Back in March, we reported that a monstrous $27.6 million verdict had been tossed by the Pennsylvania Superior Court in Polett v. Public Communications Inc., No. 1865 EDA 2011, slip op., (Pa. Super. March 1, 2013), for no less than four separate reasons:  (1) exclusion of a “tolling agreement” whereby the plaintiff agreed to postpone suing her treating physician – who simultaneously signed on to testify as the plaintiff’s only causation expert – on grounds that the agreement was relevant to the treater/expert’s bias; (2) inverting the burden of proof on causation so that the defendant had to prove that plaintiff’s other strenuous activities, as opposed to the defense conduct plaintiff alleged, was responsible for plaintiff’s injuries; (3) letting the plaintiff’s counsel emphasize the erroneous instruction on the burden of proving alternative causes; and (4) letting plaintiff get away with not identifying the treater/physician during expert discovery where the witness never offered a causation opinion during actual treatment, but only after signing the tolling agreement and agreeing to be an expert.  It was a great opinion all around – the only thing wrong with it was that it was an unpublished memorandum

Then in May we unhappily updated our prior post to note that the Superior Court – which accurately described as “extremely pro plaintiff,” had agreed to rehear Polett en banc.  Not a good development, in our view.

Well, now we’re happy again.  On Christmas Eve, the en banc Superior Court affirmed, by a 5-2 (with 2 “concurring in the result” with no opinion) vote.  Polett v. Public Communications Inc., No. 1865 EDA 2011, slip op. (Pa. Super. Dec. 24, 2013) (en banc).  The court agreed with the panel on all four of the grounds we discussed before, although nos. 2 and 3 were more or less combined.  Since we discussed each issue in depth in our initial post, we won’t go through that again.  Here are the issues, in the order of the en banc panel:  (1) A court cannot use a “don’t speculate” jury charge to relieve the plaintiff of the burden of proving causation and to impose it on the plaintiff., en banc slip op. at 16-21; (2) Plaintiff’s counsel “compounded the error” by emphasizing the incorrect charge, id. at 18-19; (3) The plaintiff’s treater was acting as an expert, not as a treating physician, in reaching his causation opinion and thus plaintiff’s failure to identify him and produce an expert report violated Rule 4003.5 was prejudicial, id. at 21-29; and (4) A tolling agreement whereby the plaintiff agreed not to sue his own expert for malpractice, pending the outcome of the trial in which he testified, was admissible to impeach the expert for bias.  Id. at 32-37.

In fact, we’re even happier than before – now the opinion will be published and not only precedential, but also overuling any contrary panel decisions.  The treating physician vs. expert and tolling agreement issues didn’t have much directly-on-point precedent before.