Basic product liability law in most states entitles a plaintiff to recovery under a breach of warranty theory for harm demonstrably caused by a defective product. Under this framework, the conventional wisdom is that a plaintiff cannot recover in a product liability case if the product in question has not failed or manifested the alleged defect. This basic principle is reflected in the well-known section 2-314 of the Uniform Commercial Code: “Unless excluded or modifed…a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.…Goods to be merchantable must be at least such as… pass without objection in the trade under the contract description; and…are fit for the ordinary purposes for which goods of that description are used.” U.C.C. §2-314; see also David G. Owen, Products Liability Law 169 (Thomson West et al. eds., 1st ed. 2004) (“[I]t is difficult to untangle merchantability from defectiveness, and at least in products liability cases involving personal injuries, the concepts of “merchantable” and “defective” appear largely if not entirely congruent.”) (citations omitted). The requirement that a plaintiff is entitled to recovery only if a product has actually manifested a defect has long stood as a levee holding back a flood of “no injury” product liability cases. Indeed, courts have often held that even if a product does fail or malfunction, this is not necessarily sufficient to establish a product defect. So, may a plaintiff bring a breach of warranty cause of action without even claiming that a product malfunctioned or manifested a defect?

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