See supra note 77. T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D. Fl. 1995) ("Because the complaint does not allege privity of contract, it fails to state a cause of action for breach of express or implied warranties under Chapter 672, Florida Statutes."); Bailey v. Monaco Coach Corp., 168 Fed.Appx. 893, 894 n.1 (11th Cir. 2006) ("Under Florida law, privity of contract is an essential element of a claim for breach of implied warranty.").

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).

The FDCA does not expressly provide a private cause of action. “Legislative intent, as evidenced by the language and structure of the Act, does not support the conclusion that the Florida Drug and Cosmetic Act impliedly provides a private cause of action.” T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842, 845 (N.D. Fla. 1995). “The FDCA expressly prohibits private claims for violations of that statute, 21 U.S.C. § 337(a), strongly evidencing a legislative intent not to create a private cause of action.

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.

Some courts have recognized that a claim for breach of express warranty fails if the plaintiff did not purchase the product directly from the defendant. See, e.g., Kaiser v. Depuy Spine, Inc., 944 F. Supp. 2d 1187, 1193 (M.D. Fla. 2013); Timmons v. Purdue Pharma Co., No. 8:04-cv-1479-T-26MAP, 2006 WL 263602, at *5 (M.D. Fla. 2006) (unpublished); T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995). Other cases, discussed below, have concluded that the privity requirement may be satisfied in certain circumstances even if the defendant did not sell the product directly to the plaintiff.

" 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.

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)).

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."

"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.