The warranty is "express."
Before you say, "Well, duh," this sometimes actually
does matter. Here's how.
Most complaints in product liability actions involving
prescription medical products that include express warranty counts
do so as one of a bunch of different causes of action, all pleaded
seriatim ("one after another," in non-lawyer
speak). Believe it or not, lawyers get tired of repeating
themselves – especially those (like our adversaries) who
don't bill by the hour. Thus, in complaints, we usually see
each cause of action in multi-count complaints begin with a
paragraph "incorporating by reference" facts that were
pleaded earlier in the document.
That can be fatal to express warranty claims – because the
warranty must be "express" – whereas other claims,
such as failure to warn, can be maintained on the basis of
allegedly omitted facts. Thus, incorporation by reference (or
pleaded facts) that only incorporates allegations of omitted facts
isn't enough to
