United States: The Empty Chair Defense

In Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 212 Ill. Dec. 968, 658 N.E.2d 450 (1995), the Supreme Court examined the circumstances under which a defendant may claim that the sole proximate cause of plaintiff's injury was the conduct of some person not before the court.

A split in the districts had arisen. In the First District in Leonardi v Loyola University of Chicago, 262 Ill. App. 3d 411, 199 Ill. Dec. 13, 633 N.E.2d 809 (1994), the court had affirmed the trial court's denial in a medical malpractice case of plaintiff's motion in limine to prohibit evidence regarding the conduct of a non-defendant doctor, had allowed a hypothetical question and other evidence directed toward blaming that doctor, and had given the long form jury instruction on proximate causation (IPI Civil 3d No. 12.04). By contrast, under circumstances quite like those in Leonardi, the Fifth District in Ruesch v. Richland Community Hospital, 260 Ill. App. 3d 49, 198 Ill. Dec. 328, 632 N.E.2d 658 (1994) had held that the conduct of another doctor not before the court is irrelevant and tends to distract the jury from the issue before it: whether a named defendant caused, in whole or part, a plaintiff's injury.

In Leonardi, the Illinois Supreme Court affirmed the First District, holding that defendants are entitled to assert that the sole proximate cause of plaintiff's injury was the negligence of some person or entity not before the court - the "empty chair". It overruled Ruesch v. Richland Memorial Hospital, 260 Ill. App. 3d 49, 198 Ill. Dec. 328, 632 N.E.2d 658 (5th Dist. 1994), and others like it. [168 Ill.2d at 94.]

The court reiterated its earlier holding in Korando v. Uniroyal Goodrich Tire Co., 159 Ill.2d 335, 202 Ill. Dec. 284, 637 N.E.2d 1020 (1994), that the burden of proving causation always rests with the plaintiff; thus, a defendant need not assert lack of proximate cause as an affirmative defense. [168 Ill.2d at 93-94.] Rather, the defense may be raised if the defendant has denied in its answer that its negligence was even partly a proximate cause of plaintiffs' injuries. [168 Ill.2d at 94.]

The facts set out in the appellate and Supreme Court opinion are not compellingly supportive of the sole proximate cause defense. The Court states that it is left to the sound discretion of the trial court to determine if the defendant had offered sufficient evidence to receive an instruction by which it may point to the "empty chair", but added that the evidence may be slight. [168 Ill.2d at 100.] By affirming Leonardi and overruling the legal rationale articulated in Ruesch, the Court seems to be telling the trial courts of the State that the jury, and not the court, should decide if the injuries were caused solely by the occupant of the empty chair.

Plaintiff complained against at least seven different doctors and the Loyola University Medical Center that provided obstetrical and resuscitative care to her decedent. Between the date of the incident and trial, her treating obstetrician, Dr. Tierney, died. As result, she entered into a settlement with his estate. With Dr. Tierney no longer available to deny or to be called to rebut, the remaining defendants pointed to Dr. Tierney's empty chair, claiming that he was the sole proximate cause of the injury to plaintiff's decedent.

Plaintiff's decedent was 36-years old, and otherwise healthy. She was admitted to a hospital because her water bag broke while she was seven months pregnant. She was transferred to Loyola by Dr. Tierney, because Loyola was better equipped to handle high risk pregnancies and premature infants. At approximately 9:30 p.m. on the third night after admission, she began hemorrhaging and went into shock due to blood loss. Within a short time thereafter, she was alert and her condition was stabilized. Within 23 minutes thereafter, Dr. Tierney arrived at the hospital, performed a caesarean section on the decedent, and delivered a 2 pound infant. In the course of removal of the placenta, massive bleeding occurred due to an abnormal adherence of the placenta to the uterine wall and the decedent again went into shock. Dr. Tierney performed an emergency hysterectomy. At its conclusion, her blood pressure and pulse were stable, her urine output was satisfactory, and she was transferred in critical but stable condition to the recovery room where she was given supplemental oxygen by mask.

At 6 a.m. the following morning, a resident ordered the oxygen mask removed.

By 8 a.m., the decedent was restless.

At 9:30 a.m., she was still restless, and she had cyanotic lips, was perspiring heavily, and complained of abdominal pain.

At 10:30 a.m., a resident did a blood gas test that revealed (or confirmed) that plaintiff's decedent was experiencing respiratory difficulties. The resident ordered that oxygen by mask be re-started, which stabilized her.

At 11:00 a.m., her blood pressure dropped.

At 11:30, she suffered respiratory arrest, which the residents diagnosed as resulting from a pulmonary embolus.

By 11:35, a resident surgeon initiated an emergency pulmonary embolectomy. The clot was broken into many pieces, which dispersed through the arteries. The decedent's life was saved, but she was reduced to a vegetative state due to irreversible brain damage. She remained hospitalized for over one year, then was discharged to a nursing center where she remained for 4½ years, until her death.

Neither appellate opinion recites whether any party contended that a single cause or a single event produced the decedent's brain damage or whether it was the result of a series of causes and events. Nor does the Court discuss any contention that a particular or a series of breaches of the standard of care caused the injury.

It might be inferred from the opinion that the pulmonary embolism developed as result of bleeding that occurred prior to and during the caesarean section and emergency hysterectomy and that the clot was thrown to an artery leading to the brain after the surgeon broke the pulmonary embolism up into smaller clots in the course of the life-saving pulmonary embolectomy. However, there is no reference to testimony that any defendant violated the standard of care in responding to either incident of hemorrhaging or during either emergency surgical procedure.

By contrast, there was testimony by the co-defendant anesthesiologist that the hospital doctors and nurses violated the standard of care in response to symptoms that were noted at 9:30 a.m. He testified to three problems with their response: 1) failure to do a blood gas test, 2) failure to re-start oxygen by mask, 3) failure to diagnose a pulmonary embolism.

The only indication, aside from a "captain of the ship" theory, that Dr. Tierney himself committed a breach of the standard of care comes from a response by the anesthesiologist to a hypothetical question posed on cross-examination by counsel for the hospital. This question related only to defendant Loyola's reason why the residents failed to do a blood gas at 9:30 a.m. (See discussion of hypothetical infra.) But even if it had been stipulated that Dr. Tierney told the resident not to do that test, the opinion suggests no evidence that Dr. Tierney was responsible for the staff doctors and nurses having failed at 9:30 a.m. either to re-start the oxygen or to diagnose the pulmonary embolism. Further, even if Dr. Tierney had countermanded an order to do the blood test, the department chairman told the resident that he should do any test he felt was necessary regardless of an order by Dr. Tierney. Thus, it is difficult to understand how Dr. Tierney could have been the sole proximate cause of the injury.

In Wilson v. Clark, 84 Ill.2d 186, 49 Ill. Dec. 308, 417 N.E.2d 322 (1981), the Illinois Supreme Court unequivocally adopted Federal Rules of Evidence 703 and 705, relating to expert testimony. The court adopted Rules 703 and 705, in part, to eliminate the need for hypothetical questions. Melecosky v. McCarthy Bros. Co., 115 Ill.2d 209, 104 Ill. Dec. 798, 503 N.E.2d 355 (1986). Hypothetical questions had been under constant attack for a long time prior to Wilson v. Clark, supra, because they had been "misused by the clumsy and abused by the clever, [having] in practice led to intolerable obstruction of truth." 2 Wigmore On Evidence §686 (Chadbourne rev. 1979). Cleary and Graham's Handbook of Illinois Evidence, §705.1, p. 616.

The hypothetical question posed by counsel for Loyola on cross-examination of the co-defendant anesthesiologist included the following contended fact:

Plaintiff objected to the question. The trial court allowed the witness to answer based upon the representation by defense counsel that he would offer evidence in support of the assumed facts. At the close of all of the evidence, plaintiff moved to strike the question on the basis that the defendants had failed to offer facts to support the assumed facts contained in the hypothetical question. The trial court denied the motion and the appellate court affirmed.

The Supreme Court agreed with plaintiff that any such hypothetical must be based on evidence in the record and that the evidence in the record which had been considered by the trial and appellate courts did not support the hypothetical. [168 Ill.2d at 98.] Rather than reversing the appellate court, the Supreme Court proceeded to consider the testimony of three Loyola residents submitted by an offer of proof, which testimony the trial court had rejected as hearsay.

From the hypothetical and the offers of proof, it appears that the contended conversation occurred by telephone between Dr. Tierney and the obstetrical resident Dr. Hefti. Dr. Tierney was dead, thus unavailable to deny that it ever took place. Dr. Hefti testified in the offer of proof that she could not remember the conversation with Dr. Tierney. [168 Ill.2d at 98.] But in another offer of proof, Dr. Gianopoulos testified that later in that morning Dr. Hefti told him that at 9:30 a.m. she had wanted to do a blood gas test but Dr. Tierney had ordered her not to. [168 Ill.2d at 98.] In the third offer of proof, Dr. Payne testified that Dr. Hefti had paged him, because she had a dispute with Dr. Tierney about whether she could test the patient's blood gases, after which Dr. Payne was told by the Department Chairman to do what was appropriate (which presumably included the performance of the blood gas test that was done at 10:30 a.m.). [168 Ill.2d at 98.]

Although these offers of proof were submitted to support the hypothetical fact in counsel's question that "it would be Dr. Tierney who was causing that blood gas not to be drawn," the Supreme Court found that such testimony was not hearsay because it was not offered to prove "the substance of the conversation between Dr. Tierney and Dr. Hefti." Instead, the Court concluded that the testimony was being offered, and should have been received, "to establish what those residents did and why they acted as they did." [168 Ill.2d at 99.] But the only "what" that is explained by this testimony is Dr. Hefti's failure to do a blood gas test at 9:30 a.m., which the co-defendant anesthesiologist said should have been done at that time. The only "why," according to the offer of proof, is that Dr. Tierney told her not to do the test. And the singular relevance of the hypothetical question itself went to defendant Loyola's contention that Dr. Tierney was the sole proximate cause of the injury. Therefore, the evidence in the offer of proof was offered to prove the truth of the matter asserted. Thus, the court's logic is difficult to follow.

Even if the court had been correct in its ruling on the hearsay issue, the evidence should not have been received because it could not pass the reliability requirement found in Fed. R.E. 703. Dr. Hefti had no recollection of the conversation, thus, she could not be cross-examined about it. And Drs. Payne and Gianopoulos could not be cross-examined as to the actual conversation and whether it made any sense under the circumstances, because they were not parties to it. Their testimony was advanced self-servingly by co-defendant residents of the defendant hospital, who were permitted to substitute their statements in support of Dr. Hefti, apparently because she could not bring herself to advance them. Giving the benefit of the doubt to Drs. Payne and Gianopoulos that Dr. Hefti actually told them later that morning of a conversation with Dr. Tierney, in light of her own inability to testify under oath to such conversation, the circumstances suggest only that in her panic to explain her inaction that morning, she had laid the blame off to Dr. Tierney. Given that Dr. Tierney was dead and that the testimony was developed at trial to blame him, the testimony in the offers of proof does not suggest reliability, and thus should not have been admitted in support of an expert opinion.

Perhaps more inexplicable is the court's use of "evidence" adduced through the several offers of proof. An offer of proof is made to disclose the nature of the offered evidence to which objection is interposed, for the information of the trial court and opposing counsel, and to enable the reviewing court to determine if the exclusion was erroneous and harmful. People v. Andrews, 146 Ill.2d 413, 167 Ill. Dec. 996, 558 N.E.2d 1126 (1992); Little v. Tuscola Stone Co., 234 Ill. App. 3d 725, 175 Ill. Dec. 812, 600 N.E.2d 1270 (1992); Cleary and Graham's Handbook of Illinois Evidence, §103.7, p. 21.

Although in non-jury cases, an offer of proof in question-and-answer form together with adequate cross-examination of the witness may provide the appellate court with material for a final disposition in the event of reversal of the ruling that excluded the evidence (see People v. Duarte, 79 Ill. App. 3d 1113, 34 Ill. Dec. 657, 398 N.E.2d 332 (1979), People v. Petit, 245 Ill. App. 3d 132, 184 Ill. Dec. 766, 613 N.E.2d 1358 (1993), Cleary and Graham's Handbook of Illinois Evidence, supra at p. 24), there is no authority for or logical basis on which a court can substitute testimony put into the record through an offer of proof as substantive evidence in a jury trial that can support an otherwise defective hypothetical question. Yet that is precisely what the court has done in Leonardi. The court recognized that a hypothetical question must be based on direct or circumstantial evidence or reasonable inferences therefrom for which there is support in the record. [168 Ill.2d at 96.] The court found that the testimony admitted into evidence did not support the hypothetical. [168 Ill.2d at 97-98.] But it concluded "that the hypothetical question was connected up to sufficient circumstantial evidence of record and reasonable inferences from the direct and circumstantial evidence, including the proffered testimony of the Loyola residents." [168 Ill.2d at 99.]

If a reviewing court agrees that testimony contained in an offer of proof was probative and should have been received, the case must be remanded for a new trial at which the jury will hear such evidence. The evidence included in the offer of proof can never become substantive evidence on which the jury could rely, because the jury did not hear it.

The answer to the underlying hypothetical question provided either a substantial or, perhaps, the sole basis for defendants' theory that Dr. Tierney was the sole proximate cause of the injury. Thus, its admission was crucial. And it was upon that evidence that the jury heard the long form instruction on proximate cause, which includes the additional sentence:

In view of the circumstances of the production of that testimony by Drs. Hefti, Gianopoulos, and Payne, it is likely that if the case had been remanded to permit their testimony, the cross-examination of these witnesses would have been devastating to the overall credibility of defendants and their case, far outweighing any positive benefit generated by the unsupported hypothetical. The admission of those untrustworthy statements without cross-examination as to the substance, or as to the circumstances and context in which they were developed, deprived plaintiff of a significant right of confrontation, cross-examination and rebuttal.

As a matter of public policy, fairness dictates that defense counsel be allowed to present all facts necessary to place the client's conduct into perspective, so that the jury can decide if such conduct was a proximate cause. And surely there are circumstances in which the conduct of another is relevant and should be the focus of the defense. But the Leonardi decision itself may not so much advance that reasonable proposition as it will complicate the decision-making process of plaintiff's counsel. Must he or she always name every doctor whose name appears in the record? Can he or she ever engage in piecemeal settlement or dismissal of marginal defendants without fear that any non-joined, settled or dismissed defendant will become the focus of the defendants' empty chair strategy? Doesn't the medical profession scream already about its members being sued or kept in cases in which they shouldn't, and doesn't the plaintiffs' bar always respond by saying that such joinders are required in response to the defendants' insistence on asserting the empty chair defense?

But even if counsel makes all the right choices, he cannot keep all of the defendants alive. Leonardi's ultimate distinction may be its use in future trial advocacy courses as a casebook example of the "blame-the-dead-guy" defense.