The state Superior Court has reversed a $27.6 million verdict awarded to a woman and her husband who said she was injured while taking part in a promotional video for an artificial knee implant.

The panel was divided 2-1. Judge Jacqueline O. Shogan wrote the unpublished majority opinion for Judge Susan Peikes Gantman and herself in Polett v. Public Communications. Judge David N. Wecht dissented.

Shogan wrote Friday that the defendants are entitled to a new trial because of error in the charge on causation, because the plaintiffs did not identify the woman’s treating physician as an expert, and because the tolling agreement involving the treating physician was kept out of the trial.

Philadelphia Court of Common Pleas Judge Frederica A. Massiah-Jackson entered judgment for plaintiffs Margo and Daniel Polett on June 10, 2011, ordering that Margo Polett be paid $19.6 million in damages and Daniel Polett be paid $700,000 in damages.

The jury apportioned 36 percent negligence to public relations company Public Communications Inc., the Chicago firm hired to make the artificial knee video, 34 percent negligence to orthopedic medical device manufacturer Zimmer, and 30 percent negligence to Margo Polett, The Legal previously reported.

Polett’s orthopedic surgeon and the plaintiffs’ expert witness, Dr. Robert E. Booth, helped develop the knee implant Polett received June 27, 2006, and which Public Communications Inc. was hired to market on behalf of Zimmer, Massiah-Jackson said.

Polett, who agreed to participate in the filming of the video a little under two months after her surgery, walked on a treadmill, rode an exercise bicycle and was filmed walking in a garden with her daughter, the opinion said.

In an apparent issue of first impression, Pennsylvania courts have not addressed the use of a tolling agreement for impeachment purposes before, Shogan said. The tolling agrement extended by six months the limitations period for suing Booth and his practice.

While the plaintiffs argued that Booth was exempt from the requirement of Pennsylvania Rule of Civil Procedure 4003.5 that all experts be disclosed ahead of time because he was Polett’s treating physician, the majority disagreed that Booth developed his opinions ahead of litigation. The majority found both that Booth’s testimony as an expert needed to be disclosed ahead of trial and that the tolling agreement should have been admitted into the case.

Booth wrote an office note June 4, 2008, that Polett’s husband had asked him to execute the tolling agreement, Shogan said. Booth also wrote in that note that the filming company and the medical device manufacturer were the ones responsible for Polett’s injuries.

During his deposition, Booth testified: “‘This note was prompted by Mr. Polett … asking me for a tolling agreement, which I never heard of. Not that I’m a novice in the malpractice wars, but this was something new to me. I was shocked by it, and disappointed … because I wanted to keep taking care of her. And now we have all got this word hanging over us … And so this is written out of petulance, but I do believe that what I was trying to suggest was that I didn’t think that we did anything wrong here.’”

The majority said that Booth developed his causation opinions “under a sword of litigation” and for the first time in June 2008 when Polett’s husband asked him to consent to the tolling agreement.

“The probative value of the tolling agrement outweighed the danger of unfair prejudice,” Shogan said. “When questioned about the tolling agreement, Dr. Booth could explain to the jury that the Poletts did not sue him, that the parties stipulated to his lack of responsibility, that the tolling agreement was not in effect as of the trial, and that the threat of litigation did not influence his opinions. Thus, provided on one hand with evidence that Dr. Booth’s causation opinions were tied to the tolling agreement … and on the other hand with Dr. Booth’s defence to the inference that his testimony was partial, the jury could then fully assess the quality of Dr. Booth’s testimony.”

But Wecht said that the rule does not apply if expert opinions are not developed in anticipation of litigation and there was evidence that Booth reached his conclusions before any anticipation of litigation.

Wecht also said that admitting the tolling agreement into trial would be more unfairly prejudicial than probative.

Also at issue in the case was a jury instruction.

Massiah-Jackson instructed the jury after the defense counsel’s closing but before the plaintiffs counsel’s rebuttal argument 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.’”

The majority agreed with the defendants that the instruction shifted the burden of proof to the defense, including because the instruction was isolated from the original charge, which did explain the plaintiffs’ burden of proof regarding the defendants’ negligence.

But Wecht said that Massiah-Jackson charged the jury on the burden of proof thoroughly, that the follow-up instruction has to be considered in the context of the entire change, and “we do not demand a perfect or immaculate instruction, on pain of vacatur.”

The judges were unanimous in finding that there was sufficient evidence of a causal connection between riding the exercise bike and her injuries through Booth’s testimony and to a lesser extent through the testimony of the defense expert.

The defense expert, Iowa orthopedist Dr. Charles Clark, opined that Polett’s pre-existing rheumatoid arthritis was a substantial and significant factor for her knee injuries, and that the bike use during the video shoot was only one of several factors causing her injuries, Massiah-Jackson said in a previous opinion.

Booth testified that Polett’s use of the exercise bike led her to develop inflammation in the membrane in her knee joint, that the inflammation led to an unstable knee, and the “instability created a chain of events, including falls, a patellar fracture, and eventually, ruptured tendons,” Shogan said.

The defendants also presented evidence of Polett’s comparative negligence, including that Polett did not wear her leg brace properly, Shogan said.

The judges also were unanimous in finding that there was sufficient evidence that the defendants breached a limited duty not to subject Polett to a reasonably foreseeable risk of harm.

Defense counsel Troy S. Brown, a partner with Morgan, Lewis & Bockius in Philadelphia, said that the primary argument from the point of view of the defense was that the burden was shifted onto the defendants to disprove causation with the trial judge’s subsequent jury instruction and that there was an issue with jury confusion.

“The majority got it right: that defendants in these types of cases in Pennsylvania are not supposed to be put in a position that a jury assumes that they are liable and caused an injury and that they have to disprove causation and other factors,” Brown said.

The defendants are “thrilled” with the result, Brown said.

Plaintiffs’ counsel Shanin Specter, of Kline & Specter in Philadelphia, said that “the two judges on the divided panel are badly mistaken and we are seeking an en banc review immediately.”

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

(Copies of the 57-page opinion in Polett v. Public Communications, PICS No. 13-0508, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •