We’ve blogged before about the long-running appeal in the Polett v. Public Communications litigation. That’s the case where the plaintiff had knee implant surgery that was so successful she agreed to make a promotional video on behalf of the company – but allegedly reinjured her knee during the making of the video. We pointed out, at the very beginning of our first post, that the plaintiff “frankly, wasn’t all that badly injured” but nonetheless received $27.6 million from a Philadelphia jury.
In the end, that was the reaction of the en banc Pennsylvania Superior Court as well. Last month, in Polett v. Public Communications, Inc., 2016 WL 3154155 (Pa. Super. June 6, 2016), the court (on remand from the Pennsylvania Supreme Court) threw out that whopping verdict because it was just too much money for not enough injury. The court ordered remittitur in an unspecified amount. Id. at
First, a procedural note. Although the latest Polett opinion is from the en banc Superior Court, it is nonetheless unpublished, and thus non-precedential. We’ve often thought that the Superior Court overuses unpublished, non-precedential decisions, but Polett takes things to new heights (or depths). Now, even an en banc decision – which are ordinarily used to overrule prior Superior Court panel decisions – can be unpublished. That’s a first, and we hope, a last.
Now to the substance. Here’s what the court had to say about the runaway jury verdict in Polett:
[Plaintiff] did not seek medical expenses, lost wages, or out-of-pocket costs. Rather, she sought non-economic damages. . . . We recognize that each case involving non-economic damages is unique and dependent on its own special circumstances.
* * * *
Here, [plaintiff], a sixty-seven-year-old charity volunteer with rheumatoid arthritis and a medical history of knee problems, suffered an injury to her right knee as a result of [defendants’] negligence. The injury led to loss of motion, falls, a patellar fracture, ruptured tendons, and three additional surgeries. The condition of [plaintiff’s] right knee will not improve. [Plaintiff] testified that she does not like being so dependent on others and looking so old. As a result of the injury, she needs a walker and fears falling. She cannot drive. She experiences pain in her right knee and requires assistance with standing and sitting. [Plaintiff] misses her independence. The multiple surgeries left an embarrassing scar stretching below, across, and above her right knee. [she] was entitled to compensatory damages.
However, upon review of the record before us in light of the evidence accepted by the jury, we conclude that the $26,600,000 jury award of damages to [plaintiff] was excessive − if not punitive − and clearly beyond what the evidence warrants. Under the circumstances unique to this case, the $26,600,000 jury award to [plaintiff] 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. Thus, the trial court erred as a matter of law in denying [defendants’] motion for a remittitur. Accordingly, we vacate the award . . . and remand.
Polett, 2016 WL 3154155, at *2-3 (citations and quotation marks omitted). The court did the same to a $1 million award to plaintiff’s spouse for loss of consortium. Id. at *3-4. The court did not grant remittiturs to a specific amount in either instance. It simply held that the multi-million dollar Philadelphia verdict was too much.
While it’s unpublished, we hope that Polett’s dispatch of this bloated verdict puts some steel (or perhaps, titanium) in the spine of our local Philadelphia judiciary when faced with similar situations. We don’t like eight- or nine-figure verdicts at all, and they certainly don’t belong in cases like this. Unfortunately, Philadelphia juries are notorious for giving away large amounts of other people’s money, even in cases where there is no permanent injury. More judges, on the trial as well as the appellate level, need to step up and hold, as the court ultimately did in Polett, that it’s simply too much.