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Knee Replacement Manufacturer Pays $19M-Woman Injured Making Promo Video


A 67-year-old woman consulted an orthopedic surgeon about replacing her right knee due to damage caused by rheumatoid arthritis (RA). Due to her RA, the woman had previously had her left knee replaced. The orthopedic surgeon was also a professional consultant for a medical device manufacturer. In that role, the orthopedic surgeon developed implantable prosthetic medical devices for sale by the medical device manufacturer. One device the orthopedic surgeon developed was an implantable knee designed specifically for women, because in his professional experience, although females comprised the majority of knee replacement patients, the availability of prosthetic devices specifically tailored to the female knee structure was limited.

 

The orthopedic surgeon recommended that the woman undergo surgery to replace her right knee using the implantable knee he designed specifically for women. He also recommended that she simultaneously replace her previously implanted prosthetic left knee which had deteriorated. To alleviate her pain and difficulty walking, the woman agreed to this course of action.

 

The orthopedic surgeon performed the double knee replacement surgery without complications. The woman engaged in a prescribed program of physical therapy. About two months after the surgery, during a follow up examination, the orthopedic surgeon observed that the woman was making better than average progress. He noted that both of her prosthetic knees were affixed and aligned properly. She could extend both legs up to 125 degrees. Her pain level was diminishing.

 

The marketing director for the medical device manufacturer asked the orthopedic surgeon to identify three female patients who had successfully undergone replacement surgery using the implantable knee he designed specifically for women, for the purpose of having them appear in an educational promotional video. The marketing director explained that the 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. After his observation of the woman’s favorable post-surgical improvement during his two-month follow-up examination, the orthopedic surgeon provided the medical device manufacturer with the woman’s name as a prospective candidate to appear in the video.

 

A representative of the promotional video production company contacted the woman shortly after her follow-up appointment with the orthopedic surgeon. The production company representative interviewed the woman over the phone and arranged a date for the video to be recorded. On the morning of the video recording, the woman was first filmed in the orthopedic surgeon’s office being examined by him. After this portion of the video shoot was completed, representatives of the video production company interviewed the woman. During this interview, the woman first learned that she would be filmed while walking on a treadmill and riding a stationary exercise bicycle. The woman was somewhat concerned about riding the bicycle as she had not ridden a bicycle in the previous ten years. She informed the representative of the video production company that she had not ridden a bike at any time since her surgery. Later that day, video production company personnel took the woman to an exercise room in the hospital where she was shown the treadmill and stationary bicycle and asked if she would be comfortable using them. Based on her assumption that the video production company personnel had consulted with the orthopedic surgeon, and, thus, that it was okay for her to perform both physical activities, the woman allowed herself to be filmed while walking on the treadmill and then riding the exercise bike. Although the orthopedic surgeon remained at his offices during the entire time period of the shooting of the video, and was available for consultation, the video production company personnel never spoke with him about whether the woman was medically cleared to walk on the treadmill or to ride the exercise bicycle.

 

After the filming was completed, the woman felt discomfort and pain while she was driving home in her car. When her husband arrived home later that evening, she complained to him that her knees really hurt, and he gave her a bag of frozen peas to apply to her knees to ease the discomfort. The next morning, the woman awoke, still in pain. Later that same day, she informed another of her treating physicians that she was very sore after having done the promotional video the preceding day.

 

For three months following the filming of the video, the woman suffered such physical discomfort and pain in her knees that she repeatedly complained of it during visits to her rheumatologist and physical therapists. The pain was so bad in both of her knees that, during an appointment with her rheumatologist, she rated it as being 10 on a scale of 1–10, and she attributed the cause of the pain to the exercise she did while filming the video. She also related to her physical therapists that she was having difficulty moving from a sitting to a standing position, and experiencing weakness in her lower extremities.

 

The woman also continued to see the orthopedic surgeon during this three-month period, and she relayed similar complaints to him which indicated a progressive deterioration in the condition of her knees. During her first visit to him one month after the filming of the video, he noted that she had “mild discomfort in her knees after riding on a bicycle,” a “[s]light loss of motion from her prior visit,” and “[m]ild synovitis” of the knee, which is a condition in which the synovial membrane surrounding the knee joint is inflamed. By the time of her next office consultation two months after the filming of the video, he observed that she was experiencing “persistent discomfort in both knees” which dated from the time of the exercise video, and that her range of motion had diminished since the time of the preceding visit. The orthopedic surgeon changed the woman’s anti-inflammatory medication and had her concentrate on doing hamstring stretches, and reminded her to avoid using weights and doing resistive exercises.

 

The woman’s condition worsened, and the tendons around the patella (kneecap) of her right leg pulled apart causing her to, on occasion, lose her balance and fall. During one of these falls, she fractured her right kneecap, and, as a result, when the woman saw the orthopedic surgeon three months after the video shoot, she was experiencing acute pain and swelling in that knee. Less than a week later, the orthopedic surgeon performed surgery to repair the woman’s fractured right kneecap and its supporting tendons.

 

Following that surgery, the woman experienced further difficulties with her right knee, which necessitated her having to undergo three additional surgeries: the first was a repair of the extensor tendon around the right knee; the second was an “allograft” procedure to transplant tendon tissue because the previously repaired right extensor tendon had ruptured, and to allow the orthopedic surgeon to make further revisions to the transplanted knee joint itself; and the third was another allograft procedure necessitated because of the death of the first transplanted right extensor tendon.

The woman continued to be treated by the orthopedic surgeon for the two years following the video shoot. About 19 months after the video shoot, the orthopedic surgeon was asked by the woman and her husband to sign a “tolling agreement.” About 21 months after the video shoot, after consulting with his attorney, the orthopedic surgeon signed the tolling agreement.

 

Just under two years after the video shoot, the woman and her husband sued the medical device manufacturer and the promotional video production company asserting claims for negligence and loss of consortium. Specifically, the complaint alleged that the medical device manufacturer and the promotional video production company, through their employees, were negligent in having her ride the exercise bike during the filming of the video without first determining whether she was medically cleared to do so.

 

Prior to the commencement of trial, the tolling agreement between the woman and orthopedic surgeon was cancelled by mutual agreement. The couple then filed a motion in limine to bar the medical device manufacturer and the promotional video production company from introducing or making any reference concerning the tolling agreement on the basis that it was irrelevant to the issues in the case, because the orthopedic surgeon was not a party, and, also, because the medical device manufacturer and the promotional video production company had stipulated that the orthopedic surgeon did not cause the woman’s injuries. The medical device manufacturer and the promotional video production company opposed the motion in limine because the tolling agreement was relevant to show potential bias on the part of the orthopedic surgeon at the time he gave his deposition, in which he opined that the bicycle ride was the cause of her synovitis and inflammation which led to her subsequent kneecap fracture and falls, inasmuch as the agreement was in effect at that time. The Court of Common Pleas, Philadelphia County, Civil Division, granted the couple’s motion.

 

The couple also filed a motion in limine to preclude the orthopedic surgeon from testifying as an expert at trial due to the fact that he did not prepare an expert witness report in accordance with the requirements of that rule. The trial court denied the motion on the grounds that the orthopedic surgeon was not a witness who was retained in anticipation of litigation; rather, in the trial court’s view, the orthopedic surgeon formed his opinions as to causation, about which he would be testifying at trial, during the course of his treatment of the woman.

 

After closing arguments, the trial court gave a supplemental instruction to the jury. Specifically, the court instructed the jury that they were not permitted to speculate as to any fact.

 

The jury ultimately awarded the woman over $19.6 million in damages.

 

The Superior Court vacated and remanded for a new trial. The appellate court concluded the trial court erred in granting the couple’s motion in limine to bar the medical device manufacturer and the promotional video production company from using the tolling agreement between the orthopedic surgeon and the couple to impeach his trial testimony, in permitting the orthopedic surgeon to testify as an expert witness when he was not identified as an expert witness prior to trial, and by giving its supplemental jury charge admonishing the jury against speculation as to the cause of the woman’s injuries.

 

The Supreme Court of Pennsylvania reversed the appellate court and remanded to the appellate court so that it could consider the question of whether the trial court properly denied the medical device manufacturer and promotional video production company’s motion for remittitur of the verdict. The court held that the trial court did not abuse its discretion in barring the tolling agreement between the woman and orthopedic surgeon from being admitted into evidence, the trial court did not abuse its discretion in permitting the orthopedic surgeon to testify, and the trial court did not err in giving its supplemental “no speculation” instruction to the jury.

 

The trial court did not abuse its discretion in barring the tolling agreement between the woman and orthopedic surgeon from being admitted into evidence. Evidence of the tolling agreement between the woman and orthopedic surgeon was relevant for impeachment purposes. The orthopedic surgeon’s interest in avoiding a lawsuit could have impacted the credibility of his causation opinion that riding the bicycle caused the woman’s injuries. However, the prejudicial effect of the tolling agreement was outweighed by its probative value. Although the effect of the tolling agreement had some relevance to impeach the orthopedic surgeon’s credibility regarding his opinion that riding the bicycle caused the woman’s injuries, the jury would have been subjected to a separate proceeding in which a qualified witness on legal matters would have been required to testify, which would have been excessively time consuming and diverted the jury’s attention away from their consideration of the central issue of negligence.

 

The trial court did not abuse its discretion in permitting the orthopedic surgeon to testify. The orthopedic surgeon’s opinion that the woman’s injury was caused by riding a bicycle was not developed in anticipation of litigation and thus was not required to be disclosed prior to trial. The orthopedic surgeon developed his causation opinion during his treatment of the woman in the month after she rode the stationary bicycle. Litigation was not commenced until nearly two years later. The medical device manufacturer and promotional video production company were not prejudiced by the introduction of the orthopedic surgeon’s opinion at trial. The orthopedic surgeon explained in his deposition that riding the stationary bicycle triggered the synovitis he observed during the woman’s visits after the ride. He also explained that the synovitis in turn caused her to suffer a chain of myriad medical misfortunes. He testified at trial that the stationary bicycle ride was the “watershed” event which triggered the cascade of medical problems.

 

The trial court did not err in giving its supplemental “no speculation” instruction to the jury. The supplemental instruction advising the jury that it was not permitted to speculate about an alternative cause of harm in the absence of medical evidence was not legally erroneous, and the medical device manufacturer and promotional video production company were not prejudiced by the instruction. In closing arguments, counsel for the medical device manufacturer and promotional video production company invited the jury to consider alternate theories of causation for which there was no expert testimony. The trial court gave a comprehensive charge that explained that the couple bore the ultimate burden of proof to show negligence. The trial court expressly directed the jury that the supplemental instruction was to be considered in addition to earlier instructions. The jury would have understood from the trial court’s overall charge that they could find causes of the woman’s injuries other than the stationary bicycle ride so long as their findings were supported by expert testimony. The jury found that the woman was 30% negligent in causing her injuries.

 

The Supreme Court of Pennsylvania reversed the appellate court’s vacation of the trial court’s entry of judgment on a jury verdict in favor of the couple and remanded to the appellate court so that it could consider the question of whether the trial court properly denied the medical device manufacturer and promotional video production company’s motion for remittitur of the verdict.

 

See: Polett v. Public Communications, Inc., 2015 WL 6472419 (Pa., Oct. 27, 2015) (not designated for publication).

 

See also Medical Law Perspectives, September 2015 Report: Arthritis Pain and Inflammation: Diagnosis and Treatment Risks

 

See also Medical Law Perspectives, July 2013 Report: New Hips, New Knees, New Problems: Hip and Knee Replacements 

 

 

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