Did you know that a knee injury can be a serious problem? In fact, if you’re among the defendants in the ongoing case of Polett v. Public Communications, Inc., it can be – and is – a $27.6 million problem.
Back in 2006, a Philadelphia woman had knee replacement surgery and received what is known as a Gender Solutions Knee, a product that was launched by orthopedic device maker Zimmer Inc., and that was, in part, designed by her surgeon. After her doctor affirmed that she was doing well in recovery, he recommended her to Zimmer for a spot in a promotional video touting the benefits of the Gender Solutions Knee.
After the woman at the center of the case, Margo Polett, agreed to appear in the video, the promotional spot was shot (by Public Communications, Inc.); among other things, Polett was filmed riding an exercise bike in the video. A month after the video was filmed, Polett began to have true discomfort in the knee on which she’d had surgery, ostensibly from riding the exercise bike. From the swelling and inflammation, she fell and suffered other injuries, and four subsequent surgeries to repair the damages were unsuccessful.
Thus, in 2008, Polett and her husband sued Zimmer and Public Communications in the Philadelphia County Common Pleas Court. In 2010, a jury of their peers awarded the Poletts $27.6 million in damages, having found Zimmer 34% negligent, Public Communications 30% negligent, and Polett herself 30% negligent.
The defendants appealed, and the appeals court vacated the substantial judgment. Among the reasons for this action by the appeals court were that the judge had allegedly improperly instructed the jury on issues of causation and, perhaps most significantly, that the judge had denied the defendants’ request that Polett’s surgeon in the underlying surgery not be allowed to testify as an expert witness.
One of the most striking findings in the appeals court’s 2013 ruling was that Dr. Booth, the expert witness and the individual who performed the surgery on Polett, had testified under the “sword of litigation,” i.e. that he supposedly only contributed his statements and testimony so that he would not be added as a defendant, a finding by the Court that questions both Booth’s medical ethics and the legal ethics of the attorneys involved in the case.
Finally, now, the case is before the Pennsylvania Supreme Court, where Polett and her attorney have argued that the testimony of Dr. Booth should have been allowed, as it was a decision made at the discretion of the trial court judge. According to the plaintiff’s attorney, Pennsylvania law affords trial court judges “broad latitude.” If it’s found that the law does indeed do that, it should have been the trial court judge’s right to determine whether or not the expert testimony should’ve been allowed.
Our personal injury lawyers at the Law Offices of Aronberg & Aronberg know that judicial discretion is immensely important in our court system. When higher courts get into the habit of reversing orders they don’t like simply on the basis that they disagreed with a judge’s decision, nobody wins. Simple disagreements (that do not have to do with misinterpretations of the law) are not reasons to vacate a judgment – certainly not a judgment in a case that has clearly negligent parties and clearly serious injuries.
If you have any questions about this or any other personal injury issue, please reach out to us for a free consultation at no cost or obligation. You can reach us by calling 561-266-9191 or by e-mailing us at daronberg@aronberglaw.com. We look forward to hearing from you.
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