United States District Court, D. Vermont
OPINION AND ORDER (Doc. 19)
Geoffrey W. Crawford, Judge
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.)
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).
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. Bertolini-Mier
first met with Dr. Ayres on August 16, 2007, after being
referred to him by her Vermont-based neurologist and primary
care physician. (See Doc. 44-4 ¶ 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. ¶ 3; see also Doc. 44-6.) Some of
those studies were performed at APD's facility in
Lebanon, New Hampshire. (See Doc. 44-4 ¶ 4.)
According to Mr. Mier, his wife was directed to APD for
radiology services, not to any individual physician. (Doc.
41-1 ¶ 2.) 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. ¶¶ 3, 5.)
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 ¶ 7; Doc. 19-1 ¶
2; Doc. 21-1 ¶ 8, Doc. 21-7.) APD provides medical
services to Vermont patients, advertises in Vermont, and
consults with the Vermont Department of Health. (Doc. 8
¶ 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
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
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.) 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
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 ¶ 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
technology has made it possible for the radiologists to work
remotely or from home. (See Doc. 44-2 at 4; Doc.
44-5 ¶ 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 ¶ 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.)
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
¶ 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 ¶ 2.)
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 ¶ 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 ¶ 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 would interpret the October 5, 2010
MRI or where the radiologist would be physically located when
doing that interpretation. (Doc. 44-5 ¶ 3.)
criticize APD for misstating facts. (See Doc. 41 at
3; Doc. 45 at 1 n.l.) 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 ¶
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 ¶ 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 ¶ 3.)
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 ¶ 3 (computer was
"presumably" at Dr. Gerke's home in Vermont).)
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 verification of ...