United States District Court, N.D. Illinois, Eastern Division
For Kayla Johnson, Plaintiff: Joshua Lawrence Weisberg, LEAD ATTORNEY, Bryan William Hernandez, David E. Rapoport, Rapoport Law Offices, P.C., Chicago, IL; Matthew S Sims, Rapoport Law Offices, Chicago, IL.
For Deba Sarma, M.D., Defendant: Robert M Collins, LEAD ATTORNEY, Joshua Erik Bidzinski, Susan E. Sullivan, Swanson, Martin & Bell, LLP, Chicago, IL.
For Creighton University, Defendant: Susan E. Sullivan, Swanson, Martin & Bell, LLP, Chicago, IL.
MEMORANDUM OPINION AND ORDER
Joan B. Gottschall, United States District Judge.
Dr. Deba Sarma, a dermatopathologist at Creighton Medical Laboratories at Creighton University in Nebraska, examined a lesion excised from plaintiff Kayla Johnson's leg in Illinois and determined that there was no suggestion of melanoma. Johnson was subsequently diagnosed with melanoma, and this diversity lawsuit against Dr. Sarma and Creighton University followed. Dr. Sarma and Creighton University have moved to dismiss for lack of personal jurisdiction and improper venue pursuant to Fed.R.Civ.P. 12(b)(2) and (3), respectively. For the following reasons, the motions to dismiss are denied.
A. The Parties
Plaintiff Kayla Johnson is an Illinois citizen. Defendant Deba Sarma. M.D., is a Nebraska citizen who was employed by Creighton University when this lawsuit was filed but is now retired. From 2006 to 2012, Dr. Sarma served as Creighton University Medical School's Director of Dermatopathology. Defendant Creighton University is a Nebraska corporation with its principal place of business in Nebraska.
Katie Booton, a risk management specialist with Creighton University, submitted an affidavit in support of Creighton University's motion to dismiss. She asserts that Creighton University had an agreement with Dr. Eric Santos, who treated Johnson in Illinois. Pursuant to this agreement, Creighton provided consulting opinions on certain pathology slides. Creighton University entered into a pricing agreement with Dr. Santos' medical practice for the pathology work it performed. Dr. Santos testified at his deposition that prior to the filing of this lawsuit, Creighton University periodically reached out to him to advise him of additional testing services it offered and to provide updated pricing lists. (Santos Dep., Dkt. 73-11, at 38.) From 2006 through 2009, Dr. Santos sent approximately one to two pathology slides to Creighton University per month, including pap smears and prostate biopsies.
In addition, schools and departments of Creighton University have entered into affiliation agreements with entities in Illinois. Booton describes these as " agreement[s] that Creighton University has with other healthcare facilities to allow its students to receive credit for rotations at those healthcare facilities." (Booton Aff., Dkt. 41-2, ¶ 10.) According to Creighton University, its School of Pharmacy currently has approximately eighty-five affiliation agreements with healthcare facilities in Illinois and approximately eleven long-distance students in Illinois. Creighton University School of Physical Therapy has
approximately eleven active affiliation agreements with healthcare facilities in Illinois and approximately eight students performing clinical rotations in healthcare facilities in Illinois this year. Creighton University School of Occupational Therapy has eighteen affiliation agreements and approximately ten students who perform clinical rotations in healthcare facilities in Illinois each year.
Johnson asserts that at least fifty-two affiliation agreements contain a choice of law clause providing that any disputes will be governed by Illinois law and at least thirty-seven of these agreements contain a forum selection clause specifying that litigation must proceed in Illinois. She also states that the affiliation agreements require Creighton University to maintain liability insurance covering Illinois hospitals where its students practice.
Creighton University has an Alumni Club in Illinois that maintains a Facebook page and hosts events. Creighton University Alumni Relations staff occasionally attends these events. Creighton University's admissions department has one employee who resides in Illinois. Her territory covers Illinois and portions of Wisconsin. Creighton University has five additional employees who reside in Illinois and work as " online faculty and/or in other capacities." ( Id. at ¶ 13.) Creighton University's marketing and communications department engages in digital marketing " in various regions of the country." ( Id. at ¶ 14.) Illinois is in one of these regions, but Booton asserts that Creighton does not specifically target advertising at Illinois.
Johnson asserts that Creighton University refused to disclose how much money it makes based on contacts with Illinois. To the extent that she sought this information (the citations in her filings are unclear), she did not follow up with the magistrate judge supervising jurisdictional discovery.
B. Johnson's Diagnosis
In January 2011, Johnson had an appointment with Dr. Damian Grivetti at St. Margaret's Health Center in Peru, Illinois. Dr. Grivetti excised a lesion on Johnson's leg and sent it to the pathology department at St. Margaret's Hospital to be evaluated for possible melanoma. Eric Santos, M.D., a pathologist at St. Margaret's, opined that " the pathology showed an atypical compound melanocytic proliferation, with the differential ...