[Update: Judge Massiah-Jackson upheld the verdict and overruled the defendants’ post-trial motions. Now comes the appeal to the Pennsylvania Superior Court.]
[Update 2: The Pennsylvania Superior Court reversed, citing three grounds: an error in the jury instruction, the need for Dr. Booth to produce an expert report before trial, and the need for the jury to hear about Dr. Booth’s tolling agreement with the plaintiff. Judge Wecht dissented on all three of those issues.]
[Update 3: The Pennsylvania Supreme Court reversed the Superior Court on every issue, an important win for plaintiffs.]
[Update 4: The Pennsylvania Superior Court decided the damages issue, holding that the verdict was excessive, and instructing the trial court to re-hear on the issue of remittitur.
Let me add a note here: it has been six years since the trial verdict, and eight years since the lawsuit was filed. This case is a harsh reminder that a big verdict doesn’t necessarily mean money in the plaintiff’s pocket — often it means many more years of litigation ahead.]
As The Legal Intelligencer hinted last night:
A Philadelphia jury returned a $27.6 million verdict Monday in favor of a woman and her husband who said she was injured while taking part in a promotional video for an artificial knee implant. Philadelphia Common Pleas Court Judge Frederica A. Massiah-Jackson presided over the trial in Polett v. Public Communications Inc. The judge confirmed that the jury awarded $26.6 million to plaintiff Margo Polett and $1 million to plaintiff Dan Polett for loss of consortium. The jury apportioned 36 percent negligence to public relations company Public Communications Inc., the Chicago firm hired to make the artificial knee video, 34 percent negligence to orthopedic medical device manufacturer Zimmer, and 30 percent negligence to Margo Polett, the judge confirmed.
Polett, 71, of Gladwyne, Pa., now must use a walker and she has had four surgeries that have failed to improve her condition, the plaintiffs’ memorandum said.
We’re no strangers to big verdicts; just last week, the Pennsylvania Superior Court affirmed a $20.5 million verdict that Slade McLaughlin and I obtained two years ago.
Our case was substantially different from Ms. Polett’s — there’s a big difference between the death of an 18-year-old and an injury which is crippling, but not paralyzing, to a woman in her 60s at the time of the accident.
But large verdicts all tend to share one thing in common: outrage.
I haven’t a clue what happened at the trial. But from looking at the docket, I can make a few educated guesses. Consider these pre-trial rulings:
- AND NOW, THIS 2ND DAY OF JULY, 2010, UPON CONSIDERATION OF PLAINTIFFS’ RESPONSE TO THE MOTION OF DEFENDANTS PUBLIC COMMUNICATIONS, INC., ZIMMER, INC., ZIMMER USA, INC. AND ZIMMER HOLDINGS, INC., FOR SUMMARY JUDGMENT AND AFTER ORAL ARGUMENT, IT IS HEREBY ORDERED THAT SAID MOTION IS DENIED. THERE IS A DUTY OF CARE AND COMPARATIVE NEGLIGENCE IS A JURY ISSUE.
- AND NOW, THIS 15TH DAY OF NOVEMBER, 2010, UPON CONSIDERATION OF DEFENDANTS PUBLIC COMMUNICATIONS, INC. (“PCI”) AND ZIMMER, INC., ZIMMER USA, INC., ZIMMER HOLDINGS, INC., (COLLECTIVELY, “ZIMMER”) MOTION IN LIMINE NO. 5 TO PRECLUDE PLAINTIFFS FROM INTRODUCING INCOMPLETE HYPOTHETICAL SCENARIOS AND PLAINTIFFS’ RESPONSE THERETO, IT IS HEREBY ORDERED AND DECREED THAT SAID MOTION IS DENIED.
- AND NOW, THIS 15TH DAY OF NOVEMBER, 2010, UPON CONSIDERATION OF DEFENDANTS PUBLIC COMMUNICATIONS, INC. (“PCI”) AND ZIMMER, INC., ZIMMER USA, INC., ZIMMER HOLDINGS, INC., (COLLECTIVELY, “ZIMMER”) MOTION IN LIMINE NO. 1 TO PRECLUDE PLAINTIFFS MARGO AND DANIEL POLETT FROM INTRODUCING OPINION TESTIMONY ON THE ISSUE OF DUTY, AND PLAINTIFFS’ RESPONSE THERETO, IT IS HEREBY ORDERED AND DECREED THAT SAID MOTION IS DENIED PER HEARING TRANSCRIPT, NOVEMBER 15, 2010.
Just look at the nonsense the defendants filed. A summary judgment based on “no duty” and comparative negligence as a barrier to relief? That used to work a few generations ago under the banner of “contributory negligence.” These days it’s an “outmoded, and widely criticized, legal doctrine” that was replaced by 42 Pa.C.S.A. § 7102. Gorski v. Smith, 812 A.2d 683, 701 (Pa. Super. Ct. 2002). Little wonder the defendants lost that one.
Then, having lost that issue on summary judgment, they raised the same issue again — rephrased as an effort to preclude “opinion testimony” on the matter — as a motion in limine, where they again lost. Again, little wonder. See Pa.R.E. 702, 42 Pa.C.S.A. (“If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise”). See also Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480-481, 664 A.2d 525, 528 (1995) (holding, “The test to be applied … is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.”).
Then they filed motion in limine to preclude “incomplete hypothetical scenarios?” If an opponent’s hypothetical is incomplete, you have more than enough opportunity to explain that to the jury. Unless the scenario is totally baseless — which even the defendant knew it wasn’t, otherwise they would have filed a Frye motion instead, per Trach v. Fellin, 817 A.2d 1102 (Pa. Super. Ct. 2003) — then the issue goes for the jury to determine.
Just off the titles I can predict that the defense was predicated upon blaming the victim entirely for the accident, asserting that they had no responsibility whatsoever to the plaintiff, and legal hail-mary throws aimed at taking factual determinations from the jury.
Don’t believe me? Consider the first things they did in the case: file a third-party complaint against Dr. Robert Booth, her treating physician and the inventor of the knee replacement itself. Little wonder he testified (as far as I can tell from the reporting) that, in his medical opinion, the plaintiff’s injuries had nothing to do with his treatment or with the nature of the device itself.
All of which, I’m sure, went over like a lead balloon. Juries don’t like it when people who are at least partly at fault for the damage claim to be unaccountable.
I doubt Ms. Polett will take home anywhere near the $8mm to $19mm due under the verdict (consider the reality of birth injury verdicts), but it’s no surprise that she’s walking away victorious.