By  Hon. David Kramer |

In cases in which an apportionment is permitted against a former party, e.g., one that was never named as a party but that paid a settlement to the plaintiff, or one that was sued but later settled with the plaintiff, the former defendant is sometimes referred to as an “empty chair,” a metaphorical reference to the party’s absence from trial. See, e.g., Certainteed Corp. v. Dexter, — S.W.3d — , 2010 WL 5135324 (Ky. 2011) (final Jan. 6, 2011).]  In such cases, if the remaining trial defendant wishes to have the empty chair named in the apportionment instruction that is submitted to the jury, the trial court must essentially make a determination whether there was evidence of the empty chair’s liability introduced at trial that would be sufficient to overcome a directed verdict motion in favor of the empty chair. Id.  Thus, the remaining defendant may not simply deflect blame from itself during trial and then submit an apportionment instruction that includes the empty chair, even one that paid a substantial settlement to the plaintiff.  Only if a sufficient showing of liability on the part of the empty chair is made that would justify submitting the issue of its liability to the jury may the empty chair be included in the apportionment instruction. Often, where a defendant has paid a settlement in a civil action involving the fault of more than one party, the remaining defendant(s) can utilize at trial the plaintiff’s own evidence and expert testimony that was produced during discovery against the empty chair defendant. This tactic can be particularly necessary where the remaining defendant itself did not produce evidence or expert testimony implicating the empty chair during discovery, as in the case where the defendants were maintaining a joint defense or were otherwise avoiding “finger-pointing,” i.e., blaming each other for the plaintiff’s damages.

 The foregoing post includes commentary reprinted from the forthcoming 2011 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer and Todd V. McMurtry, with permission of the authors and publisher. Copyright (c) 2011 Thomson Reuters. For more information about this publication please visit

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