SCOKY bars MDV against former defendant (“empty chair”) until close of all proof

The Kentucky Supreme Court recently held that a trial court may not entertain a motion for directed verdict at the close of the plaintiff’s case by an existing defendant at trial against a defendant that has settled out of the case (a so-called “empty-chair” defendant), but rather must wait until the close of all proof to rule on such a motion.

In Jewish Hosp. & St. Mary’s Healthcare, Inc. v. House, 2017-SC-440 (rendered December 13, 2018), the Court, in an opinion by Justice Keller, held that it was erroneous for the trial court to grant a directed verdict on liability at the close of the plaintiff’s case against a settling former defendant. The Court noted that generally a directed verdict may not be granted against a defendant at trial until all proof is in, and determined that this approach was appropriate in the case of an empty chair.

However, the Court found the trial court’s error in granting the DV to have been harmless since the jury did not get to the jury instruction that included the empty chair, but rather exonerated the remaining defendant prior to reaching that instruction.

Technically the term “empty chair” in this context would include not just a defendant who has settled out of the case but also a non-party who paid a settlement for the claim in question without having been sued (a settling non-defendant) or a former defendant who was dismissed without paying a settlement under circumstances in which it is appropriate to include that defendant in the apportionment instruction.

The Jewish Hosp. v. House decision became final on January 3, 2019, and will be published in the South Western Reporter.

NOTE: The foregoing post includes commentary reprinted from the forthcoming 2019 supplement to 7 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2019 Thomson Reuters. For more information about this publication click here.

David Kramer is a Partner and Chair of the Civil Litigation practice area of DBL Law, with offices in Cincinnati, Ohio, and in Crestview Hills and Louisville, Kentucky.