New England Precision Grinding, Inc.
Simply Surgical, LLC,  & another. 
November 2, 2015
action commenced in the Superior Court Department on August
case was tried before Richard T. Tucker, J., and
motions for the entry of separate and final judgment and to
reach the proceeds of the judgment were heard by him.
Amended judgment affirmed. Order entered January 18, 2013,
A. Bachrach for the plaintiff.
Matthew R. Johnson for Simply Surgical, LLC.
C. Kerester for Iscon Surgicals, Ltd.
Milkey, Carhart, & Massing, JJ.
N.E.3d 591] Carhart, J.
Superior Court contract action stems from the sale by
defendant Simply Surgical, LLC (Simply Surgical), to
plaintiff New England Precision Grinding, Inc. (NEPG), of
medical device parts manufactured by defendant Iscon
Surgicals, Ltd. [46 N.E.3d 592] (Iscon). All three parties
appeal from an amended judgment entered on January 8, 2013,
in favor of Simply Surgical; Iscon also appeals from an order
entered on January 18, 2013, denying its motion for entry of
a separate and final judgment and to reach the proceeds of
the judgment due to Simply Surgical from NEPG.
appeal, NEPG argues that the judge wrongly declined to
instruct the jury that, under the Uniform Commercial Code
(U.C.C.), codified in Massachusetts at G. L. c. 106, NEPG had
the right to revoke its acceptance of parts once they were
rejected by its customer Kyphon, Inc. (Kyphon). It also
complains that the jury's verdict was against the weight
of the evidence and its award excessive. Simply Surgical
argues that the judge erroneously prevented it from
presenting its claim for common-law indemnification against
Iscon. Iscon contends that the judge should have corrected
the amount of the damages awarded by the jury to include the
total unpaid balance sought by Iscon on its account stated.
affirm the amended judgment, and the order entered January
18, 2013, denying Iscon's motion.
summarize the trial evidence. NEPG is a Massachusetts-based
manufacturer of precision medical components. In or around
2004, NEPG contracted with Kyphon and agreed to supply Kyphon
with medical device parts referred to as stylets and
nozzles. In 2005, Kyphon ordered six lots from
NEPG, with each lot containing 25,000 pieces of each
component. Because NEPG could not manufacture the parts at
the price point that Kyphon requested, it contracted with
Robert Longo, the owner of Simply Surgical, to obtain the
parts from Indian manufacturer Iscon. Iscon shipped the
initial order directly to NEPG, but shipped subsequent orders
to Longo at Simply Surgical. The parts were shipped by lot,
and Iscon would certify that the parts conformed to the plans
and specifications provided by NEPG.
receiving the parts from Iscon or Simply Surgical, NEPG would
conduct its own inspection using a process that was approved
by Kyphon and which accorded with industry standards for
medical devices. If NEPG approved of the parts, it would
certify that they conformed to Kyphon's plans and
specifications and would ship them to Kyphon. Kyphon would
then do its own inspection before accepting or rejecting
NEPG's shipment. The purchase orders from NEPG to Simply
Surgical neither mentioned Kyphon nor required that the parts
ultimately be accepted by Kyphon;  rather, the terms were
listed as " Net 30 days." The "
[d]escription" of the products ordered included "
[c]ertifications [r]equired," and the purchase orders
contained a directive that the parts are not to be shipped
" UNTIL INSPECTION DATA HAS BEEN REVIEW [ sic ]
AND APPROVED BY NEPG."
N.E.3d 593] Early on, NEPG brought to Longo's attention
conformity issues that Simply Surgical and Iscon worked to
correct. At one point, in order to keep the project moving,
Simply Surgical gave NEPG approximately $20,000 in credits.
Later, on two occasions after Kyphon rejected lots 4 and 5,