Zimmer (NYSE:ZMH) will get a chance to plead its case before Pennsylvania’s highest court as it seeks to overturn a $28 million verdict against it in a lawsuit brought by a knee implant patient who said she re-injured her joints while making a Zimmer promotional video.
The Keystone State’s Supreme Court yesterday said it will review a lower court’s handling of expert witness testimony and jury instructions in the case, Margo Polett and Dan Polett v. Public Communications Inc. et al.
Plaintiff Margo Polett claimed that activities she engaged in for the video, including riding a bicycle and running on a treadmill, resulted in new damage to her knees, both of which were replaced in 2006. Polett sued for negligence, saying that injuries incurred during the filming of the marketing video resulted in 4 revision surgeries after she was left with persistent pain. A jury awarded Polett millions in damages after finding that Zimmer was 34% culpable. The jury also put 30% of the blame on Polett herself and 36% on the marketing firm Public Communications for its involvement with the ad.
The Pennsylvania Superior Court last October ruled that the lower court incorrectly shifted the burden of proof onto Zimmer by asking the company to provide alternative explanations for Polett’s revisions surgeries, thus leading the jury to a potentially false conclusion, and ordered a new trial.
The case took a turn yesterday when the Pennsylvania Supreme Court said it would consider 3 issues in the trial (the high court said it will not consider any of the other issues raised in the case). The 1st issue concerns whether the trial court was correct in preventing the jury from learning of a medical malpractice tolling agreement between the Poletts and expert witness Dr. Richard Booth, an orthopedic surgeon and co-developer of the Gender Solutions implant Booth used to replace both of Margo Polett’s knees.
The high court will also evaluate whether the trial court’s instructions to the jury not to consider other possible causes for Polett’s injuries after the defendants’ counsel “speculated about [Polett’s] injuries after promising the trial court it would not speculate,” according to court documents. The Supreme Court will also weigh the no-speculation jury instruction, which placed the burden of proof on Zimmer, and whether “the no-speculation instruction correctly stated Pennsylvania law against speculation,” according to the documents.
The 3rd issue involves the trial court’s decision to allow Booth to testify on causation “where Dr. Booth reached his causation opinion during the course of treating [Polett] and before litigation was anticipated,” according to the documents.
