Plaintiff Margo Polett claimed she re-injured her knees while making a Zimmer promotional video, after a double knee replacement procedure in 2006 using the company’s Gender Solutions device, alleging that activities she engaged in for the video, including riding a bicycle and running on a treadmill, resulted in new damage to her knees. She and her husband sued for negligence, saying that injuries incurred during the filming of the marketing video resulted in 3 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 ruled in October 2013 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. After the high court agreed in May 2014 to consider 3 issues in the case, it reversed the appeals court’s decision to overturn the $20 million verdict and ordered the Superior Court to review whether the trial court was wrong to deny the defendants’ bid to overturn the verdict.
Yesterday the Superior Court ruled that, although Polett and her husband were clearly entitled to compensatory damages, the $26.6 million awarded to Polett and the $1 million awarded to her husband was excessive.
“[W]e conclude that the $26,600,000 jury award of damages to Mrs. Polett was excessive – if not punitive – and ‘clearly beyond what the evidence warrants.’ Under the circumstances unique to this case, the $26,600,000 jury award to Mrs. Polett for non-economic losses deviates substantially from the uncertain limits of what is considered fair and reasonable compensation and, therefore, shocks the sense of justice,” the Superior Court found. “Under the circumstances of this case, the $1,000,000 jury award to Mr. Polett deviates substantially from the uncertain limits of what is considered fair and reasonable compensation and, therefore, shocks the sense of justice.”