August 13, 2017
The Kentucky Court of Appeals has issued a new opinion addressing the proper standard for directing a verdict against an empty-chair defendant, specifically holding that "[n]o directed verdict may be entered against an empty-chair defendant prior to the close of all evidence." House v. Jewish Hospital & St. Mary's Healthcare, Inc., 2015-CA-1205. House, as administratrix of the estate of her daughter, sued both Jewish Hospital and one of its emergency department doctors, Dr. Sherrard, for negligence. Dr. Sherrard settled before trial. At trial, two experts testified during the plaintiff's case-in-chief and gave their opinions, on cross-examination from Jewish Hospital's counsel, that Dr. Sherrard violated the standard of care. Dr. Sherrard testified by video deposition and explained why he believed his treatment was appropriate, although without specifying the standard of care. The trial court granted Jewish Hospital's motion for directed verdict as to Dr. Sherrard's breach of the standard of care (but not causation). During Jewish Hospital's case, another expert testified and gave an opinion that Dr. Sherrard did not breach the standard of care. The Court of Appeals held that the trial court erred in granting the motion for directed verdict at the close of the plaintiff's case. The Court explained that empty-chair defendants must be treated the same as any other defendants with regard to the level of proof required to apportion fault against them. A court "would never have permitted a directed verdict at the close of the plaintiff’s case against Jewish Hospital – the 'participating defendant.'" A directed verdict regarding Dr. Sherrard's negligence was likewise inappropriate. But, going further, the Court held that directed verdict is never appropriate against an empty-chair defendant "prior to the close of all evidence."