficient to constitute purposeful availment.
APD's knowledge and facilitation of occasional remote work was an accommodation
(made possible by improved technology), not a purposeful effort to have MRis interpreted in
Vermont. Since technology increasingly enables radiologic images to be transmitted and
interpreted almost anywhere, a contrary conclusion could unreasonably render a hospital subject
to personal jurisdiction in virtually any location. The radiologists' occasional work in Vermont
interpreting films produced in New Hampshire is too random and attenuated to constitute a basis
for specific personal jurisdiction.
Although the parties have found few analogous cases, the court has considered the
jurisdictional analysis performed by other courts in cases regarding litigation between employers

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and their remotely working employees. 3 For example, the First Circuit recently held that an outof-state employer may be subject to jurisdiction when it reached into the forum state to hire and
support a remotely-working employee there. See Cossart v. United Excel Corp., 804 F.3d 13
(1st Cir. 2015). Here, however, APD's arrangement was not with an individual Vermont
employee, but was instead with Radiology Associates-a New Hampshire professional
association. The nature of the remote work performed by Valley Radiologists personnel is
nothing like the arrangement in Cossart. In that case, a Kansas-based employer recruited a
Massachusetts-based employee, provided him with equipment that he needed to work remotely
from Massachusetts, and registered a sales office with Massachusetts to facilitate his work for
the company. The Massachusetts-based employee performed his work primarily from
Massachusetts.
Here, by contrast, the Valley Radiologists personnel interpreting films from APD worked
primarily at the hospital in New Hampshire. APD could have anticipated occasional remote
work in Vermont, but no facts suggest that APD established any sort of remote outpost in
Vermont for the interpretation of MRI films created in N.H. Although this case involves a
personal medical service in which a portion of the requisite medical analysis was performed
within the forum state of Vermont, the circumstances of this case are still much closer to the
usual cases in which a patient travels out-of-state for treatment. In such cases, the plaintiff is
most frequently obligated to file suit in the state where he or she received treatment.

See Gelineau v. NY Univ. Hosp., 375 F. Supp. 661, 667 (D.N.J. 1974) ("When one seeks out
3

Remote work is becoming increasingly common in some sectors, including the medical
and legal fields. See Allison Deerr, BigLaw Embraces the Remote Work Trend, ABA Journal
(Aug. 1, 2017), http://www.abajoumal.com/magazine/article/biglaw_remote_flexible_
workplace_telecommute. As one court has recently observed, "[r]emote employment raises
challenges that the law is now struggling to resolve." Numeric Analytics, LLC v. McCabe,
161 F. Supp. 3d 348, 352 (E.D. Pa. 2016).
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services which are personal in nature, such as those rendered by attorneys, physicians, dentists,
hospitals or accountants, and travels to the locality where he knows the services will actually be
rendered, he must realize that the services are not directed to impact on any particular place, but
are directed to the needy person himself.").
Here, Ms. Bertolini-Mier sought treatment from a New Hampshire hospital. The hospital
entered into an arrangement with Valley Radiologists to supply interpretations of MRI films for
patients who came to APD's New Hampshire facility. APD never purposefully engaged in
activities in Vermont related to Ms. Bertolini-Mier's care. It was a matter of fortuity that two of
her films were read by independent physicians with professional privileges at ADP who worked
on occasion in Vermont (Dr. Viazmenski) or made her home in Vermont (Dr. Gerke). Because
these contacts with Vermont were not directed or ordered by ADP-which was uninvolved in the
choice or location of the radiology practitioners-these contacts do not meet the agency test for
purposeful contact through third parties with the forum state.
Because the court concludes that APD lacks the minimum contacts with Vermont
necessary for specific personal jurisdiction in this case, the court does not reach the
"reasonableness" factors that comprise the second prong of the due process inquiry. See Jenkins,
983 F. Supp. 2d at 450 ("The Court need not reach the issue ofreasonableness with respect to
those defendants that have not been shown to have minimum contacts with the forum .... ").

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Conclusion
Defendant Alice Peck Day Memorial Hospital's Motion to Dismiss (Doc. 19) is
GRANTED for lack of specific personal jurisdiction.
Dated at Rutland, in the District of Vermont, this

I 3day of September, 2017.

Geoffrey W. Crawford, Judge
United States District Court

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