Pratt v. Petelin, 2013 U.S. App. LEXIS 17171

Mrs. Pratt sued Dr. Petelin for medical negligence in diversity, claiming four factual theories of fault arising from May 17, 2007 thyroid surgery and subsequent conduct.
Instruction No. 9 listed four alleged negligent acts: failure to remove all thyroid tissue, failure to remove lymph nodes, failure to timely review the May 18, 2007 pathology report, and failure to consider post-surgical symptoms.
Dr. Petelin objected only to the three latter theories, not to the first, and did not request a special verdict or object to the general verdict form.
The jury returned a unanimous general verdict for Pratt totaling $153,000, comprising medical expenses, economic loss, and noneconomic loss.
The district court denied post-trial motions; on appeal Petelin argued three theories lacked sufficient evidence, but the court held waiver due to lack of a special verdict.
Court affirmed, noting evidence supported at least one theory and Petelin’s failure to request a special verdict prevented narrowing which theory supported the verdict.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the three challenged theories were supported by sufficient evidence	Pratt argues all four theories were evidence-based.	Petelin asserts three theories lacked evidentiary support under Kansas law.	Waived; court affirms because no special verdict requested.
Whether the general verdict must be set aside due to theory-specific insufficiency	General verdict forecloses reliance on unsupported theories.	General verdict should be reversed for legal error in theory presentation.	No reversal; waiver prevents determining reliance on any theory.
Whether Griffin-Dixson/McCord waiver principles apply to civil cases with multiple factual theories	Defense theory insufficiency should be reviewable despite lack of special verdict.	Waiver applies; cannot challenge insufficient evidence on unfavored theories.	Applied; reviewing court adopts waiver rule for multiple factual theories.
Whether the uncontested first theory supports the verdict independently	First theory provides sufficient basis for liability.	Only contested theories determine liability basis.	Uncontested first theory supports liability; overall affirmance based on waiver.

Griffin v. United States, 502 U.S. 46 (1991) (distinguishes legal error from insufficiency of proof in multi-basis theories)
Dixson v. Newsweek, 562 F.2d 626 (1977) (waiver for failure to request special verdicts when challenging only some theories)
Anixter v. Home-Stake Production Co., 77 F.3d 1215 (1996) (reversal where jury based on an unsupported theory under a general verdict)
McCord v. Maguire, 873 F.2d 1271 (1989) (waiver of appellate review when no special verdict requested for each theory)
Eastern Trading Co. v. Refco, Inc., 229 F.3d 617 (2000) (multi-theory challenges and failure to request special interrogatories)