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.

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.").

Under Florida law, merely setting forth conclusory allegations in the complaint is insufficient to entitle a claimant to recover punitive damages. See T.W.M. v. American Medical Sys., Inc., 886 F.Supp. 842, 845 (N.D. Fla. 1995); Bankest Imports, Inc. v. ISCA Corp., 717 F.Supp. 1537, 1542-43 (S.D. Fla. 1989). Instead, a plaintiff must plead specific acts committed by a 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).

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.

T.W.M. v. American Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D. Fla. 1995); Douse v. Boston Sci. Corp., 314 F.Supp.3d 1251, 1261-62 (M.D. Fla. 2018) (privity requirement satisfied by “substantial direct contacts” between buyer and manufacturer). In general, “[n]o privity exists, and a breach of warranty claim fails, where plaintiff did not purchase the product from the defendant.”

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). However, Florida jurisprudence recognizes the third-party beneficiary exception.

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.