A South Florida appellate court has dismissed claims against a Delaware company responsible for mining and providing talc to pharmaceutical giant Johnson & Johnson.
A divided Fourth District Court of Appeal ruled in favor of Imerys Talc America Inc. in an opinion issued Wednesday. Imerys had been named alongside Johnson & Johnson companies and Publix Super Markets Inc. in a suit filed by Judith Ricketts in Broward County. The plaintiff, like many other women across the United States, accused the defendants of distributing and selling products — Johnson & Johnson’s baby powder and other talc-based items — while being aware of the severe health risks, including a causation link to ovarian cancer, they might pose to customers.
Ricketts alleged she contracted ovarian cancer in 2013 as a result of her long-term use of Johnson & Johnson’s baby powder.
The appeals court’s majority opinion found that Ricketts’ claims could not be tried in Florida courts as ”Imerys is not subject to personal jurisdiction in Florida.”
“Imerys is a Delaware corporation with its principal place of business in California. Imerys did not have contacts with Florida, either generally or specifically related to the actions leading to the complaint,” the opinion held. “We reverse the circuit court’s order and remand with instructions to dismiss the cause of action against Imerys for lack of personal jurisdiction.”
Read the opinion:
The court’s ruling contained a lone dissent by Judge Carole Taylor. Taylor wrote that the lower court’s ruling denying Imerys’ motion to dismiss Ricketts’ product liability suit “is supported by the undisputed jurisdictional allegations in the complaint and by governing Florida case law.”
“Because the plaintiff’s undisputed allegations establish that 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, Imerys had sufficient minimum contacts with Florida in order to satisfy due process,” the judge wrote. She added that “because the United States Supreme Court has not yet articulated a clear standard for stream-of-commerce cases,” it was up to the court to abide by precedent set by the Florida Supreme Court.
“The applicable standard, therefore, is that Florida may exercise personal jurisdiction over a nonresident manufacturer who serves Florida’s market by ‘continuous and systematic activity indirectly through others,’ notwithstanding the manufacturer’s “ ‘lack of direct presence and activity within the borders of Florida,’ ” she wrote, citing the state Supreme Court’s ruling in Ford Motor v. Atwood Vacuum Mach. In Taylor’s interpretation, the 1981 case held that manufacturers who provide products for sale in Florida, even through third-party vendors, are “subject to the jurisdiction of Florida courts.”
David Gersten, a retired appellate judge who served as Imerys’ counsel, said, “We are pleased that the court issued a well-reasoned and carefully thought out opinion which followed controlling precedent,” in a statement to the Daily Business Review.
Ricketts’ appellate attorney, David Sales, declined to provide comment pending review of the order with his client and co-counsel. The other members of Rickett’s legal team, Todd Falzone and Karina Rodrigues of the Fort Lauderdale law firm of Kelly Uustal, did not respond to requests for comment by press time.
The court’s order was delivered the same day a Missouri court declined to overturn a nearly $4.7 billion jury verdict awarded to other women who claimed to have contracted ovarian cancer from Johnson & Johnson’s talc products.