[00:00:01] Speaker 03:
Good morning, may it please the court.

[00:00:04] Speaker 03:
My name is Mary Schultz.

[00:00:07] Speaker 03:
I represent the appellant in this case, Mark Cox.

[00:00:10] Speaker 03:
We're asking that the court reverse a district court decision to dismiss this case without prejudice and to remand it for further proceedings.

[00:00:21] Speaker 03:
I want to try and conceptualize this because I think the record is fairly clear.

[00:00:25] Speaker 03:
In a country that is awash,

[00:00:30] Speaker 03:
In opioid addiction, this case comes before this court on an issue of specific jurisdiction, where federal and state controlled substance acts address an attempt to regulate the source of opioid addiction, a known source, which is physicians who over-prescribe opioids in the context of, quote, pain management, oftentimes.

[00:01:00] Speaker 02:
So we have to look at each of the defendants individually for this personal jurisdiction analysis.

[00:01:07] Speaker 02:
drilled down to where we need to drill down.

[00:01:09] Speaker 02:
So with regard to Bledsoe, the PA, are you giving up on Bledsoe?

[00:01:15] Speaker 03:
He's not a factor.

[00:01:16] Speaker 02:
OK, so you were waiving any arguments regarding dismissal of Bledsoe?

[00:01:20] Speaker 03:
Yeah, he was at the very beginning.

[00:01:21] Speaker 03:
So the court should look at this.

[00:01:24] Speaker 02:
So I think what we're really interested in maybe then is Gritman.

[00:01:27] Speaker 02:
And help us understand, how do you all have personal jurisdiction over the hospital?

[00:01:35] Speaker 03:
So Gritman, the thing about Gritman is we don't have enough evidence.

[00:01:42] Speaker 03:
But we do have ER 81 through 109, which is the relentless, unremitting, intentional, purposeful availment of Dr. Marciano to deliver opioids.

[00:01:57] Speaker 02:
So I'm less concerned about Dr. Marciano.

[00:02:00] Speaker 02:
She's part of it.

[00:02:01] Speaker 02:
But how do you attach it to the hospital?

[00:02:05] Speaker 03:
So when a physician generates recurring business, which is done here through the opioid dependencies, that physician is bringing in revenue to the entity, which joins into Gritman as part of their consolidated financial statement.

[00:02:20] Speaker 03:
So in other words, in the medical profession right now, all of the doctors are going on to independent contracts.

[00:02:27] Speaker 03:
And the reason is like this.

[00:02:29] Speaker 03:
The reason is something like this.

[00:02:31] Speaker 03:
In Washington, we have specific philosophies, theories, and case precedent that says that you cannot escape, you as an institution, cannot escape liability for your physicians simply because you put them on independent contract arrangements.

[00:02:48] Speaker 03:
And I would also add these independent contract arrangements differ from facility to facility.

[00:02:53] Speaker 03:
So we don't know here

[00:02:55] Speaker 03:
what the arrangement is between Gritman to Moscow Family Medicine to Dr. Marciano.

[00:03:00] Speaker 03:
What we do know is that Moscow Family Medicine is part of Gritman, reports its revenue through Gritman, and that Gritman benefits from the behavior

[00:03:14] Speaker 03:
of its prescribing physicians who actively seek patients in the state of Washington and then prescribe opioid treatment programs for them in the state of Washington.

[00:03:24] Speaker 03:
So it is Gritman, ultimately, that is benefiting from the revenue that is being generated through opioid transactions in the state of Washington.

[00:03:35] Speaker 03:
Now, in the Cubbage case,

[00:03:38] Speaker 03:
you can tell that the court there allowed a lot of discovery.

[00:03:43] Speaker 03:
And I asked for it here in the supplemental briefing that the district court requested.

[00:03:50] Speaker 03:
I laid out 19 specific provisions that I intended to discover from Gritman to understand exactly what they were saying, because Gritman's evidence through Dr. Marciano, through Moscow Family Medicine, is very inconsistent and internally contradictory.

[00:04:06] Speaker 03:
They use phrases like

[00:04:08] Speaker 03:
Well, I didn't treat her in Washington.

[00:04:10] Speaker 03:
And then you find from a third-party source, two of them, SIDS Pharmacy and Rite Aid Pharmacy, this litany of medical treatment of opioids being- Those are prescriptions.

[00:04:23] Speaker 05:
So if you had been permitted discovery, what questions would you have liked to have answered about Gritman?

[00:04:28] Speaker 03:
Well, are we talking about Gritman or Marciano?

[00:04:31] Speaker 05:
Let's talk about Gritman first.

[00:04:33] Speaker ?:
Okay.

[00:04:34] Speaker 03:
The specific jurisdiction with respect to Gritman, I believe we've already demonstrated, because they're actively advertising into the Washington forum.

[00:04:45] Speaker 02:
They're actively requesting that Washington patients... But was there a necessity that all this advertising that they were doing in Washington related to the treatment that this patient was receiving?

[00:04:55] Speaker 02:
I mean, they could have been advertising all sorts of things, right?

[00:04:59] Speaker 02:
Your allegation in this lawsuit is that Dr. Marciano was overprescribing an opiate.

[00:05:07] Speaker 02:
I mean, obviously, Gritton wasn't putting up billboards saying opiates here.

[00:05:11] Speaker 02:
How do we?

[00:05:14] Speaker 03:
Well, maybe she was.

[00:05:15] Speaker 03:
I mean, see, that's part of the problem is if

[00:05:18] Speaker 03:
So this is not like the cases where you have, as an example, you go to Los Angeles, I go to Los Angeles for a cardiac procedure, best hospital in the country, I'm going to do it there.

[00:05:29] Speaker 03:
And the physician does the procedure there and then releases me to come back to Washington with a transitory pain medication prescription.

[00:05:38] Speaker 03:
So the intent of any further pain medication is going to be transferred over to the Washington primary care provider.

[00:05:45] Speaker 03:
The LA cardiologist is not intending to continue to prescribe the opioids in Washington for the next seven years.

[00:05:54] Speaker 03:
That's not what that's about.

[00:05:56] Speaker 03:
So that is kind of the personal service medical process.

[00:05:59] Speaker 03:
If you have a facility, though, that sits on the Washington border and advertises primary care, and the prime for Washington patients,

[00:06:08] Speaker 03:
That facility is advertising for long-term connection with Washington patients.

[00:06:14] Speaker 03:
And we know that Gritman does this.

[00:06:16] Speaker 05:
And they're inviting them to come to Idaho.

[00:06:19] Speaker 03:
Well, they're inviting them to come to Idaho, and then they're writing them opioid prescriptions to be affected by a Washington pharmacist.

[00:06:27] Speaker 05:
For the convenience of the patient.

[00:06:29] Speaker 03:
Oh, no.

[00:06:30] Speaker 03:
That's not for the convenience of the patient.

[00:06:32] Speaker 03:
This is where you get into the Controlled Substance Act.

[00:06:35] Speaker 03:
So the interesting thing about the Controlled Substance Act

[00:06:39] Speaker 03:
is that it actually puts the physician at the situs of the delivery.

[00:06:43] Speaker 03:
So this is what's interesting about Schedule II opioids that differs from any other case that you have before you.

[00:06:49] Speaker 03:
We're talking about a position that is rendering herself subject.

[00:06:53] Speaker 02:
And so, again, I want to try to parse these.

[00:06:58] Speaker 02:
I understand where you're coming from with Marciano.

[00:07:01] Speaker 02:
I'm still stuck on Gritman.

[00:07:03] Speaker 02:
Gritman's not the hospital or is not prescribing, the physician is prescribing.

[00:07:09] Speaker 02:
How do we get specific jurisdiction to the hospital?

[00:07:14] Speaker 03:
We have to demonstrate, well, we have to demonstrate general jurisdiction.

[00:07:20] Speaker 03:
which requires a very broad discovery process.

[00:07:22] Speaker 04:
Wait, wait, wait.

[00:07:23] Speaker 04:
I mean, did you just make a concession that you're not going after specific jurisdiction for Gritman and your only path is general?

[00:07:30] Speaker 03:
No.

[00:07:30] Speaker 03:
I'm saying we start with general jurisdiction.

[00:07:33] Speaker 03:
General jurisdiction requires all of the things that we are attempting to.

[00:07:38] Speaker 04:
Well, let's focus on specific.

[00:07:40] Speaker 04:
How do you get there for specific jurisdiction over Gritman?

[00:07:45] Speaker 03:
So specific jurisdiction needs to be the intent of the facility to deliver treatment into Washington.

[00:07:53] Speaker 03:
Specific jurisdiction is identified by the intent of the facility.

[00:07:58] Speaker 03:
This is Wright versus Yakley.

[00:08:00] Speaker 03:
At the time of the

[00:08:03] Speaker 03:
treatment being delivered by Dr. Marciano to a Washington resident on a long-term basis, what is Gritman's intent in terms of directing its medical services and medical services provider into the state of Washington?

[00:08:18] Speaker 03:
So you have to look much like Wright versus Yackley.

[00:08:22] Speaker 03:
And in fact, we could actually use Wright versus Yackley beautifully in this situation because this case is a logical extension of Wright versus Yackley.

[00:08:30] Speaker 03:
It brings it full circle.

[00:08:31] Speaker 03:
Let's apply it to Gritman.

[00:08:33] Speaker 03:
At the time the physician is rendering long-term medical care to the patient in Washington, what is Gritman's intent for that physician?

[00:08:44] Speaker 03:
Gripman's intent for that physician is to have its physician deliver long-term medical care into Washington to affect Washington patients, to transact business with Washington pharmacies, to order Washington pharmacies, to generate revenue for Moscow Family Medicine, which Gripman owns.

[00:09:07] Speaker 03:
In coverage, and that's all that's needed under Wright v. Yakley,

[00:09:10] Speaker 04:
My question may be different than Judge Rodriguez, but I want to make sure, it seems to me that the coverage analysis is going to apply to Gritman, so long as Gritman has some sort of responsibility in some way for this treatment.

[00:09:28] Speaker 04:
And it seems like you're saying today, we don't even know if Gritman has a connection or a responsibility in some way or is facilitating this treatment in some way.

[00:09:36] Speaker 03:
Oh we know because they own Moscow Family Medicine and Moscow Family Medicine.

[00:09:41] Speaker 04:
So why isn't that your answer to Judge Rodriguez of like this is why we have Gritman in this case is because Gritman owns the clinic and that's where this happened and basically without the clinic the doctor doesn't have the ability to treat the patient and so they're in this case.

[00:09:55] Speaker 03:
Because that's one answer.

[00:09:56] Speaker 03:
But the other answer is to use the theory of Wright v. Yakley.

[00:10:01] Speaker 03:
The Wright v. Yakley case is as good as Cubbage for this case.

[00:10:05] Speaker 03:
And again, this is a logical extension.

[00:10:08] Speaker 03:
In Wright v. Yakley, you have a physician.

[00:10:12] Speaker 03:
And again, it's just a physician, but I'll get there.

[00:10:15] Speaker 03:
You have a physician who lives in South Dakota, issues one single prescription for a South Dakota resident.

[00:10:21] Speaker 03:
intended to be affected in South Dakota.

[00:10:24] Speaker 03:
So the intent at the physician's prescribing is to stay in South Dakota.

[00:10:30] Speaker 03:
Ultimately, the patient moves to Idaho.

[00:10:32] Speaker 03:
And the only thing that happens in Idaho is the physician mails the one prescription off to Idaho.

[00:10:38] Speaker 03:
So the physician didn't have any intent to operate in Idaho.

[00:10:43] Speaker 03:
In this case, let's take Gritman, because we know Dr. Marciano fits the extension of this mold.

[00:10:49] Speaker 03:
Let's take Gritman.

[00:10:50] Speaker 03:
In this case, Gritman is providing doctors to deliver services into Washington for Washington patients.

[00:11:00] Speaker 03:
Do the patients have to come to Gritman?

[00:11:02] Speaker 03:
No, because as evidenced in this case, the patient can simply dial it in.

[00:11:09] Speaker 03:
All they need to do is they need to sit in their home in Albion, Washington, pick up the phone, and call their physician, their Gritman-affiliated physician, Patricia Marciano, whose revenue sources go upwards to Gritman, and say, I need a refill.

[00:11:28] Speaker 03:
And lo and behold, an hour later, they can walk down the street,

[00:11:33] Speaker 03:
to the Rite Aid Pharmacy and pick up 180 tablets of an opioid.

[00:11:39] Speaker 03:
And they can do that in less than 30 days, in less than 30 days, in less than 30 days.

[00:11:44] Speaker 03:
Who is benefiting from that?

[00:11:47] Speaker 03:
Gritman.

[00:11:48] Speaker 03:
Because Gritman owns the clinic that owns the doctor.

[00:11:55] Speaker 03:
Is Gritman advertising for Washington patients?

[00:11:58] Speaker 03:
Absolutely.

[00:11:59] Speaker 03:
They've served the Palouse for 125 years, is what Gritman says.

[00:12:03] Speaker 03:
Come to us.

[00:12:05] Speaker 03:
Well, what is the treatment?

[00:12:06] Speaker 03:
Well, it's not an operation in Idaho.

[00:12:09] Speaker 03:
It's not a procedure in Idaho.

[00:12:11] Speaker 03:
It's an office visit.

[00:12:13] Speaker 03:
Where is the treatment being delivered?

[00:12:15] Speaker 03:
In Washington, by the use of Washington law, by ordering

[00:12:21] Speaker 03:
the Washington pharmacist to dispense, which the Controlled Substance Act indicates, puts the physician at the situs of the delivery, by the way, for pain that is occurring in Washington to feed an addiction that has been created in Washington by the Gritman Moscow Family Medicine Patricia Marciano trilogy for the benefit of Gritman's revenue.

[00:12:50] Speaker 03:
We know, even though the court did not allow the financial statements, the consolidated financial statements as evidence, I did mention in the supplemental briefing that Gritman does have these general jurisdiction connections with the state of Washington.

[00:13:07] Speaker 03:
But the other thing you have to look at here is that Gritman, we don't know how many times they're using washing pharmacies,

[00:13:14] Speaker 03:
but they're clearly using Washington pharmacies repeatedly.

[00:13:18] Speaker 03:
And those are orders on Washington pharmacists to deliver.

[00:13:24] Speaker 04:
You're under two minutes.

[00:13:24] Speaker 04:
Do you want to save some rebuttal time?

[00:13:26] Speaker 05:
Could I ask a question?

[00:13:27] Speaker 05:
Yes.

[00:13:27] Speaker 05:
I need to ask about the long arm statute.

[00:13:29] Speaker 05:
So I am very, very confused by the Washington decisions on the long arm statute.

[00:13:34] Speaker 05:
So what is your understanding of whether the Washington long arm statute is coextensive with the reach of the 14th Amendment?

[00:13:45] Speaker 03:
With the?

[00:13:46] Speaker 05:
Reach of the 14th Amendment due process clause.

[00:13:49] Speaker 05:
Are those co-extensive, or does the long-arm statute actually do some work so that Washington long-arm statute is narrower than that which would be permitted under the 14th Amendment?

[00:13:59] Speaker 03:
The Washington statute is supposed to exceed, I mean, I'm going to say it's co-extensive, but it's considered to be one of the more liberal long-arm statutes in this state.

[00:14:07] Speaker 05:
And this is true with respect to both A and B, both transacting business and the commission of a tort?

[00:14:14] Speaker 03:
Yes, I mean, because under the Washington long arm statute, even if you affect the transaction outside the state that has the, that has the, doesn't even need the intent, but that has the effect inside the state, that's considered a transaction of the state of Washington.

[00:14:29] Speaker 03:
On that question, can I just take a minute to talk about the Schenck and the Lewis decisions that the district court was using here?

[00:14:37] Speaker 03:
Because I think they're very important to distinguishing this.

[00:14:40] Speaker 05:
Well, I'm familiar with those decisions.

[00:14:43] Speaker 05:
It looks to me like the Washington Supreme Court may have said that the transacting of business is coextensive with the 14th Amendment.

[00:14:49] Speaker 05:
But it looks like the commission of a tort may be narrower.

[00:14:52] Speaker 05:
It keeps putting qualifying language into its decisions.

[00:14:55] Speaker 05:
And we have that as late as 2017 in en banc decisions by the Washington Supreme Court.

[00:15:00] Speaker 03:
Well, but you have to remember that in those cases, so as an example, in the Lewis case, there was no treatment in the state of Washington, no intent to treat in the state of Washington.

[00:15:12] Speaker 03:
Nothing happened in the state of Washington.

[00:15:14] Speaker 05:
Yeah, I'm mostly focused on the language that the Washington Supreme Court has used, because it keeps saying, well, we go as far as the 14th Amendment.

[00:15:22] Speaker 05:
consistent with the long arm statute or consistent with the reach of the long arm statute.

[00:15:28] Speaker 05:
And so it makes it sound like it's gone up to the 14th Amendment, then drawn it back and said, as long as it's consistent with what our long arm statute says.

[00:15:35] Speaker 05:
So I'm very confused as to whether they are coextensive or whether they are not coextensive.

[00:15:40] Speaker 03:
Well, I'd have to say they, you know, they are coextensive.

[00:15:44] Speaker 03:
I mean, but the ultimate key to all of this, which is established in Wright v. Yeakley, is purposeful availment.

[00:15:53] Speaker 05:
Purposeful availment versus... That's the 14th Amendment standard.

[00:15:58] Speaker 03:
Yes, but it's also the long arm.

[00:16:01] Speaker 03:
It weaves into the long arm.

[00:16:03] Speaker 05:
It's not the long arm statute.

[00:16:04] Speaker 05:
The California long arm statute says, our long arm goes as far as the 14th Amendment.

[00:16:09] Speaker 05:
Washington does not say that.

[00:16:11] Speaker 05:
It is an act-enumerated statute adopted after Illinois.

[00:16:15] Speaker 05:
Now, a state can say, nevertheless, it goes all the way to the full extent of the 14th Amendment.

[00:16:23] Speaker 05:
I just can't figure out whether Washington goes that far.

[00:16:26] Speaker 03:
So I don't think that the distinction here is necessarily determinative because of the level of intentional conduct and course of business dealings within the state of Washington that was committed by the physician and with the intent.

[00:16:43] Speaker 03:
to order Washington pharmacies and the intent to address a condition that was manifesting in Washington, which was the pain.

[00:16:50] Speaker 03:
I don't think the distinctions really matter.

[00:16:54] Speaker 03:
This is a physician who is actively engaged in systematic continuing business inside the state of Washington and generating revenue for her corporate owners.

[00:17:04] Speaker 03:
And that is unequivocally

[00:17:07] Speaker 03:
encompassed by both the due process analysis as well as Washington's long-arm analysis.

[00:17:14] Speaker 05:
Okay.

[00:17:14] Speaker 05:
Thank you.

[00:17:15] Speaker 03:
Thank you, Your Honors.

[00:17:17] Speaker 04:
We'll give you two minutes for rebuttal.

[00:17:28] Speaker 01:
May it please the court, my name is Anne Schroeder and I represent Respondent Gritman Medical Center.

[00:17:34] Speaker 01:
I ask the court to affirm the district court's dismissal for personal jurisdiction.

[00:17:38] Speaker 01:
I'll be splitting my time with defendant Dr. Marciano's attorney.

[00:17:44] Speaker 01:
To start off, based on the caress citations, I want to point out that Gritman did not buy Moscow Family Medicine until 2018.

[00:17:51] Speaker 01:
Dr. Marciano was treating Susan Cox two years prior to that, and then Gritman bought the clinic.

[00:18:02] Speaker 01:
It then contracts with a physician's group as independent contractors.

[00:18:07] Speaker 01:
Gritman did not advertise for Susan to come here.

[00:18:11] Speaker 01:
She was already a member of Dr. Marciano before Gritman purchased the clinic.

[00:18:17] Speaker 01:
Secondly, counsel brings up the Controlled Substance Act and how this fits in.

[00:18:23] Speaker 01:
However, the complaint follows the medical malpractice statutes of Washington, which does not apply to this case, as RCW 7.70 defines a health care provider as one who is licensed in Washington.

[00:18:36] Speaker 01:
Dr. Marciano is not licensed in Washington.

[00:18:39] Speaker 01:
And an entity under 7.70 has to employ a physician licensed in Washington.

[00:18:45] Speaker 01:
First, Gritman does not employ her.

[00:18:47] Speaker 01:
She's an independent contractor.

[00:18:49] Speaker 01:
But putting that aside, Dr. Marciano is not licensed in Washington.

[00:18:54] Speaker 01:
So even if Washington had no jurisdiction, there'd be a choice of law.

[00:18:57] Speaker 01:
In Idaho, a law would apply, which for judicial efficiency and for the state of Idaho, it would be best in Idaho for this case, as it currently is in the state court.

[00:19:08] Speaker 04:
That fact might cut against you, actually, because even if this case is tried in Washington under a choice of law,

[00:19:15] Speaker 04:
analysis of Idaho law is going to apply, then what's the harm?

[00:19:23] Speaker 04:
I mean, maybe sometimes you could say inconvenience, but I know this region of the world, and it's not that inconvenient to go to Washington from eight miles on the other side of the border.

[00:19:33] Speaker 01:
The Idaho judges are more familiar with Idaho law, whereas Washington would not be as familiar.

[00:19:40] Speaker 01:
Furthermore,

[00:19:42] Speaker 01:
It defeats the purpose of why this was brought in Washington, which was to defeat the Idaho non-economic cap.

[00:19:49] Speaker 01:
So doing choice of law, it's inconvenient, but it makes more sense to be in the state where this all occurred.

[00:20:01] Speaker 02:
So I know you're saying there was a pre-existing relationship between Dr. Marciano and the deceased before Gritman bought the clinic.

[00:20:12] Speaker 02:
But I mean, the fact that the relationship continues, your clients heavily advertising in this small little valley area, why isn't your

[00:20:21] Speaker 02:
your client for all practical purposes, availing itself of Washington residents, knowing it's doing so, and I don't understand how you get around that.

[00:20:34] Speaker 01:
So we're advertising for patients to come to Gritman.

[00:20:37] Speaker 01:
There are no services that are provided in the state of Washington.

[00:20:40] Speaker 01:
All telehealth is done with patients who are in Idaho.

[00:20:43] Speaker 01:
When she discusses calling it in, that's not for treatment.

[00:20:47] Speaker 01:
That's just to reveal prescription.

[00:20:48] Speaker 02:
But if I see one of your billboards, I'm a Washington resident.

[00:20:51] Speaker 02:
I see one of your billboards.

[00:20:53] Speaker 02:
I request a televisit.

[00:20:54] Speaker 02:
Could I be doing a visit with a doctor from my residence in Washington?

[00:21:00] Speaker ?:
No.

[00:21:00] Speaker 01:
the policy in Idaho as a telehealth must occur with patients who reside in Idaho.

[00:21:07] Speaker 01:
And that is in the record, I believe, under declaration of either Cara Best or Anna Fulmer.

[00:21:17] Speaker 04:
Do doctors who practice in Idaho have to comply with Washington law in sending prescriptions to Washington pharmacies?

[00:21:26] Speaker 01:
So the Washington Pharmacy Act is a bit

[00:21:30] Speaker 04:
Can you answer yes or no and then give me the explanation?

[00:21:33] Speaker 01:
Yes, because the Pharmacy Act says that a physician has to be licensed in any state.

[00:21:39] Speaker 01:
Therefore, an Idaho physician can send prescriptions to Washington.

[00:21:42] Speaker 04:
And in doing so, there's some level of interaction with Washington law.

[00:21:47] Speaker 01:
only to the extent that Washington allows physicians to send prescriptions there to be filled.

[00:21:54] Speaker 01:
It's important to point out that it's not Gritman or the doctors who decide where the prescriptions are sent.

[00:21:58] Speaker 01:
That is directed by the patient.

[00:22:01] Speaker 01:
And in this case, Susan Cox said, please send them to my Washington pharmacies.

[00:22:05] Speaker 02:
But you could have easily said, well, no, we don't fill there.

[00:22:11] Speaker 01:
Yes, although that would cause a problem with any patient who may be traveling, then they're not allowed to get prescriptions filled while traveling.

[00:22:22] Speaker 04:
Well, maybe you'd have a one-off situation in that, but here we have a years-long pattern.

[00:22:30] Speaker 01:
It changed the, I think it would change the entire way that we do prescriptions and doctors, especially with the remote work and borders, if you, then every hospital limits you to only picking up prescriptions in that state.

[00:22:43] Speaker 01:
Because that's essentially what you'd be doing is if you go to Idaho, you'd have to only pick up your prescriptions in Idaho, despite whether you're traveling or living somewhere else, or as with any other state.

[00:22:54] Speaker 04:
Well, no, I mean, do what you want.

[00:22:56] Speaker 04:
But if you send them to another state, then perhaps you're going to have to be subject to suit in that other state for things related to that specific thing of sending the prescriptions.

[00:23:07] Speaker 01:
But specific jurisdiction is our actions toward the state.

[00:23:10] Speaker 01:
We're following what the patients want you to do.

[00:23:12] Speaker 01:
We're not directing our actions to Washington.

[00:23:15] Speaker 01:
A patient is coming to us and saying, can you please send it to them?

[00:23:18] Speaker 01:
It's not us starting it.

[00:23:20] Speaker 01:
We're just fulfilling their directions and their request.

[00:23:24] Speaker 02:
Well, you know, if you were just doing general advertisement on the internet, maybe one thing, but you're actually putting up billboards in Washington.

[00:23:30] Speaker 02:
So aren't you directing activities there?

[00:23:33] Speaker 01:
I'm not sure if the record shows the billboards are in Washington or if the billboards are just around.

[00:23:38] Speaker 01:
But again, it's for patients to come to Idaho.

[00:23:41] Speaker 01:
It's not directed at the state of Washington.

[00:23:44] Speaker 01:
You have to cross the border to get the treatment.

[00:23:48] Speaker 05:
Would you address the long arm statute question?

[00:23:52] Speaker 01:
I believe that the Washington long-arm statute as to tort is limiting, especially if you look at the Swank case where they furthered the rule from Lewis, which is a personal jurisdiction for a professional non-resident commits an alleged malpractice in another state against a Washington resident.

[00:24:10] Speaker 01:
That standing alone does not constitute a tortious act committed in Washington for a resident who was harmed in Washington.

[00:24:17] Speaker 05:
How about transacting any business?

[00:24:22] Speaker 01:
That I'm not sure if it's been limited, because I know this was only just for the negligence.

[00:24:26] Speaker 01:
Whether it limits it to the transaction business, I am not sure.

[00:24:30] Speaker 01:
And pointing out Swank, Swank is similar because the doctor was in Idaho.

[00:24:36] Speaker 01:
The patient was a long-term patient of that doctor, pediatrician from birth.

[00:24:41] Speaker 01:
And the doctor released the patient pursuant to Washington law concerning the concussion stuff to play football.

[00:24:49] Speaker 01:
And the court did not find personal jurisdiction over that doctor despite using Washington law.

[00:24:54] Speaker 01:
For the to release the patient and here you know she's claiming that what patient uses Washington law for prescriptions for a patient to pick up prescription.

[00:25:03] Speaker 04:
The obvious difference is the obvious differences is in swing.

[00:25:07] Speaker 04:
It's a one time thing and in this case it's not.

[00:25:10] Speaker 04:
It's a years long thing.

[00:25:12] Speaker 01:
And to point out, also, Grimman does not practice medicine.

[00:25:15] Speaker 01:
This all comes through doctors.

[00:25:17] Speaker 01:
But even the doctor doing this long-term thing, you have to listen to what the patient asks you.

[00:25:22] Speaker 01:
And if the patient directs you to send the prescription, you must listen to the patient.

[00:25:27] Speaker 01:
It is in the statutes, I believe, for pharmacy-controlled substances.

[00:25:33] Speaker 01:
And I don't know the exact number that states that it is the patient's choice to where the prescription is being sent.

[00:25:41] Speaker 02:
So much was being made about how much money Gritman might be making out of your doctor's practice group.

[00:25:49] Speaker 02:
Is Gritman making any money over prescriptions?

[00:25:54] Speaker 02:
Is any net flowing back to the hospital?

[00:25:56] Speaker 01:
No, usually prescriptions then go to the drug company.

[00:26:00] Speaker 01:
The money the doctors in the hospital makes is through the actual visits to the doctor.

[00:26:05] Speaker 05:
When you said that there's a statute that says that the patient gets to determine where the prescription is filled, is that a Washington statute?

[00:26:11] Speaker 01:
It's a Washington statute.

[00:26:12] Speaker 05:
Why would that apply to a prescription that was written in Idaho?

[00:26:15] Speaker 01:
Because the Washington statute says that it has to fulfill any prescription written by a physician licensed in any state.

[00:26:25] Speaker 05:
That a pharmacy does.

[00:26:26] Speaker 01:
Oh, sorry, a pharmacy.

[00:26:27] Speaker 05:
A pharmacy does.

[00:26:28] Speaker 05:
But I thought you told us that it was the patient's choice where the prescription was filled.

[00:26:32] Speaker 01:
It is the patient's choice.

[00:26:33] Speaker 05:
OK.

[00:26:33] Speaker 05:
But again, why would the Washington statute apply to a doctor in Idaho?

[00:26:37] Speaker 01:
This applies, sorry, to the physicians in Washington that they must fulfill anything prescribed.

[00:26:43] Speaker 05:
OK.

[00:26:43] Speaker 05:
But Dr. Marciano is not a Washington physician.

[00:26:45] Speaker 05:
That's correct.

[00:26:45] Speaker 05:
So the statute doesn't apply.

[00:26:47] Speaker 01:
No, not to her.

[00:26:47] Speaker 05:
OK.

[00:26:49] Speaker 01:
Any other questions?

[00:26:51] Speaker 01:
OK.

[00:26:52] Speaker 01:
Nope.

[00:26:52] Speaker 01:
Thank you.

[00:27:03] Speaker 00:
Good morning, Your Honors.

[00:27:04] Speaker 00:
Amanda Thorsvig for Dr. Marciano.

[00:27:06] Speaker 00:
This court should affirm, because precedent, public policy, and due process all confirm that Washington cannot exercise jurisdiction over Dr. Marciano here, because really what we have here is a patient

[00:27:18] Speaker 00:
who is choosing to come across the border into Idaho to receive medical care from an Idaho licensed-only provider, and all of the medical care occurred in Idaho.

[00:27:30] Speaker 00:
And the only connection to the forum is one that the plaintiff is creating by instructing Dr. Marciano to send her prescriptions there.

[00:27:39] Speaker 00:
And Dr. Marciano did that only as part of the treatment provided in Idaho.

[00:27:44] Speaker 00:
So precedent, including Washington's long-arm statute, which I agree is limiting in terms of due process, says that the touchstone for jurisdiction is where the medical care occurred.

[00:27:56] Speaker 00:
Because it is a personal service, it's directed to the patient, it's not directed to any particular state.

[00:28:01] Speaker 02:
You know, where the medical care occurred, I mean, that's sort of like a static point that you're trying to draw, that Dr. Marcianos in Idaho writes a prescription and somehow the prescription just stays in Idaho.

[00:28:12] Speaker 02:
it flowed.

[00:28:14] Speaker 02:
I mean, it's not a static occurrence.

[00:28:18] Speaker 00:
I agree, but Washington, in looking at its long-arm statute in the Swank case, said that even when a physician sends something into Washington pursuant to Washington law, and that something causes injury in Washington, that is not sufficient to confer long-arm jurisdiction because what you look at is where the care occurred.

[00:28:38] Speaker 00:
And we only have examples.

[00:28:41] Speaker 04:
I understand your argument.

[00:28:42] Speaker 04:
I'd be making it, too.

[00:28:44] Speaker 04:
But we only have case law out of Washington that it's applying that in these one-off situations.

[00:28:49] Speaker 04:
So we take two things possibly from that.

[00:28:52] Speaker 04:
In the non-one-off situations, jurisdiction applies.

[00:28:57] Speaker 04:
And that's obvious.

[00:28:58] Speaker 04:
And so there's no case law that needs to tell us that.

[00:29:02] Speaker 04:
Or the Washington courts just haven't gotten a case yet.

[00:29:05] Speaker 04:
to announce that this limiting rule applies also in a sort of an extended treatment situation and not a one-off situation.

[00:29:14] Speaker 04:
What are we supposed to make of that?

[00:29:16] Speaker 00:
We can look at case law from other jurisdictions, which, again, is non-binding.

[00:29:21] Speaker 00:
But I do think it's persuasive in how analogous it is.

[00:29:23] Speaker 00:
And so on pages 39 and 40 of our brief, we've got a string side of a bunch of cases.

[00:29:29] Speaker 00:
And I'd call your attention to a few of them that do involve multiple sustained prescriptions over a period of time that resulted in overdose.

[00:29:37] Speaker 00:
For example, we have this Hicks versus Wallet case out of the US District Court of Alabama.

[00:29:42] Speaker 00:
The patient overdosed after multiple prescriptions and the court rejected jurisdiction.

[00:29:48] Speaker 00:
And the Nichols versus MMIC case out of U.S.

[00:29:51] Speaker 00:
District Court of South Dakota, it was a similar situation.

[00:29:54] Speaker 00:
The plaintiff contended there was a routine prescription of medicine, routine calling into pharmacies in the forum.

[00:30:00] Speaker 00:
And there are other cases.

[00:30:01] Speaker 00:
Does that jive with our Cubbage case?

[00:30:03] Speaker 00:
Well, let me just say this.

[00:30:05] Speaker 00:
It jibes with Cubbage because in Cubbage there was a purposeful availment component that was satisfied because the doctors in Cubbage had reached out and gotten these Medi-Cali licenses which allowed them to sue in California courts if they didn't get reimbursed for the services.

[00:30:25] Speaker 00:
And here, we have no deliberate choice of Dr. Marciano's reaching into the forum.

[00:30:31] Speaker 00:
And that underlies these decisions that involve multiple prescriptions, because in those cases, the courts found that, from Hicks versus Wallach, page 23 and 24, the patient's choice of pharmacy in the forum was entirely hers, and there was no evidence that the doctor cared where she filled their prescription or received any benefit from her choice of pharmacy.

[00:30:53] Speaker 00:
And the Nichols case was similar in reasoning.

[00:30:56] Speaker 00:
So there's an absence of the purposeful availment component, especially here, where there was a clinic policy that's from the declaration of Fullner that said the doctor has to fill the prescriptions at the pharmacy of the patient's choice, even if that is outside of Idaho.

[00:31:11] Speaker 04:
I don't understand the purposeful of element idea here.

[00:31:14] Speaker 04:
I mean, and maybe it's just because I know this area.

[00:31:16] Speaker 04:
But the reality is that Moscow has more things to offer than Pullman and the other little towns near there on the Washington side.

[00:31:25] Speaker 04:
And so lots of people in Washington.

[00:31:27] Speaker 04:
go to Moscow to shop and to do other things.

[00:31:31] Speaker 04:
And the Moscow businesses benefit from that and encourage that.

[00:31:35] Speaker 04:
And that's certainly true in the medical side of things, too, for that practical reality and also the reality of the liability difference between Idaho and Washington, much more favorable for doctors to be in Idaho.

[00:31:46] Speaker 04:
So with that reality,

[00:31:48] Speaker 04:
How is it fair to say that this medical clinic sitting on the Idaho side of the line isn't actually trying to encourage Washington patients to come there?

[00:32:00] Speaker 04:
That just doesn't seem real to me.

[00:32:01] Speaker 00:
Well, there's no evidence in the record that Dr. Marciano herself personally was advertising or reaching out or trying to solicit Washington patients.

[00:32:09] Speaker 04:
No, but she knows for years and years and years that she has Washington patients.

[00:32:13] Speaker 04:
And she's not discouraging that, and she's not saying, you know, you really should get a Washington doctor.

[00:32:17] Speaker 04:
I don't really want to do this, you know, this thing.

[00:32:19] Speaker 04:
She's not doing any of that.

[00:32:20] Speaker 04:
Like, this is good for her that she has more patients.

[00:32:24] Speaker 02:
And a natural follow-up to that is if she decides, well, I better not prescribe or have my prescriptions filled in Washington, I'll just stop filling them there, and then she's going to lose her patient base.

[00:32:35] Speaker 02:
They'll just move on to somebody else.

[00:32:37] Speaker 00:
I think that that does, though, underscore the policy reason why Washington, in evaluating its long-arm statute and other courts, have said medical malpractice claims are unique.

[00:32:49] Speaker 00:
We do not want them to be a portable tort because that is going to erect access to care barriers that's going to be harmful to patients because if a doctor says, look, I don't want there to be

[00:33:01] Speaker 00:
jurisdiction in neighboring or even distant states, I'm afraid of having to defend in those less favorable forums, I'm not gonna treat you, I'm not gonna see you, you're gonna have to go get your prescription from somebody else.

[00:33:12] Speaker 00:
That is exactly the policy concern that Wright versus Yaxley, other courts across the nation, Washington have recognized in creating this exception for medical malpractice actions.

[00:33:23] Speaker 00:
And that is a very real concern, especially in a more rural area where there might not be just this plethora of doctors who can treat patients.

[00:33:31] Speaker 00:
And that is why courts look at the location where the care is provided.

[00:33:36] Speaker 00:
And there is another case, Boyd versus Green, where it said, you know, the prescriptions are just a component of the medical care provided in the doctor's office.

[00:33:46] Speaker 00:
And here that's the case, too.

[00:33:48] Speaker 00:
Dr. Marciano didn't derive any benefit from prescribing into Washington.

[00:33:54] Speaker 00:
And if you look, too, at where this lawsuit is focused, it is on Dr. Marciano's medical judgment that occurred in Idaho.

[00:34:03] Speaker 00:
The complaint talks about you should have noticed that this patient was deteriorating.

[00:34:08] Speaker 00:
You should have had informed consent discussions with her about the combination of medication she was taking.

[00:34:13] Speaker 00:
All of that happened in Idaho, and that ties jurisdiction very closely to Idaho.

[00:34:19] Speaker 00:
And Idaho, too, then, has an interest

[00:34:21] Speaker 00:
stronger than Washington's in ensuring its providers are competent and providing competent care to its patients.

[00:34:28] Speaker 00:
So for all of these reasons, we'd ask that you affirm we think the district court got it right and that there's no personal jurisdiction against Dr. Marciano.

[00:34:36] Speaker 04:
Thank you.

[00:34:36] Speaker 04:
Thank you, counsel.

[00:34:38] Speaker 04:
We'll give you two minutes.

[00:34:44] Speaker 03:
A physician, primary care physician,

[00:34:48] Speaker 03:
and that physician's owner benefit financially from the recurring business of an opioid addict.

[00:34:57] Speaker 03:
It is not the money that's paid to the pharmacy that they benefit from.

[00:35:03] Speaker 03:
It's the fact that the patient comes back time after time after time after time in order to get those prescriptions.

[00:35:10] Speaker 03:
So the physician is directly benefiting financially from creating an opioid addict.

[00:35:16] Speaker 03:
And this is part of the problem of how the opioid addiction scourge got going.

[00:35:22] Speaker 03:
That is happening in Southeast Washington.

[00:35:25] Speaker 03:
Second, the physician

[00:35:29] Speaker 03:
announces that she is not licensed in Washington.

[00:35:33] Speaker 03:
But Washington law, she says, requires her to go with the patient's choice.

[00:35:40] Speaker 05:
I think she backed off of that.

[00:35:42] Speaker 05:
That's Washington law.

[00:35:44] Speaker 05:
The doctor's not subject to Washington law.

[00:35:46] Speaker 03:
Yeah, and that's an interesting point because Washington controlled substance law requires that prescriptions be issued in conformance with Washington law.

[00:35:54] Speaker 03:
So if the doctor is not licensed in Washington, how is the doctor writing prescriptions in conformance with Washington law?

[00:36:03] Speaker 05:
Are the pharmacies allowed to fill prescriptions from out of state?

[00:36:08] Speaker 03:
In Washington, pharmacies are required to dispense at the directive of a physician.

[00:36:15] Speaker 03:
Now, the language is a physician who writes for a legitimate medical purpose in compliance with Washington law.

[00:36:21] Speaker 03:
But as you can see here, the pharmacies are dispensing because these are orders of the physician.

[00:36:26] Speaker 03:
So they're not drawing a distinction.

[00:36:28] Speaker 03:
That's something that still needs to be, frankly, to be addressed.

[00:36:32] Speaker 03:
Third, the delivery of medical services.

[00:36:35] Speaker 03:
The Idaho prescription at its intent is intended to affect the medical treatment in Washington.

[00:36:43] Speaker 03:
The intent as the doctor sits in the office is to deliver that to a Washington pharmacist to affect the intent of that opioid in the state of Washington on that pain clinic to cause an addiction and ultimately here to cause a death.

[00:36:59] Speaker 04:
All right, you're out of time.

[00:37:00] Speaker 04:
Do we have any further questions?

[00:37:03] Speaker 04:
I think Council, for the helpful argument, the matter of Cox versus Gritman Medical Center is submitted and our calendar is complete for the day.