“Empty Chair” Defense Permitted Despite Dismissal of a Defendants' Cross-Claims Against a Settling Party


On March 26, 2014, the New Jersey Appellate Division, in an unpublished decision, upheld a Trial Court ruling, which permitted various non-settling physician defendants to utilize the “empty chair” defense in assessing the liability of a non-settling defendant.
Martirez v. K. George Younan, M.D. et. al. A-0601-12T1 involved a medical malpractice/wrongful death action following open heart surgery. Defendant Dr. Younan diagnosed the plaintiff with a pleural effusion, which required fluid to be drained from his lungs. The plaintiff was referred to a Dr. Mansour, a pulmonologist, to perform the procedure. Following the procedure, complications developed and at 10 p.m., Dr. Mansour reached out to a Dr. Ciervo to see if he would be available to insert a chest tube if it became necessary. Dr. Ciervo did not examine or evaluate the plaintiff at that time. The plaintiff subsequently “crashed.” Dr. Ciervo was not called to place the chest tube until 11:30 p.m. An emergency tracheostomy followed. Due to lack of oxygen, the plaintiff suffered a hypoxic brain injury and became mentally and physically incapacitated until he died one year later. 
The family sued all three physicians and the defendants filed cross-claims against Dr. Mansour. Before the trial, the plaintiff settled with Dr. Mansour. During the trial, the experts for both sides discussed Dr. Mansour’s involvement in the case and his “responsibility” to take care of the complications from the procedure. At the close of the evidence, the trial court granted a directed verdict, thereby dismissing the defendant’s cross claims against Dr. Mansour, based upon the failure of the defendants to prove that Dr. Mansour deviated from accepted standards of practice. Therefore it was determined that Dr. Mansour’s name would not be on the jury verdict sheet.
During summations, defense counsel argued the respective responsibilities of the various parties in rendering treatment to the decedent. The jury ultimately rendered a no cause verdict in favor of all defendants. The plaintiff moved for a new trial arguing that the Court erred in not providing proper jury instructions regarding Dr. Mansour’s settlement and permitted defendants to assert the “empty chair” defense during trial. The Trial Court denied plaintiff’s motion. On appeal, the plaintiff contended that the trial judge erroneously allowed defendants to use the “empty chair” defense and failed to instruct the jury that the settling defendant could not be held negligent. The Appellate Court found no reversible error and affirmed the lower court rulings.
In affirming, the Appellate Division recognized that an “empty chair” defense allows a defendant to claim that his conduct was not a substantial contributing factor to the incident, and focuses the jury’s attention upon the plaintiff’s duty to prove that defendant’s conduct was a proximate cause of the accident, citing Fabian v. Minster Mach. Co, Inc., 258 N.J. Super. 261, 276-77 (App. Div. 1992). The Court rejected the plaintiff’s contention that defense counsel’s repeated use of the word “responsible” during summations was akin to arguing that Dr. Mansour was negligent and ruled that it was permissible for the two remaining defendants to argue that their actions were not the proximate cause of this event. Thus, the Appellate Division concluded that the trial court did not err in permitting evidence of Dr. Mansour’s involvement in the plaintiff’s case to go to the jury for consideration, in assessing the liability of the non-settling defendants. 
Analysis: The practical effect of an “empty chair defense” is that it permits a defendant to shift the blame to a joint tortfeasor who is not in the courtroom. Although the remaining defendants’ cross claims had been dismissed against Dr. Mansour at the conclusion of the evidence, the Court recognized that this did not preclude the defense from parsing out the respective responsibilities of the settling party on summation and in order to support their proximate cause argument. 

For more information please contact Jane Kelsey at jkelsey@wglaw.com or 973.854.1078.

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