Free Response in Opposition to Motion - District Court of Arizona - Arizona

Worthey v. Specialty Foam Products, Inc., 591 S.W.2d 145, 149 (Mo.App. 1979) ("The issue ... is not whether a specific defect caused the breach of this warranty, but, rather, whether or not the seller has sold goods that were not merchantable."); Osburn v. Bendix Home System, Inc., 613 P.2d 445 (Okla. 1980) ("Identification of an existing defect is not essential to recovery upon express warranty"); Black v. Don Schmidt Motor, Inc., 232 Kan. 458, 657 P.2d 517, 525 (Kan. 1983) ("A claim for breach of implied warranty may be proved by circumstantial evidence."); Jacobson v. Broadway Motors, Inc., 430 S.W.2d 602, 606 (Mo.App. 1968) (case of alleged breach of written materials and workmanship warranty; explaining that opinion evidence is not needed since the fact that a new automobile's motor caught fire in itself "gives rise to an inference it was not properly manufactured"); Larry J. Soldinger Assoc., Ltd. v. Aston Martin Lagonda of North Am., Inc., 1999 WL 756174 (N.D. Ill. 1999); Genetti, supra, at 541 (relying on what the court called the "majority" of opinion, the court held neither the U.C.C. nor Nebraska's lemon law required proof of a specific defect and that a defect could be proved circumstantially). See also Bruffey Contracting Co. v. Burroughs Corp., 522 F.Supp. 769 (D. Md. 1981), (holding computer buyer did not have to show the precise cause of a computer's malfunction to prove breach of warranty), aff'd 681 F.2d 812 (4th Cir. 1982); Fargo Machine & Tool Co. v Kearney & Trecker Corp., 428 F. Supp. 364 (E.D. Mich. 1977) (holding buyer did not have burden of showing precise technical reason for malfunction); Guardian Ins. Co. v Anacostia Chrysler Plymouth, 320 A.2d 315 (D.C. 1974) (holding "a specific defective part or condition need not necessarily be identified"); Capitol Dodge Sales, Inc. v Northern Concrete Pipe, Inc., 346 N.W.2d 535 (holding "the overheating [of the engine] is of such significance as to constitute a non-conformity without evidence as to the specific technical cause thereof"); Sipes v General Motors Corp., 946 S.W.2d 143 (Tex. App. 1997) (holding circumstantial evidence of defect is sufficient without showing underlying cause); Roger D. Billings, Handling Automobile Warranty and Repossession Cases § 7.53, at 202 (1984).

Case 2:03-cv-00869-FJM

Document 199-2

Filed 01/31/2006

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