Appeals Court Vacates $27M Verdict, Orders New Trial For Promotion Video Injury

by Tara Arick on March 6, 2013 · 0 comments

in Product Liability

- From LexisNexis® Mealey’s™ Daily Legal News.

In a 3-1 ruling, a Pennsylvania Superior Court panel on March 1 vacated and remanded for new trial a $ 27.6 million verdict in which a jury found that orthopedic device maker Zimmer Inc. and video production company Public Communications Inc. (PCI) are liable for inducing a patient to injure her knee by riding an exercise bike for a video promoting a new gender-specific knee (Margo Polett, et al. v. Public Communications, Inc., et al., No. 1865 EDA 2011, Pa. Super.).

In 2006, Zimmer launched the Gender Solutions Knee, a knee replacement designed for women.

Zimmer hired PCI to produce a sales video featuring interviews and footage of patients who had received the Gender Solutions Knee.

Margo Polett suffered from degenerative rheumatoid arthritis and in 2003 had her left knee replaced. She subsequently had trouble with that knee and with her right knee.

In June 2006, Dr. Richard Booth, an orthopedic surgeon and co-developer of the Gender Solutions Knee, replaced Polett’s left knee prosthesis and replaced her right knee with the Gender Solutions Knee. During an Aug. 16 post-operative visit, Booth noted that Polett was doing extremely well and recommended her to Zimmer as a successful Gender Solutions Knee patient.

Exercise Bike’s Role In Injury

Polett agreed to participate in a Zimmer sales video. On Aug. 23, PCI videotaped Polett, among other activities, riding a stationary exercise bike.

The following month, Polett reported discomfort in her knees after riding a bicycle. Polett’s knees later became inflamed and swollen. She also fell and fractured her right patella, suffered a ruptured right knee tendon and underwent four unsuccessful surgeries to repair the damages.

In 2008, Polett and her husband sued Zimmer and PCI in the Philadelphia County Common Pleas Court. In November 2010, a jury awarded the Poletts $ 27.6 million in damages, finding Zimmer 34 percent causally negligent, PCI 30 percent causally negligent and Margo Polett 30 percent causally negligent.

The trial court denied the defendants’ motions for judgment notwithstanding verdict or a new trial. The defendants appealed.

Erroneous Causation Instruction

The appeals court panel majority vacated the judgment and remanded the case for a new trial, finding that the trial court erred in instructing the jury on causation, in denying the defendants’ motion in limine to preclude the causation testimony of Booth and in granting the plaintiffs’ motion in limine to preclude the use of a medical malpractice tolling agreement to impeach Booth’s testimony.

The majority said Margo Polett presented sufficient evidence for a jury to find that riding the exercise bike for the video was a substantial factor in causing her injuries. In addition, it concluded that Margo Polett sufficiently established that Zimmer and PCI could have reasonably foreseen the “general nature of the risk and harm resulting from a patient using an exercise bike one month after bilateral knee surgery.”

However, the majority also said the trial judge’s instruction “improperly focused the jury’s attention on the idea that Zimmer and PCI were required to do more than prove Mrs. Polett’s comparative negligence.” It said the instruction “clearly shifted the burden of proving negligence to the defendants and is contrary to the law.”

The majority said the law does not require Zimmer and PCI to present medical evidence that something other than the exercise bike caused Margo Polett’s injury.

‘Hindsight’ Expert Testimony

The majority also disapproved of the trial court’s “hindsight use” of Booth’s deposition and trial testimony to characterize his notes from Margo Polett’s office visit as causation opinion. The majority said Booth never reached a causation conclusion until after Daniel Polett asked Booth to sign an agreement tolling the statute of limitations for the filing of a medical malpractice complaint against the doctor.

Instead, the majority said Booth’s causation opinion “arose under a sword of litigation, not during the regular course of his treating Mrs. Polett.” It said the Poletts cannot shield Booth from requirements for expert opinions by characterizing him as a treating physician.

However, the majority declined to find that Booth’s testimony should have been excluded. It said there was conflicting testimony about whether the exercise bike caused Margo Polett’s injury and the jury was free to evaluate causation.

Tolling Agreement Fair Game

The majority said Zimmer and PCI should have been allowed to demonstrate that Booth faced the possibility of litigation, did not think he was at fault and did not want to alienate Margo Polett. The majority said the defendants should have been able to ask Booth about the tolling agreement.

Zimmer and PCI also said the trial court erred in not remitting the jury’s award as excessive. The majority said that the issue is moot and that it did not want to be seen as issuing an advisory opinion.

Judge Jacqueline O. Shogan wrote the opinion. Joining her was Judge Susan Peikes Gantman.


Judge David N. Wecht dissented. He agreed that the defendants did not waive their objection to the causation instruction but said the instruction was not “fatally infirm.”

Judge Wecht also disagreed with the majority that the trial court erred in allowing Booth to offer expert testimony. He also said the tolling agreement was properly excluded from evidence.

The Poletts are represented by Shanin Specter, Charles L. Becker and Carl E. Jones of Kline & Specter in Philadelphia. PCI and Zimmer are represented by Brian M. Ercole, Troy S. Brown and James D. Pagliaro of Morgan, Lewis & Bockius in Philadelphia.

Amicus curiae Product Liability Advisory Council Inc. is represented by Stephanie E. Taylor and Charles H. Moellenberg Jr. of Jones Day in Pittsburgh.

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