Polett v. Public Communications Inc. (majority)
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Appellants Margo and Daniel Polett appeal a superior court order vacating a judgment for injuries sustained by Margo after she underwent knee replacement surgery during which she received an artificial knee manufactured by Appellee Zimmer, Inc., and, thereafter, appeared in a promotional video produced and filmed by co-Appellee Public Communications, Inc. (“PCI”). The Global Director of Marketing Communications for Zimmer, Lola Yoder, contacted Margo Polett’s physician’s office and asked him to identify three female patients who had successfully undergone replacement surgery using the Gender Solutions Knee, for the purpose of having them appear in an educational promotional video which would be produced by PCI. The completed video was to feature the women providing testimonials of how the surgery had positively improved their lives, as well as showing the women participating in physical activities they had “resumed since surgery.” According to Mrs. Polett, she learned that she would be filmed while walking on a treadmill and riding a stationary exercise bicycle. Based on her assumption that the producers had consulted with Dr. Booth, and, thus, that it was okay for her to perform both physical activities, Mrs. Polett allowed herself to be filmed while walking on the treadmill and then riding the exercise bike. No one spoke with Dr. Booth about whether Mrs. Polett was medically cleared to walk on the treadmill or to ride the exercise bicycle. Mrs. Pollett complained to her husband of knee pain following the filming, and for three months thereafter. Her condition deteriorated enough that Mrs. Polett would undergo several more surgeries on her knees. The cumulative effect of these surgeries left Mrs. Polett “functionally limited” and
permanently unable to fully extend her right leg. the Poletts filed suit against Appellees, as well as Penn, the University of Pennsylvania Hospital System, New City, Franck, and Video Tracks, and, also, the owner of Video Tracks, Steven Rhykerd, asserting claims for negligence and loss of consortium. New City and Franck, in turn, filed a complaint against Dr. Booth, asserting a cross-claim against him for contribution and indemnity. The Poletts did not sue Dr. Booth. After review, the Supreme Court concluded that the trial court did not abuse its discretion in barring a tolling agreement between the Poletts and Dr. Booth from being admitted into evidence. The Court also found that the trial court did not abuse its discretion in permitting Dr. Booth to provide expert testimony under Pa.R.Civ.P. 4003.5. Lastly, the Court determine that the trial court did not err in giving its supplemental “no speculation” instruction to the jury. Consequently, the order of the Superior Court was reversed and the case remanded back to the Superior Court so that it could consider the question of whether the trial court properly denied Appellees’ motion for remittitur of the verdict.
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