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).

Florida and Minnesota law differ on the issue of privity — here, Florida law requires privity to maintain a breach of warranty action while Minnesota law does not. Compare T.W.M. & S.M. v. Am. 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.") with Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349, 357 (Minn. 1977) (stating that "the absence of privity would not bar" breach of warranty claims)

Plaintiffs rely on two non-binding cases to argue that contractual privity is established if the parties have any type of contract relating to the product. Plaintiffs argue that McAteer v. Black Decker (U.S.), Inc., 1999 WL 33836701 (M.D. Fla. Sept. 13, 1999) and T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842 (N.D. Fla. 1995), stand for the broad proposition that as long as the parties have a contract that relates to the product sold, there is contractual privity. But in fact, in T. W.M. the court explicitly stated that a "plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant."

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.

"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." T.W.M. v. American Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D.Fla. 1995) (citing Kramer v. Piper Aircraft Corp., 520 So.2d 37 (Fla. 1988) Intergraph Corp. v. Stearman, 555 So.2d 1282, 1283 (Fla.Dist.Ct.App. 1990)); Elizabeth N. v. Riverside Group, Inc., 585 So.2d 376, 378 (Fla.Dist.Ct.App. 1991) ("A warranty, whether express or implied, is fundamentally a contract. A contract cause of action requires privity.") (quoting Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689, 692 (Fla.Dist.Ct.App. 1979)); Hernandez v. Coopervision, Inc., 691 So.2d 639, 641 (Fla.Dist.Ct.App. 1997) (dismissing claims for implied warranties of merchantability and fitness for purpose due to lack of privity).

Godelia v. Doe 1, 881 F.3d 1309, 1321 (11th Cir. 2018) (comparing 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, 663 F.Supp.2d at 1342-43 (recognizing that privity may not be required for all express warranty claims)). Godelia held that even if court assumed privity was required, it had sufficiently been pled by allegations the plaintiff contracted directly with the manufacturer.

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.

Amoroso, 604 So. 2d at 833 (explaining that "in [Kramer] the [Florida] [S]upreme [C]ourt held that a no-privity claim for breach of implied warranty was abolished by the adoption of strict liability in Florida in [West]" and therefore privity is a requirement for a breach of implied warranty claim); Cooper v. Old Williamsburg Candle Corp., 653 F. Supp. 2d 1220, 1225 (M.D. Fla. 2009) ("To sustain a claim for breach of implied warranty under Florida law, the plaintiff must demonstrate that [s]he is in privity with the defendant." (citing T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) (citing Kramer, 520 So. 2d at 39))).

"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. 842, 844 (N.D. Fla. 1995). A plaintiff "cannot execute an end-run around Florida's historic privity requirement by employing principal-agent theory . . . ."

Relying upon Porter v. Ogden, Newell & Welch, 241 F.3d 1334, 1341 (11th Cir. 2001) Defendants argue that Florida law requires a plaintiff to plead with specificity a claim for punitive damages. Defendants further argue that conclusory allegations are insufficient to entitle a plaintiff to recover punitive damages, citing Fields v. Mylan, Inc., 751 F. Supp. 2d 1257, 1260 (N.D. Fla. 2009), T.W.M. v. American Medical Sys., Inc., 886 F. Supp. 842, 845 (N.D. Fla. 1995), and Porter. (ECF No. 34 at 5-6.)