A breach of warranty claim, which is essentially a breach of contract theory, comes in two forms: breach of express warranty, and breach of implied warranty. In a breach of express warranty claim, the plaintiff contends that the defendant's product did not perform as advertised (or as indicated in their own product literature). In that sense, since this claim is pointing to specific promises that were made and broken, this claim is simpler and more straightforward than a breach of implied warranty claim.

Before a plaintiff can recover under this theory, the plaintiff must prove 2 things:

  1. The defendant's product did not in fact conform to their explicit promises; and,
  2. The plaintiff relied to his or her detriment upon these warranties. As a practical matter, this means that the plaintiff must provide either a copy of the actual literature relied upon, or cite with specificity the language that he relied (to his detriment) upon in electing to purchase or use the defendant’s product.

In order to demonstrate how this principle applies in action, following is an example from a products liability class action that I litigated several years ago against a foreign manufacturer of technology for fashioning and bonding dental restorative implants. In that case, the plaintiffs contended that the restorations did not perform as advertised in the manufacturer’s own published product literature, as the bonding failed and the restorations cracked or “popped off” in a very high percentage of cases. Moreover, the plaintiffs claimed that the manufacturer’s instructions to the laboratories and dentists for using the bonding and restoration technology were inconsistent and, at times, contradicted itself. Ultimately, we defeated the defendant's motion to dismiss the breach of express warranty claim because we cited the specific language that the defendants had used in their advertising literature that was targeted to people like our client.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer