Pursuant to Florida law, the plaintiff must be in privity of contract to recover under theories of breach of express or implied warranties. T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) (citing Kramer v. Piper Aircraft Corp., 520 So. 2d 37 (Fla. 1988); West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976)); see also Weiss v. Johansen, 898 So. 2d 1009, 1011 (Fla. 4th DCA 2005) (stating that "in order to recover for the breach of a warranty either express or implied, the plaintiff must be in privity of contract with the defendant"). "A plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant."

As a preliminary matter, “[t]he law of Florida is that to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant.” T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D. Fla. 1995) (internal citations omitted).

Defendants argue that Plaintiff has failed to state a claim for breach of warranty because such a claim requires privity between the plaintiff and defendant. E.g., T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) ("Privity is required in order to recover damages from the seller of a product for breach of express or implied warranties." (quoting Intergraph Corp. v. Stearman, 555 So. 2d 1282, 1283 (Fla. Dist. Ct. App. 1990)).

Although the complaint states Mr. Stanziano “was in privity with Genzyme throughout his treatment with his Genzyme case coordinator as well as being registered in the Genzyme sponsored Fabry Registry,” the complaint does not allege that he and Genzyme had a buyer-seller relationship. See id. (“A plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant” (quoting T.W.M.v.Am. Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D. Fla. 1995).); cf. id.

Defendants cite several Florida cases dismissing breach-of-warranty claims pursued against drug or medical device manufacturers due to a lack of privity. (See Reply 4 (citing T.W.M. v. Am. Med. Sys., Inc. , 886 F. Supp. 842, 844 (N.D. Fla. 1995) (dismissing breach of warranty claim for lack of privity); Witt v. Howmedica Osteonics Corp. , No. 13-cv-20742, 2013 WL 6858395, at *3 (S.D. Fla. Dec. 30, 2013) (same); and Fields v. Mylan Pharm., Inc. , 751 F. Supp. 2d 1257, 1259 (N.D. Fla. 2009) (same))). These authorities are inapposite; unlike Plaintiff, the plaintiffs in these cases did not allege they were third-party beneficiaries of the manufacturers’ warranties.

"A plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant." T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 2d 842, 844 (N.D. Fla. 1995). Here, the plaintiffs have not presented any evidence that they are in privity with BSC. Therefore, BSC's Motion on the plaintiffs' claims of breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose is GRANTED.

"A plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant." Cruz, 2010 WL 598688, at *2 (citing T.W.M. v. American Medical Systems, Inc., 886 F.Supp. 842, 844 (N.D.Fla.1995)). On the other hand, "some factual circumstances satisfy the privity requirement even in the absence of a purchase directly from the manufacturer."

The Court is not persuaded by those arguments and finds that privity is required for both implied and express warranty claims. See e.g., Fields v. Mylan Pharm., Inc., 751 F. Supp. 2d 1257, 1259 (N.D. Fla. 2009); T.W.M. v. Merican Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) (citing Florida case law).

Although the Florida Supreme Court has never spoken on this issue, the Court acknowledges that several courts have held that absent privity there can be no claim for the breach of an express warranty. See T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D. Fla. 1995) (stating that "[t]he law of Florida is that to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant."); Weiss v. Johansen, 898 So. 2d 1009, 1011 (Fla. 4th DCA 2005) (stating that "in order to recover for the breach of a warranty either express or implied, the plaintiff must be in privity of contract with the defendant."); Intergraph Corp v. Stearman, 555 So. 2d 1282, 1283 (Fla. 2d DCA 1990) (stating that "[p]rivity is required in order to recover damages from the seller of a product for breach of express or implied warranties.").

"A plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant." T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995). Decedent obtained the fentanyl patches from the local pharmacy.