New England Precision Grinding,l Inc. v. Simply Surgical, LLC, et al. (Lawyers Weekly No. 11-026-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1637 Appeals Court NEW ENGLAND PRECISION GRINDING, INC. vs. SIMPLY SURGICAL, LLC[1] & another.[2] No. 14-P-1637. Worcester. November 2, 2015. – March 9, 2016. Present: Milkey, Carhart, & Massing, JJ. Uniform Commercial Code, Acceptance of goods, Revocation of acceptance. Indemnity. Judgment, Interest. Practice, Civil, Instructions to jury, Judgment notwithstanding verdict, Verdict. Civil action commenced in the Superior Court Department on August 7, 2006. The 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. Barry A. Bachrach for the plaintiff. Matthew R. Johnson for Simply Surgical, LLC. Dale C. Kerester for Iscon Surgicals, Ltd. CARHART, J. This 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. (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.[3] On 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. We affirm the amended judgment, and the order entered January 18, 2013, denying Iscon’s motion. Background. We 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.[4] In 2005, Kyphon ordered six lots from […]