Polett v. Pub. Commc'ns, Inc.

• Decision Date: 20 December 2013
• Citation: 2013 PA Super 320,83 A.3d 205
• Parties: Margo POLETT and Daniel Polett, Appellees v. PUBLIC COMMUNICATIONS, INC., Zimmer, Inc., Zimmer USA, Inc., and Zimmer Holdings, Inc., Appellants.
• Court: Pennsylvania Superior Court

83 A.3d 205

2013 PA Super 320

Margo POLETT and Daniel Polett, Appellees

v.PUBLIC COMMUNICATIONS, INC., Zimmer, Inc., Zimmer USA, Inc., and Zimmer Holdings, Inc., Appellants.

Superior Court of Pennsylvania.

Argued Oct. 16, 2013.

Filed Dec. 20, 2013.

Brian M. Ercole and James D. Pagliaro, Philadelphia, for appellants.

Shanin Specter, Philadelphia, for appellees.

BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, GANTMAN, DONOHUE, SHOGAN, LAZARUS, OLSON and WECHT, JJ.

OPINION BY SHOGAN, J.:

Appellants, Public Communications, Inc. (“PCI”), and Zimmer, Inc., Zimmer USA, Inc. and Zimmer Holdings, Inc. (collectively “Zimmer”), appeal from the entry of judgment in favor of Margo Polett (“Mrs. Polett”) and Daniel Polett, her husband. After careful review, we vacate and remand for a new trial.

In May of 2006, Zimmer launched the Gender Solutions Knee, a new knee replacement device designed specifically for women. Zimmer hired the marketing firm of PCI to produce a sales video, which would include interviews and footage of patients who had undergone successful knee replacement surgery using the Gender Solutions Knee.

Mrs. Polett suffered from degenerative rheumatoid arthritis, resulting in knee problems and inflammatory disturbances to soft tissue. She also had a medical history of hypertension, anxiety, and elevated liver enzymes. In 2003, Mrs. Polett underwent left knee replacement surgery. By May of 2006, she was having trouble with her left knee and arthritic issues with her right knee. On May 31, 2006, Mrs. Polett consulted with Dr. Richard Booth, an orthopedic surgeon and co-developer of the Gender Solutions Knee.

Upon the recommendation of Dr. Booth, Mrs. Polett underwent successful bilateral knee replacement surgery on June 27, 2006, at age 67. During the surgery, Dr. Booth replaced her prosthetic left knee with a new one and inserted a Gender Solutions Knee in the right knee. During a post-operative visit on August 16, 2006, Dr. Booth noted that Mrs. Polett was doing extremely well. Consequently, he recommended Mrs. Polett to Zimmer as a successful Gender Solutions Knee patient. Mrs. Polett agreed to participate in Zimmer's sales video. On August 23, 2006, PCI supervised the videotaping of Mrs. Polett being examined by Dr. Booth, walking in a garden with her daughter, walking on a treadmill, and riding a stationary exercise bike.¹

At a follow-up visit with Dr. Booth on September 20, 2006, a month after the videotaping, Mrs. Polett reported “mild discomfort in her knees after riding on a bicycle.” Trial Exhibit P3 (Postoperative Visit Summary, 9/20/06). Between the bilateral knee replacement surgery on June 27, 2006, and the September 20, 2006 appointment with Dr. Booth, Mrs. Polett walked on the beach, swam, drove, attended social events, traveled to the Poconos and Vietnam, and went to physical therapy where, contrary to Dr. Booth's instructions, she did leg exercises using resistive force.

At the next follow-up visit on October 23, 2006, Mrs. Polett complained of “persistent discomfort in both knees.” Trial Exhibit P4 (Postoperative Visit Summary, 10/23/06). Over time, Mrs. Polett's knees became inflamed and swollen; she suffered falls and a fractured right patella; a tendon in her right knee ruptured; and, she endured four surgeries in failed attempts to repair the damage.

The trial court summarized the procedural history of this case as follows:

In August, 2008, Mrs. Polett commenced this litigation against Zimmer and PCI. Mr. Polett has a claim for loss of consortium. Following a week-long trial, on November 19, 2010 the jury awarded the plaintiffs $27.6 million in damages. The jury determined that Zimmer was 34% causally negligent; that PCI was 36% causally negligent; and, that Mrs. Polett was 30% comparatively negligent.

On June 10, 2011, the post-trial motions of Zimmer and PCI were denied. Judgment was entered in favor of both plaintiffs. Zimmer and PCI filed a Notice of Appeal, then subsequently filed a Concise Statement of the Errors Complained of on Appeal, dated July 28, 2011.

Trial Court Opinion, 8/4/11, at 2.

On appeal, Zimmer and PCI presented six questions for review, which we reordered for ease of disposition: ²

1. Whether Defendants are entitled to judgment notwithstanding the verdict on Plaintiffs' claims, because Plaintiffs failed to present sufficient evidence, at trial, for a reasonable jury to have found that the use of an exercise bike and treadmill by Mrs. Polett for a few minutes during an educational video was the proximate, direct, and/or actual cause of not just Mrs. Polett's initial synovitis (mild inflammation in her knee), but each of her subsequent, more serious knee injuries and surgeries over several years?

2. Whether Defendants are entitled to judgment notwithstanding the verdicton Plaintiffs' claims, because Plaintiffs failed to present sufficient evidence, at trial, for a reasonable jury to have found that Defendants breached their limited duty not to subject Mrs. Polett to a reasonably foreseeable risk of harm when Mrs. Polett voluntarily used an exercise bike and treadmill for a few minutes during an educational video?

3. Whether Defendants are entitled to a new trial because the trial court's causation-related jury instructions, over Defendants' objection, improperly shifted onto Defendants the burden of disproving the causation element of Plaintiffs' claims, improperly required Defendants to present affirmative medical testimony to disprove the existence of causation, and were otherwise misleading, confusing, and prejudicial?

4. Whether Defendants are entitled to a new trial when the court improperly denied Defendants' motion in limine to preclude the causation testimony of Plaintiffs' lone causation expert, Dr. Booth, who was never disclosed as a testifying expert prior to trial and who could not offer opinions with sufficient certainty?

5. Whether Defendants are entitled to a new trial because the trial court improperly precluded Defendants from impeaching Dr. Booth's causation testimony at trial, when the trial court prevented Defendants from showing that when Dr. Booth first gave causation testimony in favor of Plaintiffs and against Defendants, Dr. Booth was subject to a Tolling Agreement that extended the period of time during which Plaintiffs could bring claims against Dr. Booth and was himself a defendant in this action?

6. Whether the trial court erred in refusing to remit the jury's $27.6 million compensatory damages award, or, in the alternative, in refusing to grant a new trial, because the jury award was, as a matter of law, excessive, conscience-shocking, and not justified by the evidence presented against Defendants at trial, particularly when Mrs. Polett did not suffer a catastrophic injury, did not assert a claim for out-of-pocket expenses, lost earning potential, or punitive damages, remains physically able to do many of the same things that she did before her knee injury, and continues to enjoy a happy and successful marriage[?]

Zimmer and PCI's Brief at 3–4.

Upon review of Zimmer and PCI's issues, a panel of this Court filed a memorandum vacating the judgment in favor of Mrs. Polett and her husband and remanding for a new trial. Polett v. PCI, 1865 EDA 2011 (Pa.Super. filed February 28, 2013) (unpublished memorandum). Thereafter, Mrs. Polett filed a motion for reargument en banc. We granted the motion and heard oral arguments on October 15, 2013. This matter is now ripe for disposition.

In their first two issues, Zimmer and PCI seek judgment notwithstanding the verdict (“JNOV”). This Court has articulated our standard of review from the denial of a motion seeking JNOV as follows:

In reviewing a trial court's decision whether or not to grant judgment in favor of one of the parties, we must consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to the verdict winner. Our standard of review when considering motions for a directed verdict and judgment notwithstanding the verdict are identical. We will reverse a trial court's grant or denial of a judgment notwithstanding the verdict only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.

There are two bases upon which a judgment N.O.V. can be entered: one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Ty–Button Tie, Inc. v. Kincel and Co., Ltd., 814 A.2d 685, 690 (Pa.Super.2002) (quoting Goldberg v. Isdaner, 780 A.2d 654, 659–660 (Pa.Super.2001)) (internal citations and quotation marks omitted).

Zimmer and PCI argue they were entitled to JNOV because Mrs. Polett failed to present sufficient evidence of a causal connection between riding the exercise bike and her injuries. Zimmer and PCI's Brief at 29. The trial court opined that Dr. Booth's testimony “provided sufficient evidence for the jury to determine that the bicycle ride was the causal nexus which brought about Mrs. Polett's injuries.” Trial Court Opinion, 6/10/11, at 19. We agree.

[W]hen it is established that the defendant breached some duty of care owed the plaintiff, it is incumbent on a plaintiff to establish a causal connection between defendant's conduct and the plaintiff's injury. Stated another way, the defendant's conduct must be shown to have been the proximate cause of plaintiff's injury. Proximate cause is a term of art denoting the point at which...