Harris v. Omelon

RUIZ, Associate Judge,

concurring:

I agree with the court’s opinion that Dr. Omelon’s single call to a pharmacy in the District of Columbia to phone in a prescription for the convenience of a D.C. patient cannot give rise to personal juris*1108diction under the D.C. long-arm statute, consistent with due process.

I write separately to address two additional points made by appellant at oral argument. First, appellant represented to the court that he attempted to present a supplemental pleading to the trial judge at the hearing where the trial judge granted appellee’s motion to dismiss for lack of jurisdiction. Appellee’s counsel represented that appellant had made such an attempt but could not recall the contents of the document. I note that there is a document, dated June 19, 2008, attached to appellant’s opening brief which appears to be the one appellant referred to at oral argument, as the relevant hearing in the trial court took place on June 20, 2008. The trial judge did not accept the submission and the document was not made part of the record on appeal. Appellant’s subsequent attempt, once the case was on appeal to this court, to add more facts, simply came too late. See D.C.App. R. 10(a) (record on appeal includes only the transcript of proceedings, docket, and “original papers and exhibits filed in the Superior Court”). However, even if we were to consider appellant’s additional filing, there are no facts alleged in that document to base a finding of personal jurisdiction over Dr. Omelon.

Second, at oral argument appellant contended that Dr. Omelon opted to suggest a new medication during his telephone call with appellant and that, in doing so, Dr. Omelon provided some form of medical treatment over the telephone while he, the patient, was located in the District of Columbia. We cannot address this new argument, made for the first time on appeal. See Ramos v. United States, 569 A.2d 158, 162 n. 5 (D.C.1990); Coates v. Watts, 622 A.2d 25, 28 n. 1 (D.C.1993) (Steadman, J., concurring) (“To raise an issue for the first time on oral argument is too late, even if properly preserved in the trial court.”). On the scant facts of record, the trial court was correct not to exercise personal jurisdiction based on the telephone conversation between appellant and Dr. Omelon. See Wright v. Yackley, 459 F.2d 287, 289 & n. 4 (9th Cir.1972) (holding that doctor’s mailing of prescriptions to the forum state did not warrant personal jurisdiction, but noting that jurisdiction might be justified where “a doctor could be said to have treated a[ ] ... patient by mail or to have provided a new prescription or diagnosis in such fashion.”).

With this addition, I join the opinion for the court.