dissenting.
I dissent.
The significant facts are simple. Appellant failed to object to a jury instruction and she likewise failed to object to the use of a general verdict. She now asks for a retrial due to a court-made change in the law occurring five years after the trial.
I would apply Union Pacific R.R. v. Lumbert, 401 F.2d 699, 701 (10th Cir.1968). This case quite simply holds where no objection was made to the use of a general verdict, the general verdict must be upheld where there is substantial evidence supporting any ground of recovery. The majority correctly concludes there exists substantial supporting evidence. I see no reason to reward Appellant for her failure to object.
An examination of applicable case law within the circuit reveals inconsistencies. We have applied the “absolute certainty” analysis now utilized by the majority. We have also applied a harmless error analysis and the substantial evidence analysis which I advocate in this dissent.
The majority applies the “absolute certainty” analysis as advanced by this court in Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1299-1301 (10th Cir.1989). As the majority notes, Farrell relied on two then recent Tenth Circuit opinions in rejecting, without overruling, the harmless error standard we had previously applied. (Majority slip opinion at 1229.) See Asbill v. Housing Authority of Choctaw Nation of Okla., 726 F.2d 1499, 1504 (10th Cir.1984) (applying a “litmus test” to see whether the appellant was unjustly prejudiced); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1436 (10th Cir.1984), cert. granted and vacated on other grounds, 474 U.S. 805, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985); Employers Liab. Assurance Corp. v. Freeman, 229 F.2d 547, 551 (10th Cir.1955). Farrell and the majority opinion describe the general rule “that when one of two or more issues submitted to the jury was submitted erroneously, a general verdict cannot stand because it cannot be determined whether the jury relied on the improper ground.” Farrell, 866 F.2d at 1299. Although the Farrell opinion outlines in great detail the inconsistency in our circuit regarding the use of the harmless error standard and the absolute certainty analysis, it fails to addi’ess whether an objection to the general verdict form had been made at trial. This distinction is important in light of the cases within our circuit which hold that “in the absence of a pertinent objection to the charge or a request for a specific interrogatory a ‘general verdict is upheld where there is substantial evidence supporting any ground of recovery in favor of an appellee.’” Lumbert, 401 F.2d at 701 (iquoting Vareltzis v. Luckenbach S.S. Co., 258 F.2d 78, 80 (2d Cir.1958)).
The Lumbert decision and its progeny carve out a pertinent exception to the general rule which the majority fails to acknowledge. See Malandris v. Merrill Lynch, Pierce, Fenner & Smith Inc., 703 F.2d 1152, 1176 & n. 20 (10th Cir.1981) (en banc) (plurality opinion), cert. denied, 464 U.S. 824, 104 S.Ct. 92, 78 L.Ed.2d 99 (1983) (holding that where no objection was made to the charge and there was sufficient evidence to sustain ruling under other theories “any error in submitting the [improper] theory should not now be considered on appeal”). See also Hinds v. General Motors Corp., 988 *1234F.2d 1039, 1047 (10th Cir.1993) (holding that “ ‘a party’s failure to object to a verdict on the ground of inconsistency prior to the jury’s discharge waives his right to raise the issue in a posttrial motion or on appeal unless the verdict is inconsistent on its face so that entry of judgment upon the verdict is plain error’ ” (quoting Diamond Shamrock Corp. v. Zinke & Trumbo, Ltd., 791 F.2d 1416, 1424 (10th Cir.), cert. denied, 479 U.S. 1007, 107 S.Ct. 647, 93 L.Ed.2d 702 (1986))); Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1522 (10th Cir.) (holding that nonobjected-to general verdict should be upheld “if the proof on various theories is sufficient to sustain the general verdict.”), cert. granted, 469 U.S. 1071, 105 S.Ct. 562, 83 L.Ed.2d 503 (1984), aff'd, 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985). Other circuits also apply this rule. See Vareltzis, 258 F.2d at 80; State Fuel Co. v. Gulf Oil Corp., 179 F.2d 390, 396 (1st Cir.1950); Cross v. Ryan, 124 F.2d 883, 887 (7th Cir.1941), cert. denied, 316 U.S. 682, 62 S.Ct. 1269, 86 L.Ed. 1755 (1942).
The confusion regarding whether the harmless error standard or the absolute certainty or substantial evidence analysis should be applied is perpetuated because many of the opinions dealing with this issue either acknowledge one standard, then apply another or fail to specify whether an objection was made to the use of a general verdict form at trial. See City of Wichita v. United States Gypsum Co., 72 F.3d 1491 (10th Cir.1996); Farrell, 866 F.2d 1294; McMurray v. Deere & Co., 858 F.2d 1436 (10th Cir.1988); Smith v. FMC Corp., 754 F.2d 873 (10th Cir.1985). This confusion is also enhanced by the similarity between the harmless error standard and the substantial evidence analysis. However, because no objection was made to the use of a general verdict form I do not believe it is appropriate to apply either the harmless error standard or the absolute certainty analysis in this case. Instead, I believe that Lumbert mandates we affirm the verdict if there is substantial evidence supporting any permissible ground of recovery. I agree with the majority’s findings that “the record supports finding Cross liable for a primary violation of § 10(b)” and would therefore affirm the jury’s verdict. (Majority opinion at 1227.)
I also find it important to note that Fed. R.Civ.P. 51 precludes a party from assigning “as error the giving or failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict.” In Comins v. Scrivener, 214 F.2d 810, 814 (10th Cir.1954), we held that where no exceptions were taken to the jury instructions, no question was preserved for appeal regarding the instructions. See also City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256, 101 S.Ct. 2748, 2754, 69 L.Ed.2d 616 (1981) (holding that no “ ‘right’ to review existed at all once petitioner failed to except to the charge at trial.”). To mitigate the harshness of this rule appellate courts have invoked on occasion a review for plain error. City of Newport, 453 U.S. at 256, 101 S.Ct. at 2754. In the Tenth Circuit, we have “recognized a narrow exception to the application of Rule 51 in the interest of justice.” Glasscock v. Wilson Constructors, Inc., 627 F.2d 1065, 1068 (10th Cir.1980). However, we rarely apply this narrow exception. Id. In the case at bar, we know that no objection was made to the aider and abettor instruction before the jury retired to deliberate. It is true that at the time of trial the instruction correctly stated the applicable law, however, that does not mandate the result that a case can be tried and no objection made and then an appellant be allowed to take advantage of a change in the law which occurs five years later simply because a jury may have acted upon the instruction. I do not believe the interests of justice support such a windfall. I also do not find these circumstances rise to the level of plain error.
I am aware of the Supreme Court’s holding in O’Connor v. Ohio, 385 U.S. 92, 93, 87 S.Ct. 252, 253-54, 17 L.Ed.2d 189 (1966) (per curiam), that a defendant’s “failure to object to a practice that Ohio had long allowed cannot strip him of his right to attack the practice following its invalidation by this Court.” I believe this opinion is distinguishable, however, because O’Connor dealt with a criminal defendant’s constitutional right to remain silent rather than with a statutorily created basis of liability. The opinion and those following it also differ in that they involve changes in the Supreme Court’s interpretations of state laws. See also United States v. Zeigler, 19 F.3d 486, 494 (10th Cir.), *1235cert. denied, - U.S.-, 115 S.Ct. 517, 130 L.Ed.2d 422 (1994) (excusing the government’s failure to object to sentence below because it was in accordance with then applicable law); Doby v. Beto, 371 F.2d 111, 113 (5th Cir.1967) (holding that failure to object cannot bar appellant from challenging validity of a search warrant because he could not be charged with failure to anticipate the Supreme Court’s invalidation of a long-settled Texas practice).
The bottom line is the appellant in this ease did not object to the jury instruction on aider or abettor liability or to the use of a general verdict form. By failing to object she waived her right to appeal the jury verdict where it was supported by substantial evidence and the interests of justice do not require otherwise. If anything, the interests of justice require that after nearly twenty-three years of traveling up and down the judicial system, this case finally be laid to rest. For these reasons I respectfully dissent.