A divided Pennsylvania appeals court ruled against a knee-replacement patient last month, finding that a $20-million verdict against Zimmer Inc. and marketing firm Public Communications Inc. was excessive. The Superior Court ruled 4-to-1 that the verdict was excessive considering the nature of the injuries that a jury agreed Margo Pollet had suffered during a bike ride she took promoting a Zimmer artificial knee product. In an opinion written by Judge Jacqueline Shogan, the court said:
The … jury award to Mrs. Polett for non-economic losses deviates substantially from the uncertain limits of what is considered fair and reasonable compensation and, therefore, shocks the sense of justice. Accordingly, we vacate the award to Mrs. Polett and remand.
The case was back before the Superior Court following a ruling by the state’s highest court in October. The Pennsylvania Supreme Court said last year that the verdict was wrongly voided and that a jury instruction didn’t improperly suggest that it was up to the Defendants to provide medical evidence that something other than Ms. Pollet’s bike ride had caused her injuries. That had been what the lower court initially found.
On remand, the Superior Court found another and new reason to upset the award. The court considered for the first time whether the Defendants should have been granted remittitur of the verdict. That issue had not previously been addressed on appeal.
As we previously reported, a Philadelphia County jury awarded Ms. Pollet $26.6 million in damages in June 2011, but the award was reduced based on a finding of 30 percent comparative negligence on the part of the Plaintiff. Ms. Pollet’s husband, meanwhile, was awarded $1 million for loss of consortium. The jury had found Zimmer was 34 percent negligent, while PCI was found to have been 36 percent negligent. The Superior Court’s recent ruling, however, found that the award was excessive given the fact that Ms. Pollet did not seek compensation for any specific medical expenses. Instead, the opinion said she had sought non-economic damages, based on the permanent degradation suffered following a series of additional surgeries she required after the injury.
While acknowledging that Ms. Pollet was “clearly … entitled to compensatory damages,” the court found the damage award to be “excessive, if not punitive.” The court remanded the case back to Philadelphia County for remittitur by a trial judge. Judge Kate Ford Elliott issued a one-page statement noting her dissent in the case, and pointed to a prior dissent that addressed the remittitur issue when the case was initially before the Superior Court.
Judge David Wecht, who has since been elected to the Supreme Court, said in a separate dissent that it was not for the court to second guess the damages awarded by a jury. Judge Wecht said in his dissent:
The decision to grant or deny remittitur is within the trial court’s sound discretion, and will be overturned only upon a showing of abuse of discretion or error of law. We cannot substitute our judgment for that of the factfinder, and we must view the record with consideration of the evidence accepted by the jury.
I have always believed the law relating to remittitur was more in line with Judge Wecht’s dissent. Ms. Polett is represented by Shanin Specter and Charles Becker of Kline & Specter PC. The case was before the Pennsylvania Superior Court.
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