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Terri Mcnally, Sean Mulroney, and J. Brian Pierce v. Greg Morrison

March 15, 2011

TERRI MCNALLY, SEAN MULRONEY, AND J. BRIAN PIERCE,
PLAINTIFF-APPELLANTS,
v.
GREG MORRISON,
DEFENDANT-APPELLEE.
(TASA GROUP, INC., DEFENDANT).



Appeal from the Circuit Court of Cook County No. 09 L 2565 Honorable Dennis J. Burke,Judge Presiding.

The opinion of the court was delivered by: Justice Harris

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Karnezis and Connors concurred in the judgment.

OPINION

Here we are called upon to determine whether the trial court has personal jurisdiction pursuant to the Illinois long arm statute (735 ILCS 5/2-209 (West 2008)) over a nonresident defendant. For the following reasons, we reverse the decision of the trial court and find that the court does have personal jurisdiction over defendant.

Plaintiffs Terri McNally, Sean Mulroney, and J. Brian Pierce sued defendants Greg Morrison, M.D., and TASA Group, Inc.,*fn1 in the circuit court of Cook County in 2009, alleging breach of contract, consumer fraud, fraud, and professional negligence. These actions arise from plaintiffs' hiring of Dr. Morrison, who resides in the state of Ohio, as their controlled expert witness in a separate tort suit that Mulroney and Pierce had filed on behalf of McNally. The defendant rendered to plaintiffs his expert report, opining that Dr. Mark Zukowski had deviated from the standard of care. The plaintiffs relied on the expert report and opinion in proceeding with the tort action. At his deposition, defendant contradicted his expert report in its entirety and testified that Dr. Zukowski's actions did not deviate from the standard of care. Following the dismissal of their case against Dr. Zukowski, plaintiffs filed this case and Morrison moved to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)) alleging that the trial court did not have personal jurisdiction over him. The trial court granted defendant's motion to dismiss and plaintiffs filed this timely appeal. The only issue before us is whether the trial court had personal jurisdiction over defendant.

JURISDICTION

The trial court entered a final judgment in the instant case on September 23, 2009, and defendant filed his notice of appeal on October 6, 2009. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); 303 (eff. May 30, 2008).

BACKGROUND

The events of this case begin with a separate and unrelated medical malpractice action that plaintiffs Mulroney and Pierce, both attorneys, had brought on behalf of plaintiff McNally against plastic surgeon Dr. Mark Zukowski. Plaintiffs alleged in their complaint against Zukowski that he negligently performed ultrasonic (UAL) and traditional liposuction on McNally. In the course of preparing their case against Zukowski, Mulroney and Pierce contacted TASA, a referral service that connects testifying and consulting experts with clients in law, industry, and government. Mulroney and Pierce informed TASA that they sought physicians who could testify as expert witnesses regarding UAL procedures such as the one performed on McNally. TASA provided Mulroney and Pierce with the names and contact information for several plastic surgeons who met plaintiffs' specifications.

After speaking with each of the prospective experts via telephone, Mulroney and Pierce decided to employ defendant Morrison, an Ohio plastic surgeon, in their case against Zukowski. On October 10, 2005, Pierce sent a retention letter to Morrison. The letterhead on the page bore the name "J. Brian Pierce & Associates/Attorneys at Law" and listed an address in Chicago, Illinois. No other reference to the State of Illinois appeared in the document. The letter stated that Morrison had been recommended by TASA and briefly described the liposuction procedure and follow-up care at issue in the action against Zukowski. The letter then concluded as follows:

"I have enclosed several items for your review. If possible, I would like to briefly discuss this matter with you tomorrow afternoon. Dr. Zukowski's deposition will proceed the following day on Wednesday, October 12, 2005.

I have been informed of your fee structure, and I accept the terms of the same. I look forward to working with you on this matter."

On October 11, 2005, TASA sent a memorandum of confirmation to Pierce & Associates, the law firm of plaintiff Pierce. The memorandum references an attached rate sheet that details the rates and fees for Dr. Morrison's services. It also states that, "After reviewing your requirements, we have referred the above-named Expert [Morrison]," and further states that TASA will bill the firm for "all time the Expert spends on your behalf." Although the memorandum includes the legend, "IMPORTANT - SEE OTHER SIDE," the copy attached to plaintiffs' complaint in the instant case contains only the first page. The exhibit does not include the reverse side of the memorandum. However, the memorandum nowhere purported to describe what duties an expert referred by TASA would perform or that Dr. Morrison, the expert, was an agent of TASA. It merely indicated that TASA would and did provide referral and billing services.

The rate sheet included in the exhibit attached to the memorandum includes fee rates for, among other items, out-of-office depositions and court appearances. In addition, the rate sheet designated that fees were estimated and payable in advance to TASA.

On October 26, 2005, Mulroney sent Morrison a second letter and enclosed preoperation and postoperation photographs from McNally's liposuction procedure. Pierce sent a third letter to Morrison on November 20, 2005. This third letter acknowledged Mulroney's receipt of a report prepared by Morrison in October. With the letter, Mulroney enclosed additional photographs "as per your request," along with Zukowski's deposition for Morrison's "review and reference in [his] final report." The letter also included directions to Morrison regarding his final report. Specifically, the letter directed Morrison to remove from his final report any reference to the observations of Dr. John Hugill, who had submitted the affidavit required for filing a medical malpractice suit in Illinois. See 735 ILCS 5/2-622 (West 2008). The letter concluded as follows: "I am very pleased with your report with the elimination of reference to Dr. Hugill, and with the future incorporation of the pictures and the deposition of Dr. Mark Zukowski."

On January 31, 2006, Mulroney mailed Morrison a fourth letter, enclosing the deposition transcripts of Dr. Zukowski. Approximately 10 months later, on December 1, 2006, Morrison mailed his expert witness report to Mulroney. Morrison's report includes the header "TASA Case #IL" and states that it is in regard to "your client Terry McNally [sic] and her legal action against Dr. Mark Zuckowski [sic]."

Mulroney stated in an affidavit that sometime during the second week of January 2007, he had a telephone conversation with Morrison to discuss the expert witness report and to begin preparations for Morrison's deposition, which would be taken in February 2007. In order to accommodate Morrison's private practice, Pierce and Mulroney, along with attorneys for Dr. Zukowski, agreed to hold the deposition in Morrison's office in Ohio. Mulroney arranged to spend some time with Morrison in Ohio prior to the deposition in order to prepare his testimony. In his affidavit, Mulroney attested that, "During our preparation, Dr. Morrison informed me that he had been unable to locate and therefore had never reviewed the deposition transcripts of [McNally] and [Dr. Zukowski] nor had he looked at the pre and post operation photographs of Ms. McNally. When I expressed concern, he assured me that he was firm in his opinion regardless of his failure to review those items." However, at the deposition, Morrison contradicted his expert report in its entirety and testified that Dr. Zukowski's actions did not deviate from the standard of care.

During this period, from October 2005 through February 2007, Mulroney and Pierce had sent TASA four checks in response to bills for the time that Morrison had spent on the Zukowski case. All billing and payments went through TASA; the record does not contain any evidence of Morrison directly billing plaintiffs for his services.

After Morrison's deposition, plaintiffs' case against Dr. Zukowski was dismissed. In addition, Morrison signed an affidavit attesting that he had not reviewed McNally's entire medical record prior to his deposition and that, after reviewing the entire record, he opined that Dr. Zukowski's actions did not meet the applicable standard of care and contributed to McNally's injuries.

Following the dismissal of their case against Dr. Zukowski, plaintiffs commenced the instant action against Morrison and TASA. In their complaint, plaintiffs sued Morrison both individually and, in the alternative, as an agent of TASA. The complaint pled one count - breach of contract - against TASA*fn2 and four counts against Morrison. Specifically, plaintiffs alleged

On May 13, 2009, Morrison filed a motion to dismiss pursuant to section 2-619 alleging that the complaint failed to state a basis upon which the trial court could exercise personal jurisdiction over him. In support of his ...


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