The post that follows is from the Reed Smith side of the blog only. The Decherts have a conflict.

We’ve been aware of a monstrous miscarriage of justice (in our opinion, of course) in Polett v. Zimmer for quite some time. The “monstrous” aspect was a $27.6 million verdict to a person who, frankly, wasn’t all that badly injured (compared to a lot of cases we litigate). Such seven figure verdicts are the kind of things that we worry about in cases where the plaintiff had SJS-TENS, other permanent, life-threatening injury, brain damage, quadriplegia, lingering death – things like that. We don’t expect them where the plaintiff was, at least at the beginning, such a fan of the defendant’s product (in Polett, a knee implant) that the plaintiff agreed to do a promotional video to help sell the device:

During a postoperative visit . . ., [the implanting surgeon] noted that [plaintiff] was doing extremely well after her knee replacement surgery. Consequently, he recommended [her] to [the manufacturer defendant] as a successful [implant] patient. [Plaintiff] agreed to participate in [defendant’s] sales video.

Polett v. Public Communications, Inc., No. 1865 EDA 2011, slip op., at 2 (Pa. Super. March 1, 2013) (memorandum). We should note that the original surgery was “bilateral” – meaning the plaintiff had both knees replaced simultaneously. Id.

Unfortunately, the plaintiff was injured while making the video, or so she claimed. She (guess what?) hurt her knee. The injury wasn't immediate. Instead, plaintiff reported “mild discomfort in her knees” about a month after making the video (for which she walked, used a treadmill, and rode a stationary bicycle). Id. at 2-3. In the interim – in activities having nothing to do with making the promotional video – the plaintiff also:

walked on the beach, swam, drove, attended social events, traveled to the Poconos and Vietnam [!!], and went to physical therapy where, contrary to [her surgeon’s] instructions, she did leg exercises using resistive force.

Id. at 3.

Over the next couple of years, plaintiff didn’t do so well at all, she suffered falls and inflammation and underwent four additional operations to try to fix the problems. Id. Did we mention plaintiff was already 67 when she first had the surgery? Id. at 2. She was beyond retirement age when this whole thing started – not surprising with knee implants.

It’s not every jurisdiction in which relatively moderate injuries to somebody who was already retired (no lost income) can be grossly inflated into $27.6 million in damages.

How did that happen?

Here’s what the appellate court in Polett found to be error.

The first step was to threaten to sue the treating surgeon for malpractice. That way the surgeon agreed to testify on the plaintiff’s behalf. We have seen this over and over. The way to counteract it is to let the jury know what’s really going on – that s/he’s testifying under the duress of being sued him/herself. The timing was particularly blatant in Polett.

[The implanting surgeon] personally linked the exercise bike and [plaintiff’s] injuries for the first time in June 2008, when [plaintiff’s husband] approached him about a tolling agreement.

Polett, slip op. at 35 (emphasis added). For any non-lawyers reading this, a “tolling agreement” is a deal to stop (the legal word is “toll”) the deadline for filing of suit (here, one for malpractice) pending further developments. Such agreements are one of a number of deals that lawyers can cut to turn would-be litigation adversaries into allies. See slip op. at 33 (discussing various agreements and their admissibility).

But in Polett, the trial court excluded all the evidence of the deal that had been struck. That was error. Every other court in creation, when faced with this kind of deal for a major witness’ testimony, has admitted them for “impeachment” purposes (that is, evidence challenging a witness' credibility). Id.at 34 (collecting cases). In Polett, the surgeon’s causation testimony was “determinative of [plaintiff’s] case.” Id. at 35. That testimony, as described by the court:

[The surgeon] offered opinions about causation while being led through a deposition by [plaintiff’s] counsel. At the same time, [the surgeon] admitted that he did not participate in the exercise portion of the videotaping, and he had not viewed the entire video. . . . [H]e repeatedly explained that he did not know what happened on the day of videotaping, that he was unaware of other activities [plaintiff] engaged in . . . and that he did not know or investigate what caused her injuries . . . . [He] did not consider all of the information available to provide a complete picture of [plaintiff’s] activities, the circumstances surrounding her injuries, and the factors potentially contributing to those injuries. . . . For example, [the surgeon] did not know the extent of [plaintiff’s] physical therapy workouts between. . . . He was not aware of her walks on the beach or the extent of her traveling. [He] was not informed about a painful “pop” [plaintiff] felt . . . when she was not wearing the [knee] brace . . . as ordered.

Polett, slip op. at 29-30 (all sorts of record citations omitted).

Thus, it was critical to the jury’s evaluation of credibility to know the carrots and sticks that this witness faced. It was wrong, and reversible error, to exclude that evidence:

[The surgeon] admitted that he wanted to keep treating [plaintiff], despite the “sword of litigation” over his head. . . . [Defendants] should have been permitted to demonstrate his partiality as a doctor who faced the possibility of litigation. . . . [P]rovided on one hand with evidence that [the surgeon’s] causation opinions were tied to the tolling agreement, his desire to continue treating [plaintiff], and his finger pointing, and on the other hand with [his] defense to the inference that his testimony was partial, the jury could then fully assess the quality of [the surgeon’s] testimony.

Polett, slip op. at 36.

And there’s more. It takes more than one error to a $27.6 million verdict make, even in our notorious locale. As we’ve described, the plaintiffs’ causation testimony was lousy and ignored all sorts of other possible causes for the injuries that the plaintiff was claiming – her pre-existing, progressive condition (rheumatoid arthritis) that required the implants in the first place, excessive activity, long airplane flights, and violating doctor’s orders by not wearing a knee brace, to name a few. Thus the plaintiff faced a real hurdle to convince the jury to find that plaintiff's exertion for the promotional video, as opposed to all these other things, caused the claimed injuries.

So what happened? The court flipped the burden of proof. That’s right, instead of the plaintiff having the burden of proving causation by something that the defendants did, the jury was told that it was the defendants’ responsibility to establish any possible alternative causes. The jury was told:

[Y]ou must be provided with medical testimony that something else other than the bike [used to make the video] caused those injuries. You may not speculate on what else could have caused [plaintiff] to be injured.

Polett, slip op. at 16. Amazing. That instruction was called a “speculation charge,” id. at 14, but whatever it was, it was simply crazy. The plaintiff always has the burden of proof.

The Superior Court disapproved this blatantly wrong jury instruction, finding that it met the standard of “fundamental error”that “palpably misled” the jury, requiring reversal. Id.at 15-16 (citation and quotation marks omitted).

[Defendants] argue that this instruction shifted the burden of proof to them, thereby misleading the jury. We agree. Absent special circumstances such as raising an affirmative defense the defendant carries no burden of proof. . . . [A] defendant may choose simply to argue that the plaintiff has not met its burden of 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.

Polett, slip op. at 17 (citation and quotation marks omitted).

What’s a plaintiff to do when caught dead to rights like this? Why, argue waiver, of course. But even that all-purpose “last refuge of a scoundrel” was ineffective in Polett. The Superior Court pointed out “that the record refutes [plaintiff’s] waiver argument,” id. at 12, and promptly spent several pages detailing precisely why that was so. Id. at 12-15. Waiver is the appellate equivalent of "pounding the table" in that old lawyer joke about "if you have the facts, pound the facts; if you have the law, pound the law, if you have nothing...."

And there's still more. Not only was this incorrect instruction flipping the burden of proof given, which was bad enough, but it was given in splendid isolation – “after the trial court’s main charge to the jury and . . . closing arguments.” Id. at 17. The offending instruction was thus presented to the jury in such a way that maximized its prejudicial effect:

Isolated from the rest of the charge, the challenged instruction improperly focused the jury’s attention on the idea that [defendants] were required to do more than prove [plaintiff’s] comparative negligence. According to the instruction, [defendants] were required to present medical evidence that something [else] caused [plaintiff’s] injury. . . . [T]he challenged instruction clearly shifted the burden of proving negligence to the defendants and is contrary to the law.

Polett, slip op. at 17-18.

Of course, plaintiff’s counsel – being zealous advocates − jumped all over the error they had induced (by submitting and pursuing the bogus instruction), and compounded the prejudice to the defendants:

[Plaintiff’s] counsel seized upon the instruction in his rebuttal argument. [Five-paragraph-long quote from plaintiffs’ closing argument omitted] Contrary to the trial court’s charge and counsel’s representation to the jury, Pennsylvania law does not impose the burden of proving causation on a defendant. . . . Contrary to [plaintiff’s] argument, [defendants] did not try to link [her] injuries to speculative causes by throwing any theory against the wall to see if it stuck. Rather, they properly challenged the sufficiency of [her] evidence by demonstrating the lack of a causal connection between the exercise machines and her injuries.

Polett, slip op. at 18-20 (more citations omitted).

And there’s even more. Plaintiff’s counsel also played games during expert discovery –again involving the same implanting surgeon whom they induced, browbeat, whatever into being their expert witness. They improperly withheld any expert report, id. at 21 (“did not disclose him as an expert witness”) under the pretense that the surgeon was only testifying as a “fact witness.” Id.at 22. The appellate court “was constrained to disagree.” Id. The surgeon’s testimony went way beyond what he learned while treating the plaintiff (which doesn’t have to be disclosed under the rules):

By his own admission, [the surgeon] did not view the videotape until the trial, and he did not investigate the cause of [plaintiff’s] injuries because his sole concern was treating the problem. Thus, he did not undertake any effort to evaluate other causes and form opinions while he served as [plaintiff’s] treating physician. . . . Accordingly, we disapprove of the trial court’s hindsight use of [the surgeon’s] deposition and trial testimony to characterize the office notes as causation opinions. The record reveals that [the surgeon’s] first causation opinion appeared [almost two years later] in the form of finger pointing.

Polett, slip op. at 24 (still more citations omitted). That happened, of course, after the tolling agreement by which the surgeon became the plaintiff’s witness. Id. at 25. Indeed, the surgeon “confirmed a correlation between his causation opinion and the tolling agreement.” Id.

Thus the “treating physician” basis for hiding those expert causation opinions from the defense was a ruse:

[W]e conclude that [the surgeon] never reached a pre-anticipation-of-litigation conclusion as to [causation]. [His] causation opinions arose under a sword of litigation, not during the regular course of his treating [plaintiff]. Thus, [she] could not shield [the surgeon] from the requirements of [the rule mandating an expert report] by characterizing him as a treating physician.

Polett, slip op. at 25-26. Furthermore, playing hide-the-ball with the plaintiff’s expert plainly prejudiced the defense. Id. at 26-28 (three pages, mostly single spaced, describing the prejudice).

So that’s four, count ‘em, four reversible errors combining first to create – and ultimately to destroy – the $27.6 million verdict in Polett. While that may be one shy of the five errors we discussed recently with respect to that other Philadelphia atrocity in Maya, it can also be argued, conversely, that what happened in Polett was worse. In discussing Maya we confined ourselves to pure errors of law, but each of the four reversible errors identified by the Superior Court in Polett was found to be error under the much tougher standard of abuse of discretion. Polett, slip op. at 11-12 (abuse of discretion as to jury charge), 15 (same; “clear” abuse of discretion); 21 (“clear abuse of discretion” as to expert testimony, and “sound discretion” standard as to evidentiary rulings generally). Since it’s generally much harder to establish an abuse of discretion than an error of law, we can’t really say which is worse, Polett or Maya.

But they’re both from our home town, which leaves us doubly ashamed.