Some federal courts in Florida have referred to these FDUTPA claims as "per se violations" because they are explicitly provided for in the statute. See, e.g.,Williams v. Delray Auto Mall, Inc. , 916 F. Supp. 2d 1294, 1300 (S.D. Fla. 2013) ; Taviere v. Precision Motor Cars, Inc. , No. 8:09-cv-467-T-TBM, 2010 U.S. Dist. LEXIS 12493, 2010 WL 557347, at *4 (M.D. Fla. Feb. 12, 2010). Preliminarily, Defendants argue that Plaintiffs are not consumers and therefore cannot bring the FDUTPA claims that are based on per se violations (Counts VII and VIII).
Some federal courts in Florida have referred to FDUTPA claims based on the latter as "per se violations" because they are explicitly provided for in the statute. See, e.g. , Williams v. Delray Auto Mall, Inc. , 916 F.Supp.2d 1294, 1300 (S.D. Fla. 2013) ; Taviere v. Precision Motor Cars, Inc. , No. 8:09-cv-467-T-TBM, 2010 WL 557347, at *4 (M.D. Fla. Feb. 12, 2010).
The FDUTPA does not permit claims for personal injury, and Plaintiffs do not allege a FDUTPA violation in the purchase of the prescription medication. See Fla. Stat. § 501.212(3); Taviere v. Precision Motor Cars, Inc., No. 8:09-cv-467-T-TBM, 2010 WL 557347, *5 (M.D. Fla. Feb. 12, 2010). Thus, the Court finds that amendment would be futile.
FDUTPA expressly states that it "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." Fla. Stat. § 501.212(3); see also, e.g., Taviere v. Precision Motor Cars, Inc., No. 8:09-cv-467-T-TBM, 2010 WL 557347, at *5 (M.D. Fla. Feb. 12, 2010); T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995); Gorran v. Atkins Nutritionals, Inc., 464 F. Supp. 2d 315, 329 (S.D.N.Y. 2006). Plaintiffs allege that Mr. Echols relied on "unfair and deceptive trade practices" that caused him to become "severely injured" and suffer "serious injury and illness."
Lastly, the plain language of the FDUTPA expressly prohibits claims for personal injuries. See Florida Statutes § 501.212(3); see also Taviere v. Precision Motor Cars, Inc., No. 8:09-cv-467-T-TBM, 2010 WL 557347, at * 5 (M.D. Fla. Feb. 12, 2010) (dismissing claim under FDUTPA because plaintiff alleged damages relating to stress, anxiety and depression and FDUTPA bars claims for personal injuries); Jones v. TT of Longwood, Inc., No. 6:06-cv-651-Orl-19DAB, 2007 WL 2298020, at * 7 (M.D. Fla. 2007) (dismissing claim under FDUTPA because "[s]ubjective feelings of disappointment are insufficient to form a basis for actual damages under the statute"); T.W.M. v. American MedicalSys., Inc., 886 F. Supp. 842, 844 (N.D. Fla.1995) (dismissing claim under FDUTPA where plaintiff alleged pain, suffering and loss of earnings because FDUTPA "explicitly states that it 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"). Plaintiff has improperly alleged claims for damages relating to mental anguish, lost profits and loss of information on his computer system.
Lastly, the plain language of the FDUTPA expressly prohibits claims for personal injuries. See Florida Statutes § 501.212(3); see also Taviere v. Precision Motor Cars, Inc., No. No. 8:09-cv-467-T-TBM, 2010 WL 557347, at * 5 (dismissing claim under FDUTPA because plaintiff alleged damages relating to stress, anxiety and depression and FDUTPA bars claims for personal injuries); Jones v. TT of Longwood, Inc., No. 6:06-cv-651-Orl-19DAB, 2007 WL 2298020, at * 7 (M.D. Fla. 2007) (dismissing claim under FDUTPA because "[s]ubjective feelings of disappointment are insufficient to form a basis for actual damages under the statute"); T.W.M. v. American Medical Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995) (dismissing claim under FDUTPA where plaintiff alleged pain, suffering and loss of earnings because FDUTPA "explicitly states that it 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").