[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 

SHIFLETT, HUSBAND AND WIFE,

Appellants

v.

LEHIGH VALLEY HEALTH NETWORK, 

INC.; AND LEHIGH VALLEY HOSPITAL,

Appellees

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No. 43 MAP 2018

Appeal from the Order of Superior 

Court at No. 2293 EDA 2016 dated 

November 9, 2017, reconsideration 

denied January 12, 2018, Vacating the 

Judgment entered July 18, 2016 of the 

Lehigh County Court of Common 

Pleas, Civil Division, at No. 2014-C0388 and Remanding for a new trial

ARGUED: April 9, 2019

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 
[J-12-2019] - 2

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 postsurgical 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] - 3

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] - 4

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] - 5

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] - 6

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] - 7

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] - 8

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] - 9

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] - 10

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 timebarred 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] - 11

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 timebarred 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, 

 

5 Because 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] - 12

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] - 13

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] - 14

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. 
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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.
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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] - 17

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] - 18

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] - 19

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] - 20

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.