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Monday, August 20, 2018

As Printed in the Daily Business Review: Appeals Court Tosses Asbestos Case for Lack of Jurisdiction

By Walter G. Latimer and Bruno Renda

As Printed In The Daily Business Review August 16, 2018

Note: The authors of this article served as counsel for the appellee.

On July 25, Florida’s Fourth District Court of Appeal reversed a trial court decision in Southern Wall Products v. Stephen Bolin and Bakers Pride Oven Company, Case No. 4D18‐875 (July 25, 2018), and ordered the dismissal of an asbestos defendant due to lack of personal jurisdiction. Personal jurisdiction is the power of a court to exercise its authority over a particular party. It is often raised in cases where foreign defendants did little or no business in Florida. Its application is defined by statutes in most states. Its overall limits are defined by the U.S. Supreme Court, and based on due process. Under Supreme Court precedent, if a party is not “at home” in a state, it cannot be sued there unless it has enough “minimum contacts” to show that it subjected itself to a suit there.

One of the defendants in this case manufactured construction products alleged to contain asbestos. It was based in Georgia. It never had any offices or distributors in Florida. The plaintiff claims he was exposed to asbestos while using the defendant’s product when he was a laborer in Florida in the 1970s. Forty years later, he contracted mesothelioma, and filed suit. By then the manufacturer shipped about 20 percent of its products to Florida. He claimed that this was enough for the court to exercise personal jurisdiction over the manufacturer. The trial court agreed, and denied the manufacturer’s motion to dismiss it from the case.

The manufacturer appealed, and the appeals court agreed with the manufacturer. The manufacturer claimed it did not sell its product in Florida in the 1970s, but the plaintiff claimed he used it there. This factual dispute was not enough to prevent dismissal. The plaintiff lacked any evidence as to how the product got into Florida. If he had driven to Georgia to pick it up, the court would clearly lack personal jurisdiction. On the other hand, if the manufacturer had a Florida location from where it distributed its product, and the plaintiff used the product sold from that location, jurisdiction would clearly exist. The plaintiff established that the manufacturer currently sells 20 percent of its goods in Florida. There was no evidence, however, that the manufacturer had “purposefully availed itself of the privilege of conducting activities in Florida” at the time of the claimed exposure, such that it “could reasonably anticipate being haled into court” there. Following Supreme Court precedent, the appeals court found that the manufacturer lacked minimum contacts with Florida.

This decision has wide implications. The manufacturer will not likely be sued again in Florida for asbestos‐related illnesses. For illnesses with long latency periods like mesothelioma, it may be difficult to prove that a party had minimal contacts with Florida 30, 40, or 50 years earlier. More broadly, manufacturers, distributors, and retailers sued in products liability cases have a strong weapon with which to defend themselves. If the company is not based in Florida, it is not enough to simply allege that an injury arose from the use of a product in Florida. A plaintiff must be able to show how that product ended up there to cause an illness or injury. There must be proof that it purposefully availed itself of the privilege of doing business there, and that the use of the product was the result of that conduct.

Walter G. Latimer is a shareholder in the Miami office and Bruno Renda is an associate in the Fort Lauderdale and Miami offices of Fowler White Burnett. Latimer focuses on complex litigation and can be reached at wlatimer@fowler‐ Renda is a civil trial lawyer and can be reached at rendab@fowler‐

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