Polett v. Public Communications, Inc.
83 A.3d 205
| Pa. Super. Ct. | 2013Background
- Zimmer launched the Gender Solutions Knee for women and hired PCI to produce a sales video featuring a patient (Polett) who had undergone surgery using the device.
- Polett, age 67, underwent successful bilateral knee replacement on June 27, 2006, after prior left knee surgery in 2003; she later suffered persistent knee problems and multiple surgeries.
- Video filming occurred August 23, 2006; at a follow-up, Polett reported mild knee discomfort after bicycling; she engaged in various activities and resisted prescribed limits.
- Polett sued Zimmer and PCI in August 2008; the jury awarded $27.6 million in 2010, with comparative and joint negligent allocations among Zimmer, PCI, and Polett’s husband’s loss of consortium.
- On appeal, the Superior Court vacated the judgment and remanded for a new trial in 2013, and the en banc court addressed issues concerning causation, jury instructions, expert disclosure, and admissibility.
- The panel ultimately held that the trial court erred in (i) causation instructions, (ii) precluding Dr. Booth’s causation testimony on rule 4003.5 grounds, and (iii) excluding the tolling agreement for impeachment, requiring vacatur of the verdict and remand for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did JNOV lie? causation from bike use | Polett presented evidence that bike riding caused synovitis and a chain of injuries. | Zimmer/PCI argued no substantial causation; other factors and foreseeability did not establish breach. | JNOV denied; sufficient evidence for causation exists. |
| Foreseeability and breached duty re: video activities | Product of foreseeability showed risk from exercise after knee surgery. | No breach of limited duty given how activities were supervised and disclosed. | Foreseeability supported; no JNOV on breach; trial court's denial affirmed. |
| Causation jury instruction error shifting burden | Charge correctly framed causation; defense should not have burden to prove alternative causes. | Instruction improperly shifted burden to defendants and was confusing. | Trial court erred; new trial ordered for causation instruction error. |
| Admission of Dr. Booth’s causation testimony (Rule 4003.5) | Dr. Booth’s causation opinions formed prior to anticipated litigation; not precluded. | Dr. Booth was not timely disclosed as an expert; prejudice to defense. | Trial court erred in denying motion in limine; new trial warranted on this basis. |
| Tolling agreement for impeachment of Dr. Booth | Tolling agreement relevant to credibility; admissible impeachment evidence. | Tolling agreement would confuse jurors and implicate privilege; should be excluded. | Trial court erred in excluding tolling agreement; new trial warranted. |
Key Cases Cited
- Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (Pa. 1978) (proximate cause requires substantial factor analysis)
- Eckroth v. Pennsylvania Elec., Inc., 12 A.3d 422 (Pa.Super.2010) (substantial factor considerations in causation)
- Kennedy v. Sell, 816 A.2d 1153 (Pa.Super.2003) (burden of proof and speculation issues; defense not required to prove alternative theories)
- Kurian v. Anisman, 851 A.2d 152 (Pa.Super.2004) (treating physician cannot shield causation opinions from Rule 4003.5 when opinions formed in anticipation of litigation)
- Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525 (Pa.1995) (expert testimony admissible if not developed in anticipation of litigation)
- Gorman v. Costello, 929 A.2d 1208 (Pa.Super.2007) (standard for reviewing jury instructions; breadth of discretion afforded to trial judges)