Pa. Superior Court reverses $27.6 million personal injury verdict
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The state Superior Court has reversed a $27.6 million verdict awarded to a woman and her husband who said she was injured while taking part in a promotional video for an artificial knee implant.
The panel was divided 2-1. Judge Jacqueline O. Shogan wrote the unpublished majority opinion for Judge Susan Peikes Gantman and herself in Polett v. Public Communications. Judge David N. Wecht dissented.
Judge Shogan wrote that the defendants are entitled to a new trial because of a variety of errors during the trial.
Philadelphia Common Pleas Judge Frederica A. Massiah-Jackson entered judgment for plaintiffs Margo and Daniel Polett on June 10, 2011, ordering that Mrs. Polett be paid $19.6 million in damages and Mr. Polett be paid $700,000 in damages.
Mrs. Polett's orthopedic surgeon and the plaintiffs' expert witness, Robert E. Booth, helped develop the knee implant Mrs. Polett received June 27, 2006, and which Public Communications Inc. was hired to market on behalf of orthopedic medical device manufacturer Zimmer.
Mrs. Polett, who agreed to participate in the filming of the video a little under two months after her surgery, was filmed walking on a treadmill and riding an exercise bicycle, the opinion said. At issue in the case was a jury instruction.
Judge Massiah-Jackson instructed the jury after the defense counsel's closing but before the plaintiffs counsel's rebuttal that "in order for you to find that something other than the exercise bike caused Mrs. Polett's injuries, you must be provided with medical testimony that something else other than the bike caused those injuries. You may not speculate on what else could have caused Mrs. Polett to be injured."
The majority agreed with the defendants that the instruction shifted the burden of proof to the defense. The judges were unanimous in finding there was sufficient evidence of a causal connection between riding the exercise bike and her injuries.
First Published March 11, 2013 12:00 am