Waiver of Challenge to Verdict for Failure to Seek Apportionment Between Challenged Claims

Shiflett v. Lehigh Valley Health Network, Inc., 174 A.3d 1066 (Pa. Super. 2017), allocatur granted Aug. 15, 2018, appeal docket 43 MAP 2018

On April 12, 2012, Betty Shiflett underwent knee surgery at Lehigh Valley Hospital. After surgery she was identified as a high fall risk.  She was attended by Nurse Langham in Lehigh Valley’s Post-Surgical Unit (PSU).  During the night on April 14, Ms. Shiflett fell out of her hospital bed and suffered a fracture to her left tibia, which was not diagnosed at the time. She was then transferred to the Hospital’s Transitional Skills Unit (TSU) where she was attended by Nurse Mahler and received post-knee surgery therapy and rehabilitation. In the TSU Ms. Shiflett experienced clicking noises in her knee, buckling, and increasing pain, but the fracture was not diagnosed until April 19, when her fracture became displaced while doing physical therapy and she was diagnosed has having suffered a fracture.   She underwent two additional surgeries to repair the fracture, but those surgeries were unsuccessful. Ms. Shiflett was left with no extensor mechanism in her leg and was no longer a candidate for further surgery due to a past infection. 

Ms. Shiflett and her husband sued Lehigh Valley Hospital, initially alleging negligence for the care she received in the PSU from April 12 to April 14.  Following discovery, they moved to amend their complaint to name Nurse Langham for alleged negligent care in the PSU and Nurse Mahler for alleged negligent care in the TSU.  Lehigh Valley Hospital opposed the motion to amend, arguing that the Shifletts were alleging a new cause of action involving care in the TSU after the statute of limitations had run. The trial court permitted the amendment.

At the close of trial, the trial court presented counsel with a draft verdict sheet that contained special interrogatories designed to elicit a yes/no answer as to liability for each individual defendant, and a calculation of damages, but not for an itemization of damages by claim. The next day, the parties agreed to this verdict sheet. The jury awarded the Shifletts $2,391,620 in damages; consistent with the verdict sheet, there was no breakdown of the verdict amount by claim.  After the verdict was read into the record, the trial court asked counsel, “Is there any business with the jury before we excuse them?” Slip Op. at 22. Lehigh Valley’s counsel asked for the jury to be polled but did not object to the verdict, or seek an apportionment of the verdict between the TSU claims it contended were time-barred and the PSU claims.


Lehigh Valley Hospital raised the statute of limitations issue in post-trial motions and again on appeal to the Superior Court. It raised other issues as well, including that the verdict was inconsistent as to the PSU claims because the jury found that Nurse Langham was not negligent but that the Hospital was negligent for failing to properly train her. The Superior Court agreed with the Hospital that the claim against Lehigh Valley for vicarious liability for Nurse Mahler’s conduct in the TSU was time-barred.  Superior Court rejected the claim as to inconsistency of the verdict, finding it waived for failure of the Hospital to raise it before the jury retired, and even if not waived, that the Hospital failed to overcome the presumption in favor of consistency. Having reached these conclusions, the court reversed and remanded, ordering a new trial on damages related solely to Lehigh Valley’s corporate negligence in connection with Ms. Shifflet’s fall in the PSU, reasoning that the verdict sheet did not separate the damages for the TSU claim the court found to be barred by the statute of limitations from the PSU claims:

It 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. On remand, there must be a new determination of damages that is limited to those caused by the corporate negligence in the PSU.

Slip Op. at 45-46 (footnote omitted).

The Supreme Court granted the Shifletts allocatur petition, limiting review to the single issue of whether Lehigh Valley Hospital should have requested an allocation of damages between the TSU claims that the Hospital contended were time-barred and the PSU claims, and whether, because it did not, it waived any objection to the general damages verdict:

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

The Shifletts take the position that Lehigh Valley waived the issue because it made the tactical decision to argue at trial that the fracture occurred during surgery, not as the result of a fall from bed, that displacement of the fracture was inevitable, and there was thus nothing to apportion.  Consistent with that strategy, the Shifletts argue, the Hospital waived because it never raised the apportionment issue before the trial court by seeking a special interrogatory on the verdict sheet, allowed the jury to be excused without requesting apportionment, never raised the issue in post-trial motions, never raised the issue before the Superior Court, and raised it for the first time in response to the Shifletts’ allocatur petition.  Appellants’ Br. at 2, 18-27.  Referring to the Superior Court’s rationale for reversal and remand for a new trial on damages – that it is “impossible” to determine from the verdict sheet whether the damages are attributable to negligence in the PSU or the TSU – the Shifflets’ response is that  the cited impossibility is the very reason why Pennsylvania law provides that in these circumstances where the defendant could have avoided the problem by seeking apportionment, the entire verdict must stand in its entirety.  Id. at 27.

Lehigh Valley Hospital, on the other hand, argues that it consistently challenged the trial court’s decision to allow the time-barred TSU claim to go to the jury, and that the “general verdict rule” does not require a defendant to seek a special interrogatory on damages in the verdict sheet when all of the claims are against the same defendant:

LVH was the only Defendant, so damages could be awarded only against that single Defendant. The “general verdict rule” may require the jury to render a verdict as to each theory of liability, but there is no mandate that the damages against a single defendant be apportioned based upon theories of liability.

Appellee’s Br at 2; see Appellants’ Br. at 17-31.

Addressing the waiver claim, the Hospital argues that by consistently objecting to the time-barred TSU claim, it discharged any duty it had under Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974) to provide the trial court with an opportunity to correct its error. Br. at 17-20.  It points to a factually similar Superior Court decision where the plaintiff had argued waiver based on failure to object to a general verdict, but the Superior Court remand for a new trial on damages.  Shiner v. Moriarty, 706 A.2d 1228 (Pa. Super.), appeal denied, 729 A.2d 1130 (Pa. 1998):

Shiner involved a plaintiff who prevailed at trial on three separate liability claims where the jury did not apportion damages among each of the claims. After reversing the judgment on two of the claims, the Superior Court held that a new trial on remand should be limited to determining the amount of damages causes by the remaining claim. 706 A.2d at 1242. It explained:

The damages were assessed without regard to each specific cause of action. It is impossible to determine what portion of those damages was attributable to the equity and ejectment proceedings upon which liability was found for abuse of process. We find that a new trial on the issue of damages is warranted in these circumstances. Smith v. Renaut, 387 Pa. Super. 299, 564 A.2d 188, 193 (1989).

Id. at 22.