MSP RECOVERY CLAIMS, SERIES LLC v. COLOPLAST CORP.

• Court: District Court of Appeal of Florida
• Decided: January 11, 2023
• Docket: 22-0191
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 11, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-191 Lower Tribunal No. 18-30920 ________________

MSP Recovery Claims, Series LLC, et al., Appellants,

vs.

Coloplast Corp., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Mark Blumstein, Judge.

MSP Recovery Law Firm, Robert Strongarone, Aida M. Landa, and Janpaul Portal, for appellants.

King & Spalding, LLP, Val Leppert and Austin Evans; Squire Patton Boggs (US), LLP, Andrew R. Kruppa and Amanda E. Preston, for appellees.

Carlton Fields, P.A., Joseph H. Lang, Jr., and D. Matthew Allen (Tampa); William W. Large (Tallahassee), for the Chamber of Commerce of the United States of America, the Pharmaceutical Research and Manufacturers of America, and the Florida Justice Reform Institute, as amici curiae. Before FERNANDEZ, C.J., and MILLER, and BOKOR, JJ.

ON MOTION FOR WRITTEN OPINION

FERNANDEZ, C.J.

Upon consideration of each party’s motion for a written opinion, we

grant the motions, withdraw our previously issued opinion, and substitute the

following in its place.

MSP Recovery Claims, Series LLC; MSPA Claims 1, LLC; Series

PMPI, a designated series of MAO-MSO Recovery II, LLC; and MSP

Recovery Claims Series 44, LLC (collectively, “MSP”) appeals the trial

court’s order granting Coloplast Corp., Mentor Worldwide, LLC, and

Coloplast Manufacturing US, LLC’s (collectively, “Coloplast”) Motion to

Dismiss Plaintiffs’ Second Amended Complaint and Incorporated

Memorandum of Law with prejudice, for lack of personal jurisdiction and

failure to state a cause of action for a pure bill of discovery. Because the trial

court lacked personal jurisdiction over Coloplast, we affirm the order of

dismissal on the basis of personal jurisdiction without further discussion on

the issue of failure to state a cause of action.

The underlying case concerns pelvic surgical mesh products designed,

manufactured, and sold by Coloplast, a foreign corporation, that allegedly

caused personal injury to a number of Floridians. MSP’s assignors are

2 Medicare Advantage organizations and related Medicare entities

(collectively, “Medicare”) that provide comprehensive health care coverage

for their Medicare beneficiaries (“Enrollees”) throughout Florida. Medicare

paid for medical care and treatment received by their Enrollees in Florida to

treat injuries resulting from the implantation of pelvic surgical mesh products

that occurred in Florida. MSP, the assignee, filed its Second Amended

Complaint for a Pure Bill of Discovery against Coloplast seeking

reimbursement of the claims paid by Medicare.

On October 8, 2021, Coloplast moved to dismiss the complaint,

arguing that the trial court lacked personal jurisdiction, that MSP is not

entitled to a pure bill of discovery, and that it lacked standing. After hearing

oral argument, on December 10, 2021, the trial court granted the motion to

dismiss, finding that the court lacked personal jurisdiction over Coloplast and

that MSP failed to state a cause of action for a pure bill of discovery.

This Court reviews rulings on a motion to dismiss for lack of personal

jurisdiction de novo. Damicet Corp. v. Sidauy, 306 So. 3d 171, 172 (Fla. 3d

DCA 2020).

On appeal, MSP argues that the trial court has personal jurisdiction

over Coloplast based on three provisions of the long-arm statute: section

48.193(1)(a)(6), Coloplast caused personal injury; section 48.193(1)(a)(2),

3 Coloplast committed torts; and section 48.193(1)(a)(1), Coloplast engaged

in a business or business venture.

This case is a Medicare reimbursement case, not a personal injury

action. MSP dispelled any notion of this being a personal injury action by

admitting on appeal that “[e]ventually, Appellants intend to pursue recoveries

for damages sustained by the Assignors’ [sic] as a result of Appellees’

defective products—not personal injury claims on behalf of the

Enrollees.” (Emphasis added). Additionally in the second amended

complaint, MSP claims that “the Assignors bore the costs associated with

the treatment of said injuries in Florida, causing them financial damages.”

(Emphasis added).

The basis of the cause of action is reimbursement of Medicare, in

MSP’s words, “damages sustained by the Assignor’s [sic].” The activity in

the state is injury to persons within Florida arising from Coloplast’s defective

products. MSP’s cause of action does not substantively connect to the

personal injury. See Philip J. Padovano, Fla. Prac., Civil Practice § 8:7 (2022

ed.) (“The term ‘arising from’ in section 48.193 means that there must be a

substantive connection between the basis of the cause of action and the

activity in the state.”). Consistent with decisions from both Florida and the

Southern District, we find that MSP seeks economic damages that do not fall

4 within section 48.193(1)(a)(6). See Aetna Life & Cas. Co. v. Therm-O-Disc,

Inc., 511 So. 2d 992 (Fla. 1987); MSP Recovery Claims, Series 44 LLC v.

Great American Ins. Co., 20-24094-CIV, 2021 WL 8343191 (S.D. Fla. June

11, 2021); MSP Recovery Claims, Series LLC v. Arbella Mut. Ins. Co., 20-

CV-24062-UU, 2021 WL 8343190 (S.D. Fla. Jan. 29, 2021).1

The analysis for the torts provision of the long-arm statute is essentially

the same. Coloplast did not commit any torts against Medicare individually.

MSP has admitted that it will not seek recovery for personal injury claims on

behalf of the Enrollees. Therefore, there is no substantive connection

between the basis of the cause of action and the activity in the state, which

would be any alleged torts committed against individuals in Florida.

As to the business venture provision of the long-arm statute, MSP

failed to provide facts to demonstrate personal jurisdiction on this ground in

its second amended complaint. MSP also fails to mention this provision,

much less provide evidence to support it, in its opposition to Coloplast’s

motion to dismiss. See MSP Recovery Claims, Series LLC v. Northland Ins.

1 MSP cites to North Star International Seafood Company, Inc. v. Banner Beef & Seafood Company, Inc., 677 So. 2d 1003 (Fla. 3d DCA 1996), for support. Upon reading the first few sentences of the North Star opinion, the case is immediately distinguishable – “The plaintiff in the underlying personal injury action . . . .” Id. at 1004. Conversely, the case before this court is a Medicare reimbursement case, not a personal injury action.

5 Co., 20-CV-24176, 2022 WL 2341158, at *2 (S.D. Fla. June 16, 2022), report

and recommendation adopted, 20-24176-CIV, 2022 WL 3042265, n. 6 (S.D.

Fla. Aug. 1, 2022) (“Plaintiff's failure to allege, in the [Second Amended

Complaint], that this Court has jurisdiction under Fla. Stat. § 48.193(1)(a)(6)

is reason alone to reject the argument Plaintiff now makes that this is a basis

for personal jurisdiction. I also note further that the [Second Amended

Complaint] does not allege facts that support jurisdiction on this ground.”).

For the reasons stated, we affirm the order on appeal dismissing the

second amended complaint for the trial court’s lack of personal jurisdiction

over Coloplast.

Affirmed.