Plaintiff Margo Polett claimed she re-injured her knees while making a Zimmer promotional video, after a double knee replacement procedure in 2006 using Zimmer’s Gender Solutions devices. 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. She and her husband 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 Keystone State’s high court agreed in May 2014 to consider 3 issues 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.
A 3-justice majority agreed with the Poletts that “the tolling agreement was not relevant to show interest or bias on the part of Dr. Booth at the time he wrote his treatment notes in September and October 2006, since the agreement was not in effect at the time,” wrote justice Debra McCloskey Todd.
In a dissenting opinion joined by chief justice Thomas Saylor, justice Michael Eakin argued that the tolling agreement was “highly relevant and should have been made known to the jury.”
The Pa. Supreme Court also evaluated the trial court’s supplemental 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.
“[T]he supplemental charge, when viewed in its proper context, was an integrated part of the trial court’s overall instructions properly apportioning the burden of proof between the parties and ensuring that the jury’s findings would be based on the evidence of record properly before it,” McCloskey Todd wrote. “The Superior Court, therefore, was in error to disturb the trial court’s ruling, and we reverse this aspect of its decision as well.”
The 3rd issue involved 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.
“In sum, the trial court’s ruling that Dr. Booth’s expert testimony as to causation was not barred by [Pennsylvania law] was amply supported by the evidence of record, and thus was reasonable. Consequently, we conclude that the trial court did not abuse its discretion in allowing Dr. Booth to render an expert opinion at trial, and that the Superior Court erred by reassessing the evidence relied upon by the trial court in making its ruling, and by supplanting the trial court’s findings with its own evaluation of that evidence. We, therefore, reverse the order of the Superior Court as to this issue,” McCloskey Todd wrote.
The Supreme Court ordered the Superior Court to review whether the trial court was wrong to deny the defendants’ bid to overturn the verdict.