Md. High Court to Defendants: Don’t Show Up Empty Handed When Using the “Empty Chair” Defense

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The “empty chair” defense, where 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. The Court of Appeals of Maryland 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 non-party’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 non-party’s negligence.

The Trial

The Facts

The plaintiff was diagnosed with a tumor on his kidney and an adjacent enlarged lymph node. In 2011, the plaintiff’s urologist, Dr. Davalos, surgically removed the tumor but was unable to remove the lymph node due to its proximity to a large blood vessel, the inferior vena cava.

Following surgery, the plaintiff was treated by an oncologist, Dr. DeLuca, who believed the enlarged lymph node was cancerous, but like Dr. Davalos, believed it could not be removed due to its proximity to the inferior vena cava. Dr. DeLuca treated the plaintiff with chemotherapy that caused the node to shrink.

Over the course of several years, Dr. DeLuca ordered periodic CT scans of the lymph node. Dr. Bracey, a radiologist, evaluated several CT images of the plaintiff’s lymph nodes and noted no sign of enlargement. Because Dr. DeLuca did not order the CT images to be performed with IV contrast, which enhances the clarity of the images, Dr. Bracey noted that the images were difficult to interpret. Another radiologist, Dr. Ahn, also interpreted a non-contrast scan of the plaintiff’s lymph node. Like Dr. Bracey, Dr. Ahn did not report signs of enlargement.

A third radiologist evaluated a non-contrast CT scan in 2015 and found signs of enlargement of the lymph node. Dr. DeLuca and another oncologist confirmed that the node was cancerous and inoperable due to its location.

Pre-trial

The plaintiff filed a medical malpractice lawsuit against the radiologists, Drs. Bracey and Ahn, and the urologist, Dr. Davalos. As to the radiologists, the plaintiff claimed they breached the standard of care by failing to alert Dr. DeLuca of the growth of the diseased node when it could have been safely removed. As to Dr. Davalos, the plaintiff claimed he was negligent by failing to remove the lymph node during the 2011 surgery. The plaintiff later voluntarily dismissed Dr. Davalos, leaving the radiologists as the lone defendants.

During discovery, the radiologists denied liability and sought to invoke the empty chair defense by claiming that non-party physicians, namely the oncologists, were negligent and caused the plaintiff’s injuries. The radiologists designated experts who rendered opinions that they did not breach the standard of care or cause the plaintiff’s injuries. Importantly, they did not designate any expert to opine on negligence or causation with respect to the non-party physicians. Instead, 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.” 470 Md. at 565. In a pre-trial ruling, the trial court precluded the radiologists from eliciting expert opinions from the plaintiff’s experts concerning the negligence of the non-party oncologists due to the lack of an appropriate expert designation.

Trial

At trial, no expert witness testified that Dr. Davalos breached the standard of care by not removing the lymph node during the 2011 surgery, or that the standard of care required the oncologists to refer the plaintiff to a surgeon to remove the lymph node or biopsy it. On cross-examination of one of the plaintiff’s experts, in accordance with the court’s pre-trial ruling, the court sustained plaintiff’s objection to defense counsel’s attempt at eliciting opinions about whether Dr. Davalos breached the standard of care.

Nonetheless, over the plaintiff’s objection, the verdict sheet included a question as to whether a negligent act committed by Dr. Davalos or the oncologists was a substantial factor in causing injury to the plaintiff. The jury initially returned a verdict finding that: (1) the defendant radiologists did not breach the standard of care; (2) the non-party physicians’ negligent acts caused the plaintiff’s injuries; and (3) awarding the plaintiff $4.8 million in damages (notwithstanding their finding that the defendants were not liable). The court explained to the jury the inconsistency in their verdict and, over the plaintiff’s objection, sent them back to deliberate again with the same verdict sheet. The jury returned another verdict finding only that the defendant radiologists did not breach the standard of care.

The Appeal

The Court of Special Appeals reversed the judgment, holding that the radiologists could not generate a jury question as to the negligence of the non-party physicians without expert testimony that those physicians breached the standard of care. Consequently, the question of alternative causation concerning the non-party physician’s negligence should not have been submitted to the jury. The Court of Appeals agreed.

The Court began by discussing two recent appellate decisions providing the framework for the admissibility of evidence of non-party negligence in medical malpractice cases: Martinez ex rel. Fielding v. Johns Hopkins Hosp., 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 non-party negligence to prove: (1) that they are not liable for a plaintiff’s injuries; or (2) that the non-party’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 non-party negligence was admissible. Rather, the question was whether the radiologists presented enough evidence to generate a jury question as to the negligence of the non-party 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. 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 their own experts. Rather the evidentiary burden may be satisfied through examination of another party’s expert(s) 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 non-party physicians were negligent or caused the plaintiff’s injuries, the inclusion on the verdict sheet of a question about the negligence of the non-party physicians was prejudicial, necessitating a new trial.

Key Takeaways

Although Reiss was a medical malpractice case, the principles underlying the holding are applicable in any complex tort case where a defendant seeks to effectively use the empty chair defense. In such cases, Reiss raises a number of important strategic points and reminders for defendants and their counsel to consider when formulating their discovery and trial strategy:

First, defense counsel should consider whether an empty chair defense exists. In multi-defendant cases, defense counsel must be cognizant that, through settlement or change of the plaintiff’s theory, a defendant at the commencement of the lawsuit may become a non-party by the time of trial. Defense counsel should not only be considering the empty chair defense as to parties who were never sued, but also as to those who are or were named defendants. Equally important to identifying the empty defense is identifying the evidence that will be necessary to get the question of a non-party’s negligence to the jury. (Of course, the same exercise should be undertaken for cross- and third-party claims.) In Reiss, the radiologists never designated their own experts to testify on the negligence of the non-party physicians, and their designation of the plaintiff’s experts was ruled insufficient under the Maryland discovery rules (which ruling was not appealed). This led to the order precluding the radiologists from eliciting testimony at trial that the Court of Appeals later recognized was essential to their empty chair defense. The radiologists’ failure to properly designate expert testimony supportive of their empty chair defense, combined with the trial court’s inclusion of the empty chair defense question on the verdict sheet, was nothing short of disastrous for the radiologists, who lost their defense verdict on appeal.

Second, a defendant’s failure to produce sufficient evidence to support an empty chair defense risks pre-trial resolution of the issue before the defense is ever heard by the jury. A defendant who takes care to identify the evidence needed to put on an empty chair defense and properly designates the expert testimony necessary to present the defense should be well-prepared to stave off pre-trial attacks seeking to destroy this flagship defense.

Finally, Reiss provides a reminder that, when carefully planned and deployed, the empty chair defense can be an effective weapon in the defense attorney’s arsenal for securing a favorable verdict. As mentioned, Maryland’s appellate courts have established that, where a defendant denies liability, evidence of non-party negligence is admissible to prove that the defendant is not responsible for the plaintiff’s injuries, and to establish a break in the causal chain between the defendant’s conduct and the plaintiff’s injuries. Supplying the jury an alternate theory of causation, of course, can be critical in catastrophic personal injury cases where the jury may sympathize with the plaintiff. A carefully planned and presented empty chair defense can satisfy this objective by allowing the jury to conclude that the person responsible for the plaintiff’s injuries is the “defendant” beyond the courtroom, rather than the one in it.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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