Zimmer Biomet loses bid to cut $16m plaintiff award in knee suit

A Pennsylvania state appeals court last week upheld a lower court’s award of nearly $16 million in damages against Zimmer Biomet (NYSE:ZBH) in a knee implant lawsuit.

The lawsuit filed by Margo Polett claimed that she re-injured her knees while making a Zimmer promotional video, after a double knee replacement procedure in 2006 using the company’s Gender Solutions device. Polett alleged that activities she engaged in for the video, including riding a bicycle and running on a treadmill, resulted in new damage to her knees.

A jury awarded Polett millions in damages after finding that Zimmer was 34% culpable. The jury also put 30% of the blame on Polett herself and 36% on the marketing firm Public Communications for its involvement with the ad.

But the Pennsylvania Superior Court ruled in October 2013 that the lower court incorrectly shifted the burden of proof onto Zimmer by asking the company to provide alternative explanations for Polett’s revisions surgeries, thus leading the jury to a potentially false conclusion, and ordered a new trial. After the high court agreed in May 2014 to reconsider 3 issues in the case, it reversed the superior court’s decision and ordered it to review the decision.

Last June, the superior court ordered the trial court to cut the nearly $28 million in damages levied against Zimmer, ruling that although Polett and her husband were clearly entitled to compensatory damages, the $26.6 million awarded to Polett and the $1 million awarded to her husband was “excessive – if not punitive – and ‘clearly beyond what the evidence warrants.’”

The trial court cut the verdict to$21.5 million Dec. 2 and later reduced it further based on Polett’s 30% culpability, to nearly $15.2 million for Polett and $630,000 for her husband; Zimmer Biomet promptly appealed Dec. 5, according to a regulatory filing.

In a Dec. 15 ruling, the Pennsylvania Superior Court found “no gross abuse of discretion” in the final outcome.

“Appellants’ heavy reliance on the persuasiveness of a survey of other cases with smaller verdicts is unavailing. Appellants have not provided any legal basis on which we can rely in order to consider other jury verdicts when determining whether the trial court abused its discretion, and we are not aware of any precedential authority standing for that proposition. Last, we note that appellants insist that Mrs. and Mr. Polett are entitled to verdicts of not more than $1,500,000 and not more than $250,000 respectively. These figures represent a reduction of approximately 95% of Mrs. Polett’s original verdict and 75% of Mr. Polett’s original verdict. Acceding to this request would require us to substitute our judgment for that of the jury, which we cannot do,” Judge Alice Beck Dubow wrote for the Keystone State high court’s three-judge panel.

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