United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL JUDGE
Matter comes before the Court on the Defendant's Motion
to Dismiss (Doc. 24) Counts III and V of the Plaintiff's
Amended Complaint (Doc. 20).
Plaintiff alleges that she was injured by the Solyx Single
Incision Sling System,  which is a product manufactured by the
Defendant, Boston Scientific Corporation.
Amended Complaint contains eight counts. Count III alleges
strict liability manufacturing defect and Count V alleges
breach of express warranty. Boston Scientific argues that
Counts III and V “should be dismissed because they are
either barred by Florida law or not pled with sufficient
particularity.” Doc. 24 at 1.
Motion to Dismiss
ruling on a motion to dismiss, the Court must view the
complaint in the light most favorable to the Plaintiff,
see, e.g., Jackson v. Okaloosa County, Fla., 21 F.3d
1531, 1534 (11th Cir. 1994), and must limit its consideration
to the pleadings and any exhibits attached thereto.
See Fed. R. Civ. P. 10(c); see also GSW, Inc. v.
Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).
The Court will liberally construe the complaint's
allegations in the Plaintiff's favor. See Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). However,
“conclusory allegations, unwarranted factual deductions
or legal conclusions masquerading as facts will not prevent
dismissal.” Davila v. Delta Air Lines, Inc.,
326 F.3d 1183, 1185 (11th Cir. 2003).
reviewing a complaint on a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), “courts must be
mindful that the Federal Rules require only that the
complaint contain ‘a short and plain statement of the
claim showing that the pleader is entitled to
relief.'” U.S. v. Baxter Intern., Inc.,
345 F.3d 866, 880 (11th Cir. 2003) (citing Fed.R.Civ.P.
8(a)). This is a liberal pleading requirement, one that does
not require a plaintiff to plead with particularity every
element of a cause of action. Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001).
However, a plaintiff's obligation to provide the grounds
for his or her entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 554-555 (2007). The
complaint's factual allegations “must be enough to
raise a right to relief above the speculative level, ”
id. at 555, and cross “the line from
conceivable to plausible.” Ashcroft v. Iqbal,
556 U.S. 662, 680 (2009).
order to establish strict liability, appellants must allege
and prove the manufacturer's relationship to the product
in question, the defect, the unreasonably dangerous condition
of the product, and the existence of a proximate causal
connection between the condition and the user's injuries
or damage.” Bailey v. Janssen Pharmaceutica,
Inc., 288 Fed.Appx. 597, 605 (11th Cir. 2008) (quoting
West v. Caterpillar Tractor Co., Inc. 336 So.2d 80,
87 (Fla.1976)) (internal quotation marks omitted).
Scientific first argues that Count III fails to state a claim
because it “does not allege how [the product] was
defective with respect to its manufacture.” Doc. 24 at
3. Boston Scientific takes issue with the fact that the
Plaintiff's allegations “go to the overall design
of the Solyx sling, not the manufacture of Plaintiff's
specific device.” Id. at 4. However, the
Eleventh Circuit has expressed skepticism that Florida law
requires a plaintiff to specifically plead whether a defect
was due to a product's design or manufacture for purposes
of strict liability claims. Bailey v. Janssen
Pharmaceutica, Inc., 288 Fed.Appx. 597, 605 (11th Cir.
2008). And Plaintiffs are not required to plead the precise
manufacturing defect that caused the harm. Godelia v. Doe
1, 881 F.3d 1309, 1318 (11th Cir. 2018). Particularly
under the circumstances here, requiring such specificity
prior to discovery would be unfair to the Plaintiff. The
Plaintiff has adequately alleged that a defective product has
Scientific next contends that Count V fails for lack of
privity. Under Florida law, there is some question as to
whether there must be in privity of contract to recover under
theories of breach of express warranties. See Smith v.
Wm. Wrigley Jr. Co., 663 F.Supp.2d 1336, 1342 (S.D. Fla.
2009). Medical devices such as the one at issue here are not
purchased directly from the manufacturer by the ultimate
recipient; rather, a health care provider purchases them from
the manufacturer. However, the Eleventh Circuit recently cast
doubt on the oft-repeated rule that there can be no privity
when a prescription is required for purchase. Godelia v.
Doe 1, 881 F.3d 1309, 1321 (11th Cir. 2018). Such doubt
is sensible. If privity were always required when a
prescription-only product carried an express warranty,
manufacturers would be able to unfairly hide behind the
prescription as breaking the chain of privity. “The
manufacturer can hardly be heard to resurrect a common law
requirement of privity when it has itself voluntarily
provided a warranty that runs in favor of remote purchasers
of its product.” Fischetti v. Am. Isuzu
Motors, Inc., 918 So.2d 974, 976 (Fla. 4th DC A 2005).
Further, here, the Plaintiff has plausibly alleged that she
can meet the “relaxed” privity standard that some
courts have deemed appropriate. Cf. Atl. Specialty Ins.
Co. v. Mercier Marine Enter., LLC, No.
2:18-CV-93-FTM-29CM, 2018 WL 2331979, at *4 (M.D. Fla. May