Medical device manufacturer Zimmer Inc. and marketing firm Public Communications Inc. will get a second chance to defend themselves against claims stemming from a knee replacement procedure. An en banc panel of the Pennsylvania Superior Court struck down a $28 million verdict in the case last month. The panel agreed that instructions given to the jury had improperly shifted the burden of proof by suggesting that it was up to the Defendants to provide medical evidence that something other than Plaintiff Margo Polett’s participation in a marketing video for Zimmer’s so-called Gender Solutions artificial knee had caused her injuries. The court on this issue said:
A defendant may choose simply to argue that the plaintiff has not met its burden or proof, without presenting any evidence. In such a situation, the jury may find for the defendant. Moreover, Pennsylvania case law does not require a defendant to present independent medical testimony specifically linking the alleged injuries to another cause.
The defendants had asked that they be granted judgment notwithstanding the verdict. The en banc panel found there was sufficient evidence for a jury to make a causal link between Polett’s riding the exercise bike as part of her participation in the video and her subsequent injuries. The panel’s opinion stated:
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.
Ms. Polett is represented by Shanin Specter, Chip Becker and Carl Jones, lawyers with the Philadelphia firm Kline & Specter. The case is in the Pennsylvania Superior Court. I believe the Plaintiff will have an excellent chance of prevailing when the case is retried. Her lawyers should be able to meet the burden of proof in this case.
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