Evidence and the Empty Chair - Stephen R. Brooks, Esquire

EVIDENCE AND THE EMPTY CHAIR

Stephen R. Brooks, Esquire

Flaherty, Sensabaugh & Bonasso, P.L.L.C.

Morgantown, West Virginia

It is not possible for any discussion of “empty chair” concepts to be limited to evidentiary issues. The evolution of the empty chair doctrine and empty chair issues have been and remain inextricably intertwined with issues of comparative negligence, joint and several liability, third-party practice, contribution and indemnity, and the statutory or other immunity of some parties or potential parties to a civil action.

The term “empty chair” arises in at least two (2) contexts. The most common use focuses on how to deal with a nonparty tortfeasor during the trial of a civil action. The tortfeasor may be a nonparty because he, she, or it was not named as a defendant by the plaintiff or joined as a defendant pursuant to Rule 14 by one of the other defendants. A defendant who has settled prior to trial also leaves an empty chair at the trial, and certain issues with regard to dealing with that empty chair are often raised. The term empty chair is less often used in those situations where a party to a trial chooses or fails to call a particular witness or to introduce a particular document or other evidence. When this occurs, the issues which arise deal with whether and the extent to which certain inferences may be drawn as a result of that strategic decision and what argument or arguments may be made to the jury with regard to the missing witness or missing evidence.

II.

One might reasonably conclude that the body of West Virginia jurisprudence looks with disfavor upon empty chair arguments at the trial of a civil action. This conclusion can be reached by the examination of three (3) relatively recent West Virginia decisions and several of earlier vintages. Although historical analysis and perspective is always helpful, the scope of this presentation does not permit any in-depth review of that history as it relates to empty chair issues. Rather, the discussion will focus upon West Virginia cases of the last couple of decades, with only tangential, but necessary, reference to prior cases as appropriate.

III.

The advent of comparative fault in West Virginia, Bradley v. Appalachian Power Co., 256 S.E.2d 879 (W. Va. 1979), required that, among other things, the contribution of a plaintiff’s negligence or fault to his or her damages was to be evaluated in the context of the negligence or fault of all the parties to the accident or event giving rise to the plaintiff’s damages. Id. at Syl. No. 3. Bowman v. Barnes, 282 S.E.2d 613 (W. Va. 1981), better clarified and articulated the Bradley pronouncement.

In order to obtain a proper assessment of the total amount of the plaintiff’s contributory negligence under our comparative negligence rule, it must be ascertained in relation to all of the parties whose negligence contributed to the accident, and not merely those defendants involved in the litigation.

Id. at Syl. No. 3. Bowman, therefore, specifically invited the empty chair into the trial of a personal injury civil action.

The Bowman opinion, though, recognized the evidentiary problems inherent with the empty chair.

If the role of an absent party can be considered in the determination of plaintiff’s total contributory negligence, some problems with proof can arise. It is possible through the other parties, or independent witnesses, to establish some evidentiary basis of the absent tortfeasor’s role and plaintiff’s possible contribulatory negligence in regard to it. However, the factual development may well lack the vigor and clarity which would be present if the absent party were actually in the litigation.

282 S.E.2d at 620.

Offering a solution to the potential lack of vigor and clarity, the Court discussed its earlier decision of Haynes v. City of Nitro, 240 S.E.2d 544 (W. Va. 1977). Prior to the Haynes decision, it was believed that the right of contribution among joint tortfeasors was limited to those which had actually been named as a defendant by the plaintiff in the civil action. W. Va. Code § 55-7-13 provided only that “[w]here a judgment is rendered in an action ex delicto against several persons jointly, and satisfaction of such judgment is made by any one or more of such persons, the others shall be liable to contribution to the same extent as if the judgment were upon an action ex contractu.” In Haynes, the Supreme Court of Appeals recognized the inchoate right of contribution by joint tortfeasors not named as defendants in the civil action. Haynes further extended a right of contribution to a tortfeasor to bring in as a third-party defendant a fellow joint tortfeasor to share by way of contribution on the verdict, if indeed one was ultimately recovered by the plaintiff. By virtue of Haynes, the Bowman court pointed out that defendants could now exercise a larger measure of control over who was a party to the litigation. Implicit in this analysis was that defendants should, to the extent possible, avoid the challenges presented by an empty chair by joining nonparty tortfeasors as permitted by Rule 14 of the West Virginia Rules of Civil Procedure. Sydenstricker v. Unipunch Products, Inc., 228 S.E.2d 511 (W. Va. 1982), Sitzes v. Anchor Motor Freight, Inc., 289 S.E.2d 679 (W. Va. 1982), and Board of Educ. v. Zando, Martin & Milstead, Inc., 390 S.E.2d 796 (W. Va. 1990), all reinforced the Court’s desire to avoid piecemeal litigation and to have all persons or entities who may have contributed to plaintiff’s injuries and damages before a factfinder in one suit.

In 1999, the Supreme Court of Appeals further cemented its position that empty chairs in civil litigation were not encouraged. Howell v. Luckey, 518 S.E.2d 873 (W. Va. 1999), held, at Syl. No. 5, that:

A defendant may not pursue a separate cause of action against a joint tortfeasor for contribution after judgment has been rendered in the underlying case, when that joint tortfeasor was not a party in the underlying case and the defendant did not file a third-party claim pursuant to Rule 14(a) of the West Virginia Rules of Civil Procedure.

After Howell, therefore, a defendant was faced with the strategic decision of whether to implead a nonparty joint tortfeasor at the risk of losing the right to seek contribution from that joint tortfeasor in the event that the defendant was required to pay more than the proportionate share of its fault as determined by the jury at the trial of that civil action. In other words, the risk to a defendant of permitting an empty chair at the trial was that nothing could ever be collected from the empty chair, even though Bowman permitted the empty chair’s culpability to be determined by the jury.

At first blush, it may seem obvious that, if a plaintiff chooses not to name one or more of several joint tortfeasors, the defendant or defendants that are sued should join the nonparty tortfeasor(s) as a routine matter. Considerations other than the potential for someone else to contribute or share in payment of the ultimate verdict and judgment often come into play, though. Will the nonparty tortfeasor, if impleaded by a defendant, end up siding with the plaintiff? What if the nonparty tortfeasor happens to be an employee or other agent of the named defendant, and the named defendant would be vicariously liable for the nonparty in any event? The nonparty tortfeasor may be a valuable business or professional colleague of the named tortfeasor, and the latter may not want to jeopardize the relationship. Issues concerning insurance coverages and relationships may also be a factor in a particular situation.

It is often not the best defense to allegations of negligence or other wrongdoing to try to blame someone else, whether that someone else is a party, co-defendant, or nonparty. A situation to avoid as a defendant, and to encourage if one is the plaintiff, is one where alleged tortfeasors, both of which are named as defendants, engage in efforts to blame each other, leaving the plaintiff to merely stand back and win a verdict.

Doe v. Wal-Mart Stores, 558 S.E.2d 663 (W. Va. 2001), further limited the ability to cast fault upon an empty chair. In Doe, the plaintiff had been the victim of a kidnapping and sexual assault in a parking lot of a Wal-Mart store. Wal-Mart leased the property on which the parking lot was located from another entity, B. C. Associates. B. C. Associates had settled prior to trial and, apparently, did not take part in the trial. Even though there was evidence introduced during the trial regarding the lease between B. C. Associates and Wal-Mart, the opinion does not offer any detail about what that evidence was.

During the closing argument, the attorney for Wal-Mart questioned why B. C. Associates was not a party present during the trial.

Counsel for Wal-Mart: . . . [W]hy is Wal-Mart the party to this lawsuit? Why isn’t it Cato, why isn’t it—where is B.C. Associates, why isn’t it B.C. Associates?

558 S.E.2d at 673. The Supreme Court of Appeals concluded that the argument allowed for “inappropriate speculation by the jury regarding the role of B. C. Associates in the case,” even though the record revealed that interjection of comments regarding the lease during presentation of the evidence was proper. Id.

The opinion relied, in part, upon Groves v. Compton, 280 S.E.2d 708 (W. Va. 1981). In Groves, it was noted “that it is improper for counsel to argue to the jury why a party has not been brought into the lawsuit or that an absent party is solely responsible for the accident since the evidence surrounding such absent party’s liability has not been fully developed.” Id. at 712.

Syllabus No. 2 of Doe v. Wal-Mart Stores seems to provide an opportunity, though, for an empty chair argument to a jury if the evidence of that absent party’s liability is fully developed at trial.

It is improper for counsel to make arguments to the jury regarding a party’s omission from a lawsuit or suggesting that the absent party is solely responsible for the plaintiff’s injury where the evidence establishing the absent party’s liability has not been fully developed.

558 S.E.2d at 668. It follows that, if the evidence of the absent party’s liability is fully developed at trial, arguments concerning the absence of that party from the lawsuit or suggestion that the absent party is responsible for the plaintiff’s injuries may be proper.

The question is, therefore, begged: How much evidence is required concerning an absent party’s liability to assure that such liability has been “fully developed?” This challenge may be different depending upon whether the absent party was a defendant who had initially been sued but who had settled or whether the absent party is a nonparty tortfeasor who was not sued by the plaintiff and who was not impleaded by a defendant pursuant to Rule 14(a) of the West Virginia Rules of Civil Procedure and the Haynes decision.

To a great extent, the entitlement to liberal discovery pursuant to the Rules of Civil Procedure permits all parties to a civil action access to virtually every fact even remotely relevant or material to the issues to be tried. Nonparty tortfeasors and all witnesses, tortfeasor or not, may be required to have their deposition taken. Virtually all documentary facts can be assembled, even if by subpoena. No reason exists, depending only upon litigation budgets, for not having access to all facts.

The challenge, therefore, becomes deciding which facts need to be presented to the factfinder in order to best assure the appropriate result and then determining how to turn those facts into admissible evidence. When there is an empty chair to which a party defendant wishes to allocate fault, the process must include an analysis of what evidence is required to assure that the absent party’s liability has been “fully developed.”

Not surprisingly, the cases provide no specific guidance for the “fully developed” test. It most certainly must be more than merely “properly interject[ing] comments” as mentioned in Doe v. Wal-Mart Stores, 558 S.E.2d at 673. The argument attempting to implicate a nonparty in Doe v. Wal-Mart Stores failed because it permitted inappropriate speculation regarding the nonparty’s role. Id. Evidence of a nonparty’s liability must, therefore, be more than conjecture or speculation; it must be more than inferential. It must be clearly probative of wrongdoing.

One would be naïve to think that a nonparty tortfeasor would come to a deposition or to a trial and “fall on the sword” for the sake of permitting his joint, but named, tortfeasor to escape liability to the plaintiff, even though, according to Howell, unless joined he would have no exposure for contribution. It is conceivable that such may occur occasionally, but one should never consider that as part of prudent trial strategy. The only safe way to fully develop the liability of a nonparty tortfeasor is with the trial testimony of lay or expert witnesses that have no stake in the outcome of the litigation and who had no direct involvement or participation in the event or events that allegedly damaged the plaintiff and triggered the filing of the civil action. In a motor vehicle accident, such evidence could come from a person who merely saw what happened. In a medical negligence case, it could be an expert witness who is asked to review records and offer an opinion about all of the care to the plaintiff, not just the care of the defendant health care provider. Whether a products liability case, a deliberate intent case, a breach of contract case, a civil rights case, or one of myriad of other types of civil actions, the representation to which a defendant is entitled mandates an aggressive and resourceful discovery process to assure that proper evidence is available to fully develop the liability of nonparties. Whether that evidence is ultimately used at trial remains a question of strategy to be decided on a case-by-case basis.

IV.

For all practical purposes, there can be no attribution of fault to an empty chair or chairs in the trial of medical professional liability civil actions in West Virginia. Although the rule of law established in Syl. No. 3 of Bowman v. Barnes, discussed above, has not been abrogated, even though it has been weakened by subsequent decisions, it has virtually no application in medical negligence cases.

Rowe v. Sisters of the Pallottine Missionary Society, 560 S.E.2d 491 (W. Va. 2001), held that W. Va. Code § 55-7B-9 applies only to parties to a medical professional liability action and does not apply to nonparty tortfeasors. Therefore, there can be no empty chair defendants to which a percentage of negligence or fault may be allocated.

W. Va. Code § 55-7B-9(b) stated that

(a) In the trial of a medical professional liability action against a heath care provider including multiple defendants, . . . .

(b) In every medical professional liability action, the court

shall make findings as to the total dollar amount awarded as damages to each plaintiff. The court shall enter judgment of joint and several liability against every defendant which bears twenty-five percent or more of the negligence attributable to all defendants. The court shall enter judgment of several, but not joint, liability against and among all of the defendants which bear less than twenty-five percent of the negligence attributable to all defendants.

(Emphasis added). W. Va. Code § 55-7B-9 was rewritten effective March 8, 2003, after the Rowe decision, to make it even more clear.

(b) In assessing percentages of fault the trier of fact shall consider only the fault of the parties in the litigation at the time the verdict is rendered and shall not consider the fault of any other person who has settled a claim with the plaintiff arising out of the same medical injury.

The Rowe opinion noted that the Legislature chose the terms plaintiff and defendant in discussing joint and several liability and did not use the term potential defendants or other nonparties to the action. The opinion concluded, therefore, that there could not be an attribution of fault to a nonparty tortfeasor in a medical professional liability action which was either not named or which had been dismissed prior to the trial.

In Rowe, the plaintiff had been injured in a motorcycle accident and, for purposes of the analysis, the Court assumed that the plaintiff’s own negligence may have caused or contributed to the motorcycle accident. Mr. Rowe was examined at St. Mary’s Hospital by Dr. Daniels. Mr. Rowe was not admitted to the hospital, but he was given instructions to elevate his leg and to make an appointment with an orthopedist. He was also advised that, if his pain continued or became worse, he should return to the emergency department at St. Mary’s Hospital. 560 S.E.2d at 494-95.

As one might expect, his leg got worse. He allegedly made telephone calls to other physicians, none of whom would treat him. The next morning he went to Cabell Huntington Hospital’s emergency room where it was determined that his leg was more seriously injured than had been recognized by Dr. Daniels at St. Mary’s Hospital. Mr. Rowe subsequently filed a civil action against Dr. Daniels and St. Mary’s Hospital. Dr. Daniels settled prior to trial. Id. at 495.

In the context of the comparative negligence rules, at trial St. Mary’s Hospital asked that there be an allocation of fault against Mr. Rowe, Dr. Daniels, and the physicians who consulted with Mr. Rowe by telephone but who would not see him on the night of his accident.

One holding of the Court was that “[i]n a medical malpractice claim, a health care provider is not entitled to a comparative negligence instruction requiring a jury to consider the plaintiff’s negligent conduct that triggered the plaintiff’s need for medical treatment . . . .”, 560 S.E.2d at Syl. No. 3, finding that, regardless of what brought the plaintiff or any other injured person to the health care provider, those patients are nevertheless entitled to subsequent non-negligent medical treatment. Id. at 497.

Although the plaintiff whose negligence caused the need for medical care is not an empty chair, such plaintiff sits in a “protected chair” when it comes to an attribution of negligence or fault to him, at least with regard to the facts and circumstances surrounding the non-medical injury. Although the rationale used by the Court to reach the conclusion may be questioned, the rule seems clear.

The Rowe opinion removed the protection from the plaintiff, though, with regard to his conduct after the initial medical treatment. A percentage allocation of negligence may be permitted if the health care provider proves

with respect to plaintiff’s conduct after medical treatment is initiated that: (1) the plaintiff owed himself a duty of care; (2) the plaintiff breached that duty; and (3) the breach was a proximate cause of the damages the plaintiff sustained.

560 S.E.2d at 498. The opinion strongly implied that expert opinion testimony may be required to prove some or all of these elements. Id. at 498-99.

Notwithstanding the Rowe holdings, one can effectively use a plaintiff’s failure to promptly return for follow-up care as a defense in a medical negligence trial if it is couched in terms of a proximate cause argument, not a comparative negligence or comparative fault argument. In Matheny v. Fairmont General Hospital, 575 S.E.2d 350 (W. Va. 2002), there was evidence that the plaintiff failed to heed the admonitions of his family and friends to return to the hospital or to see his physician. Counsel for the defendant hospital raised that evidence during closing argument. There had been no instruction by the trial court concerning comparative negligence, and the verdict form did not contain a means for the jury to assign a percentage of negligence to the plaintiff.

The Matheny opinion acknowledged the holding in Rowe, but found that the closing argument did not rise to the level of a comparative negligence argument.

Reviewing Fairmont General’s argument in light of the elements of a comparative negligence defense, we find that it did not raise such an argument. Clearly, counsel was simply asserting that Mr. Matheny’s failure to act on his worsening symptoms were the proximate cause of his infection manifesting into an abscess.

Matheny, 575 S.E.2d at 360. Is Matheny a retreat from Rowe and an indication that the plaintiff’s “protected chair” is losing its protection in medical negligence cases? Probably not. Indeed, Matheny reaffirmed the requirements of Rowe for a comparative negligence attribution to a plaintiff, but found that they were not applicable to the hospital’s strategy.

The author and one of his partners made a similar proximate cause argument in a medical negligence trial when there was some factual evidence and expert opinion that the injury to the plaintiff’s arm was caused not by the venipuncture that was the subject of the suit, but by a later surgery to relieve symptoms of carpel tunnel syndrome. The surgeon who performed the subsequent surgery was not named as a defendant by the plaintiff, and he was not impleaded by the defendants. Any effort to have the jury attribute negligence or fault to that surgeon would not have been permitted by Rowe or W. Va. Code § 55-7-9.

Using the language from a fairly standard instruction defining proximate cause and referring to the “uninterrupted by an intervening cause” language, the defense was permitted to argue, in closing, that the venipuncture was not a proximate cause of the arm injury because of the intervening carpel tunnel surgery. In that case, though, the empty chair’s involvement was “fully developed” as suggested by Doe v. Wal-Mart Stores, 558 S.E.2d 663 (W. Va. 2001) at Syl. No. 2, by both fact and opinion testimony and some documentary evidence. Rowe was not triggered, because no attribution of negligence against the surgeon or the plaintiff was sought, and the evidence of the surgeon’s involvement was fully developed. The empty chair was effectively used, but from a causation perspective, not a fault perspective. This case was reported, Arbogast v. Mid-Ohio Valley Medical Corp., 558 S.E.2d 498 (W. Va. 2003), and the proximate cause approach was discussed without criticism by the Supreme Court of Appeals. Id. at 503-04.

How to deal with an empty chair at trial is really more of a trial strategy issue than an evidentiary issue.

When deciding who, among potential tortfeasors, should be named as defendants, a plaintiff must give consideration to the ultimate strategy that will be employed at trial. The plaintiff must also consider the potential alignment of all the parties in the event that a defendant exercises his right to join, as defendants, other tortfeasors.

Defendants, likewise, must consider several scenarios when evaluating whether to implead other tortfeasors that may be potentially liable for the plaintiff’s damages. The strategic risks and benefits of the empty chair and how to deal with it often drive the development and evolution of the discovery and trial phases. If a chair is left empty, the evidence of that nonparty’s culpability must be fully developed to permit maximum effective implementation of the chosen strategy at trial.

As with virtually all aspects of civil trial practice, these decisions must be made on a case-by-case basis. Long term effectiveness of a trial practice mandates knowledge of the procedural and evidentiary rules, particularly from the ever-evolving decisions of the Supreme Court of Appeals, careful consideration and development of trial strategy, and creative thinking to overcome real or perceived obstacles to a successful result for the interests that one represents.

Mr. Brooks wishes to publicly acknowledge the assistance of and extend thanks to his colleague, Stacie D. Honaker, Esquire, of the Morgantown office of Flaherty, Sensabaugh & Bonasso, P.L.L.C., for her research assistance.

Related Reading From Other Jurisdictions

Steir, Revisiting the Missing Witness Inference – Quieting the Loud Voice From the Empty Chair, 44 Md. L. Rev. 137 (1985), examines the apparent origin of the empty chair doctrine, Graves v. United States, 150 U.S. 118 (1893), its evolution, its pitfalls, and ways to improve upon its application. Interestingly, the empty chair doctrine discussed by Mr. Steir focuses on the missing witness or missing evidence inference rather than the nonparty tortfeasor issues discussed by other commentators. It is included because some of the analyses seem to provide the basis for Syllabus No. 2 of Doe v. Wal-Mart Stores, 558 S.E.2d 663 (W. Va. 2001).

Newhardt, Settlement or Release Under Montana’s Multiple Defendant Statute, 59 Mont. L. Rev. 113 (1998), works through several scenarios using a hypothetical case where one tortfeasor settles prior to trial, thus becoming an “empty-chair defendant”/“nonparty tortfeasor.”

Note, Allocating Fault to the Empty Chair: Tort Reform or Deform, 76 U. Det. Mercy L. Rev. 571 (1999), offers an analysis of Michigan’s tort reform legislation that dramatically changed joint and several liability in that state and created a mechanism assessing liability against a nonparty defendant, the “empty chair.” The piece concludes that “Michigan plaintiffs . . . are threatened with a reduction in damages under empty chair tort reform . . . .” and suggests that “trial attorneys can begin to build a constitutional challenge to the law . . . .” Id. at 604.

Leflar, The Civil Justice Reform Act and the Empty Chair, 2003 Ark. L. Notes 67 (2003), criticizes Arkansas’s Civil Justice Reform Act of 2003, 2003 Ark. Acts 649, Ark. Code Ann. §16-55-201 to 220 (Michie Supp. 2003), and suggests that the Uniform Apportionment of Tort Responsibility Act offers a better approach. A similar uniform act, the Uniform Contribution Among Tortfeasors Act, was rejected in Howell v. Luckey, 518 S.E.2d 873, 877 (W. Va. 1999).