Polett, M., Aplt. v. Public Communications Inc.
126 A.3d 895
Pa.2015Background
- Margo Polett underwent a two-knee replacement in 2006 using Zimmer Gender Solutions knee; she later appeared in a promotional video produced by PCI.
- Dr. Booth, Polett’s treating surgeon, helped develop Zimmer devices and later formed opinions tying Polett’s injuries to the video activity.
- Poletts sued Zimmer and PCI for negligence related to filming activities; Booth’s deposition and trial testimony addressed causation.
- The trial court granted a pretrial motion to exclude a tolling agreement with Booth as impeachment evidence and allowed Booth to testify as an expert.
- The jury awarded substantial damages; the Superior Court vacated the judgment for three trial-court rulings; the PA Supreme Court reversed those outcomes and remanded for remittitur consideration.
- The Court ultimately held that the tolling agreement was admissible for impeachment, Booth could testify as an expert under Rule 4003.5, and the supplemental jury instruction did not require remittitur at this stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of tolling agreement for impeachment | Polett | Zimmer/PCI | Tolling agreement admissible for impeachment |
| Dr. Booth as expert under Rule 4003.5 | Polett | Zimmer/PCI | Trial court did not abuse discretion; Booth admissible as expert |
| Supplemental jury instruction on speculation | Polett | Zimmer/PCI | No reversible error; instruction proper within context of charge |
| Remittitur question when remand | Polett | Zimmer/PCI | Remand to consider remittitur requested by Appellees |
| Timing of causation opinion by Booth | Polett | Zimmer/PCI | Booth’s causation opinion premised on pre-litigation treatment notes; permissible under Rule 4003.5 |
Key Cases Cited
- Hatfield v. Continental Imports, Inc., 610 A.2d 446 (Pa. 1992) (impeachment value of settlements/bias evidence balanced gatekeeping)
- Miller v. Brass Rail Tavern, 664 A.2d 525 (Pa. 1995) (Rule 4003.5 governs expert disclosure to prevent surprise)
- Kurian v. Anisman, 851 A.2d 152 (Pa. Super. 2004) (treating physician opinions developed during treatment may be excluded as expert if not pretrial)
- Smith v. SEPTA, 913 A.2d 338 (Pa. Cmwlth. 2006) (treating physician not disclosed as expert; limits on expert testimony)
- German v. German, 434 Pa. 47 (Pa. 1969) (medical testimony required for causation unless readily apparent)