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Does Your State Recognize the `Empty Chair' Doctrine?

CASE ON POINT: Zalisk v. Campbell, RI Superior Court C.A. No. 95-6068 RI(1999)

ISSUE: Some states recognize the "empty chair" doctrine. The doctrine provides, inter alia, that a trial justice may charge a jury that it may infer from a litigant's "unexplained failure" to produce an available witness who would be expected to give material testimony on the litigant's behalf that the witness, "had he occupied the empty chair, would have testified adversely to the litigant. "In this case, a jury rendered a verdict determining that a defendant physician's negligence was the proximate cause of a patient's loss of his kidney. Was the fact that the plaintiff did not seek a jury instruction from the court under the "empty chair" doctrine significant? This was just one of the issues with which the courts were faced in this unusual case.

CASE FACTS: Arthur Zalisk and his wife Judith Zalisk, individually and as natural parents and guardians of Andrew Zalisk and Nicholas Zalisk, minors, brought suit against Dr. John Campbell. After a jury trial in Providence County Superior Court, a jury found that Dr. Campbell was negligent and awarded the plaintiffs $300,000. Dr, Campbell filed a Motion for a New Trial on the grounds that the jury's verdict was not supported by the evidence with respect to issue of causation and, further, that the plaintiffs counsel made an improper comment relative to the "empty chair" doctrine in his closing argument. The plaintiff objected to the defendant's Motion for a New Trial, arguing that the jury's verdict was amply supported by the evidence and that comments by plaintiffs counsel in his closing argument were not improper. The Court noted that the defendant physician argued that the jury erred in determining that his negligence was the "proximate cause" of the plaintiffs loss of the kidney. The defendant relied on the testimony of three expert-witnesses- Drs. Endreney, Shemin, and Maynard, to support his position. Although Dr. Endreney did not have any contact with the patient, he testified that "if the patient's kidney had been diagnosed in January 1994 as problematic, it would have had to have been removed." Furthermore, Dr. Endreney testified that, in his opinion, the patient's kidney had been non-functioning for at least a year prior to removal. Dr. Campbell did not see the patient until February 1994. The kidney was removed approximately seven months later.

COURT'S OPINION: The Rhode Island Superior Court denied the Motion for a New Trial. The Court held, inter alia, that in considering the defendant physician's Motion for a New Trial in light of the Court's charge to the jury, the trial justice had the duty of exercising her independent judgment of the material evidence in the case, passing on the weight of the evidence, and assessing the credibility of witnesses. However, "the trial justice need not make an exhaustive analysis of the evidence or state all her conclusions as to the weight of the evidence of the witnesses' credibility, but she should at least refer sufficiently to what motivates her to rule as she does so that the reviewing court can determine whether she has overlooked or misconceived material evidence on a controlling issue or is otherwise clearly wrong."

LEGAL COMMENTARY: The Court rejected the defendant physician's contention that the jury verdict was tainted by the plaintiff's counsel's inappropriate comments during closing argument regarding the "empty chair" doctrine. "Under the empty-chair doctrine a trial justice may charge a jury that it may infer from a litigant's unexplained failure to produce an available witness who would be expected to give material testimony in [sic] the litigant's behalf that the witness, had be occupied the empty chair, would have testified adversely to the litigant." The Court, relying on a criminal case, noted that the plaintiff must lay a foundation demonstrating that (1) the missing witnesses is available, and (2) the failure of the defendant's attorney to call the witness would lead the jury to infer that the testimony would be unfavorable. The Court noted that the defendant "did not object during closing argument." The Court further noted that the plaintiff did not seek a jury instruction from the Court under the "empty chair" doctrine. Furthermore, the defendant did not ask the Court for any curative instructions. The "empty chair" doctrine is to be "applied with caution so that as a condition precedent in its invocation there must be a showing of the missing witness's availability to the person who would be expected to produce the witness, and in a jury case the person seeking to gain the benefit of the unfavorable inference must make it known to his or her adversary that a request for such a charge is going to be made of the trial justice."
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Article Details
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Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Article Type:Brief Article
Geographic Code:1U1RI
Date:Feb 1, 2000
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