By Robert B. Barnett Jr., J.D.
In a products liability cause of action involving allegations that a consumer developed ovarian cancer from her exposure to talc in baby powder, a Florida state appellate court reversed the lower court’s ruling that the Florida courts had specific personal jurisdiction over the California-based talc miner, Imerys Talc America, Inc. (Imerys), finding instead that the U.S. Supreme Court has ruled that a manufacturer’s sale of a component to a party in a second state is insufficient, without more, to subject the manufacturer to the jurisdiction of a third state where the completed product ultimately was sold. Illustrating the current uncertainty in personal jurisdiction cases, the dissent (in a 2-1 decision) rejected the majority’s reliance on U.S. Supreme Court interpretations because they were only plurality opinions, and he would have affirmed the lower court’s ruling based on Florida case law, which holds that Florida may exercise personal jurisdiction over a nonresident manufacturer who serves Florida’s market by continuous and systematic activity indirectly through others, notwithstanding its lack of direct presence and activity in Florida (Imerys Talc America, Inc. v. Ricketts, December 19, 2018, Kuntz, J.).
After developing ovarian cancer, a Florida resident (consumer) sued Johnson & Johnson, Johnson & Johnson Companies, Inc., Imerys, and Publix Super Markets, Inc. for exposing her to the talcum powder that she alleged caused her cancer. Imerys filed a motion to dismiss for lack of personal jurisdiction, alleging in an affidavit that (1) it is a Delaware corporation headquartered in California; (2) it mines talc entirely in California; (3) it sells the talc to Johnson & Johnson in an unnamed second state; and (4) it never has shipped or distributed talc to Florida. The Florida circuit court denied Imerys’ motion, stating that the court was relying on the Florida Supreme Court rather than U.S. Supreme Court for its decision. Imerys filed an interlocutory appeal to the District Court of Appeal of the State of Florida, Fourth District.
Personal jurisdiction. Although the consumer alleged in her complaint that the court had general personal jurisdiction over Imerys, the personal jurisdiction analysis was clearly based on specific personal jurisdiction, with the circuit court using that basis to deny Imerys’s motion. The majority relied on the U.S. Supreme Court’s adoption in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)) of the "stream-of-commerce test," which Justice O’Connor had attempted to clarify in a plurality opinion in Asahi Metal Indus. Co., Ltd. V. Superior Court of California, Solano County, 480 U.S. 102 (1987). In that opinion, Justice O’Connor said that the substantial connection required between a state and a defendant must come about by actions that the defendant purposefully directed toward the forum state. In a plurality opinion by Justice Kennedy in J. McIntyre Mach., Ltd. V. Nicastro, 564 U.S. 873 (2011), the Court tried again to clarify the rule by stating that personal jurisdiction was not available unless a defendant purposefully availed itself of the privileges of conducting activities in the state. This plurality opinion specifically rejected the idea that personal jurisdiction was sufficient as long as the defendant could have reasonably foreseen that the product would flow to the forum state.
Under those rules, the court said, Imerys’s affidavit stating its lack of connections to Florida sufficiently refuted the jurisdictional allegations. This was especially true given that the consumer filed no counter-affidavit. The court also rejected the consumer’s reliance on Ford Motor Co. v. Atwood Vacuum Machine Co., 392 S. 2d 1305 (Fla. 1981), which held that the fact that a nonresident manufacturer took no part in the distribution of the finished product in Florida was no basis for limiting jurisdiction, because that decision predated the two U.S. Supreme Court decisions. As a result, the appellate court concluded that the controlling rule is that mere awareness that a component would be in a product and would be sold in a forum cannot, without more, establish personal jurisdiction. Therefore, because Imerys had no contacts with Florida, the court of appeal reversed the lower court’s decision and ruled that the Florida courts could not exercise specific jurisdiction over Imerys.
Dissent. The dissenting judge would have affirmed the lower court’s ruling because Imerys placed its talc into the stream of commerce over a period of decades with the knowledge and intention that it would be sold in Florida as the main ingredient in Johnson & Johnson’s widely available baby powder. In adopting that interpretation as the proper standard for personal jurisdiction, the dissent noted that the U.S. Supreme Court has yet to issue a majority opinion as to the proper standard. In fact, the dissent chose instead to adopt a plurality opinion in Nicastro that Justice Breyer wrote, joined by Justice Alito, which noted the other plurality opinions only addressed those situations involving a single isolated sale that made its way into the forum state. The dissent cited a rule that holds that where a fragmented court decides a case and no majority emerges, the true holding of the Court is that position that was decided on the narrowest grounds. Because the Justice Breyer concurrence was the narrowest, the dissent argued, it reflected the Court’s true holding. This narrow holding, the dissent continued, did not alter existing Florida rulings that have held that continuous and systematic activity by a nonresident manufacturer can be grounds for imposing personal jurisdiction (see Ford Motor Co., 392 So. 2d at 1310-13). Given the fact that the U.S. Supreme Court has failed to articulate a clear standard for stream-of-commerce cases, therefore, the dissent contended that this decision should have relied on Florida precedents. As a result, the judge would have upheld the lower court’s ruling.
The case is No. 4D17-3815.
Attorneys: David M. Gersten (Gordon Rees Scully Mansukhani, LLP) for Imerys Talc America, Inc. f/k/a Luzenac America, Inc. David J. Sales (David J. Sales, P.A.) for Judith Ricketts.
Companies: Imerys Talc America, Inc. f/k/a Luzenac America, Inc.
MainStory: TopStory JurisdictionNews HouseholdProductsNews FloridaNews
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