Bill to clarify apportionment statute draws sharp debate over empty‑chair defenses and plaintiffs' rights

Representative Antonina Castro introduced House Bill 303 as a narrow clarification to Montana's apportionment statute. She said the change would make clear that when a defendant's defense is that a non‑party was the "sole cause" of the plaintiff's harm, that defense is distinct from apportionment and should be admissible even if the non‑party is not before the court.

Supporters, including the Montana Chamber of Commerce, argued the amendment prevents inconsistent judicial treatment and ensures defendants may offer a full defense when evidence shows an absent actor was solely responsible. "If your defense is that the sole cause of this accident was somebody else, you should be able to say why," the sponsor said.

Opponents — led by Roger Sullivan, Al Smith of the Trial Lawyers Association and other plaintiff attorneys — warned the change would resurrect the so‑called "empty‑chair" defense that previous Montana law and case law limited out of due‑process concerns. They cited the Plum decision and the 1997 statutory framework designed to avoid constitutional defects, and warned HB 303 could permit defendants to blame bankrupt or otherwise absent parties without giving those parties an opportunity to respond, undermining recoveries in mass‑injury cases such as asbestos litigation.

Committee members pressed sponsors and opponents with hypotheticals (car accidents, medical device litigation) and asked whether the bill would force plaintiffs to sue additional parties. Sponsor Castro said the change does not prevent plaintiffs from suing responsible parties but clarifies inconsistent judicial practice so defendants can present certain defenses. The hearing closed without a committee vote.