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 TrialThe 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...
