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From Products Liability Law Daily, December 18, 2017

Remittitur of verdict to knee implant patient from $26.6M to $20.6M affirmed

By John W. Scanlan, J.D.

A trial court’s remittitur of a jury verdict awarded to an injured knee implant patient from $26.6 million to $20.6 million, along with the reduction of an award to her husband from $1 million to $900,000, was upheld by a Pennsylvania Superior Court in an unpublished decision. The size of the new awards was not grossly excessive or disproportionate to the patient’s injuries and was within the discretion of the trial court (Polett v. Public Communications, Inc., December 15, 2017, Dubow, A.).

The patient was implanted with an artificial knee manufactured by Zimmer, Inc. One month later, she was filmed using a stationary bicycle and a treadmill by Public Communications, Inc. as part of a promotional video for Zimmer. Soon afterward, she developed synovitis, which compromised her knee’s mobility and stability, causing falls and a fracture and resulting in the need for further surgeries. She brought negligence claims against both companies; the jury awarded her $26.6 million and her husband $1 million. Both verdicts were reduced by the trial court by 30 percent to reflect the jury’s assessment of her contributory negligence.

The trial court denied the defendants’ motion for remittitur, but the Superior Court vacated the judgment on other grounds. The Pennsylvania Supreme Court subsequently reversed and remanded the case to the Superior Court to consider the remittitur issue. The Superior Court vacated the award and remanded the case for a new trial, finding that the size of the award was excessive because it deviated substantially from the "uncertain limits" of what could be considered fair and reasonable [see Products Liability Law Daily’s June 7, 2016 analysis].

On remand, the trial court remitted the award to the patient by about 25 percent and the award to her husband by about 10 percent, which amounted to a $6 million reduction, to $20.6 million in total. As with the previous verdict, this amount was reduced by 30 percent for the patient’s contributory negligence, along with delay damages. Zimmer and Public Communications again appealed, arguing that the trial court erred in its remittitur because the smaller amount still was as "conscience-shocking" as the previous verdict, given that the patient had sustained only non-economic damages. They argued that the trial court did not consider comparable jury verdicts, did not adequately consider evidence mitigating a significant award of damages, and arbitrarily reduced the husband’s damages by only 10 percent without explanation. Instead, they asserted, the patient should be awarded $1.5 million or less and the husband $250,000 or less.

Remittitur. In deciding upon the amount of a remittitur, a trial court may reduce a verdict to an amount no lower than the highest amount that any jury properly could have awarded given the evidence presented at trial. Furthermore, a Superior Court is not free to substitute its own judgment for that of the fact finder. Given this deferential standard, the Superior Court concluded that the trial court did not abuse its discretion in reducing the awards to the patient and her husband by 25 percent and 10 percent, respectively. The lower court’s opinion reflected that it followed the Superior Court’s direction in considering the ten factors in this case that would mitigate the jury’s award that had been set out in the Superior Court’s opinion. Zimmer and Public Communications did not provide any legal basis for the court to consider other jury verdicts when deciding whether the lower court had abused its discretion. Accepting their argument that the awards should be reduced to no more than $1.5 million and $250,000, which would represent reductions of about 95 percent and 75 percent, would constitute an improper substitution by the Superior Court of its judgment for the jury’s.

The case is No. 80 EDA 2017.

Attorneys: Specter, Shanin (Kline & Specter, PC) and Joseph A. Del Sole (Del Sole Cavanaugh Stroyd, LLC) for Margo Polett and Daniel Polett. Brian Michael Ercole (Morgan Lewis & Bockius, LLP) for Public Communications Inc., Zimmer, Inc. and Zimmer USA, Inc.

Companies: Public Communications Inc.; Zimmer, Inc.; Zimmer USA, Inc.

MainStory: TopStory MedicalDevicesNews DamagesNews PennsylvaniaNews

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