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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. 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.

  2. 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.

  3. 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).

  4. 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.

  5. Hartig v. Bayer Corp.

    CASE NO. 3:02cv170/RV (N.D. Fla. Oct. 4, 2005)

    Id. See also, T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842 (N.D. Fla. 1995); Barrow v. Bristol-Myers Squibb, 1998 WL 812318 (M.D.Fla. 1998). "A warranty, whether express or implied, is fundamentally a contract.

  6. 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.

  7. Montgomery v. Davol, Inc.

    CASE NO. 3:07cv176/RV/EMT (N.D. Fla. Jul. 24, 2007)   Cited 2 times
    Dismissing an implied warranty claim against a medical device not alleged to have been directly sold to the plaintiff

    The recipient of an implant is not in privity with the manufacturer when the implant is purchased by the plaintiff's medical provider."). Indeed, as I held on similar facts in T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842 (N.D. Fla. 1995): A plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant.

  8. Zurich American Ins. Co. v. Hi-Mar Specialty Chem

    CASE NUMBER 08-80255-CIV-MARRA/JOHNSON (S.D. Fla. Jun. 25, 2009)

    Amoroso v. Samuel Friedland Family Enterprises, 604 So.2d 827, 833 (Fla. 4th DCA 1992); see also Weiss v. Johansen, 898 So.2d 1009, 1012 (Fla. Dist. Ct. App. 2005). As the court explained in T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842 (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.

  9. 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.

  10. Zurich American Insurance v. Hi-Mar Specialty Chem

    CASE NO. 08-80255-CIV-MARRA/JOHNSON (S.D. Fla. Jan. 19, 2010)   Cited 1 times

    Amoroso v. Samuel Friedland Family Enterprises, 604 So.2d 827, 833 (Fla. 4th DCA 1992); see also Weiss v. Johansen, 898 So.2d 1009, 1012 (Fla. Dist. Ct. App. 2005). As the court explained in T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842 (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.