Strategic Settlements
In complex tort litigation—particularly construction litigation and other multi-defendant cases—plaintiffs often face a difficult strategic question: Should they settle with some defendants and proceed to trial against others?
In Pennsylvania, a plaintiff may settle with fewer than all defendants pursuant to Pennsylvania Rule of Civil Procedure 229. This rule expressly allows for the discontinuance or dismissal of certain parties without terminating the entire action, provided no claims exist against between the settling and non-settling Defendants.
For a Plaintiff, this has many strategic advantages:
- Getting guaranteed money prior to trial, which can be used to pay for expert costs against the non-settlement defendants
- Reduction of the complexity (and length) of trial
- Preserving Plaintiff’s credibility by only focusing on the strongest cases or claims at trial, while “settling out” the weaker ones.
However, this raises practical questions regarding which parties should remain present at trial or appear on the verdict slip. For example, non-settling Defendant will often try to keep the settling Defendant in this case (even though no longer responsible to pay the Plaintiff) or on the verdict slip at least.
But why? And what could this mean for the Plaintiff?
Juror Speculation About the “Empty Chair”
Consequently, when settling with fewer than all defendants, counsel must weigh the certainty of settlement proceeds against the resulting trial dynamics. If a settling defendant remains in the case, the jury may hesitate to assign them liability, potentially shifting more responsibility to the non-settling defendants. Conversely, if a settling defendant is dismissed, the “empty chair” at trial may lead jurors to attribute the bulk of the blame to the absent party, providing the remaining defendants with an argument to reduce their own responsibility for the plaintiff’s injuries.
The Risk of Too Many Defendants at Trial
The more defendants involved in the litigation, the more potential there is for “finger-pointing” in multiple directions—often back at the plaintiff.
When several defendants are present at trial, each has a strong incentive to shift responsibility. While this often involves blaming co-defendants, it also increases the number of arguments suggesting that the plaintiff contributed to their own injuries or damages.
There is also a significant credibility risk. If a plaintiff at trial cast a “net of blame” too wide, it can look bad. The jury may perceive them as someone who blames others while accepting no personal responsibility. Even when a plaintiff’s negligence is not formally at issue, this perception can negatively influence jurors’ views of the evidence and the plaintiff’s overall credibility.
For these reasons, deciding which defendants should remain in the case through trial is a matter of narrative and presentation rather than a mere procedural step. A streamlined case with clearly defined allegations is often easier for jurors to follow and accept. Conversely, a case involving numerous parties pointing fingers at one another can dilute the plaintiff’s story and complicate the path to a favorable verdict.
A Non-Settling Defendant’s “Dream Scenario”
To understand the “dream scenario,” you have to understand how each Defendant can be liable to the Plaintiff.
Traditional joint and several liability means, where multiple defendants’ contribute to the Plaintiff’s harm, each is liable for all the harm even if only 1% at fault. Then in 2011, Pennsylvania’s Fair Share Act limited liability. It made each Defendant liable for only the percentage share of harm he caused, unless certain exceptions apply. For example, in Spencer v. Johnson, PA’s superior court opined that the Fair Share Act (text is here) will not apply unless the Plaintiff was also negligent. But when the Fair Share Act applies, it behooves each Defendant to keep as many other defendants on the verdict slip as possible, in hopes that the jury will factor in the number of parties to (hopefully) lower the percentage fault of each.
Hence, for a non-settling Defendant in a complex, multi-party case, the “dream scenario” at trial would involve:
- The Fair Share Act applying
- Multiple Defendants on the verdict slip, and
- At least one “empty chair” at trial, for the settling Defendant(s), who may opt to “stay home” even though their names will appear on the verdict slip, to avoid the time and expense of trial, having settled with the Plaintiff.
Lessons from Swank v. Rabkin Dermatopathology Laboratory
In a non-precedential decision from the Pennsylvania Superior Court, Swank v. Rabkin Dermatopathology Lab’y, P.C., No. 342 WDA 2025 (Pa. Super. Ct. Dec. 15, 2025), the Plaintiff settled with all but one defendant in a medical malpractice case. The plaintiff and the settling parties sought dismissal before trial because the remaining defendant had refused to agree to let them out. The court required the other Defendants to be present at trial, even though:
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- no expert testimony criticizing the settling parties,
- no crossclaims existed, and
- the plaintiff did not intend to present evidence of their negligence against the settling Defendants.
In terms of timing, the trial court initially refused dismissal based on the Pennsylvania Fair Share Act but gradually dismissed the settling defendants during trial. The Fair Share Act can all
The jury ultimately returned a defense verdict, meaning, the non-settling defendant won. But n appeal, the Superior Court reversed.
As mentioned, Rule 229 allows for the dismissal of fewer than all defendants, unless a cross-claim exists between the Defendant. And, the Fair Share Act applies only when the plaintiff’s own negligence is at issue. Since the plaintiff was not negligent, the statute did not justify keeping the settling defendants in the litigation.
This allowed the Plaintiff to get a “do over” trial, with only the non-settling party on the verdict slip, eliminating the “dream scenario” for the non-settling Defendant.
Key Lessons from Swank
- No Automatic Inclusion: Settled defendants do not automatically belong on the verdict sheet; there must be a evidence supporting their liability.
- Fair Share Act Limits: The Act is not a universal justification for keeping settled parties in a case.
- Timing Matters: Late dismissals can prejudice the plaintiff by causing jury speculation.
Final Thoughts
Pennsylvania law has long permitted plaintiffs to settle with some defendants while continuing litigation against others. Courts—including the so-called “Giant Eagle” line of cases going back to Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1(1987)—have recognized the practicality (and technical challenges) of such arrangements in multi-party litigation.
These partial settlements are common in:
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medical malpractice cases with multiple providers,
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product liability cases involving multiple manufacturers or suppliers, and
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construction or premises liability cases involving multiple contractors.
The practice allows plaintiffs to secure guaranteed recovery while continuing to pursue full compensation from remaining defendants. But the decision carries significant strategic implications. Importantly, as the Plaintiff, you should should never consider releasing any party from your claims until you consult an attorney.
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