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Wesly v. The National Hemophilia Foundation

Court of Appeals of Illinois, Third District

May 4, 2017

OSVALDO H. WESLY, M.D., Plaintiff-Appellee,

         Appeal from the Circuit Court of Peoria County, No. 15-L-188; the Hon. Stephen A. Kouri, Judge, presiding.

         Judgment reversed.

          Sarah E. Flotte and Daniel A. Kaufman, of Michael Best & Friedrich LLP, of Chicago, for appellant.

          Timothy J. Rigby, of Hart Southworth & Witsman, of Springfield, and Gretchen L. Schmidt, Laura A. Kenneally, Olivia L. Bedi, and Paul K. Vickrey, of Niro Law, Ltd., of Chicago, for appellee.

          Panel JUSTICE WRIGHT delivered the judgment of the court, with opinion. Justices Carter and Schmidt concurred in the judgment and opinion.



         ¶ 1 On September 18, 2015, the plaintiff, Osvaldo H. Wesly, M.D., filed a defamation action against Craig M. Kessler, M.D., and Georgetown University, together with various other defendants, including the National Hemophilia Foundation, Michael Tarantino, M.D., Kollet Koulianos, the Bleeding and Clotting Disorders Institute, an Illinois not-for-profit corporation, Bob Robinson, Bleeding Disorders Alliance Illinois, an Illinois not-for-profit corporation, Danielle Baxter, Great Lakes Hemophilia Foundation, Inc., a Wisconsin corporation, and Kathryn Reese-Kossow.

         ¶ 2 On December 8, 2015, Georgetown University filed a motion to dismiss for lack of personal jurisdiction pursuant to section 2-301 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-301 (West 2014)). On June 9, 2016, the trial court issued an order denying Georgetown University's motion to dismiss based on lack of personal jurisdiction. Georgetown University appeals this ruling.

         ¶ 3 FACTS

         ¶ 4 On September 18, 2015, the plaintiff, Osvaldo H. Wesly, M.D. (plaintiff), filed the complaint in this matter against various defendants, including Georgetown University (Georgetown) and Craig M. Kessler, M.D. (Dr. Kessler), an unpaid faculty member at Georgetown, alleging that Georgetown and Dr. Kessler made false and defamatory statements regarding plaintiff. According to the complaint, on September 20, 2014, the National Hemophilia Foundation (the NHF) presented plaintiff with the 2014 physician of the year award at an awards ceremony. After receiving this award, the complaint alleges the defendants communicated false and defamatory statements to the NHF regarding plaintiff's qualifications to receive the prestigious award.

         ¶ 5 In particular, plaintiff alleges the defendants falsely informed the NHF that plaintiff "lacked the credentials necessary to hold the [a]ward, and that documents submitted to the [NHF] contained significant inaccuracies relating to [plaintiff's] background, qualifications, and experience." The complaint also alleges that on September 22, 2014, the NHF disseminated the same false and defamatory statements regarding plaintiff by e-mail to the NHF's members and others. In addition, plaintiff claims the NHF publically posted similar false and defamatory statements regarding plaintiff to the NHF website. Plaintiff attached a copy of the posting contained on the NHF's website to his complaint, which stated

"The National Hemophilia Foundation has just become aware that documents submitted to it in connection with its 2014 NHF Physician of the Year Award to Dr. Osvaldo H. Wesly had significant inaccuracies relating to Dr. Wesly's background, qualifications, and experience. NHF is continuing to investigate the situation and, depending on the completed results, may take action, including if warranted, a revocation of the award. In any event, NHF is committed to taking all appropriate steps to insure that such a situation does not occur in the future and that the nomination process will be one of the highest integrity."

         ¶ 6 Count I of the complaint is directed against Georgetown. In that count, plaintiff alleges that Georgetown is responsible for the alleged defamatory statements Dr. Kessler made as an agent of Georgetown.

         ¶ 7 On December 8, 2015, Georgetown filed a motion to dismiss count I of the complaint pursuant to section 2-301 of the Code (735 ILCS 5/2-301 (West 2014)) for lack of personal jurisdiction.[1] Georgetown argued plaintiff's complaint did not include sufficient allegations allowing the court to exercise personal jurisdiction over the university on several grounds. First, Georgetown argued that the university could not be subject to general jurisdiction under subsection (b)(4) of section 2-209 of the Code (735 ILCS 5/2-209 (West 2014)) because the complaint did not allege Georgetown was "doing business" in the state. 735 ILCS 5/2-209(b)(4) (West 2014). Second, Georgetown asserted Dr. Kessler was not acting as an agent of the university at the time he communicated the alleged defamatory statements, which is necessary to give rise to specific jurisdiction over the university. 735 ILCS 5/2-209(a)(2) (West 2014). Lastly, Georgetown argued that it did not have sufficient contacts with Illinois to satisfy due process requirements.

         ¶ 8 Georgetown submitted two affidavits in support of the motion to dismiss. One affidavit was prepared by Jose Madrid (Madrid), a litigation manager in Georgetown's office of vice president and general counsel. Madrid's affidavit stated that Georgetown is a private university with campuses located in Washington, D.C. Georgetown does not have a campus or an office in Illinois, is not registered to do business in Illinois, and does not maintain an agent for service of process in Illinois. Additionally, Georgetown is not registered as a charitable organization in Illinois. Georgetown currently employs 6000 employees, and only one employee has a primary work address within the state of Illinois. According to Madrid's affidavit, Dr. Kessler holds an unpaid faculty appointment with Georgetown and is not on Georgetown's payroll. Georgetown has not made any payments to Dr. Kessler for his services.

         ¶ 9 Georgetown also attached Dr. Kessler's affidavit to the motion to dismiss. Dr. Kessler stated that he is a board-certified physician in internal medicine and hematology. According to this affidavit, Dr. Kessler is employed as a full-time salaried hematologist/oncologist at MedStar-Georgetown Medical Center, Inc., d/b/a Georgetown University Hospital (MedStar) in Washington, D.C.[2] Dr. Kessler also holds an unpaid faculty appointment with Georgetown, serving as the professor of medicine, pathology, and oncology at Vincent Lombardi Comprehensive Cancer Center, which is part of Georgetown University Hospital. Dr. Kessler is also the director of the coagulation laboratory at Georgetown. According to Dr. Kessler's affidavit, he is paid by Medstar and does not receive any compensation from Georgetown.

         ¶ 10 Dr. Kessler stated that in his capacity as a board-certified hematologist, he has worked as an unpaid volunteer for the NHF. Dr. Kessler stated that all of his work for the NHF has been separate and independent from his unpaid faculty appointment with Georgetown. Dr. Kessler stated that Georgetown has not directed or exercised any control over the manner or method in which he performed his volunteer work for the NHF. Finally, Dr. Kessler stated the allegations in the complaint are incorrect; however, he claims that even if he had committed such actions, he would not have done so in his capacity as an unpaid faculty member with Georgetown.

         ¶ 11 Plaintiff submitted his own affidavit in support of his response to Georgetown's motion to dismiss. In the affidavit, plaintiff stated that he is a practicing physician in Illinois and was the medical director of the Comprehensive Bleeding Disorders Center (CBDC), a nonprofit organization devoted to treating children and adults with bleeding and clotting disorders. CBDC is based in Peoria, Illinois, and has locations throughout the state. Plaintiff claims that since the filing of the complaint in this case and as a result of the defamatory statements made by the defendants, CBDC terminated plaintiff's position as medical director of CBDC on March 4, 2016.

         ¶ 12 Plaintiff also attached over 50 pages of unverified exhibits, without a supporting affidavit, to his response in opposition to the motion to dismiss.[3] These exhibits consist of information downloaded from various websites regarding Georgetown's recruiting and fundraising efforts in Illinois. The exhibits show that for the class of 2016, Georgetown had 691 applicants and 48 admitted students from Illinois. In 2015, Georgetown's office of undergraduate admissions made visits to Chicago and Champaign, Illinois, to recruit applicants. Generally, all first-year applicants to Georgetown's undergraduate program are required to be interviewed in Illinois by a local alumnus as a part of the admissions process. Georgetown also has an alumni club located in Chicago, Illinois. Georgetown regularly holds recruiting and alumni events in Illinois in relation to its business and law schools. In addition, Georgetown relies upon the fundraising efforts of the university's Illinois alumni. For example, in 2013, Georgetown issued a press release indicating that a larger proportion of Chicago alumni donated funds in a one-day fundraising effort than any of Georgetown's other six largest domestic undergraduate markets.

         ¶ 13 Plaintiff also attached an exhibit containing a portion of Georgetown's faculty handbook. According to Georgetown's faculty handbook, the university encourages its faculty members to engage in service to their profession, including teaching and research activities, and service to the public. Georgetown also encourages its faculty members to participate in important professional and educational associations and societies in their respective fields. The quality and quantity of a faculty member's service ...

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