{ "id": 1073563, "name": "MARIE WEIDEN, Plaintiff-Appellant, v. JOEL S. BENVENISTE et al., Defendants-Appellees", "name_abbreviation": "Weiden v. Benveniste", "decision_date": "1998-08-06", "docket_number": "No. 3-97-0986", "first_page": "531", "last_page": "536", "citations": [ { "type": "official", "cite": "298 Ill. App. 3d 531" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "345 N.E.2d 149", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "Missouri physician not subject to Illinois jurisdiction for writing prescription in Missouri and filled in Illinois by an Illinois resident" } ], "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 6", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2714674 ], "year": 1976, "pin_cites": [ { "parenthetical": "Missouri physician not subject to Illinois jurisdiction for writing prescription in Missouri and filled in Illinois by an Illinois resident" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0006-01" ] }, { "cite": "428 N.E.2d 532", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "Missouri physician not subject to Illinois jurisdiction for treating an Illinois resident" } ], "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 601", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3087149 ], "year": 1981, "pin_cites": [ { "parenthetical": "Missouri physician not subject to Illinois jurisdiction for treating an Illinois resident" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0601-01" ] }, { "cite": "444 N.E.2d 780", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "Indiana physician not subject to Illinois jurisdiction for writing prescription in Indiana for an Illinois resident" } ], "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 775", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5438006 ], "year": 1982, "pin_cites": [ { "parenthetical": "Indiana physician not subject to Illinois jurisdiction for writing prescription in Indiana for an Illinois resident" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0775-01" ] }, { "cite": "189 N.E.2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "pin_cites": [ { "page": "38" } ], "opinion_index": 0 }, { "cite": "40 Ill. App. 2d 217", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5252135 ], "year": 1963, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/40/0217-01" ] }, { "cite": "664 N.E.2d 324", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "327" } ], "opinion_index": 0 }, { "cite": "279 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75269 ], "year": 1996, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0061-01" ] }, { "cite": "145 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "pin_cites": [ { "page": "80" } ], "opinion_index": 0 }, { "cite": "12 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2780716 ], "year": 1957, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0083-01" ] }, { "cite": "71 F.3d 1368", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7416282 ], "year": 1995, "pin_cites": [ { "page": "1372" } ], "opinion_index": 0, "case_paths": [ "/f3d/71/1368-01" ] }, { "cite": "650 N.E.2d 565", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "568" } ], "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 230", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258770 ], "year": 1995, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0230-01" ] }, { "cite": "578 N.E.2d 1139", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1144" } ], "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 866", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499432 ], "year": 1991, "pin_cites": [ { "page": "872" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0866-01" ] }, { "cite": "442 F. Supp. 1276", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3974647 ], "year": 1978, "pin_cites": [ { "page": "1279" } ], "opinion_index": 0, "case_paths": [ "/f-supp/442/1276-01" ] }, { "cite": "444 U.S. 286", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11306135 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "297" }, { "page": "501" }, { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/us/444/0286-01" ] }, { "cite": "357 U.S. 235", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6162253 ], "weight": 3, "year": 1958, "pin_cites": [ { "page": "253" }, { "page": "1298" }, { "page": "1239" } ], "opinion_index": 0, "case_paths": [ "/us/357/0235-01" ] }, { "cite": "565 N.E.2d 1302", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1316" } ], "opinion_index": 0 }, { "cite": "141 Ill. 2d 244", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238267 ], "year": 1990, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0244-01" ] }, { "cite": "471 U.S. 462", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205101 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "472-78" }, { "page": "540-44" }, { "page": "2182-85" } ], "opinion_index": 0, "case_paths": [ "/us/471/0462-01" ] }, { "cite": "326 U.S. 310", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157001 ], "weight": 3, "year": 1945, "pin_cites": [ { "page": "316" }, { "page": "102" }, { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/us/326/0310-01" ] }, { "cite": "674 N.E.2d 906", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "911" } ], "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 758", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295529 ], "year": 1996, "pin_cites": [ { "page": "764" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0758-01" ] } ], "analysis": { "cardinality": 652, "char_count": 10870, "ocr_confidence": 0.749, "pagerank": { "raw": 4.339701094470699e-08, "percentile": 0.2728128165001126 }, "sha256": "4fcf01a88696794c197d9ad1e2e1a478f6aaa77d019aeb914713738f43758334", "simhash": "1:a6bd7cbcee0646c4", "word_count": 1741 }, "last_updated": "2023-07-14T16:29:38.148323+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARIE WEIDEN, Plaintiff-Appellant, v. JOEL S. BENVENISTE et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE KOEHLER\ndelivered the opinion of the court:\nThe plaintiff in this medical malpractice case, Marie Weiden, appeals the circuit court\u2019s dismissal of her complaint for lack of personal jurisdiction over the defendants, physicians who reside and practice medicine in the State of Florida. We must decide whether the circuit court erred in dismissing the plaintiffs complaint for lack of personal jurisdiction, and in so doing, we must answer the following two questions: (1) May the circuit court exercise jurisdiction over an out-of-state physician where the physician\u2019s report was sent to an Illinois physician and the alleged negligence caused an injury in Illinois? and (2) Does a defendant waive his special and limited appearance by objecting to a request for a continuance and making a motion to strike an amended complaint? Because we conclude that the circuit court did not err, we affirm.\nI\nPlaintiff Marie Weiden filed a complaint in the circuit court of La Salle County against defendants, Joel S. Benveniste, M.D., Paul Miller, M.D., and Gregory Fairchok, M.D., alleging that the physicians misinterpreted mammogram films in Florida in 1990, 1991, 1992 and 1994. The plaintiff alleges that the defendants negligently failed to detect a lesion on her left breast, which subsequently developed into a malignant tumor.\nThe plaintiff, a resident of Illinois, traveled to Florida annually for the winter. During those trips in 1990, 1991, 1992, and 1994, she obtained mammograms at a mobile testing trailer, and the films were sent to a local hospital, the Holmes Regional Medical Center, where they were interpreted by the defendant radiologists.\nIn 1994, the plaintiff requested that the 1994 mammogram report prepared by the defendants be sent to her personal physician, William Farley, in La Salle County, Illinois. A clerical employee at the Holmes Regional Medical Center processed her request, and Dr. Farley relied on the defendants\u2019 report in treating the plaintiff.\nThe plaintiff learned she had cancer of the left breast in February 1995. After the plaintiff filed her complaint, but before the defendants had been served or had entered an appearance, the plaintiff filed an amended complaint without leave of court. Through a special and limited appearance (735 ILCS 5/2 \u2014 301 (West 1996)), the defendants moved to quash service and to dismiss the plaintiffs original complaint for lack of personal jurisdiction. The circuit court dismissed the complaint for want of personal jurisdiction and subsequently denied the plaintiffs motion to reconsider or, in the alternative, for leave to file a second amended complaint. This appeal followed.\nII\nThe issue of whether the circuit court has personal jurisdiction over a defendant is a question of law, which is reviewed de novo. White v. Ratcliffe, 285 Ill. App. 3d 758, 764, 674 N.E.2d 906, 911 (1996). In ruling on an objection to personal jurisdiction made by special appearance, \u201cthe court shall consider all matters apparent from the papers on file in the case, affidavits submitted by any party, and any evidence adduced upon disputed issues of fact.\u201d 735 ILCS 5/2 \u2014 301(b) (West 1996).\nA. Due Process\nThe Illinois long-arm statute is coextensive with the due process requirements of the state and federal constitution. 735 ILCS 5/2 \u2014 209(c) (West 1996). A court\u2019s assertion of personal jurisdiction satisfies the United States Constitution when it comports with \u201ctraditional notions of fair play and substantial justice.\u201d International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158 (1945). Due process is satisfied when (1) the nonresident had \u201cminimum contacts\u201d with the state forum such that he had \u201cfair warning\u201d that he might be required to defend there; (2) the action arose out of or related to the defendant\u2019s contacts with the forum; and (3) it is reasonable to require the defendant to litigate in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-78, 85 L. Ed. 2d 528, 540-44, 105 S. Ct. 2174, 2182-85 (1985); U.S. Const., amend. XIV The Illinois Constitution requires that personal jurisdiction only be asserted when it is \u201cfair, just, and reasonable to require a nonresident defendant to defend an action in Illinois, considering the quality and nature of the defendant\u2019s acts which occur in Illinois or which affect interests located in Illinois.\u201d Rollins v. Ellwood, 141 Ill. 2d 244, 275, 565 N.E.2d 1302, 1316 (1990); Ill. Const. 1970, art. I, \u00a7 2.\nThe \u201cfair warning\u201d requirement is met if the defendant \u201cpurposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.\u201d Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228, 1239 (1958). The rationale behind this \u201cfair warning\u201d requirement is to give \u201ca degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.\u201d World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 501, 100 S. Ct. 559, 567 (1980).\nDo the defendants have \u201cminimum contacts\u201d with Illinois such that they could have reasonably anticipated being hailed into an Illinois court? The defendants\u2019 \u201ccontacts\u201d with Illinois consist of the following two facts: (1) a report prepared by the defendants, interpreting the plaintiff\u2019s mammogram, was mailed by a hospital clerical worker to the plaintiff\u2019s personal physician in Illinois; and (2) the plaintiff suffered an injury in Illinois stemming from the defendants\u2019 alleged misdiagnosis. These two facts alone are an insufficient basis for establishing that the defendants \u201cpurposefully availed\u201d themselves of the privilege of conducting activities in Illinois. None of the defendants\u2019 activities were directed to Illinois; all of the activities were confined to Florida. Nothing in the record suggests that the defendants knew that the plaintiff was an Illinois resident or that their report would be sent to an Illinois physician. The defendants had no warning that their activities might subject them to the jurisdiction of an Illinois court.\nSome communications by a defendant into the forum state have been held sufficient to establish \u201cminimum contacts.\u201d A Utah physician who rendered a diagnosis via a series of telephone calls to his patient in Montana was held to have subjected himself to the jurisdiction of the Montana courts. McGee v. Riekhoff, 442 F. Supp. 1276, 1279 (D.C. Mont. 1978). A Texas attorney who wrote letters and made phone calls to individuals in Illinois on behalf of an Illinois client \u201cpurposefully directed\u201d his activities at Illinois residents. Ores v. Kennedy, 218 Ill. App. 3d 866, 872, 578 N.E.2d 1139, 1144 (1991). Similarly, a West Virginia attorney was forced to defend a malpractice action in Illinois stemming from his handling of a lawsuit in West Virginia for an Illinois client because he \u201cpurposefully directed\u201d activities to an Illinois resident by writing letters and making phone calls to his client in Illinois. Culligan International Co. v. Wallace, Ross & Sims, 273 Ill. App. 3d 230, 232, 650 N.E.2d 565, 568 (1995). Finally, a North Carolina attorney retained by an Illinois resident to handle an Illinois lawsuit and who wrote letters and made phone calls to individuals in Illinois \u201cpersonally availed\u201d himself of the privilege of conducting business in Illinois. Klump v. Duffus, 71 F.3d 1368, 1372 (7th Cir. 1995). These cases represent the outer limit of \u201cminimum contacts,\u201d and this case is distinguishable: (1) the defendants themselves did not mail the report to the Illinois physician; and (2) the defendants did not know that they were treating an Illinois resident.\nB. Waiver\nDid the defendants waive their special and limited appearance by objecting to the plaintiffs motion for a continuance or by moving to strike the plaintiffs amended complaint? Typically, any action taken by a litigant that \u201crecognizes the case as in court\u201d amounts to a general appearance unless the action was taken for the sole purpose of objecting to jurisdiction. Lord v. Hubert, 12 Ill. 2d 83, 87, 145 N.E.2d 77, 80 (1957). Moreover, not all motions are \u201csubmissions to the jurisdiction of the court.\u201d Harris v. Wally\u2019s World of Fun, Ltd., 279 Ill. App. 3d 61, 65, 664 N.E.2d 324, 327 (1996). In this case, the defendants\u2019 objection to a continuance was related to their motion to dismiss for lack of personal jurisdiction. The objection did not address any substantive issue in the case and thus did not submit them to the jurisdiction of the court, See Jones v. Jones, 40 Ill. App. 2d 217, 228, 189 N.E.2d 33, 38 (1963). Likewise, the defendants\u2019 motion to strike was similarly bound up with their assertion that the circuit court lacked personal jurisdiction. The plaintiff had filed an amended complaint without leave of court; the defendants\u2019 motion to strike sought only to ensure that the circuit court decided the defendants\u2019 objection to personal jurisdiction with reference to the original complaint \u2014 the only complaint properly filed. Because the defendants\u2019 actions did not go to the merits of the case and were consistent with their objection to personal jurisdiction, they did not waive their special and limited appearance.\nIll\nIn sum, we conclude that the circuit court did not err in dismissing the plaintiffs complaint for lack of personal jurisdiction: (1) the circuit court may not exercise personal jurisdiction over an out-of-state defendant absent some minimum contacts with Illinois, and (2) a party does not waive a special and limited appearance unless it takes an action addressing a substantive issue in the case or some other action inconsistent with its objection to personal jurisdiction.\nAffirmed.\nBRESLIN and SLATER, JJ., concur.\nAccord Veeninga v. Alt, 111 Ill. App. 3d 775, 444 N.E.2d 780 (1982) (Indiana physician not subject to Illinois jurisdiction for writing prescription in Indiana for an Illinois resident); Ballard v. Rawlins, 101 Ill. App. 3d 601, 428 N.E.2d 532 (1981) (Missouri physician not subject to Illinois jurisdiction for treating an Illinois resident); Muffo v. Forsyth, 37 Ill. App. 3d 6, 345 N.E.2d 149 (1976) (Missouri physician not subject to Illinois jurisdiction for writing prescription in Missouri and filled in Illinois by an Illinois resident).", "type": "majority", "author": "JUSTICE KOEHLER" } ], "attorneys": [ "Christopher V. Langone (argued), of Langone & Hodes, of Chicago, and Raymond H. Moeller, of Oak Brook, for appellant.", "David Cahill (argued), of Swanson, Martin & Bell, of Wheaton, and Michael T. Reagan, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, PC., of Ottawa, for appellees." ], "corrections": "", "head_matter": "MARIE WEIDEN, Plaintiff-Appellant, v. JOEL S. BENVENISTE et al., Defendants-Appellees.\nThird District\nNo. 3\u201497\u20140986\nOpinion filed August 6, 1998.\nChristopher V. Langone (argued), of Langone & Hodes, of Chicago, and Raymond H. Moeller, of Oak Brook, for appellant.\nDavid Cahill (argued), of Swanson, Martin & Bell, of Wheaton, and Michael T. Reagan, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, PC., of Ottawa, for appellees." }, "file_name": "0531-01", "first_page_order": 551, "last_page_order": 556 }