he Pennsylvania Supreme Court reinstated a woman’s $28 million verdict against medical device manufacturer Zimmer Inc., and marketing firm Public Communications Inc. for injuries she received while participating in a marketing video for a Zimmer product.
Margo Polett underwent knee replacement surgery in 2006. One of her knees was replaced by Zimmer’s Gender Solutions knee, which was specifically designed for women. Several months after her surgery, Polett appeared in a marketing video for Zimmer.
In the video, Polett used both an exercise bike and treadmill. She claimed that the video, she developed persistent pain that resulted in a series of additional surgeries to repair the damage.
A jury awarded Polett $27.6 million in damages after finding Zimmer 34 percent negligent, Public Communications Inc., 36 percent negligent and Polett 30 percent comparatively negligent.
On appeal, the state’s Superior court voided the verdict and ordered a new trial on the basis that the jury instructions improperly shifted the burden of proof to the defendants to show medical evidence that Polett injured her knee by a means other than her participation in the marketing video.
An appeals court agreed with the superior court decision, finding that the jury instructions provided mislead the jury and unfairly shifted the burden to Zimmer and Public Communications.
The Pennsylvania Supreme court reversed the appeals court ruling and reinstated the verdict. The court found that the trial court instruction did not shift the burden of proof to the defendants because the trial court also gave the jury a comprehensive charge, which explained that Polett had the ultimate burden of proof to show that Zimmer’s negligence was the cause of her injuries.
The high court stated that if the jury instruction alone “was all that the jury received, then [Zimmer’s] argument would have substantial merit.” At trial, Zimmer’s defense attorney argued that Polett could have re-injured her knee in other ways, including her failure to attend all her physical therapy appointments or her failure to wear a knee brace, but provided no evidence or testimony to support the argument.
The court determined that the “absence of such evidence” that Polett’s injuries were caused by any of the defense’s argument of possible causes, “would have been an exercise in speculation.”
The case is Margo Polett et al. v. Public Communications Inc. et al., case number 18 EAP 2014, in the Pennsylvania Supreme Court.
