894 A.2d 563 (2006) 391 Md. 608

RITE AID CORPORATION
v.
Ellen R. LEVY-GRAY.

No. 61, Sept. Term, 2005.

Court of Appeals of Maryland.

March 13, 2006.

*565 Melvin J. Sykes (James A. Rothschild, Michael J. Carlson, Anderson, Coe & King, LLP, Baltimore, on brief), for petitioner.

Craig Franco (Odin, Feldman & Pittleman, P.C., Fairvax, VA), Loyd Byron Hopkins (Loyd Byron Hopkins, P.C., Frederick), all on brief, for respondent.

Steven P. Benson, O'Brien, Butler, McConihe & Schaefer, Washington, DC, Susan C. Winckler, American Pharmacists Assn., Washington, DC, amicus brief for Nat. Assn. of Chain Drug Stores, Inc. & American Pharmacists Assn. in support of petitioner.

Mary Ellen Fleck, Don L. Bell, Nat. Assn. of Chain Drug Stores, Inc., Alexandria, VA, of counsel.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BATTAGLIA, J.

In the case sub judice, a jury returned a verdict against Rite Aid Corporation, the petitioner, for breach of express warranty based on a package insert that it generated and provided with a prescription pharmaceutical, doxycycline, directing the respondent, Ellen Levy-Gray, to "take with food or milk if upset stomach occurs." Because, based on the facts of the instant case, we determine that the jury reasonably could infer that the language "take with food or milk if upset stomach occurs" constitutes an express warranty under Maryland Code (1975, 2002 Repl.Vol.), Section 2-313 of the Commercial Law Article, we affirm the judgment of the Court of Special Appeals.

Background

On October 25, 2000, Dr. Ronald Geckler, the head of Infectious Diseases at Mercy Medical Center, diagnosed Ms. Levy-Gray with Lyme disease and gave her a prescription for doxycycline, a drug that is part of the group of Tetracycline-based *566 drugs.^[1] Dr. Geckler informed Ms. Levy-Gray that while taking doxycycline she could not continue nursing her son, but provided no other instructions as to how she should take the doxycycline. Ms. Levy-Gray filled her prescription at the Rite Aid Pharmacy # 4465, located at 12224 Tullamore Road, in Timonium, Maryland, which she stated she chose because of prior dealings with that store as well as the fact that Rite Aid was a national chain of pharmacies. Rite Aid obtained the doxycycline at issue from Watson Laboratories, Inc. of Corona, California (Watson), which is not a party to this action. Watson shipped the doxycycline in bottles containing 500 capsules and included an eightpage pamphlet which the manufacturer had submitted to the United States Food and Drug Administration (FDA) and which had been approved by that agency as "labeling" for that prescription drug. The pamphlet from Watson provided in pertinent part:

If gastric irritation occurs, it is recommended that doxycycline be given with food or milk.

The doxycycline received by Ms. Levy-Gray was accompanied by an instruction and information pamphlet, known as a "patient package insert" (PPI), entitled "Rite Advice." The "Rite Advice" pamphlet was drafted for Rite Aid by First Data Bank Corporation, which is not a party to the case sub judice. The cover page of the pamphlet informed readers: "Inside is everything you need to know about your prescription. It covers everything in writing from dosage to side effects. If you have any questions, just ask your pharmacist." The inside of the pamphlet stated, in part:

IMPORTANT NOTE: THE FOLLOWING INFORMATION IS INTENDED TO SUPPLEMENT, NOT SUBSTITUTE FOR, THE EXPERTISE AND JUDGMENT OF YOUR PHYSICIAN, PHARMACIST OR OTHER HEALTHCARE PROFESSIONAL.

IT SHOULD NOT BE CONSTRUED TO INDICATE THAT USE OF THE DRUG IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU.

CONSULT YOUR HEALTHCARE PROFESSIONAL BEFORE USING THIS DRUG.

* * *

HOW TO TAKE THIS MEDICATION: Take each dose with a full glass of water (4 oz. or 120 ml) or more. Do not lie down for at least 1 hour after taking this drug. Take with food or milk if stomach upset occurs unless your doctor directs you otherwise. Avoid taking antacids, containing magnesium, aluminum or calcium, sucralfate, iron preparations or vitamin (zinc) products within 2-3 hours of taking this medication. These products bind with the medication preventing its absorption....

* * *

The information in this leaflet may be used as an educational aid. This information does not cover all possible uses, actions, precautions, side effects, or interactions of this medicine. This information is not intended as medical advice for individual problems[.]

Ms. Levy-Gray took the first dose of doxycycline on October 26 with water. According to Ms. Levy-Gray's testimony, the following day she started taking the medication with milk because she had experienced an upset stomach. While continuing *567 to take the drug, Ms. Levy-Gray also consumed a large quantity of dairy products including eight to ten glasses of milk per day, macaroni and cheese, grilled cheese sandwiches, yogurt, ice cream, and cottage cheese, as she testified, in an effort to maintain her breast milk to resume nursing her son after her treatment ended. During this time, according to Ms. Levy-Gray's testimony, she experienced no alleviation of her symptoms from Lyme disease.

Upon advice from her brother, a urological oncologist, Ms. Levy-Gray stopped taking the doxycyline with dairy products. Although Ms. Levy-Gray's symptoms improved within two or three days of discontinuing consumption of dairy products in conjunction with the doxycycline, she did not fully recover and was referred by Dr. Christine Lafferman, her internist, to Dr. Charles A. Haile, the Chief of Medical Staff and Chief of the Division of Infectious Diseases at Greater Baltimore Medical Center, who is board certified in internal medicine and infectious diseases. Ms. Levy-Gray met with Dr. Haile on December 28, 2000. When a second six-week course of doxycycline failed to ameliorate Ms. Levy-Gray's symptoms, Dr. Haile diagnosed her with post-Lyme syndrome, which is a chronic autoimmune response in which patients experience symptoms that mimic Lyme disease without an active bacterial infection.

On November 2, 2001, Ms. Levy-Gray filed a complaint in the Circuit Court for Baltimore County against Rite Aid seeking relief based on the theories of negligence, product liability, failure to warn, negligent misrepresentation, and breach of express warranty. Her husband asserted a claim for loss of consortium.^[2] Ms. Levy-Gray alleged that her consumption of milk and other various dairy products while taking the doxycycline, consistent with the information provided by Rite Aid, reduced the absorption of the drug and prevented it from operating as effectively as possible, thereby proximately causing her post-Lyme syndrome.

On December 10, 2001, Rite Aid filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted because the statements contained in the "Rite Advice" pamphlet did not constitute an express warranty and the fact that the particular Rite Aid store involved in the case was not a proper party to the suit. The court granted the motion with respect to the Rite Aid store and denied the motion regarding the express warranty issue on February 25, 2002. Rite Aid thereafter filed a motion for summary judgment arguing that it could not be held liable under negligence, strict liability or breach of express warranty under the facts of the case sub judice. On January 10, 2003, the trial judge denied the motion. Ms. Levy-Gray subsequently filed an amended complaint, which increased the ad damnum clause for compensatory damages to $2,500,000 and added a claim for $8,000,000 in punitive damages.

On May 20, 2003, the trial in the Circuit Court of Baltimore County before Judge John F. Fader II commenced and lasted seven days, wherein the jury heard copious testimony from expert witnesses called by both parties. Rite Aid's experts testified that the absorption of doxycycline might have been reduced by up to twenty percent when taken with milk or other dairy products, but that the reduction was clinically insignificant because the recommended dosage provided more of the drug than was necessary to treat the infection. Conversely, Ms. Levy-Gray's experts testified that doxycycline should not have *568 been taken with dairy products and that Ms. Levy-Gray's consumption of milk with her medication caused her continued Lyme disease symptoms.

At the close of evidence, Judge Fader permitted the case to go to the jury on the theories of negligence and breach of express warranty and dismissed the remainder of the claims. The court presented the jury with the following instructions:

An individual or an entity may only be sued for negligence if that individual or entity had a duty to another person which the defendant breached. That duty may be imposed by statute: automobile negligence case, follow the rules of the road; or by case law, or by volunteering to assume a duty. It is the Plaintiffs' contention in this case that Rite Aid had a duty to her because it assumed that duty by giving prescription advice to her. One who volunteers to assist or aid another must exercise the same degree of case a reasonable person would exercise under the same or similar circumstances.

Rite Aid gave her that pamphlet. The law says that a volunteer who assumes a duty has a responsibility to use reasonable care in fulfilling that duty. Negligence is what she alleges, saying that they had a duty because they volunteered, they breached that duty. Rite Aid says we did not breach that duty. The conflict in the evidence is for you to resolve.

Negligence is doing something that a person using reasonable care would not do or not doing something that a person using reasonable care would do. Reasonable care means that caution, attention, or skill a reasonable person would use under similar circumstances.

Thus the first question alleging negligence. Do you find in favor of Rite Aid, do you find in favor of Ellen R. Levy-Gray.

There is also a cause of action for express warranty, again, focusing on the Rite Aid advice. That is the contract type of action. An express warranty is a representation about a product by the seller to a buyer when the buyer relies upon the representation in purchasing the product. Any statement of fact made by the seller to the buyer about the product is an express warranty that the product conforms to the statement or promise made. The promise or statement may be oral or in writing. No particular words are necessary to create an express warranty, nor is it necessary that the seller use formal words such as warranty or guarantee or that the seller have a specific intention to make a warranty.

The attorneys are going to talk to you about that Rite Aid Rite Advice pamphlet. The Plaintiffs are going to say and argue to you that this constituted an express warranty. The Defendants are going to refer to the same paper and argue to you that it did not.

You will see the pamphlet, the warranty, and listen to the differences of opinion, factual and expert witnesses and then we ask you to answer this second question alleging breach of warranty: Do you find in favor of Rite Aid Corporation or in favor of Ellen R. Levy-Gray.

The jury found in favor of Rite Aid on the negligence claim and found in favor of Ms. Levy-Gray with respect to the breach of express warranty claim in the amount of $250,000. After the Circuit Court denied Rite Aid's post-judgment motions including a motion for judgment n.o.v., Rite Aid filed a notice of appeal with the Court of Special Appeals seeking review of the jury's determination that it was liable for breach of express warranty, and Ms. *569 Levy-Gray filed a cross-appeal premised upon her assertion that the trial court erred in failing to give the jury an instruction on Rite Aid's failure to warn her about the contraindication of doxycycline and calcium containing products.

In a published opinion, the Court of Special Appeals determined that Ms. Levy-Gray established reliance on the information contained in the "Rite Advice" pamphlet due to her course of dealing with the pharmacy and her continued confidence in Rite Aid to provide facts concerning her prescription that were not furnished by her physician. Rite Aid Corporation v. Levy-Gray, 162 Md.App. 673, 691-92, 876 A.2d 115, 126 (2005). Moreover, the Court of Special Appeals held that the statement in the "Rite Advice" pamphlet stating that doxycycline should be taken with food or milk in the event of upset stomach is a representation that a characteristic of doxycycline is that it is compatible with food or milk. The intermediate appellate court concluded that the issue of whether the general disclaimer accompanying the information in the "Rite Advice" pamphlet took doxycycline's compatibility with dairy out of the bargain was a question of fact for the jury to decide. The Court of Special Appeals also held that Ms. Levy-Gray did not have to be aware of the express warranty at the time of her purchase from Rite Aid for the warranty to be effective. Thus, the court determined that Rite Aid expressly warranted that doxycycline could be taken with milk without altering the drug's efficacy. Based on its analysis of the issues presented by Rite Aid, the Court of Special Appeals concluded that it did not have to address the question raised by Ms. Levy-Gray in her cross-appeal.^[3]

On July 18, 2005, Rite Aid filed a petition for writ of certiorari with this Court and presented the following questions for our review:

1. Whether a pharmacy can be held liable on a theory of express warranty for information and advice furnished with a prescription drug.

2. Whether instructions on how to use a product, delivered to the customer after the product is paid for, which the customer is unaware of prior to the sale and which makes no promise of the product's performance, fulfills the requirements for an express warranty under Section 2-313 of Maryland's Commercial Law Article that the statement be "an affirmation of fact or promise made by the seller that relates to the goods" and that the affirmation be "part of the basis of the bargain."

On September 8, 2005, we granted the petition and issued the writ. Rite Aid v. Levy-Gray, 388 Md. 673, 882 A.2d 286 (2005). We conclude that under the facts present in the case at bar, Rite Aid may be held liable for breach of express warranty. Moreover, we determine that, under the circumstances of the case sub judice, the jury reasonably could infer that the instruction "take with food or milk if upset stomach occurs" in the "Rite Advice" pamphlet constitutes an express warranty under Maryland Code (1975, 2002 Repl.Vol.), Section 2-313 of the Commercial Law Article. Therefore, we affirm the judgment of the Court of Special Appeals.

Discussion

Rite Aid argues that the statements contained in the "Rite Advice" pamphlet cannot be part of the basis of the bargain because the decision to purchase the doxycycline was based solely on the advice of Ms. Levy-Gray's prescribing physician and that it is protected from liability due *570 to the "learned intermediary" doctrine, which governs the relationship between physicians, patients, and pharmacists. Rite Aid also contends that the statements about doxycycline contained in the "Rite Advice" pamphlet were not part of the basis of the bargain because Ms. Levy-Gray did not receive them and was not aware of their existence until after the sale was completed. Rite Aid asserts that the advice to take doxycycline with milk if the stomach is upset unless otherwise directed by a physician is not an affirmation about the drug that can give rise to an express warranty because it was not a statement that use with milk was invariably appropriate for all consumers.

Conversely, Ms. Levy-Gray contends that the statements contained in the "Rite Advice" pamphlet were part of the basis of the bargain because of her previous course of dealing with Rite Aid and her reliance on the information that she received from Rite Aid. Ms. Levy-Gray also argues that the advice to "[t]ake with food or milk if stomach upset occurs unless your doctor directs you otherwise" is an affirmation that doxycycline is compatible with milk and can give rise to an express warranty. She asserts that Rite Aid not only warranted that doxycycline was compatible with milk, but also expressly warranted the completeness and correctness of its information and advice contained in the "Rite Advice" pamphlet.

Can Rite Aid Be Held Liable for Breach of Express Warranty

The threshold issue that we must address is Rite Aid's argument that the sale of pharmaceuticals is qualitatively different from the sale of other goods, such that pharmacies cannot be held liable for breach of express warranties under the Uniform Commercial Code. Although courts in our sister jurisdictions consistently have declined to impose the Uniform Commercial Code implied warranties of fitness^[4] and merchantability^[5] because they have determined that the prescribing *571 of medication is an aspect of the delivery of medical services, see Elsroth v. Johnson & Johnson, 700 F.Supp. 151 (S.D.N.Y. 1988); Coyle v. Richardson-Merrell, Inc., 526 Pa. 208, 584 A.2d 1383 (1991); Murphy v. E.R. Squibb & Sons, Inc., 40 Cal.3d 672, 221 Cal.Rptr. 447, 710 P.2d 247 (1985), Rite Aid has failed to produce a single case that stands for the proposition that pharmaceuticals may not be the subject of an express warranty. "What differentiates [a] promise implied by law[, i.e., an implied warranty,] . . . and an express warranty is that the `standard of performance is set by the defendants' promises, rather than imposed by law.'" Coca-Cola Bottling Co. of Cape Cod v. Weston & Sampson Engrs., Inc., 45 Mass.App.Ct. 120, 695 N.E.2d 688, 694 (1998) quoting Anthony's Pier Four, Inc. v. Crandall Dry Dock Engrs., Inc., 396 Mass. 818, 489 N.E.2d 172, 175 (1986); see also Housing Authority of Portland v. Ash Nat'l, 36 Or.App. 391, 584 P.2d 776, 778 (1978) (stating that an implied warranty "is a `curious hybrid' between tort and contract law" and differs from express warranties based on contract); Md.Code (1975, 2002 Repl.Vol.), § 2-313, official cmt. 1 ("Express warranties rest on `dickered' aspects of the individual bargain, and go so clearly to the essence of that bargain that words of disclaimer in a form are repugnant to the basic dickered terms. `Implied' warranties rest so clearly on a common factual situation or set of conditions that no particular language or action is necessary to evidence them and they will arise in such a situation unless unmistakably negated.").

A prescription drug satisfies the definition of "goods" as explicated in Maryland Code (1975, 2002 Repl.Vol.), Section 2-105 of the Commercial Law Article, which provides in pertinent part:

(1) "Goods" means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Title 8) and things in action.

Prescription drugs are "movable at the time of identification to the contract for sale." Moreover, there is no reasonable basis upon which to distinguish between prescription drugs and other goods under the Uniform Commercial Code with respect to express warranties. Thus, because drugs are goods subject to sale, they may potentially be the subject of an express warranty. See, e.g., Batiste v. American Home Prods. Corp., 32 N.C.App. 1, 231 S.E.2d 269 (1977) (holding that a drug manufacturer's sale of drugs to a plaintiff would fall within the purview of the UCC). Therefore, in light of the absolute lack of authority for distinguishing between prescription drugs and other goods for express warranty purposes, we conclude that we are not precluded as a matter of law from affirming the jury's verdict against Rite Aid on the basis of breach of express warranty.

Rite Aid, nevertheless, primarily relies on Basko v. Sterling Drug, Inc., 416 F.2d 417 (2d Cir.1969), in which the United States Court of Appeals for the Second Circuit upheld the trial court's refusal to submit a breach of express warranty claim to the jury because the plaintiff did not adduce evidence that the defendant "represent[ed] either (1) that its drugs were free from all harmful side effects or (2) that its drugs were absolutely harmless." Id. at 428. See also In re Diet Drugs Prods. Liability Litigation, 328 F.Supp.2d 791, 818 (N.D.Ohio 2004) (granting summary judgment in favor of defendants because the general statement that product is "safe and effective" does not give rise to an express warranty); Rohrbough v. Wyeth Labs., Inc., 719 F.Supp. 470, 477-78 *572 (N.D.W.V.1989) (granting summary judgment in favor of defendant and holding that statement that side effects are "exceedingly rare" is not an express warranty); Whittington v. Eli Lilly and Co., 333 F.Supp. 98 (S.D.W.V.1971) (granting manufacturer's motion for summary judgment and finding no express warranty as to the absolute effectiveness of the drug); Butler v. The Travelers Ins. Co., 202 So.2d 354, 356 (La.App.1967) (upholding trial court's rendering of summary judgment on behalf of manufacturer and declining to find breach of express warranty where there was no representation that the tetanus vaccine would absolutely prevent tetanus). These cases involved a determination based on the idiosyncratic facts of each case and do not support the proposition that there can never be an express warranty with respect to prescription drugs.

The Statement at Issue Constituted An Express Warranty

Maryland Code (1975, 2002 Repl.Vol.), Section 2-313 of the Commercial Law Article governs "express warranties by affirmation, promise, description, [or] sample," and provides in pertinent part:

(1) Express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

* * *

(2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.

Official Comment 3 to Section 2-313 further elaborates:

3. The present section deals with affirmations of fact by the seller, descriptions of the goods or exhibitions of samples, exactly as any other part of a negotiation which ends in a contract is dealt with. No specific intention to make a warranty is necessary if any of these factors is made part of the basis of the bargain. In actual practice affirmations of fact made by the seller about the goods during a bargain are regarded as part of the description of those goods; hence no particular reliance on such statements need be shown in order to weave them into the fabric of the agreement. Rather, any fact which is to take such affirmations, once made, out of the agreement requires clear affirmative proof. The issue normally is one of fact.

Moreover, Official Comment 7 also elucidates the law governing the case sub judice:

7. The precise time when words of description or affirmation are made or samples are shown is not material. The sole question is whether the language or samples or models are fairly to be regarded as part of the contract. If language is used after the closing of the deal (as when the buyer when taking delivery asks and receives an additional assurance), the warranty becomes a modification, and need not be supported by consideration if it is otherwise reasonable and in order.

In the case sub judice, Ms. Levy-Gray alleges that the language "take [doxycycline] *573 with food or milk if stomach upset occurs unless your doctor directs you otherwise" constitutes an affirmative statement by Rite Aid that the doxycycline is compatible with the simultaneous consumption of milk or other dairy products, which constitutes an express warranty. Conversely, Rite Aid asserts that the information at issue cannot be considered an express warranty because it is derived from the FDA-approved language developed by the manufacturer of the doxycycline and was presented with the statement that "it should not be construed to indicate that use of the drug is safe, appropriate, or effective for you."

The similarity between Rite Aid's advice and that of Watson does not preclude Rite Aid's statement from constituting a warranty on its part. The language was Rite Aid's, and it was in no way attributed to Watson. Ms. Levy-Gray would necessarily assume that the advice was entirely that of Rite Aid. The jury reasonably could infer that Rite Aid represented to Ms. Levy-Gray that the doxycycline was compatible with milk consumption.

Moreover, we decline to hold that a general disclaimer would preclude any express warranty in this case as a matter of law, because a reasonable consumer could conclude that the general statement did not negate the effect of the more specific assertion as to the administration of the doxycycline when the entire document is read as a whole. From the language of the "Rite Advice" pamphlet, the jury could reasonably infer from the evidence introduced that the phrase "take with food or milk if upset stomach occurs," although not guaranteeing effectiveness, affirmed that milk would not adversely impact the efficacy of the drug. The issue of fact concerning the interplay between the general disclaimer and the administration instruction was properly before the jury and we must give deference "to the inferences a fact-finder may draw." State v. Smith, 374 Md. 527, 534, 823 A.2d 664, 668 (2003).

An affirmation of fact must become "part of the basis of the bargain" for the statement to be considered an express warranty. The term "bargain" is not defined in the Uniform Commercial Code, but is itself used in the definition of "agreement" in Maryland Code (1975, 2002 Repl.Vol.), Section 1-201(3) of the Commercial Law Article, which provides in pertinent part:

"Agreement" means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in Titles 1 through 10 of this article.

Rite Aid argues that for an affirmation to become "part of the basis of the bargain," the affirmation must be a negotiated term of the agreement, or the consumer must at least have been aware of its existence prior to the consummation of the deal. Based on the circumstances surrounding most purchases in modern commercial dealing, we disagree.

Official Comment 7 to Section 2-313 provides, "[t]he precise time when words of description or affirmation are made or samples are shown is not material. The sole question is whether the language. . . [is] fairly to be regarded as part of the contract." Md.Code (1975, 2002 Repl.Vol.), § 2-313 official cmt. 7 of the Commercial Law Article. The clear implication of Official Comment 7 is that express warranties may be formed prior to the completion of the sale or even after the sale has been consummated. What is paramount is the relationship between the sale of the goods and the affirmations made by the seller. Various commentaries *574 on the Uniform Commercial Code have similarly recognized the reality that warranties are often given at the time of the sale such that the buyer does not become aware of their terms until after the sale is finished:

As it is common knowledge that sellers will deliver written warranties after the contract has been made, some courts are recognizing that later statements found in these writings are part of the basis of the bargain.

3 Lary Lawrence, Anderson on the Uniform Commercial Code, § 2-313:66 at 60 (3d ed.2002); see also James J. White & Robert S. Summers, Uniform Commercial Code, § 9-5 at 354-55 (5th ed.2000).

We agree with the analysis explicated in Murphy v. Mallard Coach Co., 179 A.D.2d 187, 582 N.Y.S.2d 528 (N.Y.App.Div.1992), in which the court rejected an argument identical to that presented by Rite Aid:

[W]e believe that while the warranty was technically handed over after plaintiffs paid the purchase price, the fact that it was given to plaintiffs at the time they took delivery of the motor home renders it sufficiently proximate in time so as to fairly be said to be part of the basis of the bargain (compare, UCC 2-313, comment 7; 1 White and Summers, Uniform Commercial Code, § 9-5 at 448-455 [3d ed.]; cf., Marine Midland Bank v. Carroll, 98 A.D.2d 516, 471 N.Y.S.2d 409). To accept the manufacturer's argument that in order to be part of the basis of the bargain the warranty must actually be handed over during the negotiation process so as to be said to be an actual procuring cause of the contract, is to ignore the practical realities of consumer transactions wherein the warranty card generally comes with the goods, packed in the box of boxed items or handed over after purchase of larger, non-boxed goods and, accordingly, is not available to be read by the consumer until after the item is actually purchased and brought home. Indeed, such interpretation would, in effect, render almost all consumer warranties an absolute nullity.

Id. at 531.

This position also was adopted by the United States District Court for the Southern District of Indiana in In re Bridgestone/Firestone, Inc. Tires Prods. Liability Litigation, 205 F.R.D. 503 (S.D.Ind. 2001), rev. on other grounds, 288 F.3d 1012 (7th Cir.2002). Specifically, the court noted, in basing its conclusion on Official Comment 7 to Section 2-313 of the Uniform Commercial Code:

The official comments to U.C.C. § 2-313 support this holding. Official Comment 7 provides:

The precise time when words of description or affirmation are made or samples are shown is not material. The sole question is whether the language or samples or models are fairly to be regarded as part of the contract.

A buyer certainly cannot prove that she relied upon an affirmation made after the closing of the deal in deciding whether to consummate the deal; however, the U.C.C. clearly contemplates that such post-sale affirmations can be enforced as warranties, as long as they are "fairly to be regarded as part of the contract."

Id. at 527 (citations omitted). Moreover, the court determined that the interpretation urged by the defendants in In re Bridgestone/Firestone, and by Rite Aid before this Court, "`would, in effect, render almost all consumer warranties an absolute nullity,' inasmuch as it is common practice for warranty booklets to be provided to consumers inside the sealed box in which a product is packaged, or, in the case of vehicles, in the glove box of a new *575 car upon delivery." Id. at 527 n. 31 (citation omitted).

This view was the basis for the Superior Court of Pennsylvania's reversal of the entry of summary judgment in favor of the seller in an action for breach of warranty for a used truck in Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The trial court's grant of summary judgment was premised upon a warranty-exclusion clause, which was prominently displayed on the purchase order, and provided:

THIS TRUCK SOLD "AS IS," "WHERE IS." NO WARRANTY OR GUARANTEE IS OFFERED OR IMPLIED.

Id. at 1010. In the buyer's answer to the seller's interrogatories, however, he alleged that the salesman had orally advised him that the truck was the "best-running truck that Keystone Mack had purchased from [its supplier], and . . . that . . . [it] was in excellent condition." Id. The buyer also introduced into evidence a handwritten note on a repair order that he received following the vehicle's purchase stating: "30 day warranty 50/50 on the 250 Cummins engine. If a problem develops have the truck brought back to us. We certify that the engine is in excellent running condition." Id.

Addressing the seller's conduct in attempting to make repairs after the truck's purchase, the court stated:

Also, the lower court confined its view of the case to the purchase order. The record suggests, however, that the events on which appellant's claim is based did not end with the signing of the purchase order. As we have discussed, when appellant complained that the engine was emitting smoke, appellee undertook to repair it, and gave appellant a "30 day warranty 50/50" on the engine, and "certif[ied]" that the engine was "in excellent running condition." Then, when it was discovered that the engine had in fact a cracked block, appellee replaced it, taking some sixty-seven days to do so. It is by no means clear — and the lower court did not consider — whether appellee's conduct subsequent to the execution of the purchase order resulted in a new contractual or warranty obligation coming into being, either as a proper modification of the purchase order, or as an obligation created later than and distinct from the purchase order.

Id. at 1012. Thus, the court recognized that express warranties may arise after the contract for sale is consummated.

In Bigelow v. Agway, 506 F.2d 551 (2d Cir.1974), the United States Court of Appeals for the Second Circuit considered the issue of whether warranties made after a sale is completed may become a basis of the bargain. In Bigelow, a farmer sued the manufacturer and distributor of a chemical used to treat hay before baling. Although the record before the court reflected that most farmers would not bale hay that had a moisture level higher than twenty to twenty-five percent, two months after the sale and use of the chemical, the defendant's salesman guaranteed that hay treated with the chemical was safe to bale even if it contained a moisture level of thirty-two to thirty-four percent. The farmer baled the hay, and the level of moisture contributed to a fire that destroyed his entire crop. The Second Circuit, rejecting the defendant's argument that the salesman's representation after the sale was not part of the basis of the bargain, noted:

Although defendants might conceivably contend that since [the salesman's] representation postdated the delivery of the [chemical] . . . and therefore could not be the "basis of the bargain" as required *576 for recovery . . ., it is undisputed that the [salesman's] visit . . . was to promote the sale of the product. Thus they might constitute an actionable modification of the warranty.

Id. at 555 n. 6. See also Downie v. Abex, 741 F.2d 1235, 1240 (10th Cir.1984) (noting that "a rational jury could have found that GM's post-sale representations about the safety of ball-screw assemblies with yolk deflectors were designed to promote future sales . . . [because] GM sent Abex brochures discussing the safety features for distribution to Abex's customers."); Glyptal Inc. v. Engelhard Corp., 801 F.Supp. 887, 895 (D.Mass.1992) (holding that a telephone conversation in which the defendant's service representative made affirmations concerning the comparable quality of substituted goods that occurred post-sale could constitute an express warranty); Phillips Petroleum Co. v. Bucyrus-Erie Co., 131 Wis.2d 21, 388 N.W.2d 584, 590 (1986) (concluding that incorporation into approval drawings, after sale, of specification of grade of steel, created express warranty by modification of original contract); Jones v. Abriani, 169 Ind.App. 556, 350 N.E.2d 635, 644-45 (1976) (determining that promises made to buyers of mobile home after contract of purchase was signed, including promise that all defects would be repaired, amounted to express warranty); Winston Indus., Inc. v. Stuyvesant Ins. Co., Inc., 55 Ala.App. 525, 317 So.2d 493, 496-97 (1975) (holding that express warranty existed despite fact that buyer did not receive copy of the manufacturer's warranty with the sale and had no knowledge of its terms).

Rite Aid attempts to distinguish these cases by arguing that the warranties were expressly labeled as such and that the warranties were actually remedial promises under Official Comment 11 to Section 2-313, which provides in pertinent part:

A promise about the quality or performance characteristics of the goods creates an express warranty if the other elements of a warranty are present whereas a promise by which the seller commits itself to take remedial action upon the happening of a specified event is a remedial promise. The distinction has meaning in the context of the statute of limitations.

* * *

The concept of remedial promise is dealt with in a separate subsection to make clear that it is a concept separate and apart from express warranty and that the elements of an express warranty, such as basis of the bargain, are not applicable.

3 Lary Lawrence, Anderson on the Uniform Commercial Code, § 2-313:339 (3d ed. Supp.2005).

We are not persuaded by Rite Aid's argument. Under the plain language of Maryland Code (1975, 2002 Repl.Vol.), Section 2-313(2) of the Commercial Law Article, "[i]t is not necessary to the creation of an express warranty that the seller use formal language such as `warrant' or `guarantee' or that he have a specific intention to make a warranty." Thus, the fact that the assertions contained in the "Rite Advice" pamphlet did not include language expressly indicating that the information listed therein was a warranty does not preclude a finding that it gave rise to an express warranty.

Furthermore, Rite Aid's reliance on Official Comment 11 to Section 2-313 of the Uniform Commercial Code, as enunciated in Anderson On The Uniform Commercial Code, is misplaced. The Maryland General Assembly has not adopted Official Comment 11 as part of the Official Comment that accompanies the Uniform Commercial Code in the Commercial Law Article, nor *577 has the Legislature enacted any statute that recognizes "remedial promises" as distinct from express warranties. Moreover, the cases at issue analyze the terms of the written warranties i