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November 27, 2017
Reprinted with permission from the S.C. Defense Trial Attorneys’ Association’s DefenseLine
Borne out of the dicta of Graves v. United States, the empty chair defense has been called a gamble, “subject to much mischief,” and difficult to apply. Yet, it may now be the key to ensuring reasonable settlements. Two recent cases, Machin v Carus Corporation and Smith v. Tiffany have significantly altered the litigation landscape by effectively limiting defendants’ ability to seek contribution from other tortfeasors, increasing the potency of the “plaintiff’s choice” rule, and emphasizing the role of the empty chair defense in defense strategy. While certainly not the outcome for which the defense bar had hoped, Machin and Tiffany provide dueling incentives to plaintiffs and defendants which, if effectively applied, may ensure that the scales are not further tipped in the plaintiffs’ favor.
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