Beware the General Verdict Rule If You Want a New Trial on Damages

October 10, 2022 | By Richard P. Limburg

Suppose your pre-trial motion to exclude certain evidence was denied, and you believe that evidence improperly influenced the jury’s verdict. That is what happened to defendants in Cowher v. Kodali. Unfortunately, when they moved for a new trial, they ran up against the general verdict rule. The Pennsylvania Supreme Court held that defendants waived the issue by agreeing to a general verdict form and failing to request a special verdict form.

A general verdict is one that decides which party should win but does not make findings on any specific factual issues. A special verdict is one in which the jury provides its findings on specific factual issues.

The general verdict rule states that a new trial will not be granted “when a general verdict rests upon both valid and invalid grounds, and the litigant challenging the verdict failed to request a special verdict slip that would have clarified the basis for the verdict.”

Cowher was a wrongful death and survival action. The decedent suffered a heart attack while running. He collapsed and died within three minutes. He had been to a cardiac specialist and complained of having chest pains for several months. The specialist did not check for blocked arteries, because the man’s EKGs and blood tests were normal.

An eyewitness was prepared to testify that the decedent was conscious and in pain before he died. Plaintiff’s medical expert did not discuss pain and suffering in his written report. Defense counsel filed a motion-in-limine to exclude evidence of pain and suffering at trial because the eyewitness had no medical qualifications and the medical expert did not include pain and suffering in his report. The trial court denied the motion.

At trial, the eyewitness testified that the decedent was conscious and in pain for three minutes before he died. The medical expert offered an opinion that the decedent suffered conscious pain and suffering.

In a survival action, damages can be awarded for lost earnings between the date of death and trial, future loss of earnings between the time of trial and the end of life expectancy, loss of life’s pleasures, and pain and suffering. The jury awarded a lump sum that was more than a million dollars higher than the maximum economic losses calculated by plaintiff’s actuarial expert.

The defendants argued on appeal that the expert’s opinion on pain and suffering must have improperly influenced the jury to award an excessive amount for pain and suffering, since the decedent was only conscious for three minutes after collapsing. The Superior Court granted a new trial.

The Supreme Court reversed, reasoning that it was not possible for the court to determine whether the unitary award of damages on the general verdict form contained any amount for pain and suffering, and if so, whether the amount might be excessive. The defendants had several opportunities to request a special verdict form on which the jury would be required to specify the damages for pain and suffering. Because the defendants failed to request a special verdict form, they were held to have waived the issue.

As the Supreme Court explained in Cowher, “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.”

Even if the defendants were correct that the expert should not have been allowed to opine on the decedent’s pain and suffering, there was sufficient evidence to support the other damages available in a survival action.

The Cowher case makes clear that counsel should consider asking for a special verdict that requires a specific finding of fact, if they can foresee a need to challenge the evidentiary basis for that finding after trial.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

About the Authors

Richard Limburg 1

Richard P. Limburg


Richard primarily practices in the areas of business and commercial litigation, including business torts, fraud, contract disputes, complex cases, injunctions, and commercial arbitration. His other areas of practice include insurance company insolvency...

Read More by Author