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Polett v. Public Communications, Inc.

Superior Court of Pennsylvania

December 20, 2013


Appeal from the Judgment Entered June 10, 2011, In the Court of Common Pleas of Philadelphia County, Civil Division, at No. 02637, August Term 2008.




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 postoperative 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 verdict on 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 legal responsibility attaches for the harm to another arising out of some act of defendant; and it may be established by evidence that the defendant's negligent act or failure to act was a substantial factor in bringing about the plaintiff's harm. The defendant's negligent conduct may not, however, be found to be a substantial cause where the plaintiff's injury would have been sustained even in the absence of the actor's negligence.

Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978) (internal citations omitted).

It is not enough "that a negligent act may be viewed, in retrospect, to have been one of the happenings in the series of events leading up to an injury." Eckroth v. Pennsylvania Elec., Inc., 12 A.3d 422, 427 (Pa.Super. 2010) (quoting Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863, 868 (Pa.Super. 2000)). Thus, in determining whether a party's conduct is a substantial factor in bringing about harm to another, the court must consider the following:

§ 433. Considerations Important in Determining Whether Negligent Conduct is Substantial Factor in Producing Harm.
The following considerations are in themselves or in combination with one another important in determining whether the actor's conduct is a substantial factor in bringing about harm to another:
(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
(b) whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;
(c) lapse of time.

Restatement (Second) of Torts § 433.

Viewing the evidence in the light most favorable to Mrs. Polett, the record contains sufficient proof of a causal connection between Mrs. Polett riding the exercise bike and her subsequent injuries. The jury heard evidence of multiple factors related to Mrs. Polett's condition, such as her active lifestyle, rheumatoid arthritis, exercising with resistive weights, riding the exercise bike, and wearing the leg brace improperly. However, Dr. Booth testified that Mrs. Polett developed synovitis in her right knee after riding the exercise bike. N.T., 11/15/10 (p.m.), at 5, 11, and Trial Exhibit P3. Although Dr. Booth noted this was a minor condition, he explained that the synovitis resulted in a loss of motion and an unstable knee. Id. at 9–10, 14, and Trial Exhibit P4. The instability created a chain of events, including falls, a patellar fracture, and, eventually, ruptured tendons. Id. at 19, 20-22, 24–25, 133, 142. Albeit less directly than Dr. Booth, the defense expert, Dr. Clark, also testified that riding the bike contributed to Mrs. Polett's injuries. N.T. (Clark Deposition), 11/12/10, at 13, 24, and 33.

Based on the foregoing evidence, we conclude Mrs. Polett presented sufficient evidence for a jury to find that riding the exercise bike was a substantial factor in causing Mrs. Polett's injuries. Thus, the trial court did not err in denying Zimmer and PCI's motion for JNOV.

Next, Zimmer and PCI argue they were entitled to JNOV because Mrs. Polett failed to present sufficient evidence that they breached their limited duty not to subject her to a reasonably foreseeable risk of harm. Zimmer and PCI's Brief at 56. The trial court denied Zimmer and PCI's request for JNOV on this basis because, in its opinion, "[t]he risk of injury to Mrs. Polett's knee was not remote, nor hidden, nor unexpected. Injury was not only reasonably foreseeable, the risk of injury was actually foreseen and could have been prevented with reasonable care." Trial Court Opinion, 6/10/11, at 15.

On appeal, Zimmer and PCI argue that "no reasonable juror could have found that [they] breached their limited duty of care to Mrs. Polett, because, under the circumstances, the risk of general injury to Mrs. Polett from using a treadmill and exercise bike for a few minutes during the August 23, 2006 video shoot was not reasonably foreseeable." Zimmer and PCI's Brief at 57. Mrs. Polett counters that the testimonial evidence belies Zimmer and PCI's arguments against the foreseeability of Mrs. Polett's injuries. Mrs. Polett's Brief at 14–15.

"The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm to the injured person, resulting from his act." Dahlstrom v. Shrum, 84 A.2d 289, 290 (Pa. 1951) (citation omitted). Foreseeability is the likelihood of the occurrence of a general type of risk; it does not mean the likelihood of the occurrence of the precise chain of events leading to an injury. Huddleston v. Infertility Center of America, Inc., 700 A.2d 453, 460 (Pa.Super. 1997); see also Thornton v. Weaber, 112 A.2d 344, 347 (Pa. 1955) ("What must be foreseen, in order to establish negligence, is harm in the abstract, not harm in the concrete."). A defendant is not required to guard against every possible risk; however, he must take reasonable steps to guard against generally foreseeable hazards. Huddleston, 700 A.2d at 460 (citation omitted).

Viewing the evidence in the light most favorable to Mrs. Polett, the record reveals that Zimmer and PCI learned through interviewing Mrs. Polett about her pre-operative and post-operative activities, including her interest in bike riding. N.T., 11/16/10 (a.m.), at 49–51, 56–57, 59; N.T., 11/16/10 (p.m.), at 15–16, 30–31; N.T., 11/17/10 (a.m.), at 52–53. They understood that Mrs. Polett could be injured if there was a misunderstanding about what she could do or if she engaged in activity that she was not medically cleared to do. N.T., 11/16/10 (p.m.), at 90; N.T., 11/17/10 (a.m.), at 14, 34. Dr. Booth testified that riding a bike after knee surgery "will sometimes inflame the knee, " causing a loss of motion. N.T., 11/15/10 (a.m.), at 124; N.T., 11/15/10 (p.m.), at 5. Moreover, Mrs. Polett was subject to an increased risk of harm because of her rheumatoid arthritis. N.T., 11/15/10 (p.m.), at 8. Zimmer and PCI took some measures to ensure Mrs. Polett's safety during the videotaping, such as asking what she was comfortable doing and not increasing her speed on the equipment, because her "safety comes first." N.T., 11/16/10 (a.m.), at 54, 66, 106; N.T., 11/16/10 (p.m.), at 5–6, 61–62, 63–64, 68; N.T., 11/17/10 (a.m.), at 14. Zimmer and PCI learned from Mrs. Polett on the day of the videotaping that she had not ridden a bicycle since her surgery; at that point, they deferred to her comfort level in choosing an activity. N.T., 11/16/10 (a.m.), at 50–52, 66, 100; N.T., 11/16/10 (p.m.) at 119–120; N.T., 11/17/10 (a.m.), at 9, 41–42, 83-84, 87. Ms. Yoder, the Zimmer employee in charge of filming, acknowledged that Mrs. Polett's disclosure about not having ridden a bike was inconsistent with the videotaping plan, a surprise, and initially a "red flag." N.T., 11/17/10 (a.m.) at 9, 41, 53, 86–87.

Based on the foregoing evidence, we conclude Mrs. Polett sufficiently established that Zimmer and PCI could reasonably foresee the general nature of the risk and harm resulting from a patient using an exercise bike one month after bilateral knee surgery. Thus, we further conclude the trial court did not err in denying Zimmer and PCI's motion for JNOV.

We turn to Zimmer and PCI's third, fourth, and fifth issues, in which they assert the trial court erred in denying their requests for a new trial based on allegations of jury instruction and evidentiary errors.

Our standard of review from an order denying a motion for a new trial is whether the trial court committed an error of law, which controlled the outcome of the case, or committed an abuse of discretion. A trial court commits an abuse of discretion when it rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will.

Mirabel v. Morales, 57 A.3d 144, 150 (Pa.Super. 2012) (internal citations and quotation marks omitted).

Zimmer and PCI's third issue challenges the trial court's causation instruction to the jury. Specifically, Zimmer and PCI claim (1) the trial court improperly imposed on them the burden of disproving causation, and (2) the causation charge, as a whole, was "confusing, misleading, and erroneous." Zimmer and PCI's Brief at 46, 49. In response, Mrs. Polett argues that Zimmer and PCI have waived this issue because defense counsel failed to object in a timely manner at trial. Mrs. Polett's Brief at 38-39.

Initially, we note that the record refutes Mrs. Polett's waiver argument. During the charging session on the morning of November 18, 2010, defense counsel argued for "a charge that simply says you may not speculate." N.T., 11/18/10 (a.m.), at 44-45. Mrs. Polett's counsel argued for a narrower charge about the need for medical evidence of some other cause. Id. at 46-47. After much discussion, the trial court and counsel agreed that the issue of speculation would arise—if at all—during closing arguments; therefore, the trial court ruled that it would "hold this [particular charge] under advisement." Id. at 47-50, 51.

Before the trial court began its charge to the jury, defense counsel sought clarification regarding how he should preserve challenges to the court's instructions:

MR. CONROY: Once the charge is given, Your Honor, then I'll need to make an exceptions [sic] again to the charge and should we do it after the jury is released for lunch? I can do it quickly then or take, you know, two minutes to put it on the record. How does that sound?
THE COURT: After the charge, right, we'll take our lunch break and then you can do it then because—
[PLAINTIFFS' COUNSEL]: I think this may be of assistance to Mr. Conroy. I think everything has been recorded very well by—
THE COURT: You haven't waived anything.
MR. CONROY: I agree, but just out of an abundance of caution, I prefer—
THE COURT: That's not a problem.
MR. CONROY: -- to do it after the charge. I'll incorporate back into the record the reasons I articulated.
THE COURT: All right.

N.T., 11/18/10 (a.m.), at 57-58 (emphasis supplied). The trial court then instructed the jury; as expected, the instructions did not include a speculation charge. Id. at 63-90. Following the trial court's charge, defense counsel restated a list of objections to the verdict sheet and the jury instructions. Id. at 91-93.

The afternoon session began with closing arguments. While addressing the jury, defense counsel discussed Mrs. Polett's medical history and post-operative activities. N.T., 11/18/10 (p.m.), at 85-87, 98-102.

This triggered the speculation charge, which the trial court gave at the request of Mrs. Polett's counsel prior to his rebuttal closing:

Ladies and gentlemen, we're getting ready to hear the response or rebuttal closing argument by [Mrs. Polett's counsel].
And I wanted to alert you and just add to my earlier instruction that in order for you to find that something other than the exercise bike caused Mrs. Polett's injuries, you must be provided with medical testimony that something else other than the bike caused those injuries. You may not speculate on what else could have caused Mrs. Polett to be injured.

Id. at 104-105. After Mrs. Polett's counsel presented his closing, the trial court gave final instructions to the jurors and dismissed them to begin deliberations. Id. at 121. Defense counsel then raised an objection to the trial court's speculation charge:

Mr. CONROY: The second issue is I object to the charge that the Court gave to the jury on the speculation issue after [co-counsel's] closing argument --
MR. CONROY: -- I think that --
THE COURT: You made that clear during the robing ceremony. And we said that we would wait to hear based on what the closing ...

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