Empty Chair Defense

The empty chair defense is a trial strategy in which a defendant blames the plaintiff's injury on someone who is not in the courtroom, such as a company that settled, went bankrupt or was never sued. In asbestos cases, defendants often point to bankrupt companies whose products the plaintiff used.

Origin

The phrase describes a familiar trial tactic: the absent party is represented by an empty chair at the defense table. It grew in importance as states adopted comparative fault and apportionment laws that let juries assign shares of fault to nonparties, and, in asbestos cases, as major manufacturers went into bankruptcy from the 1980s onward.

Significance in Asbestos Context

Many of the companies that made the most heavily used asbestos products, such as Johns-Manville and other major insulation makers, are now bankrupt and can be pursued only through trusts. The remaining defendants at trial often argue that those absent companies' products, not their own, caused the disease. Whether that helps them depends on state law. In some states the jury can assign fault to bankrupt or settled companies, and the remaining defendant pays only its share; in others, nonparties cannot be put on the verdict form, or joint and several liability still applies to some damages. Trust transparency laws in several states require plaintiffs to disclose trust claims, partly so defendants can make these arguments. Plaintiffs respond that each defendant's product was itself a substantial cause and that the defendant should answer for its own conduct. The defense can also raise evidence questions about the plaintiff's exposure to other products, which is why consistent, complete exposure histories matter.

Example Sentence

At trial, the valve maker used an empty chair defense, telling the jury the insulation from a bankrupt company caused his mesothelioma.

Related Terms

Nonparty Fault, Settlement Credit, Bankruptcy Trust Transparency, Joint and Several Liability, Comparative Negligence, Substantial Factor Test, Bankruptcy Trust Claim

Notes

• Give your lawyer a complete, honest list of every product and brand you remember, including those from bankrupt companies.
• Your testimony and trust claim forms should be consistent; inconsistencies are often used in this defense.