                                                                                 SECOND DIVISION
                                                                                     March 15, 2011



No. 1-09-2643

TERRI McNALLY, SEAN MULRONEY,                            )
and J. BRIAN PIERCE,                                     )       Appeal from the
                                                         )       Circuit Court of
                  Plaintiff-Appellants,                  )       Cook County
                                                         )
       v.                                                )       No. 09 L 2565
                                                         )
GREG MORRISON,                                           )       Honorable
                                                         )       Dennis J. Burke,
                  Defendant-Appellee.                    )       Judge Presiding.
                                                         )
(TASA Group, Inc., Defendant).                           )


       JUSTICE HARRIS delivered the judgment of the court, with opinion.
       Justices Karnezis and Connors concurred in the judgment.

                                                 OPINION

       Here we are called upon to determine whether the trial court has personal jurisdiction

pursuant to the Illinois long arm statute (735 ILCS 5/2-209 (West 2008)) over a nonresident

defendant. For the following reasons, we reverse the decision of the trial court and find that the

court does have personal jurisdiction over defendant.

       Plaintiffs Terri McNally, Sean Mulroney, and J. Brian Pierce sued defendants Greg

Morrison, M.D., and TASA Group, Inc., in the circuit court of Cook County in 2009, alleging
                                             1




breach of contract, consumer fraud, fraud, and professional negligence. These actions arise from

plaintiffs’ hiring of Dr. Morrison, who resides in the state of Ohio, as their controlled expert


       1
           Defendant TASA Group is not a party to this appeal.
No. 1-09-2643

witness in a separate tort suit that Mulroney and Pierce had filed on behalf of McNally. The

defendant rendered to plaintiffs his expert report, opining that Dr. Mark Zukowski had deviated

from the standard of care. The plaintiffs relied on the expert report and opinion in proceeding

with the tort action. At his deposition, defendant contradicted his expert report in its entirety and

testified that Dr. Zukowski’s actions did not deviate from the standard of care. Following the

dismissal of their case against Dr. Zukowski, plaintiffs filed this case and Morrison moved to

dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West

2008)) alleging that the trial court did not have personal jurisdiction over him. The trial court

granted defendant’s motion to dismiss and plaintiffs filed this timely appeal. The only issue

before us is whether the trial court had personal jurisdiction over defendant.

                                          JURISDICTION

       The trial court entered a final judgment in the instant case on September 23, 2009, and

defendant filed his notice of appeal on October 6, 2009. Accordingly, this court has jurisdiction

pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments

entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); 303 (eff. May 30, 2008).

                                          BACKGROUND

       The events of this case begin with a separate and unrelated medical malpractice action

that plaintiffs Mulroney and Pierce, both attorneys, had brought on behalf of plaintiff McNally

against plastic surgeon Dr. Mark Zukowski. Plaintiffs alleged in their complaint against

Zukowski that he negligently performed ultrasonic (UAL) and traditional liposuction on



                                                  2
No. 1-09-2643

McNally. In the course of preparing their case against Zukowski, Mulroney and Pierce contacted

TASA, a referral service that connects testifying and consulting experts with clients in law,

industry, and government. Mulroney and Pierce informed TASA that they sought physicians

who could testify as expert witnesses regarding UAL procedures such as the one performed on

McNally. TASA provided Mulroney and Pierce with the names and contact information for

several plastic surgeons who met plaintiffs’ specifications.

       After speaking with each of the prospective experts via telephone, Mulroney and Pierce

decided to employ defendant Morrison, an Ohio plastic surgeon, in their case against Zukowski.

On October 10, 2005, Pierce sent a retention letter to Morrison. The letterhead on the page bore

the name “J. Brian Pierce & Associates/Attorneys at Law” and listed an address in Chicago,

Illinois. No other reference to the State of Illinois appeared in the document. The letter stated

that Morrison had been recommended by TASA and briefly described the liposuction procedure

and follow-up care at issue in the action against Zukowski. The letter then concluded as follows:

                       “I have enclosed several items for your review. If possible,

                I would like to briefly discuss this matter with you tomorrow

                afternoon. Dr. Zukowski’s deposition will proceed the following

                day on Wednesday, October 12, 2005.

                       I have been informed of your fee structure, and I accept the

                terms of the same. I look forward to working with you on this

                matter.”



                                                  3
No. 1-09-2643

       On October 11, 2005, TASA sent a memorandum of confirmation to Pierce &

Associates, the law firm of plaintiff Pierce. The memorandum references an attached rate sheet

that details the rates and fees for Dr. Morrison’s services. It also states that, “After reviewing

your requirements, we have referred the above-named Expert [Morrison],” and further states that

TASA will bill the firm for “all time the Expert spends on your behalf.” Although the

memorandum includes the legend, “IMPORTANT - SEE OTHER SIDE,” the copy attached to

plaintiffs’ complaint in the instant case contains only the first page. The exhibit does not include

the reverse side of the memorandum. However, the memorandum nowhere purported to describe

what duties an expert referred by TASA would perform or that Dr. Morrison, the expert, was an

agent of TASA. It merely indicated that TASA would and did provide referral and billing

services.

       The rate sheet included in the exhibit attached to the memorandum includes fee rates for,

among other items, out-of-office depositions and court appearances. In addition, the rate sheet

designated that fees were estimated and payable in advance to TASA.

       On October 26, 2005, Mulroney sent Morrison a second letter and enclosed preoperation

and postoperation photographs from McNally’s liposuction procedure. Pierce sent a third letter

to Morrison on November 20, 2005. This third letter acknowledged Mulroney’s receipt of a

report prepared by Morrison in October. With the letter, Mulroney enclosed additional

photographs “as per your request,” along with Zukowski’s deposition for Morrison’s “review

and reference in [his] final report.” The letter also included directions to Morrison regarding his



                                                   4
No. 1-09-2643

final report. Specifically, the letter directed Morrison to remove from his final report any

reference to the observations of Dr. John Hugill, who had submitted the affidavit required for

filing a medical malpractice suit in Illinois. See 735 ILCS 5/2-622 (West 2008). The letter

concluded as follows: “I am very pleased with your report with the elimination of reference to

Dr. Hugill, and with the future incorporation of the pictures and the deposition of Dr. Mark

Zukowski.”

       On January 31, 2006, Mulroney mailed Morrison a fourth letter, enclosing the deposition

transcripts of Dr. Zukowski. Approximately 10 months later, on December 1, 2006, Morrison

mailed his expert witness report to Mulroney. Morrison’s report includes the header “TASA

Case #IL” and states that it is in regard to “your client Terry McNally [sic] and her legal action

against Dr. Mark Zuckowski [sic].”

       Mulroney stated in an affidavit that sometime during the second week of January 2007,

he had a telephone conversation with Morrison to discuss the expert witness report and to begin

preparations for Morrison’s deposition, which would be taken in February 2007. In order to

accommodate Morrison’s private practice, Pierce and Mulroney, along with attorneys for Dr.

Zukowski, agreed to hold the deposition in Morrison’s office in Ohio. Mulroney arranged to

spend some time with Morrison in Ohio prior to the deposition in order to prepare his testimony.

In his affidavit, Mulroney attested that, “During our preparation, Dr. Morrison informed me that

he had been unable to locate and therefore had never reviewed the deposition transcripts of

[McNally] and [Dr. Zukowski] nor had he looked at the pre and post operation photographs of



                                                  5
No. 1-09-2643

Ms. McNally. When I expressed concern, he assured me that he was firm in his opinion

regardless of his failure to review those items.” However, at the deposition, Morrison

contradicted his expert report in its entirety and testified that Dr. Zukowski’s actions did not

deviate from the standard of care.

        During this period, from October 2005 through February 2007, Mulroney and Pierce had

sent TASA four checks in response to bills for the time that Morrison had spent on the Zukowski

case. All billing and payments went through TASA; the record does not contain any evidence of

Morrison directly billing plaintiffs for his services.

        After Morrison’s deposition, plaintiffs’ case against Dr. Zukowski was dismissed. In

addition, Morrison signed an affidavit attesting that he had not reviewed McNally’s entire

medical record prior to his deposition and that, after reviewing the entire record, he opined that

Dr. Zukowski’s actions did not meet the applicable standard of care and contributed to

McNally’s injuries.

        Following the dismissal of their case against Dr. Zukowski, plaintiffs commenced the

instant action against Morrison and TASA. In their complaint, plaintiffs sued Morrison both

individually and, in the alternative, as an agent of TASA. The complaint pled one count - breach

of contract - against TASA and four counts against Morrison. Specifically, plaintiffs alleged
                             2




        2
          Subsequently, TASA moved to dismiss pursuant to section 2-619.1 on the grounds that the
memorandum of confirmation sent to Pierce and Mulroney in October 2005 contained a valid forum
selection clause mandating that any suits brought under the agreement would be pursued in Montgomery
County, Pennsylvania. In support of its motion, TASA attached both sides of the memorandum and the
reverse page contained the forum selection clause. The reverse page also contained a provision
disclaiming any liability on the part of TASA with respect to any act or omission of an expert retained

                                                    6
No. 1-09-2643

breach of contract, consumer fraud, fraud, and professional negligence by Morrison for his

performance as an expert witness in the action against Dr. Zukowski.

        On May 13, 2009, Morrison filed a motion to dismiss pursuant to section 2-619 alleging

that the complaint failed to state a basis upon which the trial court could exercise personal

jurisdiction over him. In support of his motion, Morrison submitted an affidavit in which he

attested:

                          “Counsel Mulroney and Pierce accepted TASA’s

                suggestion of me as a consultant on the malpractice matter.

                          The contract for consulting services was between TASA

                and counsel Mulroney and Pierce. I was not a party to that

                agreement and have no contract with a person or entity in Illinois

                regarding this matter.

                          All billing and invoicing related to the consulting services

                were handled by TASA, from its office in Pennsylvania, and were

                limited to exchanges between TASA and counsel Mulroney and

                Pierce.

                          All payments for consulting services were made by counsel

                Mulroney and Pierce to TASA in Pennsylvania.


through TASA’s referral service. In addition, the disclaimer stated that TASA makes no representation or
warranty regarding the qualifications of the experts which it refers. The trial court entered an agreed
order dismissing TASA from the instant case on July 28, 2008, and TASA is not a party to this appeal.

                                                     7
No. 1-09-2643

                       At no time did I initiate contact by telephone with counsel

                Mulroney or Pierce, or McNally, or anyone else in Illinois.

                       My review of records and materials related to McNally’s

                care and treatment was performed in Ohio.

                       My report on McNally’s care and treatment was prepared

                in Ohio.

                       At no time did I visit Illinois for any purpose related to the

                McNally malpractice case.

                                                ***

                       At no time did I ever avail myself of any Illinois law

                related to my review of records and materials related to McNally’s

                care and treatment.

                       I have never practiced medicine in Illinois nor testified in

                Illinois while in the capacity of a retained consultant on a medical

                malpractice action.”

       Mulroney filed a counteraffidavit in response to Morrison’s motion to dismiss, in which

he chronicled his dealings with Morrison. Mulroney attested to several telephone conversations

discussing the case and Morrison’s written work product. In addition, Mulroney described the

events leading up to and during Morrison’s deposition in which Morrison’s lack of preparation

came to light. However, Mulroney’s affidavit contains little detail about the relationship between



                                                  8
No. 1-09-2643

plaintiffs and Morrison, other than that Morrison acted as an “expert.”

                                             ANALYSIS

       We are presented with only one issue on appeal: whether the trial court erred in

dismissing the instant case against the nonresident defendant for lack of personal jurisdiction.

Plaintiffs assert that the trial court could exercise personal jurisdiction over Morrison because he

entered into an agreement with plaintiffs to provide expert witness services to Illinois attorneys

in an Illinois medical malpractice action.

                                        I. Standard of Review

       The plaintiff bears the burden of making a prima facie showing that the trial court has

personal jurisdiction over a nonresident defendant. Roiser v. Cascade Mountain, Inc., 367 Ill.

App. 3d 559, 561 (2006). When, as here, the trial court based its decision solely on documentary

evidence, we review a trial court’s dismissal of a case for lack of personal jurisdiction de novo.

Dickie v. Cannondale Corp., 388 Ill. App. 3d 903, 906 (2009). When reviewing affidavits and

pleadings in the record, we resolve any conflicts between the documents in the plaintiffs’ favor,

for purposes of determining whether they have made a prima facie case for jurisdiction. Bolger

v. Nautical International, Inc., 369 Ill. App. 3d 947, 950 (2007). A defendant’s uncontradicted

evidence that defeats jurisdiction can overcome a plaintiff’s prima facie showing. Bolger, 369

Ill. App. 3d at 950. And “well-alleged facts within affidavits presented by the defendant must be

taken as true notwithstanding the existence of contrary averments in the plaintiff’s pleadings

unless the defendant’s affidavits are contradicted by affidavits presented by the plaintiff, in



                                                   9
No. 1-09-2643

which case the facts in the plaintiff’s affidavits prevail.” Keller v. Henderson, 359 Ill. App. 3d

605, 611 (2005).

                                          II. Personal Jurisdiction

          In order for a court to have personal jurisdiction over a party, three elements must be

established: (1) proper service of process, (2) jurisdiction under the Illinois long-arm statute (735

ILCS 5/2-209 (West 2008)), and (3) due process under both the United States and Illinois

Constitutions. Morgan, Lewis & Bockius LLP v. City of East Chicago, 401 Ill. App. 3d 947, 952

(2010).

          We note as a preliminary matter that the record contains no proof of service. Counsel for

defendant filed an appearance with the court, and neither party has raised lack of proper personal

service as a material issue to determine personal jurisdiction either in the trial court or in this

appeal. Accordingly, we conclude that defendant counsel’s appearance and neither party raising

the issue in the trial court or in this appeal result in a forfeiture and we assume proper personal

service in our analysis.



                                       1. Illinois Long-Arm Statute

          The long-arm statute in Illinois sets forth several bases upon which trial courts may

exercise personal jurisdiction over nonresident defendants. 735 ILCS 5/2-209 (West 2008).

Section 2-209 provides in pertinent part:

                           “(a) Any person, whether or not a citizen or resident of this



                                                     10
No. 1-09-2643

                State, who in person or through an agent does any of the acts

                hereinafter enumerated, thereby submits such person, and, if an

                individual, his or her personal representative, to the jurisdiction of

                the courts of this State as to any cause of action arising from the

                doing of any of such acts:

                                (1) The transaction of any business within

                        this State;

                                (2) The commission of a tortious act within

                        this State;

                                                 ***

                                (7) The making or performance of any

                        contract or promise substantially connected with

                        this State[.]” 735 ILCS 5/2-209 (West 2008).

Plaintiffs assert jurisdiction is proper under three different sections of the statute: doing business

within Illinois, commission of a tort in Illinois, and the making or performance of a contract or

promise substantially connected with Illinois.

        However, the long-arm statute also includes a “catchall” provision in subsection (c),

which provides that a court “may also exercise jurisdiction on any other basis now or hereafter

permitted by the Illinois Constitution and the Constitution of the United States.” 735 ILCS 5/2-

209(c) (West 2008). Illinois courts have found this section “to be coextensive with the due



                                                  11
No. 1-09-2643

process requirements of the Illinois and United States Constitutions.” Keller, 359 Ill. App. 3d at

612, (citing Kostal v. Pinkus Dermatopathology Laboratory, P.C., 357 Ill. App. 3d 381, 386

(2005)). In addition, subsection (c) provides a separate independent basis upon which a trial

court can exercise jurisdiction. Keller, 359 Ill. App. 3d at 612. Thus, “the long-arm statute is

satisfied when due process concerns are satisfied, regardless of whether the defendant performed

any of the acts enumerated in the long-arm statute.” Id.

                                            2. Due Process

        The Illinois Constitution contains its own due process guarantee, separate and distinct

from that of the United States Constitution. Rollins v. Ellwood, 141 Ill. 2d 244, 275 (1990).

Under the constitution of this state, due process demands that “[j]urisdiction is to be asserted

only when it is fair, just, and reasonable to require a nonresident defendant to defend an action in

Illinois, considering the quality and nature of the defendant's acts which occur in Illinois or

which affect interests located in Illinois.” Rollins, 141 Ill. 2d at 275. While it is theoretically

possible that the due process standards of the Illinois and United States Constitutions could

diverge in some cases, Illinois courts have yet to identify those situations. See Keller, 359 Ill.

App. 3d at 619-20. More importantly, Morrison does not assert that they do here. Accordingly, in

this case, if plaintiffs satisfy federal due process concerns, then they satisfy Illinois due process

concerns as well.

        Federal due process requires that a nonresident defendant have certain “minimum

contacts” with Illinois “such that the maintenance of the suit does not offend ‘traditional notions



                                                   12
No. 1-09-2643

of fair play and substantial justice.’[Citation.] ” International Shoe Co. v. Washington, 326 U.S.

310, 316 (1945); Spartan Motors, Inc. v. Lube Power, Inc., 337 Ill. App. 3d 556, 560 (2003). The

minimum contacts test “cannot be simply mechanical or quantitative.” International Shoe, 326

U.S. at 319. “Whether due process is satisfied must depend rather upon the quality and nature of

the activity in relation to the fair and orderly administration of the laws which it was the purpose

of the due process clause to insure.” Id. In order for jurisdiction to comport with due process,

there must be “some act by which the defendant purposefully avails [himself] 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). This purposeful availment requirement

ensures that a nonresident defendant will not be forced to litigate in Illinois because of random,

fortuitous, or attenuated contacts or the “unilateral activity of another party or a third person.”

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984)). “Jurisdiction is proper, however, where the

contacts proximately result from actions by the defendant himself that create a ‘substantial

connection’ with the forum State.” (Emphasis in original.) Burger King, 471 U.S. at 475

(quoting McGee v. International Life Insurance Co., 355 U.S. 220, 223 (1957)). This connection

need not involve physical contacts with the forum state. Rather, “[s]o long as a commercial

actor’s efforts are ‘purposefully directed’ toward residents of another State,” that state may

exercise personal jurisdiction over a nonresident defendant. Burger King, 471 U.S. at 476 (citing

Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774-75 (1984)).



                                                  13
No. 1-09-2643

        Once plaintiffs have established a defendant’s minimum contacts with Illinois, we must

then consider those contacts in light of certain other factors to determine whether the exercise of

personal jurisdiction comports with “ ‘fair play and substantial justice.’ ” Burger King, 471 U.S.

at 476 (quoting International Shoe, 326 U.S. at 320). The Supreme Court has set forth the

following factors as aids in establishing “the reasonableness of jurisdiction upon a lesser

showing of minimum contacts than would otherwise be required”: (1) the burden on the

defendant, (2) the interest of the forum state in adjudicating the dispute, (3) the plaintiffs’

interest in obtaining convenient and effective relief, (4) the interstate judicial system’s interest in

obtaining the most efficient resolution of controversies, and (5) the shared interest of the several

states in furthering fundamental substantive policies. Burger King, 471 U.S. at 477 (quoting

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)). The burden then shifts

to defendant to present a compelling case that the trial court’s assertion of jurisdiction over him

would be unreasonable. Burger King, 471 U.S. at 477.

        Thus, we first must determine whether Morrison had sufficient minimum contacts with

Illinois to support an exercise of personal jurisdiction. When, as here, plaintiffs assert minimum

contacts arising from an agreement between the parties, we must evaluate “prior negotiations

and contemplated future consequences, along with the terms of the contract and the parties’

actual course of dealing” in order to determine whether such minimum contacts exist. Burger

King, 471 U.S. at 479.

        Both sides agree that Morrison never performed any physical activities in Illinois in



                                                   14
No. 1-09-2643

conjunction with the medical malpractice case against Dr. Zukowski, and neither party asserts

that there is a written contract governing Morrison’s services as an expert witness. Indeed, the

record here is sparse regarding what Morrison did or did not do. However, the pleadings and

affidavits in the record provide enough material to give rise to the inference that Morrison had

entered into some sort of agreement with plaintiffs Mulroney and Pierce, under which Morrison

would provide expert witness services to the plaintiffs in their Illinois medical malpractice

action.

          The record establishes that Mulroney and Pierce retained Morrison as an expert in their

malpractice action. Indeed, the evidence in the record gives rise to the inference of two separate

agreements: (1) an agreement between the plaintiffs and TASA, under which TASA would refer

potential experts and handle billing and payments in the event that the plaintiffs decided to

employ one of the referred experts, and (2) an agreement between the plaintiffs and Morrison

that Morrison would serve as a medical expert in the plaintiffs’ case. Because TASA’s

memorandum of confirmation expressly states that TASA was not responsible for verifying the

qualifications of the experts that it referred or guaranteeing the performance of various services

by such experts, a separate agreement must cover the actual performance of expert witness

services. Although Morrison asserts in his affidavit that he has “no contract with a person or

entity in Illinois regarding this matter,” that is a conclusion of law, which this court is entitled to

disregard. Ill. S. Ct. R. 191(a) (eff. July 1, 2002); Robidoux v. Oliphant, 201 Ill. 2d 324, 334-35

(2002).



                                                   15
No. 1-09-2643

        Indeed, the course of dealings between the parties suggests otherwise, namely, that

Morrison had an agreement with the plaintiffs. Morrison engaged in a course of correspondence

with Mulroney and Pierce that spanned over a year’s time. In the course of this correspondence,

plaintiffs requested that Morrison review several different documents relating to the medical

malpractice action and come up with an expert opinion as to whether Dr. Zukowski - the plastic

surgeon who had operated on McNally - had deviated from the standard of care during his

treatment of McNally. Morrison prepared multiple drafts of an expert witness report,

incorporating comments and requests from plaintiffs into later drafts. He attended a deposition

for use in the malpractice action. And, as may be inferred from the fee structure that he provided

to TASA, Morrison at the very least contemplated testifying at trial in the malpractice case. The

only logical inference to be drawn from these facts is that Morrison agreed to serve as an expert

witness in the plaintiffs’ malpractice case.

        Dr. Morrison maintains that he never entered into any sort of agreement with the

plaintiffs and that his conduct was governed solely by a contract with TASA. We are not

persuaded by this argument. The record contains no contract between TASA and Dr. Morrison,

nor does it contain a contract between TASA and the plaintiffs other than the memorandum of

confirmation described above. While the parties agree that there was no written contract between

Dr. Morrison and the plaintiffs, as discussed above, the course of dealings between those parties

suggests that an oral agreement existed. Furthermore, the memorandum of confirmation

generated by TASA for the plaintiffs does not contain the essential terms of a contract that



                                                16
No. 1-09-2643

would govern Dr. Morrison’s performance as an expert witness. The memorandum merely states

that TASA provided referral services to the plaintiffs and would continue to serve as a billing

service for Dr. Morrison during his relationship with the plaintiffs. It never indicated what

services Dr. Morrison would provide, where he would provide them, or during what time period

he would provide those services. All of those terms would need to be, and presumably were,

negotiated between the plaintiffs and Dr. Morrison.

       The fact that the plaintiffs tendered their payments to Dr. Morrison through TASA does

not negate the inference that the plaintiffs and Dr. Morrison formed an agreement, independent

of TASA, that governed what services Dr. Morrison would perform and how he would perform

them. Indeed, the reverse side of TASA’s memorandum of confirmation expressly disclaimed

any liability on the part of TASA with respect to any act or omission of an expert retained

through TASA’s referral service. From this language, we conclude that the memorandum

confirmed a contract between the plaintiffs and TASA to provide referral services; that contract

did not govern services that a referred expert witness would provide to the plaintiffs. Dr.

Morrison’s written correspondence and telephone conversations with the plaintiffs delineated the

scope of services that the plaintiffs engaged Dr. Morrison to perform, creating an oral agreement

between the parties. The record does not indicate what the specific terms of the oral agreement

were, but it does contain sufficient evidence for us to infer the existence of such an agreement. In

the absence of any evidence in the record indicating that Dr. Morrison’s performance was

governed solely by a contract between Dr. Morrison and TASA - a contract, we note, that is



                                                 17
No. 1-09-2643

nowhere found or even referenced in the record - we must resolve this issue in favor of the

plaintiffs. Bolger, 369 Ill. App. 3d at 950 (for the purpose of determining whether a plaintiff has

made a prima facie showing of jurisdiction, any conflicts between documents in the record must

be resolved in the plaintiff’s favor).

        Thus, all of Morrison’s actions created a ‘substantial connection’ [citation] with Illinois.

Burger King, 471 U.S. at 475. He was serving as an expert witness in an Illinois medical

malpractice case. Thus, even though the only services that he had actually performed took place

in Ohio, Morrison’s services were intended to produce a result in Illinois. We fail to see how

these expert witness services were not ‘purposefully directed’ [citation] at Illinois residents,

namely, McNally and her attorneys, Mulroney and Pierce. Id. at 476.

        Moreover, the Burger King factors support an exercise of jurisdiction. See id. at 477.

First, the burden on Morrison to defend in Illinois does not appear to be unduly great. Ohio and

Illinois are relatively close geographically and a change of venue would solve any problems

posed by the distance between the two states. In addition, by agreeing to serve as an expert

witness in an Illinois case, Morrison agreed to comply with the Illinois rules of civil procedure

and trial practice. Nor has he shown how defending a suit in Illinois under Illinois law would be

unduly burdensome when he had already agreed to testify in an Illinois case. Second, Illinois has

a substantial interest in adjudicating this dispute because it concerns the conduct of an expert

witness in an Illinois tort case. Third, exercising jurisdiction would further the plaintiffs’ interest

in obtaining convenient and effective relief. Plaintiffs will have to establish how Morrison’s acts



                                                   18
No. 1-09-2643

and omissions affected a medical malpractice case that arose out of actions in Illinois, was

pursued in Illinois, and was ultimately decided in an Illinois court. Fourth, the interstate judicial

system’s interest in obtaining the most efficient resolution of controversies also supports an

exercise of jurisdiction. All of the effects of Morrison’s acts and omissions occurred in Illinois,

namely, the dismissal of plaintiffs’ case against Dr. Zukowski. Because of the substantial effect

that Morrison’s actions had in Illinois, Illinois is the most efficient forum to litigate this suit.

Finally, it is in the interest of the several states to hold citizens of one state accountable for their

actions that have a substantial impact on citizens of another state. Thus, Illinois’s interest in

protecting its citizens from predation by citizens of other states, at least in this matter, outweighs

Ohio’s interest in protecting its citizens from the inconvenience of defending a lawsuit in another

state.

         Accordingly, we find that plaintiffs have established sufficient minimum contacts

between Morrison and the state of Illinois such that he should reasonably anticipate being

brought into court here. Knaus v. Guidry, 389 Ill. App. 3d 804, 815 (2009) (quoting World-Wide

Volkswagen, 444 U.S. at 297). Thus, the trial court erred in dismissing the instant case for lack

of personal jurisdiction.

         In addition, plaintiffs argue that the trial court should have allowed them an opportunity

to amend their pleadings prior to dismissing the case. The trial court may allow a party to amend

its pleadings at any time before final judgment “on just and reasonable terms.” 735 ILCS 5/2-

616(a) (West 2008). In the instant case, plaintiffs did not seek leave to amend their complaint



                                                    19
No. 1-09-2643

until after the trial court had dismissed the case. However, because we remand this case for

further proceedings, plaintiffs are free to seek leave to amend their complaint on remand.

                                         CONCLUSION

       Accordingly, for the foregoing reasons, we reverse the decision of the circuit court of

Cook County and remand the case for further proceedings.

       Reversed and remanded.




                                                20
No. 1-09-2643




         REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT


     TERRI McNALLY, SEAN MULRONEY, and J. BRIAN PIERCE,

                Plaintiff-Appellants,

          v.

     GREG MORRISON,

                Defendant-Appellee.

      (TASA Group, Inc., Defendant).


                                        No. 1-09-2643

                                   Appellate Court of Illinois
                                 First District, Second Division

                                        March 15, 2011


     JUSTICE HARRIS delivered the opinion to the court.
     Justices Karnezis and Connors concurred in the judgment and opinion.


                       Appeal from the Circuit Court of Cook County.

                       The Honorable Dennis J. Burke, Judge Presiding.


     John C. Seastrom, of counsel, 661 West Lake Street, Suite 2 South,
     Chicago, IL 60661, for APPELLANTS.

     HeplerBroom LLC, 150 North Wacker Drive, Suite 3100, Chicago, IL 60606,


                                               21
No. 1-09-2643

     (Paul L. Price and Robert E. Elworth, of counsel), for APPELLEE.




                                            22
