Third-party defendants are subject to contribution claims filed against them by joint tortfeasors unless there exists a right to dismissal.
Suppose your client is facing third-party professional liability claims for contribution and common-law indemnification only from an original defendant that did not file an affidavit of merit against him. Must he participate in the trial establishing the underlying liability? After all, a defendant who settles out or is dismissed may still be subject to claims for contribution and indemnification, but is not required to participate at trial. At least that is what counsel argued in support of the third party defendant’s non-participation at trial in the case of Mejia v. Quest Diagnostics, Inc., 2020 N.J. Lexis 304 (March 16, 2020), where the New Jersey Supreme Court addressed this specific question. Under the holding of Meja, an active third-party defendant—facing only claims for contribution and common-law indemnification from an original defendant that did not file an affidavit of merit against him—must participate in the trial establishing the underlying liability unless there exists a right to a dismissal of the claims against them.
The plaintiff filed complaint against Quest Diagnostics, Inc. and two of its employees (the Quest defendants) for failure to detect the plaintiff/decedent’s cervical cancer. The Quest defendants filed third party claims against the plaintiff/decedent’s gynecologist Dr. Fernandez and the decedent’s family doctor for contribution and indemnification. The plaintiff filed a direct claim against the family doctor but not against third-party defendant Dr. Fernandez. Dr. Fernandez filed an answer, including cross claims for indemnification and contribution against Quest and the family doctor and demanded that Quest serve an affidavit of merit (AOM). Quest subsequently moved for an order declaring that they were not required to serve an AOM against Fernandez, which the court granted unopposed. Quest served an expert report stating that Fernandez deviated from the standard of care, and Dr. Fernandez served an expert report on his own behalf.
Dr. Fernandez then filed a motion seeking dismissal from the trial and to be treated as the defendants in two previous similar cases, Jones v. Morey’s Pier, Inc., 230 N.J. 142, 165 (2017), and Burt v. West Jersey Health Systems, 339 N.J. Super. 296 (App. Div. 2001). In those cases—the meritoriously dismissed third-party defendants were relieved from participating at trial, yet the remaining defendants were entitled to present evidence of their negligence. Dr. Fernandez likened his right to dismissal to the dismissed defendant in Burt—where the defendant was dismissed from suit because the plaintiff failed to serve an AOM—since an AOM was never served on him. Further, Dr. Fernandez argued that since the plaintiff never sued him, the plaintiff cannot recover from him. However, the trial court rejected this position and concluded the dismissed defendants in Jones and Burt were dismissed meritoriously and there was no basis for dismissal of Dr. Fernandez since the trial court ruled the Quests defendants were not required to serve an AOM as to third-party claims against Dr. Fernandez.
The New Jersey Supreme Court affirmed. The court concluded that third-party defendants are subject to contribution claims filed against them by joint tortfeasors unless there exists a right to dismissal. The court noted the Appellate Division found it would unfairly prejudice the plaintiff, given the late stage of the proceeding, to require the plaintiff to present a defense of Dr. Fernandez as Dr. Fernandez had already served an expert report on his own behalf. This suggests that the prejudice to the plaintiff and the burden on Dr. Fernandez likely to result from Dr. Fernandez’s participation in trial were factors considered by the court in deciding whether the active third party was required to participate.
Case Law Alerts, 3rd Quarter, July 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2020 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.