                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                              August 19, 2013
                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
                                  PUBLISH

              UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT



 JENNIFER PRATT,

       Plaintiff-Appellee,

 v.                                                   No. 11-3282

 JOSEPH PETELIN, M.D.,

       Defendant-Appellant.


                 Appeal from the United States District Court
                          for the District of Kansas
                      (D.C. No. 2:09-CV-02252-GLR)


Mark A. Lynch (Kyle R. Ramsey with him on the briefs) of Holbrook & Osborn,
P.A., Overland Park, Kansas, for Defendant-Appellant.

John W. Witten (Mary C. O’Connell with him on the brief) of Douthit Frets
Rouse Gentile & Rhodes, L.L.C., Kansas City, Missouri, for Plaintiff-Appellee.


Before LUCERO, SEYMOUR, and MURPHY, Circuit Judges.


SEYMOUR, Circuit Judge.
      Mrs. Jennifer Pratt sued Joseph Petelin, M.D. for medical negligence. The

district court submitted four factual theories of negligence to the jury, which

returned a general verdict against Dr. Petelin in the amount of $153,000. Dr.

Petelin appeals, claiming three of the four factual contentions submitted to the

jury were unsupported by sufficient evidence. We hold that Dr. Petelin waived

this argument by not objecting to the general verdict form and requesting a

special verdict.



                                         I.

      Mrs. Pratt was diagnosed with papillary carcinoma, a type of thyroid

cancer. Pre-operative radiology studies—a CT scan and an ultrasound-guided

fine needle biopsy—were conducted in early May 2007 and showed the existence

of two masses in her neck. The ultrasound was interpreted by a radiologist to

show a mass emanating off the bottom left lobe of her thyroid gland that

measured 2 x 2 x 2 cm, as well as a smaller mass in the thyroid gland itself. The

biopsy of the larger mass confirmed that Mrs. Pratt had cancer.

      Dr. Petelin performed what he reported as a “total thyroidectomy” on Mrs.

Pratt on May 17, 2007, during which, according to the pathology report, he

claimed to have removed her entire thyroid gland and a single 0.9 cm mass that

tested positive for cancer. Following the surgery, Mrs. Pratt expressed concern to

her mother and her friend that she could still feel a lump in her neck. She met

                                         -2-
with Dr. Petelin on May 29, told him about the mass she continued to feel in her

neck, and complained of fatigue. Dr. Petelin assured her that these were normal

post-operative symptoms. Mrs. Pratt continued to feel the mass in her neck and

spoke to Dr. Petelin on the telephone in June, complaining of the mass, fatigue,

hoarseness, and difficulty breathing and swallowing. Dr. Petelin assured her she

was fine and did not need any scans or image studies. Mrs. Pratt next spoke to

Dr. Petelin in person on June 21 and again related her various symptoms. She

asked Dr. Petelin to order a scan of the area. He refused, telling her it was

impossible for a mass to still be in her neck because he had just operated on that

area. Feeling still worse the next day, Mrs. Pratt arranged a scan without the

involvement of Dr. Petelin, which revealed that she still had a mass in her neck

and that her lymph nodes were possibly malignant as well.

      Mrs. Pratt made an appointment to see a different surgeon, Terence Tsue,

M.D., who performed a “completion thyroidectomy,” a neck dissection and a

paratracheal lymph node dissection on July 17, 2007. Dr. Tsue’s operative report

described removing a “thyroid mass” as well as “suspicious lymph nodes.” Aple.

App. at 23. Dr. Tsue’s surgical pathology report indicated the thyroid specimen

that was removed measured 4 x 2 x 1.1 cm.

      Mrs. Pratt filed this diversity action against Dr. Petelin, which was tried to

a jury. After the close of evidence, the district court held a jury instruction

conference. Instruction No. 9, the subject of this appeal, provided:

                                          -3-
              The plaintiff, Jennifer Pratt, claims that she sustained
        injuries and damages due to the fault of the defendant, Joseph H.
        Petelin, M.D. in the following respects: during the May 17, 2007
        surgery by [1] failing to remove all thyroid tissue, including a
        cancerous mass, [2] failing to remove lymph nodes, [3] failing
        to timely review the May 18, 2007 pathology report and [4]
        failing to consider plaintiff’s post-surgical symptoms.

            The plaintiff has the burden to prove that her claims are
        more probably true than not true. It is not necessary that each of
        you agree upon a specific claim of fault.

            The defendant denies that he was at fault and generally
        denies plaintiff’s claims.

Aplt. App. at 68.

      Dr. Petelin objected to this instruction on the basis that the final three fault

contentions—failing to remove lymph nodes, failing to timely review the

pathology report and failing to consider plaintiff’s post-surgical symptoms—were

not supported by sufficient evidence. But he did not object to the first contention,

that he failed to remove all thyroid tissue. Significantly, Dr. Petelin neither

objected to the use of a general verdict form nor requested a special verdict.

      The jury returned a unanimous verdict finding Dr. Petelin’s negligence had

injured Mrs. Pratt. It awarded a total of $153,000: $15,000 in medical expenses,

$13,000 for economic loss, and $125,000 for noneconomic loss. After judgment

was entered, Dr. Petelin moved for judgment as a matter of law and alternatively

for a new trial, raising the same objections to Instruction No. 9. The district court

overruled both motions.


                                          -4-
      On appeal, Dr. Petelin continues to contend the district court erred by

submitting Instruction No. 9 to the jury on the basis that three of the four factual

contentions of negligence contained in the instruction were not supported by

sufficient evidence. He specifically asserts that these contentions were not

supported by expert witness testimony as required by Kansas medical malpractice

law, and that they do not fall under the “common knowledge” exception to that

rule. 1 He still does not claim any defect in the first factual contention contained

in the instruction—that he negligently failed to remove all thyroid tissue,

including a cancerous mass. Accordingly, it is uncontested that there is sufficient

evidence to support at least one of Mrs. Pratt’s factual theories of liability.



                                          II.

      We review de novo whether a district court’s jury instructions correctly

stated the governing law. Martinez v. Caterpillar, Inc., 572 F.3d 1129, 1132

(10th Cir. 2009). “We review the district court’s decision about whether to give a

particular instruction for abuse of discretion.” Id. Under federal law, a party is

entitled to an instruction on his theory of the case if it is supported by competent

evidence. Higgins v. Martin Marietta Corp., 752 F.2d 492, 496 (10th Cir. 1985).


      1
        As a diversity case, the content of jury instructions is a matter of state
substantive law but the determination of whether an instruction was erroneously
given is governed by federal procedural law. Martinez v. Caterpillar, Inc., 572
F.3d 1129, 1131-32 (10th Cir. 2009).

                                          -5-
In making this determination, we review the evidence in the light most favorable

to the verdict. Martinez, 572 F.3d at 1133.

      In arguing that he is entitled to a new trial, Dr. Petelin relies on our cases

holding that a general verdict cannot stand when “the district court erroneously

instructed the jury on an improper theory and we are unable to determine with

‘absolute certainty’ whether the jury relied on the erroneous instruction . . . .”

Allen v. Wal-Mart Stores, Inc., 241 F.3d 1293, 1298 (10th Cir. 2001) (quoting

Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1301 (10th Cir. 1989)); see also

Anixter v. Home-Stake Production Co., 77 F.3d 1215, 1229 (10th Cir. 1996)

(same). But these cases address the situation where the jury may have based its

verdict on an incorrect or entirely unsupported legal theory. They are thus

distinguishable from the case at hand, where Dr. Petelin claims that some, but not

all, of the factual bases presented to the jury for one legal theory—negligence—

were unsupported by sufficient evidence.

      For example, Anixter was a securities fraud action in which the jury

returned a general verdict against the defendant after being instructed on both

principal liability and aiding and abetting liability. 77 F.3d at 1221. We reversed

and remanded for a new trial because the aiding and abetting theory of liability

was subsequently found invalid by the Supreme Court under that section of the

Securities Exchange Act of 1934. Id. at 1218-19. The district court’s erroneous

instruction in Anixter necessitated a new trial because it involved a separate and

                                          -6-
legally erroneous “theory of liability” rather than a factual contention

unsupported by sufficient evidence. Id. at 1229. In that context, we held that

even a “remote” chance that the jury relied on the improper legal theory required

reversal. Id. at 1231.

      Similarly, in Allen, a shopper sued Wal-Mart after being injured by falling

boxes of merchandise. 241 F.3d at 1295. The jury was instructed on two separate

theories of liability, negligence and res ipsa loquitur, and returned a general

verdict against Wal-Mart. Id. at 1298. On appeal, we concluded that the

applicable substantive law prohibited the application of the res ipsa loquitur

doctrine on the facts of the case. Once again, we reversed and remanded for a

new trial because the district court had instructed the jury on an improper legal

theory of liability, id. at 1299, and we could not say with “absolute certainty” that

the jury had not relied on it. Id. at 1298.

      In Farrell, the plaintiff sued a safety belt and lanyard manufacturer in a

products liability case, and the jury returned a general verdict in favor of the

manufacturer. 866 F.2d at 1296. The plaintiff appealed, contending the district

court erred in instructing the jury on the defenses of abnormal use and assumption

of the risk. Id. After holding that the instruction on abnormal use was given in

error because it was not supported by sufficient evidence, we stated: “The general

verdict frustrates a determination of the basis of the jury’s decision, and reversal

and remand for a new trial are required.” Id. at 1300 (internal quotation marks

                                          -7-
omitted). Dr. Petelin contends that Farrell supports reversal in this case because

appellants in Farrell obtained a reversal based on insufficient evidence to support

an instruction on a theory of the defense. Unlike here, however, the challenged

instruction in Farrell consisted of a legal theory wholly unsupported by evidence.

Once one legal theory of the defense was eliminated as a potential basis of the

jury’s decision, reversal was required because we were unable to tell from the

general verdict whether the jury had relied on the unsupported defense of

abnormal use in finding for the defendant, rather than on the defense of

assumption of the risk. Id. at 1301.

      Here, Mrs. Pratt proceeded under a single theory of liability—medical

negligence—and advanced four factual contentions as possible bases for finding

Dr. Petelin liable under this legal theory. 2 In contrast to the cases discussed


      2
          In response to Dr. Petelin’s Renewed Motion for Judgment as a Matter of
Law or, Alternatively, Motion for New Trial, the district court construed the first,
uncontested claim of negligence contained in Instruction No. 9—failure to remove
all thyroid tissue—as the “principal ground of alleged negligence . . . the thrust of
the entire case.” Aplt. App. at 145. In the opinion of the district court, the other
three factual theories in the instruction were “secondary and incidental” to this
primary contention and “the jury could hardly have found Defendant
professionally negligent upon any of the latter three claims, without having found
him first negligent for failing to find and remove all the cancerous tissue in or
adjacent to the thyroid gland itself.” Id. Because we hold that Dr. Petelin waived
his opportunity to challenge the sufficiency of the evidence supporting these other
three factual contentions by not seeking a special verdict, we need not decide
whether Instruction No. 9 in fact constituted one or multiple bases of negligence
liability. We assume, arguendo, that each of these factual contentions
represented a separate and distinct avenue of possible negligence for the jury to
find Dr. Petelin liable.

                                          -8-
above, Dr. Petelin does not contend the district court erred in instructing the jury

on the legal theory of negligence in this case, but only that three of the four

factual bases of negligence were unsupported by sufficient evidence.

Accordingly, the cases applying our general verdict rule to instructions rendered

erroneous by legal error do not control the outcome of this appeal.

      Dr. Petelin attempts to avoid this conclusion by arguing that the three

factual contentions he challenges in Instruction No. 9 are legally insufficient

under Kansas law and thus erroneous as a matter of law, like the cases cited

above. This argument was addressed and rejected by the Supreme Court in

Griffin v. United States, 502 U.S. 46, 58-59 (1991).

      In Griffin, a criminal case, the defendant was convicted by a general jury

verdict of conspiring to defraud an agency of the federal government. Id. at 47.

The government had alleged the illegal conspiracy on two factual bases: an

attempt to defraud the Internal Revenue Service (IRS), and an attempt to defraud

the Drug Enforcement Administration (DEA). Id. Although no evidence was

introduced to link the defendant to any effort to defraud the DEA, the district

court instructed the jury in a manner that would permit it to find the defendant

guilty under either of the government’s two factual contentions. Id. at 48. The

Supreme Court affirmed Griffin’s conviction, distinguishing between jury

instructions that are erroneous due to “legal error,” which require a new trial, and

those that suffer from “insufficiency of proof” as to some but not all of the factual

                                          -9-
bases of the indictment, which do not. Id. at 58. As examples, the court

explained that legal error in this context would consist of convicting a defendant

by a general verdict under a multi-prong statute, one prong of which is later held

unconstitutional, id. at 52-53 (citing Stromberg v. California, 283 U.S. 359

(1931)), or convicting a defendant by general verdict for a conspiracy to violate

two statutes, one of which is later determined to have been time barred, id. at

51-52 (citing Yates v. United States, 354 U.S. 298 (1957)).

       The defendant in Griffin argued that “the distinction between legal error []

and insufficiency of proof [] is illusory, since judgments that are not supported by

the requisite minimum of proof are invalid as a matter of law . . . .” Id. at 58

(emphasis in original). In response, the Court explained:

       In one sense ‘legal error’ includes inadequacy of evidence—namely,
       when the phrase is used as a term of art to designate those mistakes
       that it is the business of judges (in jury cases) and of appellate courts
       to identify and correct. . . . But in another sense—a more natural and
       less artful sense—the term ‘legal error’ means a mistake about the
       law, as opposed to a mistake concerning the weight or the factual
       import of the evidence. . . . [W]e are using ‘legal error’ in that latter
       sense.

Id. at 59.

       The Court also discussed in Griffin why we differentiate between jury

instructions that contain a legal error and those that contain factual contentions

unsupported by sufficient evidence. The Court explained that “[j]urors are not

generally equipped to determine whether a particular theory of conviction


                                          -10-
submitted to them is contrary to law—whether, for example, the action in

question is protected by the Constitution, is time barred, or fails to come within

the statutory definition of the crime.” Id. On the other hand, “[q]uite the

opposite is true . . . when they have been left the option of relying upon a

factually inadequate theory, since jurors are well equipped to analyze the

evidence.” Id. (emphasis in original) (citing Duncan v. Louisiana, 391 U.S. 145,

157 (1968)). We see no reason this rule should not also apply in civil cases. See

Cordance Corp. v. Amazon.com, Inc., 658 F.3d 1330, 1338 (Fed. Cir. 2011)

(applying Griffin in civil case); Walther v. Lone Star Gas Co., 952 F.2d 119, 126

(5th Cir. 1992) (same).

      Because Dr. Petelin does not allege a “legal error” in the sense the Court

explained in Griffin, his failure to request a special verdict as to each factual

theory contained in Instruction No. 9 prevents him from challenging the

sufficiency of the evidence supporting these factual theories on appeal. We

applied this waiver rule most clearly in Dixson v. Newsweek, 562 F.2d 626 (10th

Cir. 1977). There, a libel action was brought against Newsweek for an article that

the plaintiff alleged contained several distinct libelous statements. Id. at 630-31.

The jury entered a general verdict against Newsweek and on appeal the magazine

argued, “that if any one of the statements on which plaintiff relies to establish

defamation is not actionable for any reason, the verdict must be set aside because

there is no way to know on what statement the jury predicated liability.” Id. at

                                          -11-
631. We held this argument had been waived, explaining that “[b]y failing to

request special verdicts, Newsweek waived its right to complain on appeal.” Id.;

see also Union Pac. R.R. Co. v. Lumbert, 401 F.2d 699, 701 (10th Cir. 1968) (“In

the absence of a pertinent objection to the charge or a request for a specific

interrogatory a general verdict is upheld where there is substantial evidence

supporting any ground of recovery in favor of an appellee.”); Anixter v. Home-

Stake Prod. Co., 77 F.3d 1215, 1231 (10th Cir. 1996) (discussing rule from

Lumbert and declining to apply it where the instruction contained a legal error

rather than a factual contention not supported by sufficient evidence).

      This waiver rule has also been applied by the Ninth Circuit in McCord v.

Maguire, 873 F.2d 1271, 1274 (9th Cir. 1989), amended, 885 F.2d 650 (9th

Cir.1989) (“[Defendant] contends that the jury may have based its verdict solely

on the four allegedly unsubstantiated factual theories. . . . However, [defendant’s]

failure to request a special verdict as to each factual theory in the case prevents

him from pressing this argument on appeal.”), the Seventh Circuit in Eastern

Trading Co. v. Refco, Inc., 229 F.3d 617, 622 (7th Cir. 2000) (where jury heard

instruction on a theory for which there was no evidentiary support and opposing

party did not request special interrogatory, party “has only itself to blame for its

inability to demonstrate that the jury was confused by the instruction”), and the

Eighth Circuit in Gen. Indus. Corp. v. Hartz Mountain Corp., 810 F.2d 795, 801

(8th Cir. 1987) (applying waiver rule to failure to object to general verdict on

                                         -12-
damages). But see Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 30-31 (1st

Cir. 2004) (weighing arguments for and against the waiver rule and declining to

adopt it). The waiver rule is also followed in numerous state courts. See, e.g.,

Nimetz v. Cappadona, 596 A.2d 603, 606-08 (D.C. 1991) (citing state court

cases); Halper v. Jewish Family & Children’s Serv. of Greater Philadelphia, 600

Pa. 145, 157 (2009).

      The rationale for this rule was cogently stated by the court in McCord:

        Litigants like [the defendant] who wish to challenge the
        sufficiency of the evidence as to some, but not all, specifications
        of negligence must present an appropriate record for review by
        asking the jury to make separate factual determinations as to each
        specification. Any other rule would unnecessarily jeopardize jury
        verdicts that are otherwise fully supported by the record on the
        mere theoretical possibility that the jury based its decision on
        unsupported specifications. We will not allow litigants to play
        procedural brinkmanship with the jury system and take advantage
        of uncertainties they could well have avoided.

McCord, 873 F.2d at 1274. We agree with this reasoning. Defendants often may

have an incentive not to request a special verdict in order to strategically save a

ground for appeal; this is inefficient and unfair to plaintiffs, who should not be

forced to endure a second trial when the rules of procedure provide a solution.

While we do not know whether Dr. Petelin refrained from requesting a special

verdict in this case in order to save a ground for appeal, we see no reason to

deviate from Dixson, which places the burden to request a special verdict squarely

on the appellant in cases such as this, where insufficiency of the evidence is


                                         -13-
asserted regarding some, but not all, of the factual theories contained in a jury

instruction.



                                         III.

      It is uncontested that there was sufficient evidence to support at least one

factual basis of negligence asserted by Mrs. Pratt. Because Dr. Petelin did not

request a special verdict to indicate which factual theory or theories the jury

based its verdict on, we are unable to conclude that the jury rested its decision on

one of the three allegedly insufficiently supported factual theories. Accordingly,

we AFFIRM.




                                         -14-
