Shiflett, B.,et al, Aplts. v. Lehigh Valley Health ( 2019 )

[J-12-2019][M.O. - Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
BETTY L. SHIFLETT AND CURTIS : No. 43 MAP 2018
SHIFLETT, HUSBAND AND WIFE, :
: Appeal from the Order of the Superior
Appellants : Court at No. 2293 EDA 2016 dated
: 11/9/17, reconsideration denied
: 1/12/18, vacating the judgment entered
v. : on 7/18/16 of the Lehigh County Court
: of Common Pleas, Civil Division, at No.
: 2014-C-0388 and remanding for a new
LEHIGH VALLEY HEALTH NETWORK, : trial
INC.; AND LEHIGH VALLEY HOSPITAL, :
ARGUED: April 9, 2019
Appellees
DISSENTING OPINION
CHIEF JUSTICE SAYLOR DECIDED: September 26, 2019
I respectfully dissent, since I would affirm the Superior Court’s decision to
remand for a fresh damages assessment.
The general rule, as pertained in most courts and still does in many today, is that
when a jury returns a general verdict on multiple theories of liability, one of which is later
found to be invalid, the verdict must be reversed and a new trial ordered. See, e.g.,
United N.Y. & N.J. Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 619, 79 S. Ct.
517, 520 (1959); see also Chowdhury v. Worldtel Bangladesh Holding, Ltd., 746 F.3d
42, 50 (2d Cir. 2014) (collecting cases).1 The reason is that the appellate courts lack the
1 Confusingly, albeit that this common law principle is referred to as the “general verdict
rule,” some courts employ the same terminology to describe modified and contrary
approaches. See Plains Commerce Bank v. Long Family Land and Cattle Co., 910 F.
(continued…)
ability to determine whether, or to what extent, the verdict was premised on the invalid
theory. As the jurisprudence has evolved, however, many courts have “engrafted a . . .
harmless error gloss onto that basic principle.” Id. (quoting Muth v. Ford Motor Co., 461
F.3d 557, 564 (5th Cir. 2006)).
This Court’s decision in Halper v. Jewish Family & Children’s Service of Greater
Philadelphia, 600 Pa. 145, 963 A.2d 1282 (2009), appears to me to reflect a relatively
strong variant of the harmless error approach. As the majority explains, Halper adopted
the view that a general verdict can be sustained, even though one theory upon which
the jury may have relied is unsupported by the evidence, when there is sufficient
evidence to support another theory. See id. at 156-57, 963 A.2d at 1288-89; accord
Nimetz v. Cappadona, 596 A.2d 603, 611 (D.C. Ct. App. 1991) (Farrell, J., concurring)
(“[T]here is no unfairness in assuming that juries rest their conclusions on theories
founded in the evidence.”). Notably, however, some courts have been circumspect
about assuming that errors are harmless without a more probing analysis. See, e.g.,
Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 30 (1st Cir. 2004) (“The reality is that
the degree of confidence that the jury picked a theory with adequate evidentiary support
varies along a spectrum of situations.”); see also Mueller v. Hubbard Milling Co., 573
F.2d 1029, 1039 (8th Cir. 1978) (couching the appropriate test as entailing an
assessment of whether the appellate court is “fairly convinced that the jury proceeded
on the only sound ground”).
Presently, from my perspective at least, the majority converts the strong
harmless error rule of Halper into an even more potent waiver precept. Although some
(…continued)
Supp. 2d 1188, 1195 (D.S.D. 2012) (discussing the inconsistent use of the terminology).
For clarification, the waiver precept presently adopted by the majority is referred to by
many courts as the “two issue rule.” See id.
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other courts proceed in the same fashion, see, e.g., Todd v. S.C. Farm Bur. Mut. Ins.
Co., 336 S.E.2d 472, 473-74 (S.C. 1985), this appears to be a minority approach (albeit
that of a sizable minority). See generally Plains Commerce Bank, 910 F. Supp. 2d at
1195 (collecting cases). More importantly, there are material policy considerations
associated with requiring litigants to structure verdict forms in a fashion that anticipates
partial reversals on appeal. See, e.g., Gillespie, 386 F.3d at 31 (explaining that “[i]n
some cases special verdicts make sense but there may be others where using them, to
a sufficient level of detail, is infeasible or otherwise undesirable”); Plains Commerce
Bank, 910 F. Supp. 2d at 1195-96 (reasoning that the “’two issue’ approach seems best
suited for instances where the error in submission of one claim to a jury was harmless
error that would not have affected a jury’s general damage award and not for instances
where the minds of the jurors would need to be plumbed to determine whether a
general damage award would have been the same.”). Although the majority’s approach
plainly promotes judicial efficiency, I have reservations about a per se rule faulting
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. Cf. Gillespie, 386 F.3d at 31 (“[E]ither side in this case could have asked
for the special verdict to further break down the [various theories]; [t]he issue is one of
policy, i.e., whether the court should create a rule that forfeits claims by an appellant
that could have been isolated if either side had requested a better breakdown.”).
Ultimately, I do not support the expansion of the Halper precept absent a more
probing analysis of the range of fairness considerations. Moreover, any decision along
these lines should, in my view, be prospective so that the rule is not imposed on litigants
without clear advance notice. Accord Newman Dev. Grp. of Pottstown, LLC v.
Genuardi's Family Markets, Inc., 617 Pa. 265, 288, 52 A.3d 1233, 1247 (2012) (“To
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warrant the heavy consequence of waiver, in a rules schemata designed to ‘secure the
just, speedy and inexpensive determination’ of disputes, the applicability of the Rule
should be apparent upon its face or, failing that, in clear decisional law construing the
Rule.” (quoting Pa.R.C.P. No. 126)).
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