A Pennsylvania Superior Court recently vacated a $27.6 million jury verdict against medical device manufacturer Zimmer Inc. (Zimmer), and marketing firm Public Communications, Inc. (PCI) in a case that involved Zimmer’s Gender Solutions Knee. The decision, which vacated the verdict on causation grounds, is available here.
Zimmer’s Gender Solutions Knee is a knee replacement device specifically designed and manufactured for women. Zimmer hired PCI to produce a sales video featuring footage of patients who had received the Gender Solutions Knee.
The plaintiff Margo Polett underwent a dual knee replacement using the Gender Solutions Knee. Two months later she participated in marketing videos for the device, and was videotaped walking in a garden, walking on a treadmill and riding a stationary exercise bike. The plaintiffs alleged in their lawsuit that by participating in the marketing videos Mrs. Polett sustained additional injuries to her knees leading to four surgeries to repair the damage.
Following a trial of the action, in June 2011, a jury awarded $27.6 million in damages and determined that Zimmer was 34 percent negligent, PCI was 36 percent negligent and Mrs. Polett was 30 percent comparatively negligent.
Following the verdict, Zimmer and PCI appealed and argued that the plaintiffs had presented no evidence of causation and that the jury instructions were improper as a matter of law because they shifted the burden to the defendants to disprove the causation element of the plaintiffs’ claims.
A panel of the Pennsylvania Superior Court issued a memorandum vacating the judgment and remanded for a new trial. Plaintiffs then filed a motion for reargument en banc. The Court granted the motion and heard oral arguments on October 15, 2013.
In a December 20, 2013 decision, three judges on the panel agreed with the defendants that the jury instructions were improper and warranted a new trial. In its decision, the Court held that the plaintiffs had presented sufficient evidence for a jury to find that riding the exercise bike was a substantial factor in causing her injuries, and that the defendants could reasonable foresee the general nature of the risk and harm that could result from a patient using an exercise bike one month after bilateral knee surgery. However, the jury instruction at issue improperly focused the jury’s attention on the idea that Zimmer and PCI were required to do more than prove Mrs. Polett’s comparative negligence and that they were required to present medical evidence that something other than the exercise bike caused her injuries. The court held that the instruction clearly shifted the burden of proving negligence to the defendants and was improper.
The court also noted that the use of Mrs. Polett’s medical history and her admissions were not used to show that something other than the exercise bike caused her injuries, but were an effort by the defendants to show that there was an absence of a causal connection between her use of the bike and her injuries. As a result, the defendants were entitled to a new trial.
The majority of the court also disapproved of the trial court’s use of the plaintiffs’ medical expert’s testimony regarding causation holding that his opinion regarding causation only arose after litigation was contemplated and not during the course of his treatment of Mrs. Polett as a patient. However, the court did not determine that the expert’s testimony should have been excluded.
While it remains to be seen if the plaintiffs will appeal this matter to the Pennsylvania Supreme Court, medical device manufacturers will find the court’s analysis helpful in limiting overreaching jury instructions that attempt to improperly shift the burden of proof to the defense.