Manfred T. Hoffman & Another V‪.‬

In an action for breach of warranty against the manufacturer of a hip prosthesis which was implanted in the plaintiff's hip prior to the amendment of G. L. c. 106, § 2-318, by St. 1971, c. 670, § 1, which eliminated the requirement of privity in such cases, privity was not required for recovery where an injury resulting from a defect in the device occurred subsequent to the amendment of § 2-318 by St. 1973, c. 750, § 2. [33-37] The defendant appeals from judgments of the Superior Court awarding damages in excess of $45,000 entered after jury verdicts in favor of the plaintiffs. The basis of the plaintiffs' claim was that the defendant was negligent and had breached its warranties of fitness and merchantability (G. L. c. 106, § 2-314) in the manufacture and sale of a hip prosthesis, the failure of which after implantation by an appropriate surgical procedure caused the plaintiff Manfred T. Hoffman (the plaintiff) to suffer damage. The jury returned verdicts for the plaintiffs on the counts of the complaint which sought recovery based on the defendant's alleged breach of the implied warranty of merchantability and found for the defendant on the counts charging negligence. After the jury verdicts the defendant moved for judgment notwithstanding the verdict, Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974), on the basis that there was no evidence of privity of contract between the parties at a time when the applicable law required privity as a basis for recovery in a warranty action. The trial Judge denied the motion and entered judgments in accord with the jury verdicts. The defendant then filed a notice of appeal. On the motion of both parties we granted direct appellate review. The case is before the court on a statement of agreed facts approved by the trial Judge. Mass. R. A. P. 8 (d), 365 Mass. 849 (1974).