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.
The plaintiff was diagnosed with a tumor and an adjacent enlarged lymph node. In 2011, the plaintiff’s urologist surgically removed the tumor but could not safely remove the lymph node. Following surgery, the plaintiff was treated by an oncologist, who believed the enlarged lymph node was cancerous but agreed it was not possible to remove it safely. He ordered chemotherapy.
Over several years, the oncologist ordered periodic computerized tomography (CT) scans of the lymph node but did not order image-enhancing procedures. Two radiologists evaluated several of these scans and did not detect enlargement. Later, a third radiologist found signs of enlargement of the lymph node. By that point, the oncologist confirmed that the node was cancerous and inoperable due to its location.
The plaintiff filed a medical malpractice lawsuit against the first two radiologists and the urologist, a major issue being whether scan enhancement measures should have been ordered. The radiologists were allegedly negligent for failing to alert the oncologist to the growth of the diseased node when it could have been safely removed. The urologist allegedly should have removed the lymph node during the original surgery.
The plaintiff voluntarily dismissed the urologist, leaving the radiologists as the lone defendants. The radiologists denied liability and pursued the empty chair defense by claiming that both the urologist and the oncologists, whom plaintiff was not pursuing, were negligent and caused the plaintiff’s injuries. However, their experts opined only on the radiological standard of care and did not opine on negligence or causation with respect to the empty chair defense. In their expert designations, the radiologists simply “included a pro forma statement advising that they reserved the right to rely on the opinions of Plaintiff’s experts.” Reiss, 470 Md. at 565. Because of the lack of support of a properly designated expert, the trial court precluded the radiologists from eliciting expert opinions from the plaintiff’s experts concerning the negligence of the nonparty oncologists.
As a result, at trial, no expert opined on the negligence of the empty chair physicians. Nonetheless, over the plaintiff’s objection, the verdict sheet included a question as to whether the urologist or oncologists committed negligent acts that were a substantial factor in causing injury to the plaintiff. The jury’s ultimate verdict (after a false start) held that the defendant radiologists did not breach the standard of care.
Maryland’s intermediate appellate court reversed the judgment, holding that the radiologists could not generate a jury question as to the negligence of the nonparty physicians without expert testimony that those physicians breached the standard of care. Consequently, the question of alternative causation concerning the nonparty physicians’ negligence should not have been submitted to the jury. The Court of Appeals agreed.
The court began by discussing two recent decisions from Maryland’s appellate courts that provide the framework for the admissibility of evidence of nonparty negligence in medical malpractice cases: Martinez ex rel. Fielding v. Johns Hopkins Hospital, 212 Md. App. 634 (2013), and Copsey v. Park, 453 Md. 141 (2017). Those cases establish that a defendant who generally denies liability may introduce evidence of nonparty negligence to prove (1) that the defendant is not liable for a plaintiff’s injuries or (2) that the nonparty’s acts were a superseding cause “that cleaved the chain of causation running from defendant’s negligence.” Reiss, 470 Md. at 578.
The question in Reiss, however, was not whether evidence of nonparty negligence was admissible. Rather, the question was whether the radiologists presented enough evidence to generate a jury question as to the negligence of the nonparty physicians.
The court ultimately held:
[W]here a defendant elects to pursue a defense that includes non-party medical negligence, the defendant must produce the requisite expert testimony necessary to establish medical negligence and causation, unless the non-party’s medical negligence is so obvious that ordinary laypersons can determine that it was a breach of the standard of care.
Id. at 584 (emphasis added).
The court’s rationale was rooted in Maryland’s traditional standard for proving negligence in a medical malpractice case; namely, that expert testimony is required to establish a physician’s negligence and to explain how the physician’s breach caused the injury. Id. at 580.
Notably, the court explained that its holding did not require a defendant raising an empty chair defense to call his or her own experts. Rather, the evidentiary burden may be satisfied through examination of another party’s expert or experts so long as the defendant properly designates such testimony during discovery.
Because the radiologists did not present sufficient evidence to generate a jury question as to whether the nonparty physicians were negligent or caused the plaintiff’s injuries, the inclusion on the verdict sheet of a question about the negligence of the nonparty physicians was prejudicial, necessitating a new trial.
In Reiss, Maryland 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. Not surprisingly, the issue has garnered more attention and analysis in comparative fault jurisdictions, where a defendant may reduce its share of liability by proving that another person contributed to the plaintiff’s harm. Courts refuse to permit the jury to apportion fault to a nonparty when the question of the nonparty’s negligence requires expert testimony that the defendant did not present.
Chakalis v. Elevator Solutions, Inc., 141 Cal. Rptr. 3d 362 (Cal. Ct. App. 2012), is illustrative. The plaintiff sued an elevator maintenance company and others after she sustained injuries when an elevator in her apartment building dropped six floors. At trial, the defendants claimed that a nonparty physician’s malpractice caused or contributed to the plaintiff’s injuries, but they failed to present necessary expert testimony to substantiate this claim. The appellate court overturned the jury’s verdict apportioning 52 percent of fault to the nonparty physician because the defendants “did not prove the elements of breach and causation against [the nonparty] with expert testimony.” Id. at 365. The court emphasized that “[t]he same burden of proving fault applies regardless of whether a joint tortfeasor is a defendant or nonparty.” Id. at 371 (cleaned up); see also Scott v. C.R. Bard, Inc., 180 Cal. Rptr. 3d 479, 498 (Cal. Ct. App. 2014) (holding that because “fault in the medical context is measured by the standard of care in the medical community,” the defendant was “required to prove, with expert testimony, that . . . a nonparty breached the medical standard of care”).
Florida, another comparative negligence state, follows the same approach. In AHM Appraisal Consultants v. Argov Gavish Partnership, 919 So. 2d 580 (Fla. Dist. Ct. App. 2006), for example, the court refused to apportion fault to a nonparty insurance agent when the defendant failed to offer expert testimony related to the agent’s alleged negligence. The court explained that in order to assign fault to a nonparty, “the defendant has the burden of presenting sufficient evidence of the nonparty defendant’s negligence,” and that “[w]hen the subject matter is beyond the understanding of the average layperson,” expert testimony is required to satisfy this burden. Id. at 581–82; see also Union Carbide v. Font, 299 So. 3d 491, 495 (Fla. Dist. Ct. App. 2020) (explaining that a defendant seeking to apportion fault to a nonparty in a toxic tort lawsuit must introduce expert testimony establishing the nonparty’s “involvement in [the plaintiff’s] disease and death”).
Several other courts that have considered this issue have reached the same conclusion. See, e.g., Asher v. Anesthesia Assocs., 2020 WL 4512820, at *2 (Ky. Ct. App. July 2, 2020); Nez v. United States, 367 F. Supp. 3d 1245, 1269–70 (D.N.M. 2019) (applying New Mexico law); D’Amico v. Kindred Healthcare, Inc., 2016 WL 11003343, at *2 (N.H. Super. Ct. June 1, 2016); Greig v. Botros, 2011 WL 890398, at *2–*3 (D. Kan. Mar. 14, 2011) (applying Kansas law).
Reiss and the other cases discussed above serve as an important reminder for defendants about the importance of identifying and satisfying the evidentiary burden underlying the empty chair defense. Where a defendant seeks to have the jury assign fault to a nonparty on a verdict sheet and where the nonparty’s fault presents complex issues beyond the scope of lay knowledge, sufficient expert testimony on the nonparty’s fault must be presented.
Of course, even without expert testimony pointing the finger at a nonparty, a defendant may still present the jury with alternative causation evidence. Numerous courts have held that a defendant may present expert testimony about other possible causes even if the expert cannot testify that such causes were probable. See, e.g., Linton v. Carter, 2020 WL 6572769, at *13–*14 (Mo. Ct. App. Nov. 10, 2020), and cases cited therein. Thus, a defendant that finds itself at trial without sufficient expert testimony to permit the jury to fault an empty chair defendant should nevertheless consider other ways in which alternative causation evidence can be introduced to undermine the credibility of the plaintiff’s causation theory.
