Harlow v. Children's Hospital

United States Court of Appeals
For the First Circuit

No. 05-1605

DANIELLE HARLOW,

Plaintiff, Appellant,

v.

CHILDREN'S HOSPITAL,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.

Adam A. Rowe, with whom Leo J. Dunn, III and Crowe & Dunn
were on brief, for appellant.
James B. Haddow, with whom Bradford A. Pattershall and
Petruccelli, Martin & Haddow, LLP were on brief, for appellee.

December 20, 2005
 LYNCH, Circuit Judge. In November 2004, Danielle Harlow

of Turner, Maine, sued Children's Hospital of Boston,

Massachusetts, in the Maine Superior Court for medical malpractice

during a procedure performed at the Hospital on May 10, 1993.

Danielle was six years old at the time of the procedure. The

issues addressed here would never have arisen had she filed suit in

Massachusetts courts, which had jurisdiction over the Hospital,

before the expiration of the Massachusetts three-year statute of

limitations. See Mass. Gen. Laws ch. 231, § 60D. She did not file

such a suit.

Rather, Harlow instituted proceedings in Maine after the

Massachusetts statute had expired. Maine allows minors to commence

an action "within 6 years after the cause of action accrues or

within 3 years after the minor reaches the age of majority,

whichever first occurs." Me. Rev. Stat. Ann. tit. 24, § 2902. The

November 2004 suit was timely filed under Maine law because Harlow

had filed a Notice of Claim before the six years had expired,

thereby tolling the statute of limitations. See id. § 2859. The

question is whether an exercise of personal jurisdiction over the

Hospital in Maine would comport with Maine's long-arm statute and

the Due Process Clause.

The Hospital removed the Maine case to federal court,

invoking diversity jurisdiction. The Hospital then moved to

dismiss the case for lack of personal jurisdiction. The court

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granted that motion, and Harlow appeals. We affirm. In doing so,

we clarify the time frame of the evidence to which a court may look

in deciding whether a defendant's contacts with a state are

sufficient to justify personal jurisdiction, both specific and

general.

I.

In 1993, Danielle Harlow underwent a radiofrequency

cardiac ablation procedure at the Hospital in Boston. The

procedure was performed to treat Harlow's supraventricular

tachyarrhythmia, a condition secondary to Harlow's Wolff-Parkinson-

White syndrome. Allegedly as a result of the Hospital's

negligence, Harlow suffered a stroke during the procedure. Harlow

alleges that the stroke caused brain damage, with the result that

she suffers serious permanent injury in the form of severe left

hemiparesis,1 as well as cognitive and behavioral impairments,

including "cognitive deficits, personality changes, attention and

concentration deficits, impulsivity, and an inability to modulate

her behavior."

In May 1999, Harlow filed a notice of medical malpractice

claim against the Hospital and four affiliated doctors, initiating

1
Hemiparesis is "muscular weakness or partial paralysis
restricted to one side of the body," according to Webster's Third
New International Dictionary 1054 (1993). Harlow says that she
suffers from a deformity in her left hand and from impaired gait
and balance. In particular, according to a doctor who evaluated
Harlow, Harlow has a "claw hand" on the left side and her left foot
turns inward as she walks.

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mandatory prelitigation screening panel proceedings, as required by

Maine law. See Me. Rev. Stat. Ann. tit. 24, §§ 2853, 2903. The

defendants asserted lack of personal jurisdiction over them in

Maine; the panel chair, acting on a joint motion of the parties,

referred the issue of jurisdiction to the Maine Superior Court

pursuant to Me. Rev. Stat. Ann. tit. 24, § 2853(5). In February

2001, after briefing, the Superior Court granted the defendant

doctors' motion to dismiss for lack of personal jurisdiction, but

denied the Hospital's motion, ruling that there was personal

jurisdiction over the Hospital (the court did not specify whether

it was relying on general or specific jurisdiction, and it cited

factors pertinent to both).

In October 2004, the screening panel unanimously decided

that the Hospital's treatment of Harlow had deviated from the

applicable standard of care and had caused her injury. In November

2004, Harlow filed her medical malpractice complaint in Maine

Superior Court. The Hospital removed the case to federal court and

moved to dismiss for lack of personal jurisdiction under Fed. R.

Civ. P. 12(b)(2). Harlow filed an objection on the merits and

under the law of the case doctrine, and the Hospital filed a reply.

In March 2005, the district court granted the Hospital's

motion to dismiss. The court observed that to the extent the "law

of the case" doctrine applied at all, it is "a matter of

discretion," and that it was preferable to resolve the issue. The

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court, sitting in diversity, held that it lacked personal

jurisdiction, both specific and general, over the Hospital.

On appeal, Harlow argues that the district court erred in

two ways: first, the law of the case doctrine precluded the

Hospital from relitigating the issue of personal jurisdiction, and

second, on the merits, Harlow had established personal jurisdiction

over the Hospital.

II.

A. Law of the Case

"[L]aw of the case is an amorphous concept. As most

commonly defined, the doctrine posits that when a court decides

upon a rule of law, that decision should continue to govern the

same issues in subsequent stages in the same case. Law of the case

directs a court's discretion, it does not limit the tribunal's

power." Arizona v. California, 460 U.S. 605, 618 (1983) (citation

and footnote omitted). "Under law of the case doctrine, as now

most commonly understood, it is not improper for a court to depart

from a prior holding if convinced that it is clearly erroneous and

would work a manifest injustice." Id. at 618 n.8.

Whether the law of the case doctrine applies at all is a

question of law, which we review de novo. See Tang v. Dep't of

Elderly Affairs, 163 F.3d 7, 10-11 (1st Cir. 1998). Strictly

speaking, the law of the case doctrine -- understood as a bar to

subsequent review -- was not implicated in this case, because

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"[i]nterlocutory orders, including denials of motions to dismiss,

remain open to trial court reconsideration, and do not constitute

the law of the case." Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42

(1st Cir. 1994). Thus, the district court was free to reconsider

the earlier interlocutory order.

We have sometimes said -- instead of an outright

statement that law of the case is not applicable to interlocutory

orders at all -- that law of the case permits a lower court to

review prior interlocutory orders as long as that review is not an

abuse of discretion. Were the law of the case doctrine even to

apply, then, we would review only for abuse of discretion. See

Geffon v. Micrion Corp., 249 F.3d 29, 38 (1st Cir. 2001) (reviewing

a district court's reconsideration of its own prior ruling on

summary judgment motion for abuse of discretion); see also In re

Cabletron Sys., 311 F.3d 11, 21 n.2 (1st Cir. 2002) ("The law of

the case is a discretionary doctrine, especially as applied to

interlocutory orders such as this one. As Justice Holmes expressed

it, '[T]he phrase, law of the case, as applied to the effect of

previous orders on the later action of the court rendering them in

the same case, merely expresses the practice of courts generally to

refuse to reopen what has been decided, not a limit to their

power.'" (citation omitted) (alteration in original) (quoting

Messenger v. Anderson, 225 U.S. 436, 444 (1912))). As one

commentator has said, the law of the case doctrine involves an

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"effusion of applications," some of which are more discretionary

than others. 18B Wright, Miller, & Cooper, Federal Practice and

Procedure § 4478, at 637 (2d ed. 2002).2 Regardless of phrasing,

the result here is clear. The district court was not barred from

reconsidering the prior decision; at most we review the decision to

reconsider only for a particularly egregious abuse of discretion.

There was no abuse of discretion here.

The district court could have reconsidered this matter

even if the prior decision had been its own, rather than the state

court's. See Perez-Ruiz, 25 F.3d at 42; Cabletron Sys., 311 F.3d

at 21 n.2; Geffon, 249 F.3d at 38. As the district court noted,

there had been no final decision in the state court on personal

jurisdiction. The state court's "[d]enial of the Hospital's motion

2
For more on this "effusion of applications," see Coca-Cola
Bottling Co. v. Coca-Cola Co., 988 F.2d 386, 411 n.25 (3d Cir.
1993) (noting that although standard of review might be plenary on
question of whether district court applied correct law on remand
from court of appeals, review is for abuse of discretion on
question of whether second judge may hear reargument on an issue
already ruled upon by first judge); 18B Wright, Miller, & Cooper,
supra, § 4478, at 637 (discussing "the 'mandate rule' that binds a
lower court on remand to the law of the case established on
appeal"); id. § 4478.1, at 694 ("[R]econsideration often is better
deserved, and more important, while an action wends its way toward
the first final judgment in the trial court. The balance that must
be struck between stability and reaching the right decision is
different than the balance to be struck when successive appeals are
taken in the same case, or when a trial court faces the mandate of
an appellate court, or when different courts come to take part in
deciding a single case. Discretion is built into law-of-the-case
doctrine, but the measure of discretion is different in these
different settings.").

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to dismiss was not an appealable order. In fact, the Hospital

tried to appeal, but the Maine Law Court dismissed the appeal as

interlocutory . . . ." The district court put the point well:

"Although it is late in the case to re-examine the question, it

will be later still on appeal, an avenue open to the Hospital

because the personal jurisdiction ruling has never yet been

appealable."

One might think there could be a federalism objection to

a federal court's reconsidering a state court's interlocutory order

entered before removal of the case. Harlow's absolutist argument

against allowing the Hospital to reargue the matter suggests such

a consideration. But the argument proves too much: federalism does

not require more deferential treatment of a state-court

interlocutory order in a case removed to federal court than it

would have required had the order originated in federal court.

The Hospital, for its part, argues that the "law of the

case" doctrine does not apply at all in this case, because the

doctrine applies "only to those situations in which a court is

considering a matter that has already been the subject of a ruling

by a coordinate court," and "a state court is not 'coordinate' with

a federal court on matters of federal law." In effect, the

Hospital -- without citing any decisions of this court (the

Hospital cites only district court decisions for this proposition)

-- is arguing for a per se rule that when the prior ruling on an

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issue of federal law comes from a state court, law-of-the-case

considerations in a removed case are never applicable. Since state

courts are also obligated to apply federal law, the premise of the

argument is fatally flawed.

In any case, "it would hardly do to reverse a correct

ruling . . . on the simplistic ground that it departed from the

'law of the case' established by an earlier ruling," especially

where "the order challenged on appeal is subject to de novo review

in any event." 18B Wright, Miller, & Cooper, supra, § 4478.1, at

707-09.

B. Personal Jurisdiction

Harlow argues that both specific and general personal

jurisdiction exist over the Hospital.

The district court analyzed Harlow's claim of personal

jurisdiction under the prima facie standard of Boit v. Gar-Tec

Products, Inc., 967 F.2d 671 (1st Cir. 1992).3 Under that

3
In Boit, this court stated:

The most commonly used method of
determining a motion to dismiss for want of
personal jurisdiction is for the district
court to consider only whether the plaintiff
has proffered evidence that, if credited, is
enough to support findings of all facts
essential to personal jurisdiction. To defeat
a motion to dismiss when the court uses this
method the plaintiff must make the showing as
to every fact required to satisfy "both the
forum's long-arm statute and the due process
clause of the Constitution." This standard
for deciding a motion to dismiss is commonly

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standard, the "properly supported proffers of evidence" by the

plaintiff are taken as true, without the need for an evidentiary

hearing. Id. at 675; see also Jet Wine & Spirits, Inc. v. Bacardi

& Co., 298 F.3d 1, 4 (1st Cir. 2002) (where district court applied

prima facie standard as described in Boit, facts for purpose of

appeal from dismissal are "[plaintiff's] allegations so far as

evidence supports them after preliminary jurisdictional discovery,

supplemented by [defendant's] uncontested allegations").

This court reviews de novo a "district court's decision

to dismiss for lack of personal jurisdiction when the court held no

evidentiary hearing but instead conducted only a prima facie review

of the jurisdictional facts." Jet Wine & Spirits, 298 F.3d at 6-7

(citing Boit, 967 F.2d at 675).

An exercise of jurisdiction must be authorized by state

statute and must comply with the Constitution. See Noonan v.

Winston Co., 135 F.3d 85, 89 (1st Cir. 1998). The Maine long arm

statute extends "to the fullest extent permitted by the due process

clause of the United States Constitution." Me. Rev. Stat. Ann.

referred to as the "prima facie" standard or a
standard requiring a "prima facie" showing.
. . .
The prima facie showing of personal
jurisdiction must be based on evidence of
specific facts set forth in the record.

Boit, 967 F.2d at 675 (citations and footnote omitted) (quoting
U.S.S. Yachts, Inc. v. Ocean Yachts, Inc., 894 F.2d 9, 11 (1st Cir.
1990)).

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tit. 14, § 704-A(1). This leaves us with the constitutional

inquiry. Two types of personal jurisdiction, general and specific,

are at issue here. See United Elec., Radio and Mach. Workers of

Am. v. 163 Pleasant St. Corp. (Pleasant Street I), 960 F.2d 1080,

1088-89 (1st Cir. 1992) (distinguishing the two types). The

plaintiff need not prove the existence of both types of

jurisdiction; either one, standing alone, is sufficient. See Mass.

Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st

Cir. 1998).

The due process clause imposes several requirements on

the exercise of personal jurisdiction over out-of-state defendants.

First, the defendant must have sufficient "minimum contacts" with

the state. For specific jurisdiction, the plaintiff's claim must

be related to the defendant's contacts. For general jurisdiction,

in which the cause of action may be unrelated to the defendant's

contacts, the defendant must have continuous and systematic

contacts with the state. Second, for either type of jurisdiction,

the defendant's contacts with the state must be purposeful. And

third, the exercise of jurisdiction must be reasonable under the

circumstances. See Cambridge Literary Props., Ltd. v. W. Goebel

Porzellanfabrik G.m.b.H & Co. Kg., 295 F.3d 59, 63 (1st Cir. 2002);

Noonan, 135 F.3d at 89; Pleasant Street I, 960 F.2d at 1087-89; see

also Donatelli v. Nat'l Hockey League, 893 F.2d 459, 462-65 (1st

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Cir. 1990) (examining historical development of personal

jurisdiction jurisprudence).

1. Minimum Contacts

"The minimum contacts standard requires that a court

asserting personal jurisdiction determine that the nonresident

defendant possesses sufficient contacts with the forum state so

that subjecting him, her, or it to the forum's jurisdiction does

not offend 'traditional notions of fair play and substantial

justice.'" Pleasant Street I, 960 F.2d at 1087 (quoting Int'l Shoe

Co. v. Washington, 326 U.S. 310, 316 (1945)). Plaintiffs cannot

create jurisdiction by their unilateral activity:

The unilateral activity of those who claim
some relationship with a nonresident defendant
cannot satisfy the requirement of contact with
the forum State. The application of that rule
will vary with the quality and nature of the
defendant's activity, but it is essential in
each case that there be some act by which the
defendant purposefully avails itself of the
privilege of conducting activities within the
forum State, thus invoking the benefits and
protections of its laws.

Hanson v. Denckla, 357 U.S. 235, 253 (1958).

a. Contacts as Alleged by Harlow

We review the facts in two different categories: first,

the evidence before and around the alleged tort, and second, the

evidence after and unrelated to the alleged tort.

i. Evidence From Before and During the Period of the
Alleged Tort

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 Harlow's pediatrician in Maine was the person who

recommended that Harlow be examined at the Hospital; the referral

was made in the spring of 1993. After recommending an examination

at the Hospital and before Harlow's first appointment there,

Harlow's pediatrician sent Harlow's medical records from Maine to

the Hospital. Harlow had her first appointment at the Hospital on

April 27, 1993, and she underwent the contested procedure there on

May 10, 1993. It appears that the Hospital discharged Harlow on

May 19 or 20, 1993. It is unclear whether Harlow visited the

Hospital again after being discharged. The district court believed

that there were some follow-up visits, but Harlow did not so

allege.4

At Harlow's April 27, 1993, appointment, her mother

explained to the doctor that she was concerned about the family's

ability to pay for the recommended procedure, and the doctor stated

that his office would take care of making the necessary

arrangements. Before Harlow underwent the procedure, the Hospital

obtained authorization from the Maine Medical Assistance Program

("Maine Medicaid"), which approved and agreed to pay for the

4
Harlow alleged only that the Hospital "sought and obtained
authorization from" Maine Medicaid for "follow-up care at the
Hospital." From the part of the record to which she cites, it
appears that the Hospital obtained authorization for a visit during
April or May 1995, but Harlow does not claim (or cite any part of
the record to show) that such a visit, or any other visit, in fact
occurred. There are only two actual visits, then, that Harlow has
alleged and provided record support for: the first appointment, and
the procedure itself.

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procedure.5 Ultimately, Maine Medicaid paid over $20,000 to the

Hospital for Harlow's procedure and immediate follow-up care at the

Hospital. It appears that the Hospital, before discharging Harlow,

performed various tests, including a cerebral CT scan, an MRI, and

an ultrasound study of the carotid artery, and that it administered

phenobarbital treatment (for an unspecified length of time, but at

least on May 17) for left-sided simple partial seizures.

If the state of Maine had not paid for the procedure at

the Hospital, the Harlows would not have been able to afford it,

and they would have sought other treatment. After Harlow was

discharged from the Hospital, she received "most of her follow up

care" from Maine health care practitioners. Harlow was discharged

from the Hospital to the Maine Medical Center for an extensive

course of rehabilitation. Since then, she has been in a special

education program and requires a one-on-one aide at school.

According to a physician who evaluated Harlow and reviewed her

records, Harlow "needs individual psychological counseling as well

as a group social training program," and she will have difficulty

5
The district court correctly refused to consider Harlow's
contention that the Hospital has maintained "for decades" an
"active relationship" with Maine Medicaid, that it had a Provider
ID Number before and after May 1993, and that under Maine law it
was required to regularly submit documentation to the State of
Maine in order to keep its active Provider ID number. This was
because Harlow failed to cite any record evidence to support this
contention. Harlow did cite record evidence to support, and the
district court did consider, the Hospital's arranging for Maine
Medicaid to pay for Harlow's own treatment.

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living independently, maintaining family and social relationships,

and earning a living. Harlow alleged that the cost of her future

care will be over $800,000.

Harlow alleged a number of communications between the

Hospital and various individuals in Maine. There is a letter,

dated April 30, 1993,6 from a Hospital doctor to Harlow's

pediatrician, which refers to a prior phone call that the writer

made to the pediatrician, and which thanks the pediatrician for

referring Harlow to the Hospital. The evidence as to post-

procedure communications is sparse. After the procedure, Hospital

staff had further communications with Harlow's pediatrician,

another pediatrician in Maine, Harlow's mother, and Maine Medicaid.

Harlow states that the Hospital "sent multiple correspondence to

[these] individuals regarding Danielle," and that when a Hospital

doctor spoke with Harlow's mother on the telephone in January 1997,

he also sent correspondence, including "various medical articles."

ii. Evidence From After the Alleged Tort

Much of Harlow's evidence concerned the second category:

for periods after and unrelated to the alleged malpractice on May

6
Harlow alleged only one pre-1993 contact: that since 1988,
the Hospital has sent "relations specialists" to meet with
pediatricians and family practitioners. The district court did not
consider this contention, because Harlow had not indicated "that
these relations specialists ever visited or had any connection with
Maine (or even New England)." On appeal, Harlow has still failed
to specify whether this outreach program ever included Maine
doctors in general or her pediatrician in particular.

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10, 1993. We detail the evidence before we address whether the

post-tort evidence can be considered for either the specific

jurisdiction analysis or the general jurisdiction analysis.

Harlow presented evidence that in 1998 and 1999, roughly

100 inpatients per year were referred to the Hospital from Maine.

In 1998, the Hospital charged $2.4 million to Maine Medicaid. In

1999, the Hospital charged $1.6 million to Maine Medicaid for

inpatient services plus another $500,000 for outpatient services.

The Hospital was not incorporated in Maine and is not

registered to do business there. Harlow alleged that,

nevertheless, the Hospital "actively markets and promotes its

business and services within Maine's borders." Her proffered

evidentiary materials are largely undated and, to the extent they

are dated, they post-date her May 1993 procedure.

In particular, Harlow alleged, the "Hospital's marketing

department specifically targets physicians located in Maine."

Harlow alleged that the Hospital has "initiated a campaign to mail

every single pediatrician located in the State of Maine an

informational packet." Harlow alleged no time frame here; her only

record citation reveals that eighty-two copies of a "Pediatric

Specialist Guide" were mailed to Maine pediatricians in 2000, and

the Hospital's representative testified that he was unaware of any

other referral guides being sent. The Hospital also publishes a

monthly newsletter on pediatrics that, since 1999, has been mailed

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to "pediatricians who practice in Maine." The Hospital has also

mailed a number of brochures to Maine pediatricians. Harlow did

not allege any specific dates on which brochures were mailed; at

the Hospital's deposition, the Hospital's representative testified

that some brochures were mailed on one occasion in the spring of

2000 to eighty-two pediatricians in Maine, and that "none of these

items that have been marked as exhibits go to patients or

consumers." The Hospital has advertised in the Journal of

Pediatrics. The exhibit Harlow cited for this allegation does not

indicate when (or, for that matter, whether) the advertisement was

published. The Hospital's representative testified at the

Hospital's July 2000 deposition that "this advertisement is the

first I've ever heard of" in a national magazine, and the

advertisement had only been created "around two or three weeks

ago."

The Hospital has run advertisements in the Boston Globe,

which is "widely circulated in Maine." Harlow alleged that this

was "in the 1990's." At the Hospital's deposition, the

representative testified that he was only aware of one paid

advertising campaign in the Boston Globe, and it ran for a "three-

or four-week period" in 1997. Harlow also alleged that the

Hospital has run an advertisement in a Maine newspaper "on at least

one occasion" in October 1996. She also alleged that the Hospital

has advertised on Maine television and radio stations. She gives

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no dates, and the exhibit she cites is a webpage that was

apparently last updated in August 2002 and printed in February

2005; the webpage describes then-current and planned broadcast

promotions. Harlow also pointed to other parts of the Hospital's

website that "provide information for Maine physicians to refer

patients to Children's Hospital, as well as driving directions from

Maine to Massachusetts."

b. Specific Jurisdiction

i. Waiver

The Hospital initially argues that Harlow's claim of

specific jurisdiction is raised for the first time on appeal, and

that she therefore waived any specific jurisdiction argument she

might have. The Hospital overstates the record, and, in any event,

its own argument on waiver is perfunctory, and so has been waived.7

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The

district court addressed both claims. We follow suit.

ii. Standards for Specific Jurisdiction

The evidence produced to support specific jurisdiction

must show that the cause of action either arises directly out of,

or is related to, the defendant's forum-based contacts. Pleasant

7
As the district court noted, Harlow relied on general
jurisdiction in the state court proceeding. Harlow's reply to the
Hospital's motion to dismiss in the district court does not
expressly argue for "specific jurisdiction," but it also does not
expressly argue for "general jurisdiction." Without using either
of those terms, the substance of the reply plainly invokes both
forms of personal jurisdiction.

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Street I, 960 F.2d at 1088-89. The relatedness requirement is not

an open door; it is closely read, and it requires a showing of a

material connection. This court "steadfastly reject[s] the

exercise of personal jurisdiction whenever the connection between

the cause of action and the defendant's forum-state contacts seems

attenuated and indirect." Id. at 1089 (citing Donatelli, 893 F.2d

at 463). "Instead, the defendant's in-state conduct must form an

'important, or [at least] material, element of proof' in the

plaintiff's case." Id. (alteration in original) (quoting Marino v.

Hyatt Corp., 793 F.2d 427, 430 (1st Cir. 1986)). A broad "but-for"

argument is generally insufficient. Because "'but for' events can

be very remote, . . . due process demands something like a

'proximate cause' nexus." Cambridge Literary Props., 295 F.3d at

65. And although "strict adherence to a proximate cause standard

in all circumstances is unnecessarily restrictive," in most cases

"the proximate cause standard better comports with the relatedness

inquiry because it so easily correlates to foreseeability, a

significant component of the jurisdictional inquiry." Nowak v. Tak

How Invs., Ltd., 94 F.3d 708, 715 (1st Cir. 1996). "A 'but for'

requirement . . . has in itself no limiting principle; it literally

embraces every event that hindsight can logically identify in the

causative chain." Id. In sum, although proximate causation is not

a per se requirement of specific jurisdiction, its presence or

absence is still important. Id. at 715-16.

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 iii. Timing of Contacts -- Specific Jurisdiction

There is a preliminary question regarding the universe of

facts pertinent to the specific jurisdiction analysis. Three key

themes of specific jurisdiction analysis require that the proper

focus be on those contacts leading up to and surrounding the

claimed injury which are related to the alleged malpractice. Those

three concepts are that there be fair notice to the defendant, that

the defendant must have purposefully availed itself of the forum

state, and that the forum-based activity be truly related to the

cause of action. The bulk of Harlow's post-tort evidence of the

Hospital's activity in Maine is simply not related at all to the

alleged malpractice.

As to the time frame for evidence, we have rejected an

argument from a defendant that specific jurisdiction should be

measured by contacts after the alleged wrongdoing, where those

contacts were more limited than those at the time of the event.

See Cambridge Literary Props., 295 F.3d at 66 ("[F]or purposes of

specific jurisdiction, contacts should be judged when the cause of

action arose, regardless of a later lessening or withdrawal."). A

defendant cannot avoid jurisdiction by shrinking its contacts with

the forum after the tort.

This case presents the mirror-image question. The

district court understood Harlow, the plaintiff, to be asking that

specific jurisdiction be measured in part by contacts after the

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cause of action arose, when those later contacts with the forum

state increased. This presents a slightly different set of

problems -- particularly as to fair notice to the defendant,

purposeful availment, and relatedness.

These three concepts are all related, and they mean that

in analyzing specific jurisdiction, contacts must generally be

limited to those before and surrounding the accrual of the cause of

action. This court has noted, for instance, that "'foreseeability'

and 'purposeful availment' bear a family resemblance (the former

defining the latter to a considerable extent)," Donatelli, 893 F.2d

at 464, and that "foreseeability is critical" in analyzing the

relatedness requirement, Pleasant Street I, 960 F.2d at 1089. At

heart, these concepts are all designed to ensure that exercises of

jurisdiction comport with due process. The Due Process Clause

requires fair warning as to where individuals' conduct will subject

them to suit, and for purposes of specific jurisdiction, "this

'fair warning' requirement is satisfied if the defendant has

'purposefully directed' his activities at residents of the forum,

and the litigation results from alleged injuries that 'arise out of

or relate to' those activities." Burger King Corp. v. Rudzewicz,

471 U.S. 462, 471-72 (1985) (citations omitted); see also Pleasant

Street I, 960 F.2d at 1088 (citing Hanson's purposeful availment

requirement); id. (citing concepts of reasonableness and

foreseeability and requirement "that a defendant's 'conduct and

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connection with the forum State [be] such that he should reasonably

anticipate being haled into court there'" (alteration in original)

(quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297

(1980))). The relatedness requirement, in particular, "ensures

that the element of causation remains in the forefront of the due

process investigation." Ticketmaster-New York, Inc. v. Alioto, 26

F.3d 201, 207 (1st Cir. 1994). Because causation is central to the

relatedness inquiry, see, e.g., Nowak, 94 F.3d at 714-16; Pleasant

Street I, 960 F.2d at 1089, in most cases, contacts coming into

existence after the cause of action arose will not be relevant.

iv. Analysis

Harlow's argument in support of specific jurisdiction is

that "[s]imply stated, but for Children's Hospital's contacts with

the State of Maine, Danielle Harlow never would have undergone the

surgical procedure that she did, and she never would have suffered

her injuries." Harlow points to the following facts: (1) the

Hospital's staff communicated by telephone and by written

correspondence with Harlow's doctor in Maine before and after the

procedure; (2) the Hospital scheduled the surgery in advance and

knew that Harlow was coming from Maine; (3) Harlow's pediatrician,

who referred her to the Hospital, was a target of the Hospital's

"outreach program"; (4) before the procedure, and during her first

visit, Harlow's mother informed the Hospital's staff that the

family was of modest means, and the Hospital responded by

-22-
contacting Maine Medicaid to obtain prior approval for the

procedure; (5) after the procedure, the Hospital arranged for

Harlow to receive inpatient rehabilitation at the Maine Medical

Center; and (6) a doctor at the Hospital communicated with Harlow's

physicians in Maine "on repeated occasions" and contacted the Maine

government to obtain approval for follow-up care. Harlow stresses

the Hospital's contacts with Maine Medicaid, arguing that those

contacts were financially beneficial to the Hospital and

constituted purposeful availment of the benefits and protections of

Maine law.

When the post-event evidence unrelated to the alleged

malpractice is excluded, Harlow has not made out an adequate case

for specific jurisdiction. Harlow's "but-for" theory -- that but

for the referral from a Maine pediatrician, the harm would never

have happened -- is insufficient to give Maine specific

jurisdiction over the Hospital. The place of the alleged tort was

not Maine but Massachusetts. There is no evidence that the

Hospital purposefully induced Harlow to leave Maine to come to

Massachusetts. There is not even any evidence that the Hospital

induced the pediatrician to refer the patient to Maine. That the

reputation and expertise of an institution lead to referrals from

out of state cannot be enough to establish specific jurisdiction.

Harlow makes much of the uncontested fact that the

Hospital was "well aware that [she] was coming from Maine" and

-23-
would likely return there. If that rationale -- an out-of-state

plaintiff availing herself of services in Massachusetts -- were

sufficient, then the Hospital would be subject to suit for merely

taking a patient from elsewhere. That the consequences of medical

care remain with a patient throughout her lifetime provides even

less of a basis to assert jurisdiction. Jurisdiction cannot be

created by and does not travel with the plaintiff patient wherever

she goes.

The nature of the activity in which the defendant is

engaged is important. The Hospital is not engaged in the

interstate sale of tangible goods, capable of doing harm elsewhere.

Even if it were, "'mere awareness' that a product may end up in the

forum state does not constitute 'purposeful availment.'" Boit, 967

F.2d at 683; id. at 682-83 (discussing Asahi Metal Indus. Co. v.

Superior Court of Cal., 480 U.S. 102 (1987)). Compare Int'l Shoe

Co., 326 U.S. at 314-15, 320 (personal jurisdiction proper where

defendant's salesmen resided in state, they displayed samples and

engaged in "regular and systematic solicitation of orders in the

state," "a substantial volume of merchandise [was] regularly

shipped by [defendant] to purchasers within the state," and cause

of action arose out of defendant's in-state activities), with

Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 85 (1st Cir. 1997)

(stating that even if third-party defendant had specific knowledge

that the stream of commerce would move its product into the forum

-24-
state, "this awareness alone would not be enough to constitute the

purposeful availment which is necessary for a showing of minimum

contacts" (emphasis added)).

Rather than putting goods into the "stream of commerce,"

the Hospital rendered medical care, a professional and highly

personal service, and it did so entirely in Massachusetts. As the

Ninth Circuit has explained:
In the case of personal services focus must be
on the place where the services are rendered,
since this is the place of the receiver's
(here the patient's) need. The need is
personal and the services rendered are in
response to the dimensions of that personal
need. They are directed to no place but to
the needy person herself. It is in the very
nature of such services that their
consequences will be felt wherever the person
may choose to go. However, the idea that
tortious rendition of such services is a
portable tort which can be deemed to have been
committed wherever the consequences
foreseeably were felt is wholly inconsistent
with the public interest in having services of
this sort generally available.

Wright v. Yackley, 459 F.2d 287, 289-90 (9th Cir. 1972). We reject

Harlow's portable tort theory.

Harlow also relies on other contacts, such as the

Hospital's dealings with Maine Medicaid and a handful of personal

communications about Harlow's treatment between the Hospital and

various individuals in Maine. The fact that Maine, through the

Maine Medicaid program, paid for the surgery is not a great deal

different for specific jurisdiction purposes than if Harlow's

-25-
parents had written in Maine and mailed to the Hospital a check on

their Maine bank account. A Maine patient will presumably pay,

either through insurance or otherwise, for services at the

Hospital. In Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408 (1984), the Supreme Court said that the defendant's

acceptance of checks drawn on a forum-based bank was "of negligible

significance for purposes of determining whether [the defendant]

had sufficient contacts in [the forum]." Id. at 416. The Court

observed that "[c]ommon sense and everyday experience suggest that,

absent unusual circumstances, the bank on which a check is drawn is

generally of little consequence to the payee and is a matter left

to the discretion of the drawer."8 Id. at 416-17 (footnote

omitted). While the utilization of Medicaid from the patient's

state may cause extra communication and paperwork, it does not by

itself rise to the level of importance necessary to establish

specific jurisdiction.

We affirm the finding of lack of specific jurisdiction.

c. General Jurisdiction

General jurisdiction may exist "when the litigation is

not directly founded on the defendant's forum-based contacts, but

8
In Helicopteros, there was "no indication that [the
defendant] ever requested that the checks be drawn on a [forum]
bank or that there was any negotiation between [the parties] with
respect to the location or identity of the bank on which checks
would be drawn." 466 U.S. at 416. Here, the Hospital did arrange
for payment from Maine Medicaid, but this was at the plaintiff's
request.

-26-
the defendant has nevertheless engaged in continuous and systematic

activity, unrelated to the suit, in the forum state." Pleasant

Street I, 960 F.2d at 1088 (citing Helicopteros, 466 U.S. at 414-16

& n.9); see also Helicopteros, 466 U.S. at 416 (focusing on

question of whether defendant's contacts with forum state

"constitute the kind of continuous and systematic general business

contacts the Court found to exist in" Perkins v. Benguet

Consolidated Mining Co., 342 U.S. 437 (1952)). "The standard for

evaluating whether . . . contacts satisfy the constitutional

general jurisdiction test 'is considerably more stringent' than

that applied to specific jurisdiction questions." Noonan, 135 F.3d

at 93 (quoting Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st

Cir. 1984)).

i. Timing of Contacts -- General Jurisdiction

We first resolve a preliminary matter. At oral argument,

the parties disputed which time frame of evidence was relevant in

deciding whether the Hospital's contacts with Maine are sufficient

to justify general jurisdiction. Harlow argued that for purposes

of general jurisdiction, we should look at the Hospital's contacts

up to the time of the filing of the complaint, well beyond the time

of the alleged tort. The Hospital relied by analogy on Cambridge

Literary Properties for the proposition that, even when general

jurisdiction is alleged, "contacts should be judged when the cause

of action arose." 295 F.3d at 66. We disagree with the Hospital.

-27-
It is settled law that unrelated contacts which occurred after the

cause of action arose, but before the suit was filed, may be

considered for purposes of the general jurisdiction inquiry.

In Noonan, we expressly rejected the argument now made by

the Hospital. See 135 F.3d at 93 n.8 ("The parties clash over

which contacts should be considered in the general jurisdiction

analysis. . . . [T]hey dispute whether a foreign corporation's

contacts with the forum should be measured up to the time of the

alleged tort, up to the time the complaint is filed, or at any

time. We have considered all contacts established up to the time

[the plaintiff] filed his complaint."). In Helicopteros, where the

helicopter crash at the center of the lawsuit had occurred in

January 1976, the Supreme Court considered contacts through the

year 1977. See 466 U.S. at 410-11. On the other hand, contacts

after the filing of the complaint are not considered. See, e.g.,

United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 619 n.4 (1st

Cir. 2001) ("[W]e consider only contacts established before the

government filed its complaint in December 1997 . . . .").

The reason for this approach stems from the basic

distinction between specific and general jurisdiction. Wright and

Miller, in discussing this distinction, state:

As a practical matter, a general jurisdiction
inquiry is very different from a specific
jurisdiction inquiry. As one Court of Appeals
put it,

-28-
 Unlike the specific jurisdiction
analysis, which focuses on the cause
of action, the defendant and the
forum, a general jurisdiction
inquiry is dispute blind, the sole
focus being on whether there are
continuous and systematic contacts
between the defendant and the forum.

Accordingly, a court should consider all of a
defendant's contacts with the forum state
prior to the filing of the lawsuit, rather
than just those contacts that are related to
the particular cause of action the plaintiff
asserts.

4 Wright & Miller, Federal Practice and Procedure § 1067.5, at 520-

21 (3d ed. 2002) (footnote omitted) (quoting Dickson Marine, Inc.

v. Panalpina, Inc., 179 F.3d 331, 339 (5th Cir. 1999)); see also

Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569-70

(2d Cir. 1996) ("In general jurisdiction cases, district courts

should examine a defendant's contacts with the forum state over a

period that is reasonable under the circumstances -- up to and

including the date the suit was filed -- to assess whether they

satisfy the 'continuous and systematic' standard.").

ii. Analysis

In support of general jurisdiction, Harlow points to the

Hospital's "ongoing relationship" with Maine Medicaid, the fact

that the Hospital derives "substantial and consistent revenue" from

Maine, the Hospital's active marketing and advertising to

physicians and the general public in Maine, and the fact that the

Hospital "holds itself [out] as the regional pediatric trauma

-29-
center." Harlow argues that all of this amounts to "engag[ing] in

the 'continuous and systematic' pursuit of general business

activities" in Maine. Glater, 744 F.2d at 216 (quoting Perkins,

342 U.S. at 448).9

The Hospital, for its part, points to other facts which

have not been disputed: the Hospital is organized under

Massachusetts law and has its principal place of business in

Boston, Massachusetts; the Hospital does not own or use real estate

or maintain branch offices or other places of business in Maine; it

provides no medical services in Maine; and it "participates in no

arrangements to provide consultation, advice, services, or use of

its equipment or facilities to Maine health care providers."

Although it has on occasion sent mailings to 82 pediatricians in

Maine and it maintains a website accessible in Maine, the Hospital

does not actually do business through its website, and Maine

residents account for only about 100 out of 18,000 annual patient

admissions in Massachusetts. The Hospital argues that its contacts

fall "well below the levels of contacts that [have] previously

[been] found insufficient to support general jurisdiction." We

agree.

9
Harlow argues that her case is analogous to the case of
Kenerson v. Stevenson, 604 F. Supp. 792 (D. Me. 1985), which held
that general jurisdiction in Maine existed over a New Hampshire
hospital that had treated a Maine resident who had arrived with
injuries received in New Hampshire. Whether Kenerson is correct or
not, the evidence here does not establish general jurisdiction.

-30-
 As we have held in other cases, "where 'defendant's only

activities consist of advertising and employing salesmen to solicit

orders, we think that fairness will not permit a state to assume

jurisdiction.'" Glater, 744 F.2d at 217 (quoting Seymour v. Parke,

Davis & Co., 423 F.2d 584, 586-87 (1st Cir. 1970)). We repeat

Glater's summary of Seymour, because we are facing an essentially

similar fact pattern:

In Seymour, a manufacturer and distributor of
[a] drug was sued in New Hampshire for
injuries occurring in Massachusetts. The
defendant maintained no office and engaged in
no manufacturing in New Hampshire; it held no
property there; it was not registered to do
business there. Its only contacts with New
Hampshire consisted of advertising and the
activities of a half dozen salesmen, mostly
New Hampshire residents, who accepted orders
and disseminated product information to New
Hampshire physicians, hospitals and retail
pharmacies.

Id. at 217.

Harlow argues that a nontrivial number of the Hospital's

patients come from Maine and have their treatment paid for by Maine

Medicaid. The Hospital points out that using Harlow's figures --

she alleges that Maine Medicaid pays the Hospital roughly $2

million annually, and that the Hospital's total annual revenue is

almost $400 million -- Maine Medicaid payments account for only

0.5% of the Hospital's revenues.

Treating patients from Maine in Massachusetts, even on a

regular basis, is not the same as engaging in continuous and

-31-
systematic activity in Maine. A hospital that treats Maine

residents in Massachusetts is, quite simply, in a different

position from a hospital that treats Maine residents in Maine, or

a firm that sells products to Maine residents in Maine. That the

Hospital derives revenue from treating Maine patients, sometimes in

the form of payments from Maine Medicaid, does not alter the basic

fact that the Hospital is not "engaged in continuous and systematic

activity, unrelated to the suit, in [Maine]." Pleasant Street I,

960 F.2d at 1088; see also Wolf v. Richmond County Hosp. Auth., 745

F.2d 904, 906, 910 (4th Cir. 1984) (no general jurisdiction even

though, among other things, defendant hospital "treats [forum-

state] residents and receives payments (either from state or local

governmental bodies or from the residents themselves) for services

rendered," some of the payments included "medicaid/medicare

reimbursements," and "approximately one-fifth" of defendant's

income came from forum-state residents); 4 Wright & Miller, supra,

§ 1067.5, at 507 ("[T]he defendant must be engaged in longstanding

business in the forum state, such as marketing or shipping

products, or performing services or maintaining one or more offices

there; activities that are less extensive than that will not

qualify for general in personam jurisdiction.").

2. Reasonableness of Exercise of Jurisdiction

Even if the Hospital's contacts with Maine were minimally

sufficient for either specific or general jurisdiction, we would

-32-
still conclude that the exercise of jurisdiction here would be

unreasonable. "[E]ven where purposefully generated contacts exist,

courts must consider a panoply of other factors which bear upon the

fairness of subjecting a nonresident to the authority of a foreign

tribunal." Pleasant Street I, 960 F.2d at 1088. "[G]auging

fairness requires an assessment of reasonableness for, in certain

circumstances, unreasonableness can trump a minimally sufficient

showing of relatedness and purposefulness." Ticketmaster-New York,

26 F.3d at 210. The factors to be considered, known as the

"Gestalt factors," Pleasant Street I, 960 F.2d at 1088 (quoting

Donatelli, 893 F.2d at 465), include:

(1) the defendant's burden of appearing, (2)
the forum state's interest in adjudicating the
dispute, (3) the plaintiff's interest in
obtaining convenient and effective relief, (4)
the judicial system's interest in obtaining
the most effective resolution of the
controversy, and (5) the common interests of
all sovereigns in promoting substantive social
policies.

Id. (citing Burger King, 471 U.S. at 477).

"[T]he reasonableness prong of the due process inquiry

evokes a sliding scale." Ticketmaster-New York, 26 F.3d at 210.

In other words, "the weaker the plaintiff's showing on the first

two prongs (relatedness and purposeful availment), the less a

defendant need show in terms of unreasonableness to defeat

jurisdiction. The reverse is equally true: an especially strong

-33-
showing of reasonableness may serve to fortify a borderline showing

of relatedness and purposefulness." Id.

It is true that Harlow "has an interest in litigating

conveniently in [her] home state, which in turn has an interest in

affording its citizens a convenient forum." Cambridge Literary

Props., 295 F.3d at 66. But even though Maine has an interest in

protecting its residents, Massachusetts has a like interest, one

made stronger by the fact that it has an interest as a sovereign in

a case arising from the conduct -- here, medical practice -- that

occurs within its borders. Of course, "[t]he purpose of the

inquiry is not to compare the forum's interest to that of some

other jurisdiction, but to determine the extent to which the forum

has an interest," Foster-Miller, Inc. v. Babcock & Wilcox Can., 46

F.3d 138, 151 (1st Cir. 1995), but here Maine has only a slight

interest. "Although a forum state has a significant interest in

obtaining jurisdiction over a defendant who causes tortious injury

within its borders, that interest is diminished where the injury

occurred outside the forum state." Nowak, 94 F.3d at 718

(citations omitted).

Further, Massachusetts law, not Maine law, would govern

this dispute. See Daynard v. Ness, Motley, Loadholt, Richardson &

Poole, P.A., 290 F.3d 42, 62 (1st Cir. 2002) (citing the fact that

forum state's law governs the dispute as one factor in favor of

exercising personal jurisdiction there); Estate of Johnson, 2001 ME

-34-
39, ¶ 6, 766 A.2d 592, 594 (Maine has adopted the "most significant

contacts and relationships" test for choice of law, providing that

"[i]n an action for a personal injury, the local law of the state

where the injury occurred determines the rights and liabilities of

the parties, unless, with respect to the particular issue, some

other state has a more significant relationship . . . to the

occurrence and the parties" (quoting Restatement (Second) of

Conflict of Laws § 146 (1969))). As in Donatelli, Maine's

"sovereignty is not threatened; apart from a generalized concern

for the rights of its own domiciliaries, the state has no real

interest in adjudicating the controversy. In point of fact, the

opposite seems true . . . ." 893 F.2d at 472.

Harlow argues that recognizing jurisdiction in Maine

would be fair, because her family is of limited means, whereas the

Hospital has annual revenues of $400 million. Harlow also argues:

"Whereas litigating this case in Maine will cause little, if any,

inconvenience to the Children's Hospital, Danielle Harlow has no

other forum for her case to be heard." The argument is exactly

backwards. Harlow did have an obvious and readily available forum

in Massachusetts. The fact that she missed the statute of

limitations in Massachusetts does not add to her argument at all.

To hold otherwise would encourage plaintiffs to deliberately miss

-35-
a statute of limitations for purposes of forum manipulation.10 Such

a practice should be discouraged, not rewarded.

Another interest is at stake -- "the common interest[] of

all sovereigns in promoting substantive social policies." Pleasant

Street I, 960 F.2d at 1088. This factor weighs against the

reasonableness of exercising personal jurisdiction in Maine. All

sovereigns share an interest in promoting the social policy of

having quality health care available to those who need it. One way

to promote this policy is to limit the length of time during which

health care providers are exposed to lawsuits arising from the care

they provide. Here, for instance, Massachusetts has set a three-

year statute of limitations for malpractice claims against its

hospitals. See Mass. Gen. Laws ch. 231, § 60D. Maine has a

minimal interest in seeing that this limit be avoided, and the

common interest of all sovereigns (including Maine) in seeing that

this limit be observed is strong, especially in light of the fact

that the Hospital did not purposefully conduct business in or

10
This court has addressed concerns about manipulation and
statutes of limitations in other contexts. Cf. Noonan, 135 F.3d at
95 (discussing, in the context of temporal limitations on
jurisdictional discovery, the risk that "undesirable exploitation
of statute of limitations periods" will occur and that "[s]avvy
plaintiffs who wait until the end of the limitations period to
maximize the chance of asserting jurisdiction will be rewarded for
their dilatory tactics"); Seymour, 423 F.2d at 585-86 (exercise of
jurisdiction unfair where "plaintiff . . . is unconnected with the
forum and is not 'convenienced' by being able to sue there except
that she has lost her right to sue in what would otherwise have
been the fair and convenient state" because of the expiration of
that state's statute of limitations).

-36-
specifically direct its activities toward another state which has

a longer statute of limitations.

As to the disparity in resources, that has little to do

with due process limits on the extension of long-arm jurisdiction.

The law is not oblivious to financial considerations. But even

though the defendant's burden of appearing and the plaintiff's

interest in obtaining convenient and effective relief are included

among the "Gestalt factors" for the personal jurisdiction analysis,

see Pleasant Street I, 960 F.2d at 1088, sheer disparity in wealth

is not.

The argument Harlow raises of relative convenience and

burden is more appropriately dealt with under the law of forum non

conveniens or change of venue. Where a plaintiff properly

establishes jurisdiction in one federal district court, she is free

to argue for a transfer to another federal district court. See 28

U.S.C. § 1404(a) ("For the convenience of parties and witnesses, in

the interest of justice, a district court may transfer any civil

action to any other district or division where it might have been

brought."). Even under the doctrines of forum non conveniens and

change of venue, it is not clear that sheer disparity in wealth is

legally relevant, without proof of hardship. See Iragorri v. Int'l

Elevator, Inc., 203 F.3d 8, 17 (1st Cir. 2000).

In the end, this case is about a patient who lives in

Maine and was referred by a Maine doctor to a hospital in Boston,

-37-
and who underwent a medical procedure in Boston which gave rise to

a cause of action; she returned to Maine and the procedure was paid

for from Maine. That cannot be enough to subject the Hospital to

suit in Maine. The question is not whether hospitals may be held

responsible in lawsuits for their activities, but whether they may

be haled into court out of state because they accept out-of-state

patients. It would be unreasonable to conclude that they could.

III.

The district court's order granting the Hospital's motion

to dismiss for lack of personal jurisdiction is affirmed. Each

side shall bear its own costs.

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