NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

TEVA PHARMACEUTICAL INDUSTRIES, )

) Case No. 2D14-4462

Appellant, )

)

v. )

)

FRANCES RUIZ, as Plenary Guardian of )

Person and Property of Luis Ruiz; )

FRANCES RUIZ, individually; ROSA )

MAGDALENA RUIZ, individually; and )

FRANCES RUIZ, as parent and natural )

guardian of Ana Maria Ruiz, )

)

Appellees. )

)

Opinion filed October 16, 2015. 

Appeal pursuant to Fla. R. App. P. 9.130 

from the Circuit Court for Hillsborough

County; Sam D. Pendino, Judge.

Glen S. Kerner, William M. Jay, and Nilda M. 

Isidro of Goodwin Procter LLP, New York, 

New York; and Edward W. Gerecke, Joseph 

H. Lang, Jr., and David J. Walz of Carlton 

Fields Jorden Burt, P.A., Tampa, for 

Appellant. 

George A. Vaka and Nancy A. Lauten of 

Vaka Law Group, Tampa; and Karen E. 

Terry, Pablo Perhacs, and Matthew 

Schwencke of Searcy Denney Scarola 

Barnhart & Shipley, P.A., West Palm Beach, 

for Appellees. 
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CASANUEVA, Judge.

Teva Pharmaceutical Industries (hereafter "Teva Industries") appeals an 

order denying its motion to dismiss the Appellees' complaint for lack of personal 

jurisdiction. In a sixth amended complaint, the Appellees alleged claims against Teva 

Industries for negligence and strict liability. Teva Industries argues that it is an Israeli 

company with no connection to Florida or to this litigation and that, therefore, it is not 

subject to personal jurisdiction in Florida. We reverse and remand for further 

proceedings.

To establish long-arm jurisdiction over a party, "a trial court must decide 

whether (1) there are sufficient jurisdictional facts to bring the action within the purview 

of [section 48.193, Florida Statutes]; and (2) the nonresident defendant involved has 

sufficient minimum contacts with Florida to satisfy constitutional due process 

requirements." Kin Yong Lung Indus. Co. v. Temple, 816 So. 2d 663, 665-66 (Fla. 2d 

DCA 2002) (citing Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 501-02 (Fla.

1989)). The second prong requires the trial court to "consider whether the defendant 

has sufficient minimum contacts with the state so that the exercise of jurisdiction would 

not offend traditional notions of fair play and substantial justice." Res. Healthcare of 

Am., Inc. v. McKinney, 940 So. 2d 1139, 1141 (Fla. 2d DCA 2006).

In ruling on a motion to dismiss for lack of jurisdiction, the complaint must 

first be examined to determine whether it alleges a basis for jurisdiction under section 

48.193, Florida Statutes (2009). See Hilltopper Holding Corp. v. Estate of Cutchin ex 

rel. Engle, 955 So. 2d 598, 601 (Fla. 2d DCA 2007). The plaintiff may either track the 
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language of section 48.193 without pleading supporting facts, or the plaintiff may allege 

"specific facts that demonstrate that the defendant's actions fit within one or more 

subsections of section 48.193." Id. Section 48.193(1) provides as follows:

Any person, whether or not a citizen or resident of this state, 

who personally or through an agent does any of the acts 

enumerated in this subsection thereby submits himself or 

herself and, if he or she is a natural person, his or her 

personal representative to the jurisdiction of the courts of this 

state for any cause of action arising from the doing of any of 

the following acts:

(a) Operating, conducting, engaging in, or carrying on a 

business or business venture in this state or having an office 

or agency in this state.

. . . .

(f) Causing injury to persons or property within this state 

arising out of an act or omission by the defendant outside 

this state, if, at or about the time of the injury, either:

1. The defendant was engaged in solicitation or service 

activities within this state; or

2. Products, materials, or things processed, serviced, or 

manufactured by the defendant anywhere were used or 

consumed within this state in the ordinary course of 

commerce, trade, or use.

(Emphasis added.)

This conduct is required to establish "specific" jurisdiction. Jurisdiction 

over a defendant may also be established under the theory of "general jurisdiction" as 

provided in section 48.193(2), which states that general jurisdiction may be established 

when "[a] defendant who is engaged in substantial and not isolated activity within this 

state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the 

jurisdiction of the courts of this state, whether or not the claim arises from that activity." 
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Id. We conclude that this case must be reversed for an evidentiary hearing for the trial 

court to consider whether the conduct of Teva Industries meets the requirements for 

"specific jurisdiction" and whether Teva Industries had sufficient minimum contacts with 

Florida to satisfy constitutional due process requirements.

Specific Jurisdiction

The sixth amended complaint alleged that during outpatient surgery, Luis 

Ruiz was given the drug propofol which was contaminated with endotoxins, microbial 

contaminants, or other bacteria. As a result, Mr. Ruiz suffered serious and permanent 

injury. The complaint alleged that Teva Pharmaceuticals USA, Inc. (hereafter "Teva 

USA") is a wholly owned subsidiary of Teva Industries; that Teva USA regularly 

conducts business in Hillsborough County, Florida; and that Teva USA manufactured, 

distributed, sold, or supplied the drug which caused the injury at issue. The complaint 

also alleged that Teva Industries is a publicly traded, foreign corporation which is 

organized, existing, and doing business under and by virtue of the laws of Israel. It 

alleged that Teva Industries exercised 100% ownership and control over its wholly 

owned subsidiaries, Teva USA; Sicor, Inc.; and Teva Parenteral Medicines, Inc., and is 

therefore liable for any and all tort liabilities of its subsidiaries. The complaint further

alleged that Teva Industries regularly conducts business in Hillsborough County, 

Florida, and that it manufactured, distributed, sold, or supplied the drug at issue. 

We conclude that the complaint alleged sufficient facts indicating that 

Teva Industries' actions fit within section 48.193(1)(a) and (f). Although Teva Industries 

contends that the allegations are not sufficiently specific, we note that the allegation that 
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Teva Industries "regularly conducts business in Hillsborough County, Florida" 

sufficiently tracks the language of section 48.193(1)(a). 

Once the Appellees met this pleading requirement, the burden then shifted 

to Teva Industries "to file a legally sufficient affidavit or other sworn proof that contests 

the essential jurisdictional facts of [Ruiz's] complaint." Hilltopper Holding Corp., 955 So. 

2d at 601 (citing Venetian Salami Co., 554 So. 2d at 502; Kin Yong Lung Indus. Co., 

816 So. 2d at 666). Teva Industries submitted the affidavit of Kobi Altman, a vice 

president of finance, to rebut the allegation that it was subject to Florida's jurisdiction 

because it conducts no business in Florida and has no connection to either Florida or 

this litigation. 

Mr. Altman testified in his affidavit that Teva Industries conducts no 

business of any kind in Florida. Teva Industries is not incorporated in Florida and it has 

never sought to file articles of incorporation in this state. It maintains no branch offices 

in the state and does not own land or any other property in the state. It has no Florida 

address, post office box, or telephone number, and it maintains no Florida bank 

accounts. Its board members do not meet, and have never met, in Florida. Teva 

Industries is not licensed to do business in Florida, nor does it solicit any business in 

Florida or perform any services in Florida. Teva Industries does not pay taxes in 

Florida, nor does it hold a Florida manufacturer’s permit. Teva Industries has not 

designated a Florida resident as an agent for service of process, nor has it engaged in

any advertising activity targeted at the Florida market.

Mr. Altman explained in his affidavit that Teva Industries and its affiliates 

each observe separate corporate forms and that each company holds its own board 
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meetings and maintains its books and records separate from those of the other two 

companies. Further, the companies have separate corporate headquarters. Although 

one entity may from time to time pay the expenses owed by related entities to third 

parties, those expenses are ultimately allocated to the entity that incurred them. 

When Teva Industries ships goods that it manufactures to Teva USA so 

that the goods can be sold in the United States through other distributors, Teva USA 

pays Teva Industries for those shipments. Title to the goods passes to Teva USA 

outside the United States.

Mr. Altman testified that Teva Parenteral Medicines, Inc. ("Teva 

Parenteral"), is a Delaware corporation with its principal place of business in Irvine, 

California. Teva Parenteral manufactured propofol during the time period relevant to 

the allegations in the complaint. Teva Industries does not dominate or control the dayto-day operations of either Teva USA or Teva Parenteral.

Mr. Altman testified that Teva Industries has never manufactured, 

marketed, or sold propofol in the United States. Teva Industries did not have any 

physical contact with, possession of, or legal title to the propofol manufactured by Teva 

Parenteral. It had no role in testing the propofol sold in the United States or in 

overseeing quality assurance programs with respect to propofol. Further, Teva 

Industries had no involvement in the formulation of any policies or procedures related to 

quality assurance activities with respect to propofol and played no role in ensuring that 

the propofol manufactured by Teva Parenteral was subjected to any prescribed process 

or procedure. 
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We conclude that Mr. Altman's affidavit was sufficient to refute the 

jurisdictional allegations in the complaint. In Hilltopper, 955 So. 2d at 602, this court

held that the affidavits of the corporate representative were sufficient to refute the 

jurisdictional allegations in the complaint where the affidavits alleged that

neither Hilltopper nor Centennial conducted business in 

Florida, neither corporation had agents appointed for service 

of process in Florida, neither corporation was licensed to do 

business in Florida, neither corporation maintained offices or 

employees in Florida, and neither corporation advertised in 

Florida. Further, each affidavit alleged that neither Hilltopper 

nor Centennial owned, managed, or operated the nursing 

home at issue, had any management responsibilities at the 

nursing home at issue, or had employees through which it 

provided patient care at the nursing home at issue.

Id. at 600. 

Here, Mr. Altman's affidavit is far more comprehensive than the affidavit in 

Hilltopper, and it was sufficient to refute the jurisdictional allegations in the Appellees'

complaint. The affidavit, which must be taken as true, indicates that Teva Industries' 

conduct does not subject it to jurisdiction in this state. See id. at 601. 

Because Mr. Altman's affidavit fully disputes the jurisdictional allegations 

in the complaint, the burden shifts back to the Appellees to prove by affidavit or other 

sworn proof that a basis for long-arm jurisdiction exists. "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." Id. at 602 (citing 

Venetian Salami Co., 554 So. 2d at 502; Kin Yong Lung Indus. Co., 816 So. 2d at 666; 

Capital One Fin. Corp. v. Miller, 709 So. 2d 639, 640 (Fla. 2d DCA 1998); Lampe v. 

Hoyne, 652 So. 2d 424, 425 (Fla. 2d DCA 1995)). However, if the plaintiff does come 

forward with such proof and there is a conflict in the parties' evidence, "the trial court 
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should hold a limited evidentiary hearing to resolve the disputed issues of fact and to 

determine the jurisdiction issue." McKinney, 940 So. 2d at 1140-41 (citing Venetian 

Salami Co., 554 So. 2d at 503).

The Appellees submitted several documents in opposition to the motion to 

dismiss. The first document is a diagram of Teva Parenteral's manufacturing facility in 

Irvine, California. At the top left corner of the document, it states, "This document and 

its contents are the property of Teva Pharmaceutical Industries LTD. The information 

contained herein may not be used or copied in any manner without the written 

permission of Teva Pharmaceutical Industries LTD." At the bottom of the document on 

the right, the address is listed along with the name "Teva Parenteral Medicines." The 

Appellees noted that Teva Industries has 100% ownership of Teva USA and that Teva 

USA is the sole shareholder of the 1000 shares of stock of Teva Parenteral Medicines.

The Appellees also submitted documents from the Securities and 

Exchange Commission noting that Teva Industries may own four properties in Miami, 

Florida. They further submitted excerpts from the deposition of Brian Shanahan, which 

suggested that Mr. Shanahan may have been the attorney for Teva USA, Teva 

Industries, and Sicor. Mr. Shanahan also testified that from 2009 through 2012, he was 

the assistant secretary of three companies: Teva USA, Teva Parenteral, and Sicor.

Another deposition submitted by the Appellees was the deposition of Fran 

Sakers Zipp. Beginning on July 1, 2009, as the head of global quality, she handled 

global quality issues for all of Teva Industries both in the United States and other 

countries: "any location where Teva was doing business relative to quality activities." 
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However, she claimed that she did not know for which entity she was exercising global 

or strategic oversight in July of 2009: 

I don't know specifically. I was an employee of Teva USA. I 

was in a global role looking at strategic activities across all 

Teva facilities related to quality matters, so I cannot say 

specifically other than my role was as a global function for

Teva and employed by Teva USA. 

Although Ms. Zipp claimed that she was not employed by Teva Industries, the 

Appellees submitted evidence that contradicted these claims. 

Ms. Zipp participated in the recall of propofol and discussed the situation 

involving propofol with several other individuals who were a part of her global quality 

team, including one employee who was based in Florida. Ms. Zipp also discussed

propofol with other members of Teva Industries, including the CEO of Teva Industries, 

at a Teva Industries office in Israel. She further testified that she reported the issues 

involving propofol to her "management" at Teva Industries. 

We conclude that the evidence submitted by the Appellees refuted the 

allegations in Mr. Altman's affidavit and that because there was a conflict in the 

evidence, the trial court was required to hold a limited evidentiary hearing to resolve the 

disputed issues of fact. In this case, there is no dispute that Teva Industries owned 

100% of the stock of both Teva USA and Teva Parenteral and that the corporations 

have separate headquarters. Further, Mr. Altman explained in his affidavit that Teva 

Industries and its affiliates each observe separate corporate forms and that each 

company holds its own board meetings and maintains its books and records separate 

from those of the other two companies. Although one entity may from time to time pay 
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the expenses owed by related entities to third parties, those expenses are ultimately 

allocated to the entity that incurred them. 

On the other hand, Mr. Altman testified that Teva Industries does not 

dominate or control the day-to-day operations of either Teva USA or Teva Parenteral, 

that it had no role in overseeing quality assurance programs with respect to propofol, 

that it had no involvement in the formulation of any policies or procedures related to 

quality assurance activities with respect to propofol, and that it played no role in 

ensuring that the propofol manufactured by Teva Parenteral was subjected to any 

prescribed process or procedure. Mr. Ruiz presented evidence that contradicted these 

assertions. 

 There was evidence that Ms. Zipp was the executive vice president and 

global head of quality for Teva Industries. She testified that she handled global quality 

issues for all of Teva Industries both in the United States and other countries: "I was in a 

global role looking at strategic activities across all Teva facilities related to quality 

matters . . . ." This would suggest that Teva Industries had a hand in the day-to-day 

operation and policy decisions of its subsidiaries. 

Ms. Zipp testified that in 2009, she discussed propofol with members of 

Teva Industries, including Eran Katz and Schlomo Yanai, who at the time was the CEO 

of Teva Industries. The meeting was held at a Teva Industries office in Israel. Later in 

the deposition, Ms. Zipp discussed an email she forwarded to Mr. Katz, testifying that 

she "reported to Mr. Katz, so I was alerting my management of this email." Ms. Zipp 

was required to review and edit the field alert form sent to the FDA, and such form was 
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mailed only after she had approved it. Her email to Mr. Katz notes that she made 

changes to the propofol field alert that went to the FDA.

There was also evidence that, as an employee of Teva Industries, Ms.

Zipp was involved in corrective and preventative actions related to propofol, the October 

2009 recall of propofol, quality improvement, and enhanced facility compliance with 

regulations. Therefore, there was evidence to support the finding that Teva Industries 

did exercise authority over general policy and daily operations, including the propofol 

recall, quality improvement, and enhanced facility compliance. 

Because the Appellees submitted depositions and documents that were

contrary to the allegations in Mr. Altman's affidavit, the trial court was required to hold a 

limited evidentiary hearing. See Venetian Salami Co., 554 So. 2d at 503. "[A]n 

evidentiary hearing under Venetian Salami resolves the factual disputes necessary to 

determine jurisdiction pursuant to section 48.193 as well as whether minimum contacts 

exist to satisfy due process concerns." Dev. Corp. of Palm Beach v. WBC Constr., 

L.L.C., 925 So. 2d 1156, 1160 (Fla. 4th DCA 2006). Although the trial court conducted 

a hearing on the motion to dismiss, it did not receive any testimony or evidence at the 

hearing. The order denying the motion to dismiss contains no reasoning and does not 

explain how the trial court resolved the disputed issues of fact. 

General Jurisdiction

As previously noted, jurisdiction over a defendant may also be established 

under the theory of "general jurisdiction" as provided in section 48.193(2). However, we 

conclude that the Appellees cannot establish the requirements for general jurisdiction as 

recently delineated by the Supreme Court in Daimler AG v. Bauman, 134 S. Ct. 746 
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(2014). In Daimler, the Court held that the test to determine if general jurisdiction exists 

is whether the foreign corporation's " 'affiliations with the State are so "continuous and 

systematic" as to render [it] essentially at home in the forum State.' " Id. at 761

(alteration in original) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 

S. Ct. 2846, 2851 (2011)). Noting that neither Daimler nor MBUSA was incorporated in 

California or had its principal place of business there, the Court held that the companies 

were not "at home in California, and hence subject to suit there on claims by foreign 

plaintiffs having nothing to do with anything that occurred or had its principal impact in 

California." Id. at 761-62. 

In the present case, neither Teva USA nor Teva Industries is incorporated 

in Florida or has its principal place of business here. Therefore, pursuant to Daimler, 

Florida does not have general jurisdiction over either company. 

Due Process

Even if the Appellees can establish that the conduct of Teva Industries 

meets the requirements for specific jurisdiction, they must also establish that Teva 

Industries has sufficient minimum contacts with Florida to satisfy constitutional due 

process requirements. "The Due Process Clause of the Fourteenth Amendment 

constrains a State's authority to bind a nonresident defendant to a judgment of its 

courts." Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (citing World–Wide Volkswagen 

Corp. v. Woodson, 444 U.S. 286, 291 (1980)). A defendant's suit-related actions must 

create a substantial connection with the state before that state can exercise jurisdiction 

consistent with due process. Id. "First, the relationship must arise out of contacts that 

the 'defendant himself' creates with the forum State." Id. at 1122 (quoting Burger King 
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Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). Second, the "minimum contacts" 

analysis examines the defendant's contacts with the state itself, not merely the 

defendant's contacts with persons who reside in that state. Id. Again, there was 

contradictory evidence on this issue. On remand, the trial court should conduct an 

evidentiary hearing to determine whether Teva Industries had sufficient minimum 

contacts with Florida to satisfy the due process requirements.

Reversed and remanded for proceedings consistent with this opinion.

MORRIS and SLEET, JJ., Concur.