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T.W.M. v. American Medical Systems, Inc.

886 F. Supp. 842 (N.D. Fla. 1995)
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T.W.M. v. American Medical Systems, Inc.

28 Citing cases

  1. Williams v. Bear Stearns Co.

    725 So. 2d 397 (Fla. Dist. Ct. App. 1998)   Cited 115 times
    Holding that a claim for unjust enrichment fails upon a showing that an express contract exists

    We agree with Franklin that Appellant's contract-based claims, including breach of warranty, are foreclosed by the lack of privity between NHL and Franklin. See TWM SN v. American Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) ("The 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."); Spolski Gen. Contractor, Inc. v. Jett-Aire Corporate Aviation Management of Cent. Florida, Inc., 637 So.2d 968 (Fla. 5th DCA 1994) (finding summary judgment properly granted on warranty claims where there was no contract or privity between parties).

  2. Godelia v. Doe

    881 F.3d 1309 (11th Cir. 2018)   Cited 57 times
    Finding plaintiff "need not state in his complaint the precise defect that caused" the product to malfunction

    " Our review of Florida law reveals no clear rule about whether privity is required in every Florida express warranty claim. Compare T.W.M. v. Am. Med. Sys., 886 F.Supp. 842, 844 (N.D. Fla. 1995) (stating that privity is required for all express warranty claims), with Smith v. Wm. Wrigley Jr. Co., 663 F.Supp.2d 1336, 1342–43 (S.D. Fla. 2009) (recognizing that privity may not be required for all express warranty claims). But even if we assume privity is required, Mr. Godelia has sufficiently alleged it.

  3. Baker v. Danek Medical

    35 F. Supp. 2d 875 (N.D. Fla. 1998)   Cited 41 times
    Holding that where physician knew the risks of using a pedicle screw in bone surgery, the manufacturer of the screw was insulated from a failure to warn claim

    The recipient of an implant is not in privity with the manufacturer when the implant is purchased by the plaintiff's medical provider. T.W.M. and S.M. v. American Medical Systems,Inc. ., 886 F. Supp. 842, 844 (N.D.Fla. 1995) (recipient of penile implant not in privity with manufacturer because hospital first purchased implant from manufacturer). Accordingly, under Florida Law, Count IX should be rejected.

  4. Masonite Corp. Hardboard Siding Prods. Litig.

    21 F. Supp. 2d 593 (E.D. La. 1998)   Cited 26 times
    Holding that tort claim against siding manufacturer for water damage and infestation caused defective siding barred by economic loss doctrine

    Neither Lennar nor the homeowners were in privity of contract with Masionite. "A plaintiff who purchases a product," one court writes, "but does not buy it directly from the defendant, is not in privity with that defendant." T.W.M. v. American Medical Sys., Inc., 886 F. Supp. 842, 844 (N.D.Fla. 1995) (citing U.C.C. § 11-2). It is not claimed that plaintiff bought Masonite siding directly from defendant.

  5. Cooper v. Old Williamsburg Candle Corp.

    653 F. Supp. 2d 1220 (M.D. Fla. 2009)   Cited 24 times

    To sustain a claim for breach of implied warranty under Florida law, the plaintiff must demonstrate that he is in privity with the defendant. T.W.M. v. Am. Med. Sys., Inc. 886 F.Supp. 842, 844 (N.D. Fla. 1995) (citing Kramer v. PiperAircraft Corp., 520 So.2d 37 (Fla. 1988), and stating "[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."). Cooper cannot (and does not attempt to) demonstrate that she is in privity with OWC. Although she does not recall where she purchased the candle, Cooper admits that she did not purchase the candle from OWC. Accordingly, no privity exists between Cooper and OWC. Cooper's claim for breach of implied warranty of merchantability can not survive summary judgment.

  6. Morano v. BMW of North America, LLC

    928 F. Supp. 2d 826 (D.N.J. 2013)   Cited 20 times
    Finding that Rule 9(b)'s heightened standard is met where plaintiff "points to specific marketing and advertising materials and specific language in the Maintenance Program and Warranty that would lead reasonable consumers" to be deceived

    See John W. Reis, The Magic of Privity in Express Product Warranty Claims: A Plaintiff's Perspective, 79 Fla. B.J. 50, 50 (2005). At least two federal court cases have lumped together implied and express warranty claims, stating that that “[u]nder Florida law, the plaintiff must be in privity of contract to recover under theories of breach of express or implied warranties.” Fields v. Mylan Pharmaceuticals, Inc., 751 F.Supp.2d 1257, 1259 (N.D.Fla.2009); T.W.M. v. American Medical Sys., 886 F.Supp. 842, 844 (N.D.Fla.1995) (same). They do so, however, without significant analysis.

  7. Menges v. Depuy Motech, Inc. (N.D.Ind. 1999)

    61 F. Supp. 2d 817 (N.D. Ind. 1999)   Cited 19 times   1 Legal Analyses
    Holding that since the medical device at issue is "available only upon prescription of a duly licensed physician, the warning required is not to the general public or to the patient, but to the prescribing doctor"

    Here, the undisputed facts show that the plaintiffs never had a relationship, or any contact whatsoever, with Defendant or any person employed by or representing Defendant. Compare T.W.M. and S.M. v. American Medical Systems, Inc., 886 F. Supp. 842, 844 (N.D.Fla. 1995); Baker, 35 F. Supp.2d 875. Accordingly, summary judgment is proper as to this claim.

  8. Merino v. Ethicon Inc.

    536 F. Supp. 3d 1271 (S.D. Fla. 2021)   Cited 16 times
    Rejecting argument that complaint was a shotgun pleading because “Plaintiff ‘incorporates by reference each and every material fact of this Complaint as if fully set forth herein'” and thus incorporated only the material facts, and not the preceding counts, into every count

    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.

  9. Federal Insurance Co. v. Lazzara Yachts of N. America

    Case No. 8:09-CV-607-T-27MAP (M.D. Fla. Mar. 24, 2010)   Cited 15 times
    Stating that “[t]he plain language of the statute ... does not require notice to a manufacturer,” as opposed to a seller; adding that “[t]he parties have not cited to any Florida case extending notice requirements to a manufacturer”

    By contrast, a claim for breach of express warranty generally cannot be brought pursuant to Florida law in the absence of contractual privity. See, e.g., Intergraph Corp. v. Stearman, 555 So. 2d 1282, 1283 (Fla. 2d DCA 1990); Yvon, 495 F. Supp. 2d at 1184 (privity required for state law express warranty claim against yacht manufacturer); T.W.M. v. American Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) ("The 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.").

  10. Gorran v. Atkins Nutritionals, Inc.

    464 F. Supp. 2d 315 (S.D.N.Y. 2006)   Cited 14 times   3 Legal Analyses
    Holding that a book with some commercial references to products and services was not commercial speech

    FDUPTA does not apply to a "claim for personal injury or death or a claim for damage to property other than the property that is the subject of the consumer transaction" at issue. Fla. Stat. § 501.212(3); T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995). 2.