                                   [J-12-2019]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


 BETTY L. SHIFLETT AND CURTIS                    :   No. 43 MAP 2018
 SHIFLETT, HUSBAND AND WIFE,                     :
                                                 :   Appeal from the Order of Superior
                       Appellants                :   Court at No. 2293 EDA 2016 dated
                                                 :   November 9, 2017, reconsideration
                                                 :   denied January 12, 2018, Vacating the
               v.                                :   Judgment entered July 18, 2016 of the
                                                 :   Lehigh County Court of Common
                                                 :   Pleas, Civil Division, at No. 2014-C-
 LEHIGH VALLEY HEALTH NETWORK,                   :   0388 and Remanding for a new trial
 INC.; AND LEHIGH VALLEY HOSPITAL,               :
                                                 :   ARGUED: April 9, 2019
                       Appellees                 :


                                          OPINION


JUSTICE DONOHUE                                           DECIDED: September 26, 2019

       Betty and Curtis Shiflett sued Lehigh Valley Hospital and Lehigh Valley Health

Network, Inc. (collectively, the “Hospital”) for negligence in connection with injuries Betty

suffered while in the hospital for knee surgery. The jury returned a verdict for the Shifletts,

awarding them $2,391,620 in damages. The Superior Court ruled that one of the claims

upon which the Shifletts prevailed at trial was time-barred and should not have been

submitted to the jury. Finding that some portion of the jury’s damage award may have

been based upon the time-barred claim, the intermediate appellate court remanded the

case for a new trial on damages. We conclude that the Superior Court erred in this regard,

as pursuant to the “general-verdict rule” adopted by this Court in Halper v. Jewish Family

& Children’s Services, 963 A.2d 1282 (Pa. 2009), the Hospital waived any entitlement to
a new trial on damages when it failed to request a special interrogatory on the verdict

sheet that would have permitted the jury to allocate the damages awarded on each claim.

       Betty Shiflett (“Betty”) underwent knee surgery at Lehigh Valley Hospital

(hereinafter “the Hospital”) on April 12, 2012. While recovering in the hospital’s post-

surgical unit (“PSU”), Betty fell out of bed. Three days after surgery she was transferred

to the transitional skills unit (“TSU”) for occupational and physical therapy. Shortly after

her transfer to the TSU, Betty experienced pain and a clicking sound in her knee. Betty

reported these symptoms to nurse Kristina Michels Mahler (“Nurse Mahler”), but Nurse

Mahler did not report these complaints to the treating doctor. On April 19, 2012, a physical

therapist informed doctors of Betty’s complaints about her knee. The doctors determined

that Betty had suffered an avulsion fracture of her left tibial tuberocity. Betty then endured

two additional surgeries in an attempt to fix her knee, both of which were unsuccessful.

Betty has been left with no extensor mechanism in her leg, suffers from chronic pain, and

is confined to a wheelchair.

       In February 2014, the Shifletts filed a complaint in which they asserted a claim for

negligence in connection with Betty’s fall in the PSU as well as a claim of loss of

consortium. Complaint, 2/7/2014, at 5-7. Therein, the Shifletts alleged that the Hospital’s

employees were negligent in failing to provide adequate fall protection for Betty in the

PSU and that the Hospital failed to oversee adequately its professional staff. Id. ¶ 14.

According to the Shifletts, but for this negligence, Betty would not have suffered the

avulsion fracture and permanent disability. Id. The Hospital filed preliminary objections,

complaining that the averments were too vague, general and overbroad to discern the

nature of the alleged misconduct at issue. In response, the Shifletts filed an amended




                                       [J-12-2019] - 2
complaint, refining their allegations to specify that they were asserting claims against

Hospital for both vicarious liability and corporate liability with respect to the negligence

associated with the events that occurred in the PSU.            See Amended Complaint,

3/27/2014, at ¶¶ 22-29, ¶¶ 30-37. The Hospital again objected on the basis that the

averments were impermissibly overbroad and vague, see Preliminary Objections,

4/10/2014, at 5-9, but the trial court did not agree. It overruled the preliminary objections

and the case proceeded toward trial.

       More than a year later (and more than three years after the events in the Hospital),

the Shifletts sought leave to amend their complaint for a second time in light of evidence

revealed during discovery. In the proposed amended complaint, the Shifletts sought to

add allegations of negligence regarding Nurse Mahler’s conduct in the TSU. Specifically,

they sought to include allegations that because of Nurse Mahler’s failure to report Betty’s

complaints to the doctors, Betty received multiple rounds of physical therapy that

increased the risk of additional injury to her knee and the need for surgery. See Proposed

Second Amended Complaint, 7/2/2015, at 22. The Hospital opposed the motion, arguing

that the proposed amended complaint added a new cause of action that was barred by

Pennsylvania’s two-year statute of limitations for negligence claims. 42 Pa.C.S. § 5524.

The learned trial court disagreed and allowed the amendment.

       At trial, the Shifletts offered evidence that on April 12, 2012, Betty underwent left

knee revision surgery at the Hospital. N.T., 2/5/2016, at 165-66. Nurse Terri Langham

(“Nurse Langham”) identified Betty as a fall risk, as she could not stand and was taking

medication that caused her to become confused. N.T., 2/3/2016, at 54-62.        Early on the

morning of April 14, 2012, Betty awoke, thought she was at home, and attempted to get




                                       [J-12-2019] - 3
out of bed. She fell, hitting her left knee. No injury to her knee was immediately

diagnosed.    Nurse Langham testified that she had seen the Hospital’s written fall

prevention protocols during her orientation when starting her employment, but had never

reviewed them again. N.T., 2/3/2016, at 9-18. Cynthia Balkstra, an expert on nursing

practices, testified that the Hospital’s fall prevention guidelines were inadequate and

Nurse Langham’s failure to review them was inappropriate:

       A.     The purpose of the guidelines, again, is to make sure that you
              use them. So the more regular—the more regular use of
              them, the more discussion about them, the more promotion of
              them the better because staff—I mean, it's easy—there's lots
              of things to remember as a nurse, and it's easy for a staff
              person to forget exactly what is in the guidelines. So the more
              emphasis, the more reeducation to the guidelines the better.

       Q.     Is reviewing the guidelines during orientation and not looking
              at them again, is that an appropriate use of the guidelines in
              your opinion as a nurse?

       A.     No.

N.T., 2/3/2016, Dep. Tr. of Cynthia Balkstra at 45–46. Nurse Balkstra further testified that

Betty’s hospital records indicated that she had a fall risk assessment of six, indicating a

“high risk for falling.” Id. at 49–50. Nurse Balkstra testified that proper fall prevention

measures were not utilized and indicated that this failure was a result of a lack of proper

training by the Hospital:

       A.     My opinion is that the staff were not educated frequently
              enough on the use of the guidelines, and specifically the use
              of the guidelines per the risk.

              So in other words, the high risk measures, strategies to
              prevent a fall were not utilized with Ms. Shiflett. And it – from
              what Ms. Langham's deposition stated, that she really didn't
              treat[ ] a six any different than she would have treated a two.




                                      [J-12-2019] - 4
                So that's a failure to educate, properly on the use of the
                guidelines, which you spend a lot of effort putting together. So
                you definitely want to use them appropriately.

       Q.       Did you reach a conclusion as to whether or not Lehigh
                Valley['s] failure to appropriately train its nursing staff how to
                use fall precautions guidelines increased the risk of [Ms.]
                Shiflett falling?

       A.       Yes, in this case it did because with a score of six, more of
                those high risk measures should have been put into place.

Id. at 69–70.

       Upon her transfer to the TSU for therapy and rehabilitation, Betty was under the

care of Nurse Mahler. Nurse Mahler, although recording Betty’s complaints in the nursing

notes, failed to report to the doctors that Betty was experiencing increasing levels of pain

and a clicking noise in her left knee. N.T., 2/3/2016, at 167-81. On or about April 19,

2012, a previously undiagnosed nondisplaced fracture in her left fibia avulsed (became

displaced). Surgery failed to correct the avulsion fracture, leaving Betty in a permanently

disabled condition, confined to a wheelchair with chronic pain.1

       In support of their claims, the Shifletts also called Dr. Robert Erickson as an expert

witness. Dr. Erickson testified that based upon his review of Betty’s records, she suffered

the nondisplaced fracture of her left fibia when she fell from bed on the night of April 14.

N.T., 2/5/2016, at 42. He further opined that avulsion fractures do not happen without

trauma, that the fall from bed was the only trauma Betty experienced during the relevant

time period, and the fall increased the risk that the nondisplaced fracture would avulse.




1 At the close of the Shifflets’ case in chief, Appellees moved for a directed verdict as to
the claims related to Nurse Mahler’s conduct in the TSU, reiterating their position that
those claims were time-barred. The trial court denied this motion.


                                         [J-12-2019] - 5
Id. at 32-48. According to Dr. Erickson, the stress on the knee resulting from the physical

therapy likely caused the avulsion to occur. Id. at 63-64.

       Dr. Walter Finnigan, an expert called to testify by the Hospital, did not disagree

that Betty suffered a nondisplaced fracture in her left knee that avulsed during her time in

the TSU, but contended that the fracture occurred during surgery rather than as a result

of her fall from the bed. N.T., 2/9/2016, Dep. Tr. of Dr. Walter Finnigan at 132. He further

testified that for adults, absent surgical intervention, a nondisplaced fracture will always

result in an avulsion fracture.     Id. at 217 (“And if there’s a crack, it can’t stay

undisplaced… .”). Dr. Prodromas Ververeli, the surgeon who performed surgery on

Betty’s knee after the avulsion, testified that avulsion fractures only occur after a trauma

and that the trauma resulting from Betty’s fall increased the risk that she would suffer an

avulsion fracture. N.T., 2/9/2016, Dep. Tr. of Dr. Prodromas Ververeli at 24-30.

       Betty testified that she is now permanently disabled and suffers from depression

as a result. N.T., 2/4/2016, at 106. She indicated that she is embarrassed, as her

husband has to care for her, including dressing and bathing her. Id. at 106. She has pain

“[a]ll the time” and cannot even ride very far as a passenger in an automobile because

travelling causes her too much pain. Id. The Shifletts' life care planner expert, Nadene

Taniguchi, testified about the Shifletts’ damages, including Betty’s future medical costs.

N.T., 2/5/2016, at 124–56.

       On February 8, 202016, the day before the case was submitted to the jury, the trial

court met with counsel to confirm that the Shifletts’ claim for corporate negligence related

to the Hospital’s alleged failure to train the nurse (Nurse Langham) on duty at the time of




                                      [J-12-2019] - 6
Betty’s fall in the PSU.2 Counsel for the Shifletts confirmed this representation, indicating

that the Shifletts were presenting three claims of negligence: two for vicarious liability

(relating to the negligence of Nurse Langham in the PSU and of Nurse Mahler in the

TSU), and a claim of corporate liability relating to Betty’s fall in the PSU. N.T., 2/8/2016,

at 115. Later that day, the trial court presented counsel with a draft verdict sheet and

advised counsel that she would discuss it with them the next day. The proposed verdict

sheet was as follows:

              1.     Do you find that Nurse Langham of the Lehigh Valley
                     Hospital was negligent?

                            Yes _____                    No ____

                            If you answered Question 1 “Yes”, proceed to
                            Question 2.

                            If you answered Question 1 “No”, proceed to
                            Question 3.

              2.     Was the negligence of Nurse Langham of the Lehigh
                     Valley Hospital a factual cause of harm to Plaintiff,
                     [Betty]?



2   During closing argument, the Shifletts' counsel confirmed for the jury that the fifth
question related to the Hospital’s negligence in connection with Betty’s fall while she was
in the PSU:
              [T]he fifth question is about [the Hospital] itself. So the first
              question is about Terri Langham. The next question's [sic]
              about Nurse Michels [Mahler], but the fifth question is was the
              Hospital negligent? ... [H]ow can it be that we have these
              policies and procedures in place for the sole purpose of
              preventing falls that are 75 percent accurate in predicting
              who's going to fall, how can it be that we only have our nurses
              look at them once during orientation and never have them do
              it again. I submit to you that's negligent and that was just as
              big a cause as anything else.
N.T., 2/9/2016, at 44–45.


                                      [J-12-2019] - 7
             Yes ____       No ____

             Please proceed to Question 3.

3.    Do you find that Nurse Michels Mahler of the Lehigh
      Valley Hospital was negligent?

             Yes _____      No ____

             If you answered Question 3 “Yes”, proceed to
             Question 4.

             If you answered Question 3 “No”, proceed to
             Question 5.

4.    Was the negligence of Nurse Michels Mahler of the
      Lehigh Valley Hospital a factual cause of harm to
      Plaintiff, [Betty]?

             Yes ____       No ____

             Please proceed to Question 5.

5.    Do you find that Lehigh Valley Hospital itself was
      negligent?

             Yes _____      No ____

             If you answered Question 5 “Yes”, proceed to
             Question 6.

             If you answered Question 5 “No”, proceed to the
             below INSTRUCTIONS.

6.    Was the negligence of Lehigh Valley Hospital a factual
      cause of harm to Plaintiff, [Betty]?

             Yes ____       No ____

             Please proceed to the INSTRUCTIONS.

INSTRUCTIONS:

If you answered Question 2, Question 4, or Question 6 “Yes”,
proceed to Question 7.




                        [J-12-2019] - 8
             If you did not answer Question 2, Question 4, or Question 6
             “Yes”, the Plaintiff cannot recover and you should not answer
             any further questions. Sign the verdict slip and return to the
             courtroom.

             7.     What is the amount of damages sustained by Plaintiff,
                    [Betty], as a result of the negligence of the health-care
                    providers?

                    Past noneconomic loss in lump sum:
                    []
                    Future medical and other related expenses by year:

                    Future noneconomic loss in a lump sum:

                    Loss of a spouse’s services, society and consortium:


Verdict Sheet at 1-3. The next morning, the trial court and counsel met to discuss the

proposed verdict sheet. The trial court and counsel discussed the special interrogatories

regarding the separate claims of negligence relating to Nurse Langham and Nurse

Mahler. N.T., 2/9/2016, at 4-6. The trial court then asked, “So you’re otherwise okay with

everything here?” Id. at 6. Neither counsel voiced any objections. Id. The trial court

gave the agreed upon charge to the jury and the verdict sheet was provided to the jury

without modification.

      The jury returned a verdict for the Shifletts. It answered “no” to the first question

and “yes” to the third, fourth, fifth and sixth questions. With respect to the seventh

question, the jury awarded total damages of $2,391,620.3 The Hospital asked that the

jury be polled, at which time the trial judge advised counsel that “we’ll do it with each

question; but when it gets to the economic damages, I’m not going to ask them for each


3  The jury awarded $800,000 in past noneconomic damages, $500,000 in future
noneconomic damages, and $300,000 for loss of consortium claim. The balance was
awarded for future medical expenses. Verdict Sheet at 3.


                                     [J-12-2019] - 9
line. I’m just going to say if they agree with the damages.” Id. at 131. Counsel for the

parties agreed with this approach. Id. When the polling reached damages, the trial court

asked, “Juror Number 1, do you agree with the amount of damages that was awarded by

the jury? Is that question satisfactory to counsel?” Id. at 137. Counsel for the Hospital

answered in the affirmative. Id.

        The Hospital filed a post-trial motion requesting judgment notwithstanding the

verdict, a new trial, or remittitur. The Hospital did not challenge the unallocated nature of

the damages award, but reiterated their claim that the second amendment of the

complaint (regarding negligence in the TSU) was improper because it allowed a time-

barred claim to be submitted to the jury. See Post-Trial Motion, 2/18/2016, at 4-16.4 The

trial court denied the post-trial motion. Following the entry of judgment, the Hospital

appealed.

        On appeal, the Superior Court ruled that the trial court should not have allowed the

second amendment to the Shifletts’ complaint. Shiflett v. Lehigh Valley Health Network,

Inc., 174 A.3d 1066, 1086 (Pa. Super. 2017). The intermediate appellate court noted that

the time frame and cast of actors alleged in connection with the PSU were different from

those alleged in connection with the TSU claims, and thus held that the TSU claims were

time-barred and that trial court erred by allowing the Shifletts to add them to their

complaint and present them to the jury at trial. Id. at 1087-88.




4   The Hospital also challenged various evidentiary rulings not implicated in this appeal.



                                      [J-12-2019] - 10
       Having reached this conclusion, the Superior Court turned to the question of

whether the case would have to be remanded to the trial court.5 It explained that because

the verdict sheet did not itemize the award of damages by claim, it was impossible to

know whether some of the award was attributable to the finding of negligence on the time-

barred TSU claim. Id. at 1092. Because the allocation was unclear from the verdict sheet

and the Shifletts were not entitled to recover on the time-barred TSU claim, the Superior

Court concluded that a new trial limited to damages was required. Id.6

       The Shifletts petitioned this Court for allowance of appeal. We granted their

petition to consider a single issue:

              Did the Superior Court panel overlook or misapprehend this
              Court’s precedent establishing that if a party does not request
              a special interrogatory on the verdict sheet allocating
              damages between causes, if has waived any objection to a
              general damage verdict?

Shiflett v. Lehigh Valley Health Network, Inc., 191 A.3d 745 (Pa. 2018). The issue of

whether a party’s conduct results in waiver of an issue is a question of law; accordingly,

our standard of review is de novo and our scope of review is plenary. Jones v. Ott, 191

A.3d 782, 787 n.7 (Pa. 2018).

       Beginning with the arguments of the parties, the Shifletts argue that Pennsylvania

law forecloses a retrial on damages where, as here, a general verdict is rendered, a party

failed to request an apportionment of damages between claims, and there is another,


5Because of this determination, the Superior Court did not address the other issues the
Hospital raised with respect to the damages awarded.
6  Despite setting forth the scope of the trial on remand, the Superior Court ultimately
granted the trial court the discretion to deviate from this mandate as to the scope if the
trial court deems it necessary. Shiflett, 174 A.3d at 1092-94. Respectfully, we disagree
with this equivocal resolution of the appeal. It did not, however, affect our review.


                                       [J-12-2019] - 11
legally supportable finding of liability to support the award. They contend that this result

is required by the well-established, general principle that the failure to raise a claim of

error in the trial court results in the waiver of that claim on appeal. Shifletts’ Brief at 16-

17. The Shifletts assert that this rule of waiver serves to conserve judicial economy, as it

affords the trial court with an opportunity to remedy the alleged error and eliminate any

advantage that would accrue to unprepared counsel who treat trial as “merely a dress

rehearsal.” Id. at 17 (quoting Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa.

1974)). The Shifletts cite to this Court’s decision in Halper v. Jewish Family & Children’s

Services, 963 A.2d 1282 (Pa. 2009), which they contend supports the proposition that a

retrial on damages is precluded where the defendant failed to request special

interrogatories so as to be able to determine upon which theory of liability damages were

awarded. Because the Hospital did not object to the verdict sheet or request special

interrogatories to apportion the damages between claims, the Shifletts argue it is not

entitled to a new trial. Id. Finally, the Shifletts draw attention to the fact that the Hospital’s

theory of the case at trial was that there was only one injury and that, as a result, in a

retrial the Hospital would have to espouse the opposite position (that there were separate

injuries in the PSU and the TSU). Shifletts’ Brief at 23.

       The Hospital counters the allegation of waiver by pointing to the number of

occasions on which it raised with the trial court the objection that the TSU-related claims

were time-barred. Hospital’s Brief at 17-18. It is the Hospital’s position that because the

jury sheet contained special interrogatories as to each theory of liability, there was no

need for them to seek additional interrogatories that would apportion damages between

the claims.   Id. at 19. The Hospital argues that in Halper, unlike here, the jury did not




                                        [J-12-2019] - 12
make findings of liability as to each of the three causes of action alleged, and that this

distinction was the basis for the holding in that case and the application of the general

verdict rule therein. Id. at 24-25.

       We begin our analysis with a review of our decision in Halper. In 1964, Jack and

Marlene Halper adopted a son through the Jewish Family and Children’s Service of

Greater Philadelphia (“the Agency”). Throughout his life, their son David struggled with

serious mental health issues, which required institutionalization in 1979 following a

suicide attempt. Halper, 963 A.2d at 1283. In 1980, the Halpers sought the medical

records of David’s birth mother to gain insight into the nature of their son’s problems. The

Agency’s file on David’s birth mother included a letter from a psychiatrist stating that she

suffered from schizophrenia. Through some unidentified error, while this letter was

included in the Agency’s file, it was never placed in David’s file. As a result, the Agency

did not turn the letter over to the Halpers until 1999. Id. Upon finally receiving the letter,

the Halpers filed suit against the Agency, alleging two theories of negligence: first, that

the Agency improperly failed to apprise them of the birth mother’s mental health history

(the “wrongful adoption” claim), and second, that the Agency negligently misfiled the birth

mother’s mental health information, which led to a significant delay in David being able to

receive the proper psychiatric care (the “failure to disclose” claim). David asserted his

own failure to disclose claim, which was substantially identical to that of his parents.

       The jury returned a general verdict awarding $225,000 to the Halpers and $75,000

to David. The jury was not asked to indicate whether it found in favor of the Halpers on

their wrongful adoption or failure to disclose claim or both. Both parties appealed. The

Superior Court found that the Halpers presented contradictory evidence as to whether




                                      [J-12-2019] - 13
David was suffering from schizophrenia. Id. at 1284. It further found that at the time of

David’s adoption, schizophrenia was considered to be a reactive mental disorder as

opposed to a condition that could be inherited, and therefore, the Agency could not be

found negligent for failing to disclose the birth mother’s condition. Id. However, because

the verdict sheet did not indicate upon which theory the jury awarded damages to the

Halpers, the Superior Court found the verdict “problematic,” as David could only recover

under the failure to disclose claim. For that reason, it reversed judgment and remanded

for a new trial, limited to David’s claim. Id.

       On appeal before this Court, we identified the crux of the issue:

              [T]he verdict slip did not differentiate between the two
              theories, and no special verdict slip was requested; we cannot
              tell if the award to the parents was based on their first theory
              or their second. If the award was based solely on the first
              theory, it cannot stand. If based solely on the second theory,
              it is proper.

Id. at 1288. To resolve the issue, we adopted the “general verdict rule,” which provides

that “when the jury returns a general verdict involving two or more issues and its verdict

is supported as to at least one issue, the verdict will not be reversed on appeal.” 7 Id. at



7  We note that the adoption of the general verdict rule in Halper effected only a slight
extension of Pennsylvania jurisprudence. More than thirty years before Halper, the
Superior Court considered a case in which the trial court charged the jury on three
theories of liability, including one that the plaintiff did not assert. Connelly Containers, Inc.
v. Pennsylvania Railroad, 292 A.2d 528, 532 (Pa. Super. 1972). The jury returned a
general verdict for the plaintiff. The Superior Court agreed with the defendant that the
submission of the theory was erroneous; however, because no special interrogatories
were submitted to the jury, it recognized that there was no way to know upon which theory
the verdict was entered. Id. at 532-33. “In view of [the defendant’s] failure to request a
special verdict or interrogatories of the jurors, the apparent relative strength of the two
other theories … and the fact that [the plaintiff] did not argue the [improper] theory to the
jury,” the Superior Court refused to disturb the judgment in favor of the plaintiff. Id. at
533.


                                       [J-12-2019] - 14
1289 (citing Dropkin v. Beachwalk Villas Condo. Assoc., Inc., 644 S.E.2d 808, 810 (S.C.

Ct. App. 2007)). We elaborated on the application of this rule by indicating that “a

defendant who fails to request a special verdict form in a civil case will be barred on

appeal from complaining that the jury may have relied on a factual theory unsupported by

the evidence when there was sufficient evidence to support another theory properly

before the jury.” Id. (quoting Nimetz v. Cappadona, 596 A.2d 603, 608 (D.C. 1991)). The

Court stated that adoption of the general verdict rule was necessary “because we will not

shift the burden to the Halpers due to the Agency's failure to request a special verdict

slip… .” Id.8

       The general verdict rule in Halper governs this case. Where a plaintiff has at least

one viable theory of recovery supported by competent evidence, a new trial will not be




8  Citing to decisions by other federal and state courts, the Dissent contends that the
general verdict rule adopted by this Court in Halper is a “relatively strong variant of the
harmless error approach.” Dissenting Op. at 2. To the contrary, Halper’s general verdict
rule is a rule of estoppel to promote judicial efficiency. In support of adoption of the rule
in Halper, we cited to Nimetz v. Cappadona, 596 A.2d 603 (D.C. 1991), in which the
District of Columbia Court of Appeals held:
                Our courts are overburdened, and a plaintiff should not have
                to endure a second trial when the rules of procedure provide
                a remedy. As the court stated in McCord v. Maguire, supra,
                the litigants bear “the responsibility to request or submit
                special verdict forms.” 873 F.2d at 1274 (citing Landes Constr.
                Co. v. Royal Bank of Canada, 833 F.2d 1365, 1374 (9th Cir.
                1987)). … The instant case thus demonstrates the wisdom of
                the estoppel rule.
Id. at 608. Halper’s general verdict rule is a rule of estoppel because where a litigant’s
failure to request a special verdict form that would have avoided the need for a new trial
results in prejudice to the opposing party (in the form of having to participate in a new
trial), the right to a new trial is waived. It is a rule of fairness because, as we indicated in
Halper, “we will not shift the burden to the Halpers due to the Agency's failure to request
a special verdict slip… .” Halper, 963 A.2d at 1289.


                                       [J-12-2019] - 15
awarded where the issue complained of on appeal would have been avoided but for the

defendant’s failure to request a special interrogatory on the verdict sheet that would have

resolved the issue. Here the Superior Court granted the Hospital a new trial to determine

the amount of damages caused by the Hospital’s corporate negligence in the PSU

because “[i]t is impossible to determine from the verdict sheet (which did not break down

damages by claim) whether all of the damages awarded by the jury were caused by Ms.

Shiflett’s fall in the PSU, or whether some portion of those damages was the result of the

negligence found to have taken place in the TSU.” Shiflett, 174 A.3d at 1092. As the

Superior Court itself recognized in its parenthetical remark, a special interrogatory on the

verdict sheet allocating damages by claim would have eliminated this quandary, as it

would have clarified whether the jury’s award of damages was for the Hospital’s corporate

negligence in the PSU, the Hospital’s vicarious liability for Nurse Mahler’s negligence in

the TSU, or some combination of both.9 The Hospital’s failure to request a special



9  The Dissent complains that the general verdict rule unfairly faults litigants for “failing to
make sometimes intricate predictive judgments about potential verdicts in multi-claim
cases and to incorporate these into their proposals for special verdict forms.” Dissenting
Op. at 3. The Dissent, however, apparently fails to recognize that trying a medical
malpractice case (or, frankly, any type of case) requires counsel to make numerous
“intricate predictive judgments,” and that those judgments have consequences for the
outcome of the case.
Moreover, the Dissent cites to Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 30 (1st
Cir. 2004) for the proposition that some cases present “a sufficient level of detail” that
makes the use of special verdict forms “infeasible or otherwise undesirable.” Id. Whether
or not this is true will have to await another day, as this case presents no such complexity.
Here, the Shifflets asserted two claims for damages resulting from the Hospital’s
negligence in the PSU (vicarious liability and corporate negligence) and one count for the
Hospital’s negligence in the TSU (vicarious liability for Nurse Mahler). The Hospital
repeatedly signaled, both before and during trial, that it intended to appeal the trial court’s
decision not to dismiss the count for negligence in the TSU, and it should have been
obvious that a new trial on damages in the event that this appeal was successful could



                                       [J-12-2019] - 16
interrogatory allocating damages by claim, despite multiple opportunities to do so, results

in a waiver of any right to a new trial.

       The Superior Court’s decision to grant a retrial on damages is based upon an

assumption that the Shifletts suffered separate and distinct injuries from the Hospital’s

corporate negligence in the PSU and its vicarious liability in the TSU. The evidence

introduced at trial, however, is entirely consistent with a finding that the Shifletts suffered

a single injury (an avulsion fracture resulting in permanent disability) caused by the

Hospital’s corporate negligence in the PSU. The testimony of the Shifletts’ expert witness

with respect to nursing fall prevention guidelines supports the jury’s finding of the

Hospital’s corporate negligence in the PSU. Dr. Erickson opined that Betty’s fall from her

bed caused the nondisplaced fracture of her fibia and increased the risk of the resulting

avulsion fracture.    The Hospital’s own expert, Dr. Finnigan, testified that once the

nondisplaced fracture occurred, avulsion was inevitable. Indeed, the Hospital never

introduced any evidence at trial to support a determination that the Shifletts suffered

separate and distinct injuries from its alleged negligence in the PSU and in the TSU.

Accordingly, the evidence at trial supports the jury decision to award the Shifletts’

$2,391,620 in damages for the Hospital’s corporate negligence in the PSU. We cannot

and will not presume or conjecture upon what basis the jury rendered its verdict and made

the award. See Williams v. Van Camp, 108 A.2d 726, 727 (Pa. 1954). As such, it was

within the jury’s province, based upon the above-referenced evidence, to find that while

Nurse Mahler was negligent in the TSU, this negligence did not result in any additional



be avoided by requesting that the jury allocate damages between injuries in the PSU and
the TSU.


                                       [J-12-2019] - 17
damages not already caused by the Hospital’s corporate negligence in the PSU. Because

the Shifletts have a remaining viable theory of liability (corporate negligence) and a

damage award that may be fully attributable to that theory of liability, the jury’s verdict

must stand.

       The Hospital contends that the general verdict rule adopted in Halper has no

application to this case, for two reasons.10 First, the Hospital contends that the issue in

Halper arose as a result of this Court’s determination that one of the parent’s theories of

liability was untenable because of a lack of duty on the part of the Agency, whereas in

this case the Shifletts’ assertion of negligence by Nurse Mahler in the TSU should not

have been presented to the jury because it was time-barred. See Hospital’s Brief at 24-

25. We find this to be a distinction without a difference, as the Hospital does not explain

why this distinction precludes application of the general verdict rule. Whether untenable

or time-barred, both cases involve a theory of liability that should not have been submitted

to the jury and a verdict sheet that does not disclose whether damages were awarded, in

whole or in part, on the improperly submitted theory. Similarly, in both cases the addition

of a special interrogatory on the verdict sheet could have provided the necessary

clarification. As such, the general verdict rule precludes the granting of new trial.

       Second, the Hospital contends that our holding in Halper was compelled by the

fact that the verdict sheet did not distinguish between each theory of liability, whereas in

this case the issue is a failure to allocate damages to each claim. Id. The Hospital argues


10  The Hospital also argues that Halper is distinguishable because it involved “only one
party-defendant.” Hospital’s Brief at 25. It is not clear how this is a distinguishing
difference from the present case, which also involves a single party defendant (Hospital).
The Hospital offers no argument or citation to authority in support of this contention and
thus we will not address it further.


                                      [J-12-2019] - 18
that in the present case, the verdict sheet distinguished between the Shifletts’ three

theories of liability and the jury rendered a verdict with respect to each of them. Id. Again,

however, we conclude that this is a distinction without a difference, as it reads our decision

in Halper too narrowly. In both cases, the verdict sheet lacked certainty as to the nature

of the jury’s verdict. In Halper, the verdict sheet did not disclose whether the jury awarded

damages on the theory of liability improperly submitted to the jury. In the present case,

the verdict form does not disclose the amount of damages, if any, awarded on the

improperly submitted theory of liability. Importantly, in both cases a special interrogatory

would have provided the necessary clarification, and because the defendant failed to

request that a clarifying special interrogatory be added to the verdict sheet that would

have obviated the need for a new trial, the verdict will stand. As we indicated in Halper,

we will not shift to a plaintiff the burden of a new trial based upon a defendant’s failure to

request a clarifying special interrogatory.11 Halper, 963 A.2d at 1289.

       We recognize the concern of the Superior Court and the Hospital that without a

new trial, there is a possibility that the Shifletts have obtained an award that may include

damages awarded on a time-barred theory of liability that should not have been submitted

to the jury. The record demonstrates, however, that the Hospital was acutely aware of



11  We reject the Dissent’s contention that our decision in this case constitutes “an
expansion of the Halper precept,” and that as a result, given the lack of advance notice,
it should only be applied prospectively. Dissenting Op. at 3-4. To the contrary, our
decision here may not in any respect be described as an expansion of the general verdict
rule as adopted in Halper. Rather it is a straightforward application of Halper’s general
verdict rule, as the Hospital’s failure to request a special verdict form allocating damages
by claim resulted in the need for a new trial to decide the allocation (which in turn results
in waiver of the right to a new trial). The Hospital had clear advance notice of the general
verdict rule, as Halper was decided seven years prior to the time of trial in the present
case.


                                      [J-12-2019] - 19
this possibility throughout the course of the trial, yet failed to request a special

interrogatory that could have prevented this eventuality. Pursuant to a straightforward

application of the general verdict rule, we must reverse the Superior Court’s order and

remand this case for consideration of the issues that the Superior Court left outstanding.

      Justices Baer, Todd, Dougherty, Wecht and Mundy join the opinion.

      Chief Justice Saylor files a dissenting opinion.




                                    [J-12-2019] - 20
