DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

IMERYS TALC AMERICA, INC. f/k/a LUZENAC AMERICA, INC.,

Appellant,

v.

JUDITH RICKETTS, JOHNSON & JOHNSON, JOHNSON & JOHNSON 

CONSUMER COMPANIES, INC. and PUBLIX SUPER MARKETS, INC.,

Appellees.

No. 4D17-3815

[December 19, 2018]

Non-final appeal from the Circuit Court for the Seventeenth Judicial 

Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case No. CACE 

17-001153 (13).

David M. Gersten, Joseph A. Sacher and Christopher A. Noel of Gordon 

Rees Scully Mansukhani LLP, Miami, for appellant.

David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Jupiter, 

and Todd R. Falzone and Karina D. Rodrigues of Kelly Uustal, PLC, Fort 

Lauderdale, for appellee Judith M. Ricketts.

KUNTZ, J.

Imerys Talc America, Inc. appeals an order denying its motion to 

dismiss a products liability action for lack of personal jurisdiction. 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. As a result, Imerys is not 

subject to personal jurisdiction in Florida, and we reverse the circuit 

court’s order. 

Background

Judith Ricketts filed a seven-count complaint against Johnson & 

Johnson, Johnson & Johnson Companies, Inc., Imerys, and Publix Super 

Markets, Inc. Ricketts sought “recovery for damages as a result of 

developing ovarian cancer, which was directly and proximately caused by 

the wrongful conduct of the Defendants, the unreasonably dangerous and 
2

defective nature of talcum powder, and the associated effects of developing 

ovarian cancer.”

Imerys moved to dismiss for lack of personal jurisdiction. Relevant to 

the personal jurisdiction issue, the complaint stated:

At all material times, the Defendant, IMERYS TALC AMERICA, 

INC. F/K/A LUZENAC AMERICA, INC., was and is a Delaware 

corporation, with its principal place of business in California.

At all material times, the Defendant, IMERYS TALC AMERICA, 

INC. F/K/A LUZENAC AMERICA, INC. was engaged in the 

business of mining and distributing talcum powder for use in 

talcum powder based products, including the PRODUCT. 

Imerys Talc is the successor or continuation of Luzenac 

America, Inc., and Imerys Talc America, Inc. is legally 

responsible for all liabilities incurred when it was known as 

Luzenac America, Inc.

***

At all material times, all above Defendants were engaged in 

the research, development, manufacture, design, testing, sale 

and marketing of the PRODUCT, and placed such products 

into the stream of commerce with knowledge and intent that 

such products be sold in the State of Florida.

***

The Defendant, IMERYS TALC AMERICA, INC. F/K/A 

LUZENAC AMERICA, INC., has substantial and not isolated 

contact with the State of Florida and is subject to the general 

jurisdiction of the Florida courts.

Imerys argued the complaint failed to establish general or specific

personal jurisdiction over it. In support of its lack of contacts with Florida, 

Imerys also filed an affidavit of its director of engineering and quality.

The affidavit stated that Imerys “does not mine talc in Florida,” “does 

not directly sell talc to [Johnson & Johnson] in Florida,” “does not directly 

ship talc to [Johnson & Johnson] in Florida,” and “does not directly 

distribute talc to [Johnson & Johnson] in” the state. Ricketts did not file 

an affidavit in response to Imerys’s motion to dismiss or in support of 

personal jurisdiction.
3

The circuit court held a hearing on Imerys’s motion and concluded the 

hearing by stating that “this Court will follow the Florida Supreme Court 

and not the Supreme Court of the United States in this particular case.” 

The court issued an order denying Imerys’s motion.

Analysis

Determining whether a court can exercise personal jurisdiction over a 

defendant involves a two-step inquiry. Venetian Salami Co. v. Parthenais, 

554 So. 2d 499, 502 (Fla. 1989) (citing Unger v. Publisher Entry Serv., Inc., 

513 So. 2d 674, 675 (Fla. 5th DCA 1987), rev. denied, 520 So. 2d 586 (Fla. 

1988)). The court must determine whether the allegations in the complaint 

bring the action within Florida’s long-arm statute and, if so, whether 

sufficient “minimum contacts” exist between the non-resident defendant 

and Florida to satisfy due process. Id. (citing Unger, 513 So. 2d at 675). 

Personal jurisdiction can be general or specific. Rolls-Royce, PLC v. 

Spirit Airlines, Inc., 239 So. 3d 709, 713 (Fla. 4th DCA 2018) (citing Marina 

Dodge, Inc. v. Quinn, 134 So. 3d 1103, 1106–07 (Fla. 4th DCA 2014)). 

General personal jurisdiction allows a court to hear any claims against 

a foreign corporation. Goodyear Dunlop Tires Operations, S.A. v. Brown, 

564 U.S. 915, 919 (2011) (citation omitted). It exists when the defendant’s 

“affiliations with the State are so ‘continuous and systematic’ as to render 

them essentially at home in the forum State.” Id. (citation omitted); see 

also Daimler AG v. Bauman, 571 U.S. 117, 138 (2014) (In Daimler, the 

plaintiffs asked the Court to “approve the exercise of general jurisdiction 

in every State in which a corporation ‘engages in a substantial, 

continuous, and systematic course of business.’ That formulation, [the 

Court held], is unacceptably grasping.”).

Ricketts alleged in her complaint that Imerys was subject to the general 

personal jurisdiction of the Florida courts. But in response to Imerys’s

motion to dismiss, Ricketts argued Florida courts can exercise specific 

personal jurisdiction over Imerys. On appeal, Ricketts explains that she 

“argued to the trial court that Imerys is subject to specific jurisdiction, not 

general jurisdiction.” Because of these concessions, we proceed to the 

specific jurisdiction analysis.

“Specific personal jurisdiction exists when ‘the alleged activities or 

actions of the defendant are directly connected to the forum state.’” RollsRoyce, PLC, 239 So. 3d at 713 (quoting Caiazzo v. Am. Royal Arts Corp., 

73 So. 3d 245, 250 (Fla. 4th DCA 2011)). When analyzing specific personal 
4

jurisdiction, the analysis “focuses on ‘the relationship among the 

defendant, the forum, and the litigation.’” Keeton v. Hustler Magazine, Inc., 

465 U.S. 770, 775 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 

(1977)).

The Supreme Court has explained that for specific personal jurisdiction 

to be appropriate, “the defendant’s suit-related conduct must create a 

substantial connection with the forum State.” Walden v. Fiore, 571 U.S. 

277, 284 (2014). And the connection must arise out of the defendant’s 

own activities, not those of the plaintiff or a third party. Id. (citations 

omitted). 

The Supreme Court applied this principle in World-Wide Volkswagen 

Corp. v. Woodson, 444 U.S. 286 (1980), and rejected the “assertion that a 

consumer’s unilateral act of bringing the defendant’s product into the 

forum State was a sufficient constitutional basis for personal jurisdiction 

over the defendant.” Asahi Metal Indus. Co., Ltd. v. Superior Court of 

California, Solano County, 480 U.S. 102, 109 (1987) (discussing WorldWide Volkswagen Corp., 444 U.S. at 295-96).

Later, the California Supreme Court held that specific personal 

jurisdiction was appropriate because some valves sold by Asahi, a 

Japanese manufacturer, were in California. Id. at 110-11. The United 

States Supreme Court unanimously disagreed, with none of the three 

separate opinions garnering five votes. A plurality opinion written by 

Justice O’Connor explained that the “substantial connection” required 

between a forum state and the defendant “must come about by an action 

of the defendant purposefully directed toward the forum State.” Id. at 112 

(plurality opinion) (emphasis removed) (citations omitted). The Court 

stated in the plurality opinion that “[t]he placement of a product into the 

stream of commerce, without more, is not an act of the defendant 

purposefully directed toward the forum State.” Id. (plurality opinion).

The test set forth in Justice O’Connor’s plurality opinion is known as 

the “stream-of-commerce” test. Even though the Court’s opinion left many 

questions unanswered, the Court did not address the test again until 

fifteen years later. See generally J. McIntyre Mach., Ltd. v. Nicastro, 564 

U.S. 873 (2011). “The decades following Asahi did little to clarify the 

stream-of-commerce confusion,” and in some respects J. McIntyre “did 

little to refine the lines originally blurred in Asahi.” Jessica Jeffrey, The 

Stream of Commerce Flows On, 46 SUFFOLK U.L. REV. 137, 137, 145 (2013).

In J. McIntyre, the New Jersey Supreme Court held that the courts of 

that state “can exercise jurisdiction over a foreign manufacturer of a 
5

product so long as the manufacturer ‘knows or reasonably should know 

that its products are distributed through a nationwide distribution system 

that might lead to those products being sold in any of the fifty states.’” 

564 U.S. at 877 (citing Nicastro v. McIntyre Mach. Am., Ltd., 987 A.2d 575, 

591, 592 (N.J. 2010)). Six justices on the Supreme Court agreed to reverse 

the holding. 

A plurality opinion written by Justice Kennedy and joined by three 

justices explained that “[a]s a general rule, the exercise of judicial power 

is not lawful unless the defendant ‘purposefully avails itself of the privilege 

of conducting activities within the forum State, thus invoking the benefits 

and protections of its laws.’” Id. at 877 (plurality opinion) (quoting Hanson 

v. Denckla, 357 U.S. 235, 253 (1958)). There may be exceptions to this 

general rule, “[b]ut the general rule is applicable in this products-liability 

case, and the so-called ‘stream-of-commerce’ doctrine cannot displace it.” 

Id. at 877-78 (plurality opinion). Justice Kennedy wrote that “[t]he 

defendant’s transmission of goods permits the exercise of jurisdiction only 

where the defendant can be said to have targeted the forum; as a general 

rule, it is not enough that the defendant might have predicted that its 

goods will reach the forum State.” Id. at 882 (plurality opinion).

The other theory advanced focuses on whether a defendant could have 

foreseen that the product would flow into the forum state. Asahi Metal, 

480 U.S. at 117 (Brennan, J., concurring). But the plurality opinion in J. 

McIntyre recognized that limiting the analysis to foreseeability is flawed. 

As an example, allowing a state to exercise personal jurisdiction only 

because an item is later sold into a state could have unforeseen, and 

unconstitutional, consequences: 

The owner of a small Florida farm might sell crops to a large 

nearby distributor, for example, who might then distribute 

them to grocers across the country. If foreseeability were the 

controlling criterion, the farmer could be sued in Alaska or 

any number of other States’ courts without ever leaving town.

J. McIntyre, 564 U.S. at 885 (plurality opinion).

Instead of foreseeability, “[t]he principal inquiry in cases of this sort is 

whether the defendant’s activities manifest an intention to submit to the 

power of a sovereign.” Id. at 882 (plurality opinion). This requires that the 

defendant intentionally avail itself of the privilege of doing business in the 

forum state. Id. (plurality opinion) (citations omitted). 
6

Here, Imerys produced a component in one state (not Florida) and sold 

it to a different company in a different state. It directed no action or 

activities to Florida. 

These facts, established through an affidavit filed by Imerys, are enough

to refute the jurisdictional allegations in the complaint. Ricketts was 

required to file a counter-affidavit to support her position. See Airamid 

Health Servs., LLC v. Anita Sechler Pers., 134 So. 3d 550, 554 (Fla. 5th 

DCA 2014) (When a defendant files an affidavit refuting the jurisdictional 

allegations in a complaint, “the burden then shifts to the plaintiff to show, 

by counter-affidavit or other evidence, the basis upon which jurisdiction 

is proper.” (footnote and citation omitted)); Dev. Corp. of Palm Beach v. 

WBC Constr., L.L.C., 925 So. 2d 1156, 1160 (Fla. 4th DCA 2006) (“When, 

however, the defendant files affidavits contesting the factual assertions of 

jurisdiction or the existence of minimum contacts, the burden then shifts 

to the plaintiff to file counter-affidavits supporting its position.”).

An evidentiary hearing is not required, however, when the plaintiff fails 

to file a counter-affidavit to refute the defendant’s affidavit. Dev. Corp. of 

Palm Beach, 925 So. 2d at 1160 (“If those affidavits conflict, then it is 

incumbent on the trial court to hold a hearing to resolve the conflicts in 

the evidence and determine the jurisdictional issue.”).

Thus, because Ricketts did not file a counter-affidavit, an evidentiary 

hearing was not required. See Hilltopper Holding Corp. v. Estate of Cutchin 

ex rel. Engle, 955 So. 2d 598, 602 (Fla. 2d DCA 2007) (“If the plaintiff fails 

to come forward with sworn proof to refute the allegations in the 

defendant’s affidavit and to prove jurisdiction, the defendant’s motion to 

dismiss must be granted.” (citations omitted)); Tobacco Merchants Ass’n of 

U.S. v. Broin, 657 So. 2d 939, 942 (Fla. 3d DCA 1995) (“The plaintiffs’

failure to respond with a counter-affidavit or other sworn proof 

establishing the basis for the exercise of personal jurisdiction defeated the 

exercise” of personal jurisdiction over the defendant. (footnote omitted)).

Finally, Ricketts argues Ford Motor Co. v. Atwood Vacuum Machine Co., 

392 So. 2d 1305 (Fla. 1981), requires a contrary result. That case held 

that “the fact that a nonresident manufactures a component part outside 

the state and takes no part in the sale, distribution, or marketing of the 

finished product in the state is no basis for a limitation on jurisdiction.” 

Id. at 1313 (citations omitted). But Atwood predates all of the recent 

controlling opinions from the United States Supreme Court and from the 

Florida Supreme Court itself. See, e.g., Grogan v. Archer, 669 So. 2d 289, 

294 n.5 (Fla. 5th DCA 1996) (“[T]he Atwood decision has been placed in 

doubt by Tomashevsky v. Komori Printing Machinery Co., Ltd., 715 F. Supp. 
7

1562, 1566 (S.D. Fla. 1989) and it predates important, subsequent 

decisions such as Venetian Salami.”); Smith v. Trans-Siberian Orchestra, 

689 F. Supp. 2d 1310, 1315 (M.D. Fla. 2010) (“[T]he holding in Atwood

was reached prior to the Supreme Court’s dispositive decisions regarding 

personal jurisdiction of non-resident defendants in Burger King Corp. v. 

Rudzewicz, 471 U.S. 462 [ ] (1985) and Asahi Metal Industry Co. v. Superior 

Court, 480 U.S. 102 [ ] (1987).”).

Our holding adheres to Asahi Metal, Nicastro, and cases from other 

jurisdictions applying those cases. For example, the manufacturer of a 

battery sold to a company for insertion in a product, later sold to Costco 

for sale in all fifty states, is not subject to a state’s jurisdiction simply

because Costco sells the product there. Commerce & Indus. Ins. Co. v. 

Durofix, Inc., No. CV 16-00111 LEK-RLP, 2018 WL 1865868, at *4 (D. Haw. 

Apr. 18, 2018) (rejecting the argument that E-One was subject to specific 

personal jurisdiction because, according to the plaintiff, “when E-One sold 

300,000 batteries to Mobiletron, E-One knew Mobiletron planned to ship 

the assembled RL435 LED Lights to Costco, which would distribute the 

RL435 LED Lights in Hawai’i”). Nor is it sufficient to sell products that 

merely end up in a state. Holland Am. Line Inc. v. Wartsila N. Am., Inc., 

485 F.3d 450, 459 (9th Cir. 2007) (“Holland America relies on the 

proposition that those companies sold products or sponsored web 

marketing for products that ended up in Washington. Neither is sufficient 

to sustain jurisdiction here.”).

Other federal courts have held that mere awareness that a component 

would be in a product and sold in a forum cannot, without more, establish 

personal jurisdiction. See, e.g., Amburgey v. Atomic Ski USA, Inc., No. 

2:06-CV-149-GZS, 2007 WL 1464380, at *4 (D. Me. May 17, 2007) (“Even 

assuming that Atomic Austria had knowledge that the stream of commerce 

would take its products into Maine, mere awareness is insufficient to 

constitute purposeful availment.”); Adell Corp. v. Elco Textron, Inc., 51 F. 

Supp. 2d 752, 755 (N.D. Tex. 1999) (The court found no personal 

jurisdiction over Elco and explained that “Elco supplies General Motors 

with components of the allegedly infringing device. General Motors 

combines the components from Elco with components from others to form 

its spare tire locking device. General Motors then installs the device on 

pickup trucks and ships some of those trucks to Texas. Elco has no input 

on General Motors’ distribution, it provides no warranties to Texas 

customers, it has no advertising in Texas, and it has no direct sales of the 

accused device in Texas.”); Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 

85 (1st Cir. 1997) (“Even assuming that CMSC had specific knowledge that 

the stream of commerce would move its tire rims into Puerto Rico—and 

there is neither evidence nor allegation to that effect—this awareness alone 
8

would not be enough to constitute the purposeful availment which is 

necessary for a showing of minimum contacts.”).1

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 was ultimately sold. Windsor 

v. Spinner Indus. Co., Ltd., 825 F. Supp. 2d 640, 643 (D. Md. 2011) 

(“[F]oreign businesses whose products are sold in the forum State by third 

parties cannot be subjected to personal jurisdiction in the forum merely 

because they should have known, knew, or even expected their products 

to reach that forum.” (citing J. McIntyre, 564 U.S. at 890-91) (Breyer, J., 

concurring in judgment); Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939, 

946 (4th Cir. 1994))). 

Here, because Imerys has no contacts with Florida, Florida courts 

cannot exercise specific jurisdiction over it.

Conclusion

We reverse the circuit court’s order and remand with instructions to 

dismiss the cause of action against Imerys for lack of personal jurisdiction.

Reversed and remanded.

KLINGENSMITH, J., concurs.

TAYLOR, J., dissents with opinion.

1 See also Stevenson v. Cyprus Amax Minerals Co., No. 6:17-CV-417-ORL-40DCI, 

2018 WL 3361884, at *4 (M.D. Fla. July 10, 2018) (“As the foregoing analysis 

demonstrates, Imerys lacks the requisite ‘minimum contacts’ with Florida to 

support the exercise of specific personal jurisdiction.”); Jinright v. Johnson & 

Johnson, Inc., No. 4:17CV01849 ERW, 2017 WL 3731317, at *4 (E.D. Mo. Aug. 

30, 2017) (“The evidence presented by nonresident Plaintiffs does not establish 

personal jurisdiction over [Imerys], because it does not establish a connection 

between Plaintiffs’ injuries, the products which caused the harm in this matter, 

and Defendants’ contacts in Missouri.”); Hodjera v. BASF Catalysts LLC, No. C17-

48RSL, 2017 WL 3262501, at *2 (W.D. Wash. July 31, 2017) (“[P]laintiffs fail to 

satisfy the second prong of the specific jurisdiction test: the requirement that 

their claim arise out of [Imerys’s] purposeful contacts with the forum state.”). But 

see Bors v. Johnson & Johnson, 208 F. Supp. 3d 648, 658 (E.D. Pa. 2016) (“Imerys 

chose to register to do business in Pennsylvania in 2007, years after Pennsylvania 

enacted its corporate registration statute specifically advising entities of personal 

jurisdiction arising from their registration to do business. We find, at a 

minimum, constructive consent to personal jurisdiction over Imerys in 

Pennsylvania.”).
9

TAYLOR, J., dissenting.

I respectfully dissent. I would affirm the order on appeal because 

Imerys’ affidavit failed to dispute the key jurisdictional allegations of the 

plaintiff’s complaint, and those allegations demonstrate that Florida’s 

assertion of personal jurisdiction over Imerys is constitutional. 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. Moreover, 

the maintenance of the suit in Florida does not offend traditional notions 

of fair play and substantial justice.

The relevant jurisdictional allegations in the plaintiff’s complaint are as 

follows. The plaintiff alleged that, for most of her life, she purchased 

Johnson & Johnson baby powder in Broward County, Florida. She alleged 

that she used the powder “on a daily basis for multiple decades prior to 

her diagnosis of ovarian cancer in 2013.” She also alleged that, at all 

material times, Imerys mined and sold talc to Johnson & Johnson, and 

that Imerys knew Johnson & Johnson was packaging and selling the talc 

to consumers as baby powder. She further alleged that, at all material 

times, Imerys “placed such products into the stream of commerce with 

knowledge and intent that such products be sold in the State of Florida.” 

Finally, she alleged that Johnson & Johnson and Imerys played an integral 

role in a trade group called the Talc Interested Party Task Force, an antiregulatory organization formed to defend talc use in response to scientific 

evidence finding talc to be a carcinogen. Imerys’ affidavit disputed none 

of those material allegations.

Due process requires that a nonresident have sufficient minimum 

contacts with the forum state such that the maintenance of a suit “does 

not offend traditional notions of fair play and substantial justice.” Int’l 

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation 

marks omitted). Critical to the due process analysis is whether the 

nonresident’s “conduct and connection with the forum State are such that 

he should reasonably anticipate being haled into court there.” World-Wide 

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

For a nonresident defendant to anticipate being haled into a Florida 

court, “it is essential in each case that there be some act by which the 

defendant purposefully avails itself of the privilege of conducting activities 

within the forum State, thus invoking the benefits and protections of its 

laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474–75 (1985)
10

(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). “The forum State 

does not exceed its powers under the Due Process Clause if it asserts 

personal jurisdiction over a corporation that delivers its products into the 

stream of commerce with the expectation that they will be purchased by 

consumers in the forum State.” World-Wide Volkswagen, 444 U.S. at 297–

98. Thus, “if the sale of a product . . . is not simply an isolated occurrence, 

but arises from the efforts of the manufacturer or distributor to serve 

directly or indirectly, the market for its product in other States, it is not 

unreasonable to subject it to suit in one of those States . . . .” Id. at 297.

The United States Supreme Court has twice attempted to clarify WorldWide Volkswagen’s stream-of-commerce doctrine, but has yet to issue a 

majority opinion as to the proper standard for determining when personal 

jurisdiction in the forum state can be premised upon a nonresident’s 

placement of goods into the stream of commerce. See J. McIntyre Mach., 

Ltd. v. Nicastro, 564 U.S. 873 (2011); Asahi Metal Indus. Co. v. Superior 

Court of Cal., Solano Cty., 480 U.S. 102 (1987).

In Asahi Metal, the Supreme Court unanimously held that it would be 

unreasonable and unfair for a California court to exercise personal 

jurisdiction over a Japanese manufacturer of tire valve stems with respect 

to a foreign company’s indemnification claim against the manufacturer 

arising out of a motorcycle accident, given the international context, the 

heavy burden on the foreign defendant, and the slight interests of the 

plaintiff and the forum state. 480 U.S. at 114–16. However, the fractured 

court did not produce a majority opinion on the question of when 

minimum contacts may be premised on a stream-of-commerce theory. See 

id. at 111–12 (O’Connor, J., plurality opinion) (endorsing the view that the 

due process clause requires “something more than that the defendant was 

aware of its product’s entry into the forum State through the stream of 

commerce in order for the State to exert jurisdiction over the defendant”); 

id. at 117 (Brennan, J., concurring in part and concurring in judgment)

(“The stream of commerce refers not to unpredictable currents or eddies, 

but to the regular and anticipated flow of products from manufacture to 

distribution to retail sale. As long as a participant in this process is aware 

that the final product is being marketed in the forum State, the possibility 

of a lawsuit there cannot come as a surprise.”); id. at 122 (Stevens, J., 

concurring in part and concurring in the judgment) (“Whether or not this 

conduct rises to the level of purposeful availment requires a constitutional 

determination that is affected by the volume, the value, and the hazardous 

character of the components.”).

The Supreme Court made a second attempt to clarify the stream-ofcommerce doctrine in Nicastro, but that case produced yet another 
11

fragmented decision. There, a plaintiff seriously injured his hand while 

using a metal-shearing machine, and later brought suit in New Jersey 

against the machine’s British manufacturer. Nicastro, 564 U.S. at 878. 

The relevant jurisdictional facts were that: (1) an independent distributor 

on one occasion sold and shipped one machine to the plaintiff’s employer 

in New Jersey; (2) the British manufacturer permitted the independent 

distributor to sell its machines to anyone in America; (3) and the British 

manufacturer attended trade shows in major American cities. Id. at 888 

(Breyer, J., concurring). On those facts, the Supreme Court held that it 

was not constitutionally proper for New Jersey to exercise jurisdiction over 

the British manufacturer. Id.

Justice Kennedy’s plurality opinion, joined by three other justices, took 

the position that a “[t]he defendant’s transmission of goods permits the 

exercise of jurisdiction only where the defendant can be said to have 

targeted the forum; as a general rule, it is not enough that the defendant 

might have predicted that its goods will reach the forum State.” Id. at 882 

(Kennedy, J., plurality opinion).

By contrast, Justice Breyer’s concurring opinion, joined by Justice 

Alito, rejected “the plurality’s seemingly strict no-jurisdiction rule.” Id. at 

890 (Breyer, J., concurring). Instead, Justice Breyer concluded that “the 

outcome of this case is determined by our precedents.” Id. at 887. Justice 

Breyer found that the contacts between the British manufacturer and New 

Jersey were not constitutionally sufficient to support New Jersey’s exercise 

of personal jurisdiction, explaining that “[n]one of our precedents finds 

that a single isolated sale, even if accompanied by the kind of sales effort 

indicated here, is sufficient.” Id. at 888.

Justice Breyer reasoned that all of the competing tests from Asahi Metal

had “strongly suggested that a single sale of a product in a State does not 

constitute an adequate basis for asserting jurisdiction over an out-of-state 

defendant, even if that defendant places his goods in the stream of 

commerce, fully aware (and hoping) that such a sale will take place.” Id.

at 888–89. However, Justice Breyer did not affirmatively adopt any of the 

standards from Asahi Metal, and instead adhered strictly to Supreme 

Court precedents and the “limited facts” of the case. Id. at 889–93.

In the present case, the majority relies heavily upon Justice Kennedy’s 

plurality opinion in Nicastro, effectively treating it as controlling 

precedent.2 However, “[w]hen a fragmented Court decides a case and no 

2 Likewise, in Southern Wall Products, Inc. v. Bolin, 251 So. 3d 935 (Fla. 4th DCA 

2018), this court quoted heavily from Justice Kennedy’s plurality opinion in 
12

single rationale explaining the result enjoys the assent of five Justices, the 

holding of the Court may be viewed as that position taken by those 

Members who concurred in the judgments on the narrowest grounds.” 

Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotation marks 

omitted). Thus, under the rule of Marks, Justice Breyer’s concurring 

opinion furnished the narrowest grounds for the Nicastro decision and 

represents the holding of the Court.

The narrow rulings of Nicastro and Asahi Metal do not alter existing 

Florida precedents holding that a nonresident manufacturer who serves 

Florida’s market by “continuous and systematic activity,” even when done 

indirectly through others, is subject to the jurisdiction of Florida courts. 

See Ford Motor Co. v. Atwood Vacuum Mach. Co., 392 So. 2d 1305, 1307, 

1310–13 (Fla. 1981) (holding that a nonresident manufacturer of 

component parts in Ford vehicles, who knew that Ford automobiles would 

be shipped to Florida and sold, was subject to jurisdiction in Florida: 

“Continuous and systematic activities provide a reasonable basis for the 

assertion of jurisdiction. . . . [T]he fact that a nonresident manufactures a 

component part outside the state and takes no part in the sale, 

distribution, or marketing of the finished product in the state is no basis 

for a limitation on jurisdiction. . . . [The manufacturer’s] lack of direct 

presence and activity within the borders of Florida is no bar to our holding 

that the minimum contacts test of International Shoe is met.”) (italics 

added); McHugh v. Kenyon, 547 So. 2d 318, 319 (Fla. 4th DCA 1989)

(holding that Florida had jurisdiction over a nonresident manufacturer of 

ladders whose products were “placed into the stream of commerce” and 

who had “a reasonable expectation that large numbers” would be 

purchased here: “A manufacturer that produces hundreds of thousands 

of product units that are distributed over a five-year period in the United 

States, of which at least 6,000 were marketed in Florida, should 

reasonably anticipate being sued in this state in connection with product 

defects causing injury.”); Louis Winer Co., Inc. v. San Francisco Mercantile 

Co., Inc., 501 So. 2d 171, 173 (Fla. 4th DCA 1987) (holding that Florida 

obtained personal jurisdiction over a nonresident manufacturer of 

component parts of a nightgown where it was undisputed that “the 

movement of these products into Florida was systematic and continuous”).

As this court stated in Louis Winer: “[P]ersonal jurisdiction may be 

asserted over a corporation that delivers its products into the stream of 

Nicastro. To the extent Bolin could be read as suggesting that Justice Kennedy’s 

plurality opinion in Nicastro represents “the current Supreme Court position on 

minimum contact analysis,” id. at 941, I disagree with such a suggestion. 

However, I believe Bolin was correctly decided on its facts.
13

commerce with the expectation that they will be purchased by consumers 

in the forum State, but not where the product’s presence in that state is a 

single, isolated occurrence.” 501 So. 2d at 173 (internal quotation marks 

omitted). This statement of law is derived from World-Wide Volkswagen 

and is consistent with Justice Breyer’s concurring opinion in Nicastro, 

which represents the most recent controlling opinion from the United 

States Supreme Court on this topic.

Contrary to the majority’s suggestion in this case, neither the United 

States Supreme Court, nor the Florida Supreme Court, has ever overruled 

Atwood or its progeny. The majority cannot sidestep clear precedents from 

the Florida Supreme Court and this court by relying upon nonbinding 

plurality opinions of the United States Supreme Court. While Atwood

predates other important decisions on personal jurisdiction, the actual 

holdings of those more recent decisions cannot be said to have overruled 

Atwood.3 Thus, the panel in this case is bound by Atwood and this court’s 

subsequent decisions applying Atwood. See Hoffman v. Jones, 280 So. 2d 

431, 440 (Fla. 1973) (holding that “a District Court of Appeal does not have 

the authority to overrule a decision of the Supreme Court of Florida”); Carr 

v. Carr, 569 So. 2d 903, 903 (Fla. 4th DCA 1990) (explaining that “we must 

follow the law of our own cases until we are overruled or until we recede 

from them”).

Because this court is bound by Atwood and its progeny, the majority’s 

reliance upon post-Nicastro cases from other jurisdictions is misplaced. In 

any event, while the majority cites cases from other jurisdictions applying 

a narrow conception of the stream-of-commerce doctrine, the stream-ofcommerce case law from other jurisdictions is hardly uniform. Indeed, 

some out-of-state cases have found the exercise of personal jurisdiction to 

be proper where a nonresident defendant placed its products into the 

stream of commerce with the reasonable expectation that substantial sales 

would take place in the forum state. See, e.g., Ainsworth v. Moffett Eng’g, 

Ltd., 716 F.3d 174, 179 (5th Cir. 2013) (holding that Mississippi’s exercise 

of personal jurisdiction over an Irish forklift manufacturer in a products 

liability action did not violate the manufacturer’s due process rights, as 

the manufacturer could have reasonably anticipated being haled into 

court in Mississippi where its distributor sold 203 forklifts, worth about 

3 For example, the Florida Supreme Court’s decision in Venetian Salami Co. v. 

Parthenais, 554 So. 2d 499 (Fla. 1989), which did not even mention Atwood, did 

not somehow overrule it. See Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002)

(proclaiming that the Florida Supreme Court “does not intentionally overrule 

itself sub silentio”).
14

$3,950,000, to customers in Mississippi); State v. LG Elecs., Inc., 375 P.3d 

1035, 1042 (Wash. 2016) (explaining that Nicatsro “did not foreclose an 

exercise of personal jurisdiction over a foreign defendant where a 

substantial volume of sales took place in a state as part of the regular flow 

of commerce”), cert. denied sub nom. Koninklijke Philips N.V. v. Washington, 

137 S. Ct. 648 (2017).

Put simply, because the United States Supreme Court has not yet 

articulated a clear standard for stream-of-commerce cases, the outcome 

of this case is dictated by precedents from the Florida Supreme Court and 

this 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.” Atwood, 392 So. 2d at 1313. In 

other words, minimum contacts exist where a nonresident manufacturer 

places its products into the stream of commerce with the expectation that 

large quantities of the products would ultimately be sold in the forum 

state. McHugh, 547 So. 2d at 319.

Here, Imerys has not disputed the plaintiff’s allegation that Imerys 

supplied Johnson & Johnson with the talc for its baby powders “at all 

material times,” which the plaintiff alleged was “multiple decades” before 

she was diagnosed with cancer in 2013. Because Imerys has not disputed 

the allegation that it placed its talc into the stream of commerce over 

“multiple decades” with the knowledge and intent that it would be sold in 

Florida, I would find that the exercise of personal jurisdiction over Imerys 

does not violate due process.4

In short, this is not a case involving a single isolated sale or even 

multiple occasional sales. The relevant allegations of the plaintiff’s 

complaint have not been disputed, and they demonstrate “continuous and 

systematic activity” by Imerys to serve the Florida market. Where a 

nonresident manufacturer’s components move through the stream of 

commerce in a “continuous and systematic” effort to serve the forum 

state’s market, the fact that the manufacturer “takes no part in the sale, 

4 This case is readily distinguishable from Stevenson v. Cyprus Amax Minerals 

Co., 617CV417ORL40DCI, 2018 WL 3361884, at *1 (M.D. Fla. July 10, 2018), 

cited by the majority. There, the plaintiff claimed to have been exposed to 

asbestos-contaminated talc powder between 1942 and 1985, but the evidence 

showed that Imerys’ predecessor supplied Johnson & Johnson with talc for just 

one month in 1980. By contrast, in this case, the plaintiff has alleged “multiple 

decades” of exposure to Imerys’ talc. 
15

distribution, or marketing of the finished product in the state is no basis 

for a limitation on jurisdiction.” Atwood, 392 So. 2d at 1310, 1313. Here, 

the trial court’s ruling is supported by the undisputed jurisdictional 

allegations in the complaint and by governing Florida case law.

We should therefore affirm the order denying the talc company’s motion 

to dismiss this products liability action for lack of personal jurisdiction.

* * *

Not final until disposition of timely filed motion for rehearing.