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.

The Missing Tortfeasor

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.

Facts Of Incident

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...