February 04, 2021 Articles

Don’t Show Up Empty-Handed When Using the “Empty Chair” Defense

The Maryland high court joins several other jurisdictions that require a defendant in complex cases to present expert testimony to generate a jury question as to the fault of a nonparty.

By Joshua F. Kahn and Daniel L. Adamson

The “empty chair” defense, in which the defendant denies responsibility for the plaintiff’s injuries and blames a person absent from trial (i.e., the “empty chair”), can be extremely effective in tort actions. Maryland’s highest court, the Court of Appeals, has rightly observed that “[t]he more the jury hears that the negligence of a third party caused the injury, the less likely the jury may be to find that the named defendant was negligent in causing the injury.” Am. Radiology Servs., LLC v. Reiss, 470 Md. 555, 589 (2020).

In Reiss, the Court of Appeals grappled with a question at the heart of the successful use of the empty chair defense in many complex tort cases: Must an empty chair defense be accompanied by enough expert testimony that the jury could find the absent party liable? The court answered in the affirmative, holding that expert testimony is generally required to establish the nonparty’s breach of the standard of care and causation. Without this critical evidence, the jury should not be permitted to consider the question of a nonparty’s negligence.

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