best man on behalf of sandra weight in the estate of james wait your honors i'd like that to go through four things quickly with the court today and we have limited time first like start with a brief overview of the context of this is best as products liability case like that then shift to an analysis of the facts of this case is this court must find them in this case where the district court granted the motion to dismiss without a hearing if being bright line black and white test for specific jurisdiction a test that is contrary to fifty years of establishing jurisprudence both of the united states supreme court and the eleventh circuit which has repeatedly said over and over that the shades of gra case and the fact that mr wade's injury a crude at the time of the diagnosis of is disease under the speed case there is an injury caused by union carbide towards his conduct in the state that allows exercise a specific  i'd like to talk briefly about bristol myers squibb and worldwide volkswagen and how those cases also show for us that the exercise of specific jurisdiction under the facts of this case is correct and finally closing with the effects of this court certified question to the florida supreme court twenty seven years ago in the white first pepsico case and union carbide choice to register for the right to conduct in trust state business in the state of florida because twenty seven years ago the florida supreme court in the katyn the white case that when a company chooses to come to florida and conduct such intrastate business as it is required to register to do business in florida and in appoints an agent for service of process it can then be shooting cases that have no connection to to the state of florida that's general jurisdiction so moving to the overview this in this best products liability case and i want to take just a minute to highlight for the court that the decision in this case is going to have far reaching implications on the elephant t they're strict but in state plaintiff specific but for causation test which is what they're arguing for and in fact is what bristol myers squibb argued for in the bristol myers case and which the court the supreme court ignored in their decision even if we take the union stastny we pass here in this case florida law has always required since the jansons case at least that a party that sells a defective product has a continuing duty to warn individuals of the dangers of that product and we allege specifically in the complaint this at record page fifty eight fifty nine in point paragraph seventeen i but union carbide failed to warn about the dangers of past exposures employees they would have some means of identifying union carbide sell the lot of products all over the country and what essentially you're saying is this failure to warn klein everybody gets a shot you know essentially i guess every state has a claim like a failure  to there's going to be jurisdiction in every state and i don't know how union carbide would do that would they go on t v and say by the way we've been selling products that would that's what we'd be looking at so so the law provides so the we're only going to have and ignores bristol miles the argument that you have to have strict but for causation in the state where the forum is brought and says instead no really our analysis in this case is all about what's the connection between the state and the out of state plus  the out of state residents claims and it says that's the thing that tells us whether it's reasonable or not so bristol myers is going to prevent plaintiffs if mr weighted lived his whole life in massachusetts he got exposed in massachusetts he gets sick in massachusetts all the things that happened in florida afterwards and then he decides you know what i'm going to go sue in florida right bristol myers says you can't do that but there's no allegation here forum shopping mr wade moved to florida in one thousand nine hundred seventy nine and he lived there for almost four decades connection is that while he was in florida he suffered the harm that was caused by the failure to absolutely and that's the speed decision right union carbide strained interpretation of this be wack decision ignores what it says over and over which is there is no legal injury until the manifestation of the disease although there may be an impact of the especially just fibers into the body that can constitutes an injury that suffices the impact rule when you later develop a disease that there is no legal injury until manifestation in diagnosis of the disease that's the entire point of speech act which deals with retroactive application of a criteria bill that set conditions for when you can bring in as best as case in florida spew access the bill cannot be retroactively applied anyone whose disease had manifested and been diagnosed at the time the statute was enacted because at that point they had an injury that was provided protection against retroactive elimination what the court did not do was a says would mean which is if in fact the injury occurs it inhalation spew acts ruling would have to be that anyone that had breathed this pestis prior to the enactment of the statute could not have the statute applied to them that's not what's be whacked it it's said you don't have a legal injury until your disease manifests and then and only then should we be analyzing this from the perspective of the connection between the defendant the foreman litigation rather than where the point of happens to be and second of all these statutes to give rise to cause of action isn't that really for purposes of statute  limitation rather than the activity that created the really created the injury if i can answer your second part first judge and to the answer to that is no it's not for limitations purposes only because in fact what they're talking about is when you have a right that is due due process protection when the speak back case and the right that gives you that is a legal injury the legal injury is when you develop the disease because all of us have breeds that is the cause of action arises that's right but is that what we should be looking at or should we be looking at the act the conduct the activity the injury right so the question of whether they caused a legal injury in the state is answered by spiel act which says the legal injury is the development of the cancer which happens decades after you breed the dust we've all prayed this best distrust but almost all of us are not going to get us past this disease breathing the dust without development of a disease is not an injury under florida law is the development of the cancer that causes an injury to mr wait that's what's be wack says it's what it means there's no other way around it the other part you're out of the bristol myers case provides us a nice insight into the way that the phrase the relationship between the defendant the foreman the litigation is interpreted by the supreme court right because because what we've got here and if you look at walden at the walton case where that they seized the cash and hartsfield just down the road from here that's a purposeful of ailment case so the court looks at the walton case and they say well the officer that took the cash in hartsfield all of his acts are in atlanta he does nothing to direct himself or take advantage of being in nevada he hasn't purposely availed himself of the benefits and privileges of being in the vada and therefore we cannot there is no relationship between the defendant and the forum that would allow us to exercise  but in bristol myers bristol myers squibb makes exactly the argument you knew carbide is making here there has to be but for causation between the defendants acts in the forum and the individual plaintiffs at issue they spend almost twenty pages of their brief on that and just a sort of my or comments on this in her dissent the court and its decision in bristol myers completely ignores that and spends the entire case looking at the relationship between the forum and the litigation meaning the out of state plaintiff's claims and so the way i've conceptualized it for me is it's more of a trial than i'll then aligned so we've got the relationship between the forum and the independent plaintiffs in the in the individual plain exclaims is the form in the litigation relationship the defendant and the form relationship is wall versus fewer so you have to consider them both an alternative way to look at that your honor is looking at the burger king considerations where they say after we do a minimum contacts analysis so we do our minimum contacts analysis and after we do that we then have to go and look at the forums interest in exercising jurisdiction over the  plaintiffs interest in a convenient and effective form to bring their claims the interstate justice system so whether you look at the analysis in bristol myers squibb as being a way to describe a triangular relationship between the litigation the forum and the defendant or whether you look at bristol myers as saying implicitly there is sufficient relationship between bristol myers and california and the plaintiff's claims that they've purposely availed themselves o california it's the same injuries but that still doesn't mean the minimum contacts are enough because the forum doesn't have a sufficient interest in these plaintiffs either way you've got to look at the relationship between the point and the form but aren't we bound by our own field case are the so so the ultimate holding an old field whole field analyzes the facts in that case right the bone explosion in turks and caicos it analyzes this specific incident and it looks at the different tests the different circuits have applied it then looks at but four says but four is over inclusive because it's too broad and then the ultimate holding of oldfield about this analysis states while we do not suggest that our decision today establishes a definitive  relatedness standard as flexibility is essential to the jurisdictional inquiry we do find the facts sense of inquiry must hew closely to the forsee ability and fundamental fairness principles forming the foundation upon which the specific jurisdiction doctrine rests that's the ultimate holding of judge joe flat in his opinion in the oldfield case and we get insight into that from the diving crystal case which judge joe flat authored eight days before a different panel authored frazier but frazier takes that one step further so so frazier does not discuss its analysis of the reasonableness factors right and to the extent that frazier is inconsistent with the situation that we have here i would suggest to the court that the analysis in product liability cases as opposed to negligent conduct cases that are not related to product liability has always been purposeful of ailment means selling your product in the form that's just the way it's been approached in  volkswagen it's been the way it was approached in bristol myers by not addressing the question and what about volkswagen the robinsons mrs robinson the new two children were burned horribly when the audi they bought new york was rear ended in oklahoma none of the actions of our d and a volkswagen of america that are discussed by the court as supporting jurisdiction in oklahoma were involved in the causal chain of the robinson family and the robinson family did not buy the audi in oklahoma they didn't get it serviced in oklahoma nothing that volkswagen of america did in oklahoma intersected with the causal chain of the robinson family nothing that audi did in oklahoma intersected with the causal chain of the robinson family and so if frazier is inconsistent with that worldwide volkswagen must control  good morning may it please the court my name is matt conigliaro i am with carlton fields and i'm here today on behalf of the apple e in this case the union carbide each point raised in this appeal is resolved by existing case law i think counsel focused on point one from their brief the specific jurisdiction argument so i will do so as well ultimately their argument on specific jurisdiction is fundamentally irreconcilable with the decision that the supreme court justice used in the bristol myers squibb case it's also irreconcilable with this court's past decisions in oldfield and fraser but i'll start with bristol myers squibb in that case justice here the argument was made that a defendant sold a product nationally and because there were sales in the form state the defendant should have expected to be hailed in the court there and in fact in that particular case there were many plaintiffs in the case some were from california others were not from california and the argument was made that there should be this sort of sliding scale approach to relatedness and the supreme court rejected expressly rejected both of those arguments the discussion we've heard this morning that seems to squibb one the case in front of the u s supreme court eight justices on the supreme court agreed that suit related conduct in the forum requires a substantial connection to the plaintiff's specific claims and i'll quote justice alito he said what is needed and what is missing here is a connection between the forum and the specific claims it issue the language i'll focus on his specific claims it issues their argument ultimately is that union carbide sold as as best to intermediate  manufacturers in florida and elsewhere and therefore the type of claim that is being brought here is the type of claim that people could have brought here based on sales in florida and therefore there should be a specific jurisdiction and that's what bristol myers squibb rejected they confirmed in that case which was a products case a tort case and a products case that you are to look at the specific product that particular case involved plavix the pill and the court looked at the pills that were taken by the out of state plaintiffs in that case and reason that that was an easy case to resolve because all of the relevant conduct occurred outside of california that's what we have in this case all of the relevant conduct by the defendant here union carbide occurred outside o florida we heard counsel this morning argue that this is a matter of a continuing duty and i'd like to make a few points there first of all that's not the case they played that's not the normal as best as case that's ever played i act i had just speaking for myself i think they're quite vulnerable given the given the case law and what supreme court ruled bristol myers on as to the actual sale of the prophet but what they're hanging their hats on today it appears to be is ok that one but the failure to warn is a continuing duty and extends wherever the plaintiff happens to be and she happened to be the last he happened to be the last couple of decades in florida therefore our injury occurred in florida and how do you decide how do you dispute that particular position on there it in multiple respects your honor i'll quickly just mention that there are multiple state law arguments that i'm not going to get into but we've made them in the brief i think dispositive in perhaps most in focus for purpose meaning that there's no i don't static lying under failure would no actually meaning that the injury under florida law occurred with the exposure which here would have been in massachusetts that the recent kelly decision confirms that interpretation of the speech that case but i'd like to focus on due process because that's really where we are here and that's how the district court disposed of this case as a matter of due process this is about contacts it's the defendant's contacts it's the defendant's contacts with the forum as the supreme court has put it between walden and bristol myers squibb it's the suit related conduct of the defendant in the forum that we're examining here and the description that your honor just recounted from counsel is not about the defendant's conduct it's about the plaintiff's decision to move to florida and to live in florida that is not conduct by the defendant and that the language from wild i believe was contacts the defendant himself created union carbide obviously had no role in mr weight and his family moving to florida this court's case law in oldfield and fraser also answers these same questions because in those cases it's true as counsel in part argues that the court left flexibility in the analysis but crystal clear in that flexible analysis was the language necessarily the contact must be a but for cause of the tort was that  a standard first imposed in frasier oldfield your honor well overall mentions it but didn't really hang the decision didn't hang on it well i think in both cases the court looked at two cases and yes there's flexibility but the flexibility comes after a look at but for causation because that's what showing you that substantial connection between the defendant's conduct and the specific claims and i'll go back to sort of where i was before that what counsel really wants to to argue here is that this kind of litigation could be foreseeable but that's not the analysis the supreme court is required or that this court has required it's a look at these specific claims in this case so in this case the allegation is that mr waite utilized are used joint compound that contained union carbide as best as and that he did that in massachusetts and presumably the product was bought in massachusetts and there is no florida conduct here by union carbide that plays any role in the events that gave rise to his claim and so i would to paraphrase the bristol myers squibb decision this t becomes an easy case when you look at it in that respect because here there is no conduct by the defendant in florida that has this substantial connection to these specific claims and we can frame that in terms of but for causation we can frame it in terms of the kind of connection that's necessary but either way we get to the same place which is that there is no personal jurisdiction in florida as a matter of due process in this case is there weights could aggregate all the defendants into one by this point there is only one defendant left so i would emphasize that at the start we are the only defend it but isn't that a problem with your reading that it may preclude plaintiffs from doing depending on the case there may be circumstances where everyone could not be in the same case but i don't want to say that that's this case or that's any particular case because  good for instance had i don't the facts in this case weren't develops i would be careful if i talk about hypothetical facts that i make clear that these aren't the facts in this case but i had union carbide sold it says best is to georgia pacific in massachusetts in georgia pacific created its product its joint compound in massachusetts and sold it to mr wade he then used it there along with other products in the things that he claims caused his disease then had the suit been brought in massachusetts it may well be possible that everybody could have been brought into one case they're part of what's happening with the decisions out of the u s supreme court is a focus on basically principles  federalism and what's happening with respect to federalism is a recognition that the states are different they're not only are they different sovereigns but they're different sets of loss they're different plaintiffs may prefer to bring a case in one jurisdiction over another that have nothing to do with sort of the convenience of the parties or what sufficient for the system but instead perhaps what maximizes recoveries potentially based on different legal system legal systems and what the supreme court has done and what this court case law is fully aligned with is affirm some basic principles of federalism that the defendant's conduct in the forum must play that substantial role and we can call it but for causation we can call it the substantial connection that we get to the same place and so going back to your honor's question there may be cases where everyone can be brought in one jurisdiction it may be not be the most favorable jurisdiction from from the perspective of a plaintiff it may not be where they want to litigate the case and there may be cases where everybody cannot be brought into the same jurisdiction in this case the facts were simply developed with respect to florida though and what we know is sort of a negative what we know is that there are not facts that would allow this case to be brought in florida as a matter of white it is a florida supreme court decision that addressed service of process under forty eight point zero eight one the court made very clear in the case in this had to do with the way the parties chose to argue the case the court made very clear that it was resolving really one issue and that was whether forty eight zero eight one on its face by its text included a connex city requirement and then just as marquette made very clear that by the text of that statute there was no connect city requirement and that the various other rationales that were proposed for adding a connex the requirement all failed and so the court ultimately held that there was no connection the requirement and the language that's utilized by the other side here is language that references an acknowledgment it says that by registering to do business in appointing someone as an agent for service of process you've acknowledged that you're doing business here for purposes of jurisdiction or what not and and i want to emphasize to the court the significance of an acknowledgement versus consent to general jurisdiction the acknowledgment comes from a time in a place that predates where we are today for many many many years there was a belief in the states in the legal system by the parties  in many a case that if a company was doing business in a state then it was subject to general jurisdiction in that state and so if there was an acknowledgment that you were doing business in a state because you retained the agent for service of process if that legal belief is accurate then there would be general jurisdiction what we've learned in recent years from the u s supreme court is that that belief is no longer correct its wrong general jurisdiction requires you to be at home and home as dimler explains requires you to be in your state of incorporation or your prince will place of business or perhaps there could be an exceptional case that is a very stringent set of requirements and the court said in time and use the word limited those are a limited number of places the court wanted home to be not all fifty states in fact expressed lee held that simply doing business in a state is not enough so going back to white when the florida supreme court was answering the question in that case and looking at forty eight point zero eight one it was doing all of that sort of in the context of a legal scheme that presumed that doing business in a state would give rise to general jurisdiction we have much more recently as it two thousand and sixteen a decision from the second district court of appeal in the magwitch case where the second district expressly took on the issue of whether registering to do business in florida amounts  consent and the court held it does not and explained in very brief fashion that that white was a service a process case and that under florida law registering to do business is not consent we have directed this court to other cases from around the country i think it's still very accurate to say categorically that post time or when our understanding of these issues became much more clear every u s circuit court and every court of last resort in the states that has looked at the consent issue has declined to read any of the state statutes several of which are much like florida's very statutes as providing for consent and as we suggest in our brief but i'll just mention it really quickly here before my time is up were there to be such an interpretation made of florida statutes in this case it would result in a series of federal law problems it would be a due process problem that where is the knowing waiver of  owners what we did not hear in union carbide argument is what we didn't hear in the brief about the continuing duty to warn no mention of the jansons case at all it's not mentioned in their brief it's not explained away and it wasn't discussed mentioned were explained  today chance is controlling judge carnes you had asked well doesn't this mean there's going to be a you know what are they going to do they're going to go on t v they're going to do something else you know the law has recognized in countless circumstances how you provide reasonable notice to people in situations where you can identify them whether that's looking at class action notices or states where we're publishing or bankruptcy notices to creditors or tax sales or forfeitures that there are procedures that the law recognizes when we cannot particularly individual that you have to go through and there's nothing unreasonable or unusual about that so so i just wanted to come back and mention those examples there with respect to judge priors question about any other forum in our briefing we pointed out there is no other form and with respect to the assertion that well that the records not developed on this union carbides briefing below and before this court appoints the court to the exposure sheets that were filed in the case that discussed where the different exposures to the different defendants happened and they don't line up there is a minimum of at least two cases that would have to be brought and i thought it was critical in the briefing to see that union carbide never acknowledged that in fact there is jurisdiction over it in massachusetts where the inhalation very and it's if you have to look at the briefing very carefully they're very careful not to say that there is jurisdiction in massachusetts and they were very careful just a few minutes ago to not say there's jurisdiction in massachusetts what they said is well if union carbide had sold in georgia pacific in massachusetts and if georgia pacific and sold the joint compound to mr waite massachusetts and mr wade had been exposed to georgia pacific didn't buy their respects just from union carbide in massachusetts union carbide is not conceding and has never conceded that there is jurisdiction where mr waite breathed dust they have carefully and scrupulously avoided saying that throughout including today an oral argument so no mention of the jansons case with respect to white there's no interstate commerce clause problem here because the registration statute which is florida statute six zero seven fifteen zero one states in section two why that you do not have to register right the conduct it says the following activities do not constitute transacting business within the meaning of subsection one subsection one is you have to register if you do transact business in florida so i transacting business in interstate commerce you can do all the interstate commerce you want in florida and you don't have to register it's right there in the statute union carbide chose to register forty nine years in one thousand nine hundred forty nine union carbide has maintained registered i checked this morning they're still registered this morning seven years since the the white decision union carbide has continued to choose to be registered to do business in florida and i won't read them all because i have time but but it goes up to subsection m all of the things that you can do that in florida without having to register there is no compulsion here this is why bendix auto like the case cited by union carbide and discussed as as evidence of problems with registration statutes actually confirms our position satellite there was a there was a tolling statute that said the statue of limitations doesn't run unless you register even if you're only doing interstate commerce therefore the tolling statute was unconstitutional no problem here with that thank you