John Fry underwent a surgical procedure to replace his left hip. The procedure was going to use a new type of ball joint and Dr. Bake was to perform the procedure. During the operation a representative of the medical device company, (Cook ortho) Mike Brown, that manufactured the ball socket, was present to assist Dr. Bake on the mechanics of using the new device. After opening up the left hip and while removing the original hip bone a small piece on the original bone broke off. Once Dr. Bake thought the original bone was cleared the representative of the device company, Mike Brown instructed Dr. Bake on how the new ball joint was inserted during all the trials. After considerable effort by Dr. Bake and Brown, to hammer in the ball, it was fitted into the hip socket. A month later, after PT and normal healing time, Mr. Fry was experiencing extensive pain all the way down his left leg.He went to Dr. Bake who contacted Brown to see if others with the device were having issues. Brown said they have had 35 operations and no issues. Dr. Bake said to Fry just scar tissue.After two months, Fry had even more pain, returned to Dr. Bake who called Brown again, and the same answer, no problems.Dr. Bake ordered an MRI and the result showed a bone sliver in the hip area had pierced the nerves to the leg and the ball would have to be removed to get the bone sliver out.

The judge allowed Mr. Fry to apply res ipsa and during discovery, it was determined that Doctor Bake and all members of the hospital team had all used the appropriate surgical techniques, did nothing to affect the integrity of the ball joint, and were clear of any negligence. Can a case been made against Cook Ortho based upon a breach of implied warranty? Explain what the basis for the case would be and would Mr. Fry still have to prove Cook Ortho was negligent, as it appears the nerve was damaged due to the ball joint or is there another tort liability principle that would apply?