April 21, 2019

Tenth Circuit: Failure to Request Special Verdicts for Factual Contentions Waived Right to Challenge Sufficiency of the Evidence

The Tenth Circuit Court of Appeals published its opinion in Pratt v. Petelin on Monday, August 19, 2013.

Jennifer Pratt sued Joseph Petelin, M.D. for medical negligence. He had operated on Pratt and allegedly removed her entire thyroid and cancerous mass but ignored her post-operative complaints of still feeling a mass in her neck and other symptoms. He refused to order a scan for her so she arranged one on her own and a different surgeon removed her cancerous lymph nodes and thyroid mass. The district court submitted four factual theories of negligence to the jury in one instruction, which returned a general verdict against Dr. Petelin in the amount of $153,000.

Dr. Petelin appealed, claiming three of the four factual contentions submitted to the jury were unsupported by sufficient evidence. Dr. Petelin did not object to the first factual contention, that he failed to remove all thyroid tissue, including a cancerous mass. The Tenth Circuit distinguished this appeal from cases cited by Petelin where a new trial was ordered because a jury may have relied on an incorrect or unsupported legal theory. Here, the jury was given one correct legal theory — medical negligence — and given four possible bases for finding Petelin liable. Because Petelin did not request a special verdict form for each factual contention, he waived his right to challenge the sufficiency of the evidence. The burden is on the appellant to request a special verdict where insufficiency of the evidence is asserted regarding some, but not all, of the factual theories in a jury instruction. To hold otherwise would be unfair to plaintiffs as a new trial could have been avoided by the defendant requesting special verdicts. The court affirmed.

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