Marc Harding d/b/a Harding Law Firm v. Rick Sasso, M.D., d/b/a Indiana Spine Group

                     IN THE COURT OF APPEALS OF IOWA

                                    No. 21-1666
                             Filed December 21, 2022


MARC HARDING d/b/a HARDING LAW FIRM,
    Plaintiff-Appellee,

vs.

RICK SASSO, M.D., d/b/a INDIANA SPINE GROUP,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.




       A physician from Indiana challenges an interlocutory ruling that he is subject

to personal jurisdiction in an Iowa lawsuit. REVERSED AND REMANDED.




       Brent Ruther of Aspelmeier, Fisch, Power, Engberg & Helling, PLC,

Burlington, for appellant.

       Jeffrey M. Lipman of Lipman Law Firm, P.C., West Des Moines, for

appellee.



       Considered by Bower, C.J., Tabor, J., and Danilson, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
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TABOR, Judge.

       Dr. Rick Sasso, an orthopedic surgeon from Indiana,1 challenges the denial

of his motion to dismiss a lawsuit filed by Des Moines lawyer Marc Harding.

Dr. Sasso contends the Iowa court was wrong in finding it had personal jurisdiction

over Harding’s claim that Dr. Sasso should refund “part or all” of a $10,000 retainer

that Harding paid for expert consultation on a potential medical malpractice action.

Because Dr. Sasso’s “preliminary evaluation” of Harding’s case did not create the

Iowa contacts that would support jurisdiction, we reverse and remand for a ruling

dismissing the action for a lack of personal jurisdiction.

I.     Facts and Prior Proceedings

       We garner these facts from Harding’s petitions and the parties’ competing

affidavits. The parties agree that attorney Harding called Dr. Sasso in February

2021 to solicit his expertise in reviewing the medical records of a patient who

suffered an injury to his esophagus during cervical spine surgery in Iowa.2 The

parties also agree that after their conversation, Harding forwarded Dr. Sasso an

electronic link to the patient’s medical chart, as well as a check for $10,000. The

parties did not have a written contract. And they agree that after his records

review, in early March 2021, Dr. Sasso reported to Harding that he found “no case”

for malpractice. After receiving that report, Harding declined to sue the Iowa

medical providers for breaching the standard of care.



1 Dr. Sasso is president of Indiana Spine Group, P.C., also named in this suit.
2 Harding had already shown the patient’s records to a Florida doctor for an initial
consultation. That doctor sent a one-page email recommending the case be
pursued, but did so based on a misreading of the delay between the surgery that
resulted in a tear in the patient’s esophagus and the surgery to repair it.
                                          3


       But Harding and Sasso disagree on critical details of the consultation. For

example, they offer divergent views of what the $10,000 retainer covered. In his

affidavit, Harding asserted that Dr. Sasso “averred that he could serve as an expert

at trial” and would charge $1000 per hour “for his record review and trial testimony.”

Harding added that Dr. Sasso never said the $10,000 was non-refundable. By

contrast, Dr. Sasso characterized the $10,000 as a “flat fee” for his review of the

records and resulting opinion whether the Iowa medical providers breached the

standard of care. The doctor averred that Harding did not explain any plans for

litigation with him, nor did he commit to providing testimony in any case that

Harding “might file in the future.”

       The parties also disagree on the volume of the records. In Dr. Sasso’s view,

“[t]he medical chart was extensive.” Included were records of the initial surgery,

subsequent physical therapy treatments, the entire chart from the consulting ENT

surgeon, and the further surgery. Dr. Sasso recalled: “Also provided were imaging

studies which take substantial time to fully review.” In all, Dr. Sasso estimated that

he spent twelve hours reviewing the records at his Indiana office.

       Harding questioned the doctor’s time commitment. The attorney asserted

the medical records totaled 166 pages. And he pointed out that the malpractice

alleged by the initial reviewer was a delay between the first and second surgeries.

According to Harding, in less than forty pages, Dr. Sasso could have determined

that the initial reviewer had looked at the wrong date for the second surgery.

Harding criticized Dr. Sasso for reviewing all the information provided. Dr. Sasso

stated, “It was important to me to review all the records provided because I believe

that is essential for quality expert consultant work.”
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       Dr. Sasso recounted that Harding “was not happy with the opinion I had

reached after completing the review I committed to make of the medical

information provided.” When Dr. Sasso refused to refund any of the retainer,

Harding asked him to provide time records or notes of his review. But the doctor

replied that he kept neither, allegedly out of concern such information would be

“discoverable.”   Harding denied discussing whether the doctor should avoid

keeping records “out of fear of discovery.” Finally, Harding recalled that when he

“expressed disdain that Dr. Sasso was charging $10,000 to tell him something that

could have been discovered for far less, Dr. Sasso told Harding that he could have

told him there was no case for $500.”

       Less than two months after his second conversation with Dr. Sasso,

Harding sued in Iowa for a full or partial refund of the retainer, plus ten-percent

statutory interests on their contract.3 In response, Dr. Sasso moved to dismiss for

lack of personal jurisdiction. The district court denied that motion. And Dr. Sasso

successfully sought interlocutory appeal. After the parties completed their briefing,

the supreme court transferred the appeal to our court.

II.    Scope and Standard of Review

       We review the district court’s denial of Dr. Sasso’s motion to dismiss for

legal error. See Sioux Pharm, Inc. v. Summit Nutritionals Int’l, Inc., 

 (Iowa 2015). Unlike other grounds for dismissal, a court considering a

motion to dismiss for lack of personal jurisdiction must make factual findings to

determine whether it has personal jurisdiction over the defendant.        Shams v.


3  Harding later amended the petition, alleging breach of contract, breach of
fiduciary duty, conversion, and fraud.
                                           5


Hassan, 

 (Iowa 2013). The court’s legal conclusions and

application of legal principles do not bind us. 

 But, if supported by substantial

evidence, those factual findings do. 

       When considering a motion to dismiss for lack of personal jurisdiction, the

court accepts as true the petition’s allegations, as well as the content of any

uncontroverted affidavits. See Addison Ins. Co. v. Knight, Hoppe, Kurnik & Knight,

L.L.C., 

 (Iowa 2007) (quoting Aquadrill, Inc. v. Env’tal

Compliance Consulting Servs., Inc., 

 (Iowa 1997)).            As

plaintiff, Harding must make a prima facie case showing that personal jurisdiction

is appropriate.    See 

   Then the burden shifts to Dr. Sasso to rebut that

showing. See 

       Jurisdictional issues may overlap with the merits of the parties’ claims. If

genuine issues of material fact exist concerning controverted allegations going to

the merits, the district court should not resolve those issues in deciding the

jurisdictional challenge, even if jurisdiction depends on those facts. Hammond v.

Fla. Asset Fin. Corp., 

 (Iowa 2005). The court should wait to

determine those issues at trial. 

III.   Lack of Factual Findings

       As Harding concedes on appeal, the district court did not set out its factual

findings as required when determining personal jurisdiction. Instead, the court

cited Addison for the principle that it was bound by the facts alleged in Harding’s

petition. Because Dr. Sasso did not seek to amend or enlarge that ruling, Harding

argues that we must presume the district court “decided the facts necessary to
                                            6


support its decision” in his favor. Bankers Tr. Co. v. Fidata Tr. Co. New York, 

 (Iowa 1990).

       As Dr. Sasso offers no response to this argument in his reply brief, we follow

Bankers Trust. Because its findings have the force and effect of a jury verdict, we

must assume the court accepted Harding’s claim that Dr. Sasso agreed “to both

evaluate a potential malpractice claim and to testify as an expert in any ensuing

litigation.” See 

. That decided, we ask: do the facts presented, viewed

in a light most favorable to Harding, support the court’s conclusion that because of

that agreement Dr. Sasso had submitted to jurisdiction in Iowa? See 

IV.    Analysis

       Dr. Sasso contests the district court’s finding of personal jurisdiction. He

claims his “preliminary evaluation” of Harding’s case—conducted from his clinic in

Indiana—did not create the Iowa contacts that would support jurisdiction. He

claims the court failed to follow the analysis in Walden v. Fiore, 

(2014). That case held that a Nevada court could not exercise personal jurisdiction

over a Georgia police officer when none of the officer’s allegedly tortious conduct

occurred in the forum state. 

. Walden reasoned that, “To be sure,

a defendant’s contacts with the forum State may be intertwined with his

transactions or interactions with the plaintiff or other parties. But a defendant’s

relationship with a plaintiff or third party, standing alone, is an insufficient basis for

jurisdiction.” 

.

       The doctor’s claim is constitutional at its core.               The Fourteenth

Amendment’s Due Process Clause limits the power of state courts to exercise

jurisdiction over an out-of-state defendant. “The canonical decision in this area
                                           7


remains International Shoe Co. v. Washington, 

 . . . (1945).”         Ford

Motor Co. v. Montana Eighth Jud. Dist. Ct., 

 (2021). It held

that a tribunal’s jurisdiction hinges on the defendant having “certain minimum

contacts” with the forum state so that maintaining the lawsuit there does not offend

“traditional notions of fair play and substantial justice.” Int’l Shoe, 

.

Dr. Sasso’s challenge focuses on those “minimum contacts” necessary to create

specific jurisdiction.4

       Our analysis is also informed by Iowa Rule of Civil Procedure 1.306. It

defines the reach of Iowa courts’ jurisdiction:

       Every corporation, individual, personal representative, partnership or
       association that shall have the necessary minimum contact with the
       state of Iowa shall be subject to the jurisdiction of the courts of this
       state, and the courts of this state shall hold such corporation,
       individual, personal representative, partnership or association
       amenable to suit in Iowa in every case not contrary to the provisions
       of the Constitution of the United States.

Iowa R. Civ. P. 1.306. “This rule authorizes the widest jurisdictional parameters

allowed by the Due Process Clause.” Cap. Promotions, L.L.C. v. Don King Prods.,

Inc., 

 (Iowa 2008).

       In analyzing minimum contacts, our supreme court has shifted from a five-

factor test5 to a two-part inquiry. Now, to find the contacts necessary for specific



4 Specific jurisdiction (also called “case-linked” jurisdiction) requires defendants to
“purposefully avail” themselves of the privilege to conduct activities in the forum
state. Ford Motor Company, 

. That requirement differs from
general jurisdiction (also called “all purpose” jurisdiction) which permits a tribunal
to proceed based on a forum connection unrelated to the underlying suit (such as
defendant’s domicile). 

 Harding asserts only specific jurisdiction.
5 Those still-relevant factors include: (1) the quantity of the defendant’s contacts

with the forum state, (2) the nature and quality of those contacts, (3) the source of
those contacts and their connection to the cause of action, (4) the interest of the
                                          8


jurisdiction, a plaintiff must show: (1) the defendants have “purposefully directed”

their activities at residents of the forum state and (2) the litigation results from

alleged injuries that “arise out of or relate to” those activities. Book v. Doublestar

Dongfeng Tyre Co., Ltd., 

 (Iowa 2015) (citations omitted).

       “If sufficient minimum contacts exist, the court must then determine whether

the assertion of personal jurisdiction would comport with fair play and substantial

justice.” Sioux Pharm, 

. That determination also relies on

several considerations, including “the burden on the defendant, the forum State’s

interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient

and effective relief, the interstate judicial system’s interest in obtaining the most

efficient resolution of controversies, and the shared interest of the several States

in furthering fundamental substantive social policies.”       Cap. Promotions, 

 (internal quotations and citations omitted).

          A. Did Sasso purposefully direct his activities at Iowa residents?

       The district court decided that Sasso’s agreement to provide expert services

for Harding’s potential malpractice case supplied the connection needed for

personal jurisdiction. Of course, by itself, a contract between an Iowa plaintiff and

an out-of-state defendant does not establish sufficient minimum contacts to permit

Iowa courts to exercise specific personal jurisdiction. See Ostrem v. Prideco

Secure Loan Fund, LP, 

 (Iowa 2014). Rather, a court must

look to the terms of the contract, the parties’ actual course of dealings, as well as

their prior negotiations and contemplated future consequences. 

forum state, and (5) the convenience of the parties. Cap. Promotions, 

.
                                           9


       Without a written contract, we are left with Harding’s bare-bones description

of the terms of his agreement with Dr. Sasso. In short, the petition alleged that

Harding agreed to advance $10,000 to Dr. Sasso in exchange for his expertise in

evaluating “a potential malpractice claim.” Critical to the jurisdictional question, the

petition also alleged that Dr. Sasso “agreed to testify as an expert in any ensuing

litigation.” The district court focused on that second term in denying Dr. Sasso’s

motion to dismiss. In concluding that the expert’s contract to provide services in

Iowa was a sufficient contact to establish personal jurisdiction, the court relied on

three federal district court opinions: Golden v. Stein, 

 (S.D.

Iowa 2019); Echevarria v. Beck, 

 (D.P.R. 2004); and

Guardi v. Desai, 

 (E.D. Pa. 2001).

       Like Dr. Sasso, we find important differences between his situation and

those three cases. We start with Golden, where an attorney being sued for

malpractice brought a third-party action against an accounting firm hired to provide

expert witness opinions in an underlying copyright infringement action brought in

Iowa. 481 F. Supp. 3d at 846. The firm claimed it was not subject to personal

jurisdiction because it had insufficient minimum contacts with the state of Iowa. Id.

at 848. The federal district court disagreed, finding the firm purposefully availed

itself of “the privilege of conducting expert witness activities in this forum to earn

expert witness fees, thus invoking the benefits and protections of this forum’s

laws.” Id. at 860. The court noted those contacts were not “random, fortuitous, or

attenuated,” because the firm—which was designated as an expert in the copyright

case—anticipated that it would have “a relationship with the litigation in the forum

for as long as that litigation lasted” and could be called on to testify in this forum.
                                         10


Id. As the court explained, members of the firm were “aware of the possibility of

testifying in this forum” as evidenced by provisions in its expert witness agreement

for testimony and travel fees. Id. Assessing personal jurisdiction to be a “close”

question, the federal district court decided the firm had sufficient contacts because

it could reasonably anticipate being haled into the Southern District of Iowa over

its performance of that agreement. Id. at 862.

       By contrast, Dr. Sasso did not have a relationship with ongoing litigation in

Iowa. His agreement with Harding contemplated two steps. First, evaluate a

potential malpractice claim. Second, provide testimony in any ensuing litigation.

So any commitment by Dr. Sasso to testify in an Iowa court was contingent on a

positive evaluation of the potential malpractice claim. Indeed, when Dr. Sasso’s

records review revealed no breach of the standard of care by the Iowa medical

providers, no litigation ensued. Thus his contacts with Iowa were much more

attenuated than the experts in Golden. Before Dr. Sasso completed his preliminary

evaluation, neither he nor Harding knew whether an action would be filed, much

less whether Dr. Sasso would be called as an expert witness. On this factual

record, we cannot find that Dr. Sasso deliberately engaged in significant activities

within Iowa. See Burger King Corp. v. Rudzewicz, 

, 475–76 (1985).

       The district court’s other two authorities, Beck and Guardi, can be

distinguished for similar reasons. In Beck, a surgeon was appointed to serve as

an expert in a pending medical malpractice case in Puerto Rico, received a fee,

and provided an expert witness report. 

. When the surgeon

backed out of giving a deposition, the plaintiffs were unable to find a replacement

expert and were forced to voluntarily dismiss their claims. 

 In a later breach-of-
                                         11


contract claim, the federal district court rejected Beck’s personal-jurisdiction

challenge, finding he knew “that he was rendering an expert opinion for a case in

Puerto Rico, and that he would need to travel to Puerto Rico at least for a

deposition and perhaps a trial.” 

. Again by contrast, Harding did not

retain Dr. Sasso to provide expert services in an existing case.         Unless his

preliminary evaluation showed a promising malpractice claim, Dr. Sasso had no

reasonable expectation that he would have to testify in Iowa.

       Guardi is strike three. There, a Pennsylvania plaintiff sued a Colorado

radiologist in Pennsylvania federal court. 

. The radiologist

had been plaintiff’s expert in her Pennsylvania medical negligence action. 

 In

the second action, the plaintiff alleged that the expert lost her mammogram films

and, without those films, she could not prosecute her underlying lawsuit. 

 The

Pennsylvania court decided the expert should reasonably have anticipated being

haled into court in Pennsylvania because she reviewed the films and wrote a report

for Guardi’s malpractice action, requested future opportunities from plaintiffs'

counsel to write expert reports, and agreed to retain the mammogram films to write

an addendum for Guardi. 

. Unlike the expert in Guardi, Dr. Sasso did

not cultivate an ongoing relationship with Harding.

       Having found those federal district court decisions off target, we jump to

Walden, the Supreme Court case touted by Dr. Sasso.             In that case, airline

passengers sued a drug-enforcement agent, Walden, alleging he violated their

rights by seizing their cash in Georgia during their return trip to Nevada. Walden,

.     The Supreme Court noted that Walden’s relevant conduct

occurred in Georgia and held “the mere fact that his conduct affected plaintiffs with
                                         12


connections to the forum State does not suffice to authorize jurisdiction.” 

. Walden emphasized “it is the defendant, not the plaintiff or third parties, who

must create contacts with the forum State.” 

 Applied here, Walden requires that

Dr. Sasso’s relationship with the forum state must arise from contacts he initiated

or pursued—not those created through attorney Harding or the plaintiff or

defendants in the potential malpractice action.

       Walden forecloses Harding’s claim that their oral agreement was sufficient

to subject Dr. Sasso to personal jurisdiction in Iowa. Dr. Sasso’s sole connection

with Iowa was initiated by Harding. Dr. Sasso’s knowledge that Harding was an

Iowa lawyer exploring the possibility of litigation in Iowa did not create sufficient

minimum contacts. “[T]he plaintiff cannot be the only link between the defendant

and the forum.” Fastpath, Inc. v. Arbela Techs. Corp., 

 (8th Cir.

2014) (quoting Walden, 

). Their agreement that Dr. Sasso could

provide expert testimony in Iowa if Harding eventually filed suit did not create

personal jurisdiction. Id. at 822 (finding possibility that agreement could lead to

future business developments in Iowa was not relevant to jurisdictional analysis

because agreement never led to a deal between the parties).

       Stated differently, Dr. Sasso did nothing to purposely direct his activities

toward residents of the forum state. His only involvement with Iowa was to review

the medical records provided by Harding for a negotiated fee. Dr. Sasso did not

purposely inject himself into Iowa for the purposes of doing business with Harding;

he was solicited to provide expert services and did so. See Twaddle v. Twaddle,

 (Iowa Ct. App. 1998) (citing OmniLingua, Inc. v. Great Golf

Resorts of World, Inc., 

 (Iowa Ct. App. 1993) (finding son
                                           13


domiciled in Minnesota was not subject to personal jurisdiction in Iowa for

nonpayment of loan from mother when son did not actively solicit the loan from his

mother).

           B. Does Harding’s suit result from or arise out of Dr. Sasso’s
              contacts with Iowa?

       We next consider the second prong of the minimum-contacts analysis:

whether this litigation results from alleged injuries that “arise out of or relate to” the

defendant’s contacts with Iowa. “A single contact with the forum state can be

sufficient to satisfy due process concerns when the plaintiff’s claim arises out of

the contact.” Shams, 

.

       Harding’s lawsuit arises out of his contractual relationship with Dr. Sasso

and the attorney’s belief that Dr. Sasso took too long to review the medical records

and did not account for his time. That entire records review occurred in Indiana.

Thus, Harding’s alleged injuries did not arise from the doctor’s contacts with the

forum state. See Bankers Trust, 

.

       Given Dr. Sasso’s dearth of contacts with Iowa, we conclude that requiring

him to submit to jurisdiction in an Iowa court would offend due process. 6 The

district court should have granted his motion to dismiss for lack of personal

jurisdiction. We reverse and remand for that result.

       REVERSED AND REMANDED.



6  Having reached that conclusion, we need not determine whether the
consideration of “fair play and substantial justice” would defeat the reasonableness
of jurisdiction. See Cap. Promotions, 

 (“Once the plaintiff has
established the required minimum contacts, the court must determine whether the
assertion of personal jurisdiction would comport with fair play and substantial
justice.”).