Over the past 10 years, this column has twice addressed the ability of defendants in medical malpractice actions to attempt to diminish their liability by blaming non-parties for a plaintiff’s injuries.1 The legal mechanism that gives rise to this litigation strategy is Article 16 of the CPLR, which not only imposes limitations on joint and several liability, but permits the culpable conduct of non-parties to be considered in apportioning a defendant’s fault for the purposes of such liability. These targeted non-parties—who are not represented by counsel at trial and may not even appear as witnesses—are colloquially referred to as “empty chair defendants.” It becomes the burden of the attorney representing the plaintiff to defend these empty chairs, in order to obtain full recovery for the client. In this month’s column we examine recent decisions which deal with two different aspects of this subject.
Our prior discussions of Article 16 have focused much attention on efforts by defendants to obtain an apportionment of fault as to defendants who have been dismissed on summary judgment. We have steadfastly been of the position that this is impermissible where the dismissal was on the ground that there is no issue of fact as to either negligence or causation by the dismissed defendant. This is because once those issues have been litigated on their merits, the doctrines of collateral estoppel and law of the case prohibit them from being re-litigated. The decisional law has gradually been developing in support of this point of view.
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