NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4918-13T1
RACHEL KRANZ, a minor by
her Guardian ad Litem,
SHELLY KRANZ and JONATHAN APPROVED FOR PUBLICATION
KRANZ, Individually, August 31, 2016
Plaintiffs-Appellants, APPELLATE DIVISION
v.
STEVEN SCHUSS, M.D., and
TEANECK PEDIATRICS, P.A.,
Defendants-Respondents.
__________________________________________________
Argued October 26, 2015 – Decided August 31, 2016
Before Judges Messano, Simonelli and
Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-2066-12.
Michael B. Zerres argued the cause for
appellants (Blume, Donnelly, Fried, Forte,
Zerres & Molinari, P.C., attorneys; Mr.
Zerres and Robin A. Donato, on the briefs).
Thomas J. Pyle, Jr., argued the cause for
respondents (Post, Polak, Goodsell, MacNeill
& Strauchler, P.A., attorneys; Jay Scott
MacNeill, of counsel; Mr. Pyle, on the
brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
"The Comparative Negligence Act and the Joint Tortfeasors
Contribution Law comprise the statutory framework for the
allocation of fault when multiple parties are alleged to have
contributed to the plaintiff's harm." Town of Kearny v. Brandt,
214 N.J. 76, 96 (2013). In Young v. Latta, 123 N.J. 584, 586
(1991), the Court held that, "in every case in which there are
multiple defendants, whether or not a cross-claim for
contribution has been filed," a non-settling tortfeasor is
entitled to a credit reducing any judgment by the degree of
fault allocated by the jury to a settling tortfeasor. The Court
cited extensively to its seminal case of Judson v. Peoples Bank
& Trust Company of Westfield, 17 N.J. 67, 92-94 (1954), aff'd on
reconsideration, 25 N.J. 17, 34 (1957), and Judson's historical
analysis of the Joint Tortfeasors Contribution Law (the JTCL),
N.J.S.A. 2A:53A-1 to -5. Id. at 590-91. Justice Clifford
wrote:
Judson . . . provides two principles
important to our implementation of the
[JTCL]: that a settling tortfeasor shall
have no further liability to any party
beyond that provided in the terms of
settlement, and that a non-settling
defendant's right to a credit reflecting the
settler's fair share of the amount of the
verdict—regardless of the actual settlement
—represents the judicial implementation of
the statutory right to contribution.
[Id. at 591 (emphasis added).]
2 A-4918-13T1
After Judson, the "Court [] held that a non-settling defendant
does not get an increased credit if a settling tortfeasor pays
more than his or her pro rata share of the liability." Ibid.
(citing Theobald v. Angelos, 44 N.J. 228 (1965)).
The subsequent passage of the Comparative Negligence Act
(CNA), N.J.S.A. 2A:15-5.1 to -5.8, did not "sap[] the vitality
of those principles." Id. at 592. "Pursuant to the [CNA], the
finder of fact must make an allocation of causative fault
between settling and non-settling defendants so that the court
can calculate the amount of the credit due [to] the non-settler
even though the non-settler cannot pursue a claim for
contribution against the settler." Ibid. As Judge Pressler
explained nearly two decades ago,
the effect of the [CNA] was to replace the
former pro rata liability of joint
tortfeasors under the [JTCL], . . . with the
obligation of each tortfeasor to pay damages
in accordance with its own adjudicated
percentage of fault. A necessary corollary
of this scheme is to deny to comparative-
negligence joint tortfeasors a reduction of
their liability based on a plaintiff's
pretrial settlement with a defendant who is
never found to be liable at all. Thus,
under the comparative-negligence scheme, a
plaintiff is entitled to retain the proceeds
of the pretrial settlement as well as the
full jury verdict as allocated among all
other defendants.
. . . .
3 A-4918-13T1
[U]nless the settling defendant's
percentage of liability is adjudicated at
trial, there is simply no right in the
adjudicated tortfeasors to a reduction of
their own separately-allocated responsibility
for the verdict.
[Johnson v. Am. Homestead Mortg. Corp., 306
N.J. Super. 429, 436-37 (App. Div. 1997).]
In this appeal, we are called upon to consider whether the
motion judge correctly decided that defendants were entitled to
a pro tanto credit for the amount plaintiffs obtained by way of
an out-of-state settlement with tortfeasors who were never
defendants in this litigation and could not have been sued in
the courts of this State because New Jersey lacked personal
jurisdiction. The issue is one of first impression. We
conclude that the principles outlined above apply and therefore
reverse.
I.
The record is undisputed. Rachel Kranz was born in New
York in December 2003 and came under the medical care of a
series of doctors in New York. In January 2005, Rachel and her
family moved to New Jersey, where she began receiving pediatric
care from defendant, Steven Schuss, M.D., and his affiliated
practice group, Teaneck Pediatrics (collectively, defendants).1
1
To avoid confusion, we sometimes use the first names of the
plaintiffs. We intend no disrespect by this informality.
4 A-4918-13T1
At Rachel's medical check-up in January 2006, Dr. Schuss
suspected that she suffered from left hip dysplasia. These
suspicions were confirmed, and Rachel underwent open reduction
surgery and a second follow-up surgery to correct the condition.
On July 30, 2007, with her mother Shelley acting as
guardian ad litem (GAL), Rachel commenced suit in New York
alleging medical malpractice against the hospital of her birth
and several doctors (the New York defendants) who had attended
to her prior to the family's move to New Jersey, claiming
damages resulting from the failure to diagnose the dysplasia.
On April 7, 2011, the New York court entered an order approving
a structured settlement in the amount of $2 million (the New
York settlement).
On March 12, 2012, once again with her mother acting as
GAL, and now joined by her father, Jonathan, as a plaintiff on
his own behalf, Rachel filed a complaint in New Jersey alleging
medical negligence by defendants in their failure to timely
diagnose and treat Rachel's dysplasia. It suffices to say that
plaintiffs' experts opined that defendants' failure to diagnose
the dysplasia earlier was a breach of the professional standard
of care and likely increased the probability that Rachel would
require open reduction surgery to address her condition and that
she would likely develop arthritis in later life. At least one
5 A-4918-13T1
of plaintiffs' experts opined in his report that certain
findings, in particular the asymmetry of Rachel's gait and
rotation of her hips, most likely would have been present at the
age of six months, i.e., before she came under defendants' care.
Defendants' experts, to the contrary, essentially concluded
there was no breach of professional standards because Rachel's
dysplasia was not clinically detectable until age two, and Dr.
Schuss properly and timely diagnosed the condition and
recommended further treatment as appropriate.
After discovery ended in December 2013, defendants sought
an order providing them with a credit of $2 million against any
judgment returned in plaintiffs' favor. Plaintiffs opposed the
motion and cross-moved for an order barring defendants from 1)
serving any new expert reports, and 2) referring to, or offering
evidence of, the New York settlement at trial.
Acknowledging that "[t]he case law in New Jersey doesn't
seem to give [] any clear definitive answer as to what to do in
a case like we have here," defense counsel argued that
plaintiffs were seeking damages for "the exact same harm" as in
the New York litigation. Plaintiffs' counsel also acknowledged
the unique procedural circumstances.
Addressing the judge's concern of a potential "windfall,"
particularly in light of plaintiffs' application to bar any
6 A-4918-13T1
further defense expert reports or any mention of the New York
settlement, plaintiffs' counsel stated, "I don't know that
there's any way to truly avoid a windfall . . . . However,
there [are] public policy decisions in New Jersey saying that
where it really truly is unavoidable like it is here, it should
inure [to] the injured party." Counsel also acknowledged that,
separate from any apportionment between the New York defendants
and these defendants, the jury might need to apportion
responsibility for the ultimate consequence of any delay in
diagnosing Rachel's injury. See, e.g., Flood v. Aluri-
Vallabhaneni, 431 N.J. Super. 365, 372-79 (App. Div.)
(explaining the burden of proof and apportionment in failure to
diagnose medical malpractice cases), certif. denied, 216 N.J. 14
(2013).
Recognizing the lack of any precedent squarely on point and
without an extensive statement of reasons, the judge concluded
on "general principles of equity . . . that it would be a
windfall to the plaintiff[s]" if a $2 million credit was not
applied to any verdict in their favor. The judge entered the
February 28, 2014 order under review that provided defendants
with a $2 million credit "based upon the plaintiffs[']
previously pending and now resolved New York State action
involving the same claims of negligence and compensating the
7 A-4918-13T1
plaintiff for the same injuries that are at issue in the instant
litigation." The order further stated that $2 million dollars
would be deducted from any verdict "rendered by a jury against
[d]efendants," who "shall only be responsible for the remainder
of the verdict after the credit is applied . . . ."2
The parties thereafter appeared before the Civil Division
presiding judge, and plaintiffs voluntarily dismissed their
complaint pursuant to an agreement placed on the record, which
we have reviewed. Despite the voluntary dismissal of the
complaint, we conclude that the February 28, 2014 interlocutory
order is reviewable as of right. See Janicky v. Point Bay Fuel,
Inc., 410 N.J. Super. 203, 207 (App. Div. 2009) (explaining that
even a consent judgment may be appealable as of right if an
"economic stake" hinges on resolution of the appeal).
II.
Because the appeal presents a purely legal issue, we review
de novo the judge's decision to give defendants a pro tanto
credit for the amount of the New York settlement. Brandt,
supra, 214 N.J. at 96.
For purposes of the JTCL, "'joint tortfeasors' means two or
more persons jointly or severally liable in tort for the same
2
The judge did not address the cross-motion and no separate
order was entered.
8 A-4918-13T1
injury to person or property, whether or not judgment has been
recovered against all or some of them." N.J.S.A. 2A:53A-1.
Where injury or damage is suffered by any
person as a result of the wrongful act,
neglect or default of joint tortfeasors, and
the person so suffering injury or damage
recovers a money judgment or judgments for
such injury or damage against one or more of
the joint tortfeasors, either in one action
or in separate actions, and any one of the
joint tortfeasors pays such judgment in
whole or in part, he shall be entitled to
recover contribution from the other joint
tortfeasor or joint tortfeasors for the
excess so paid over his pro rata share
. . . .
[N.J.S.A. 2A:53A-3 (emphasis added).]
The right to contribution flows from "'joint liability and not
joint, common or concurrent negligence.'" Cherry Hill Manor
Assocs. v. Faugno, 182 N.J. 64, 72 (2004) (quoting Farren v.
N.J. Tpk. Auth., 31 N.J. Super. 356, 362 (App. Div. 1954)).
"'When one defendant settles, the remaining codefendant or
codefendants are chargeable with the total verdict less that
attributable to the settling defendant's percentage share.'"
Cockerline v. Menendez, 411 N.J. Super. 596, 618 (App. Div.)
(quoting Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548,
569 (1980)), certif. denied, 201 N.J. 499 (2010).
The CNA, in turn, requires the fact finder to determine
"[t]he extent, in the form of a percentage, of each party's
negligence or fault. The percentage of negligence or fault of
9 A-4918-13T1
each party shall be based on 100% and the total of all
percentages of negligence or fault of all the parties to a suit
shall be 100%." N.J.S.A. 2A:15-5.2(a)(2) (emphasis added).
"[T]he statutes' objectives are best served when the factfinder
evaluates the fault of all potentially responsible parties."
Brandt, supra, 214 N.J. at 102. Simply put, "[t]he law favors
apportionment even where the apportionment proofs are imprecise,
allowing only for rough apportionment by the trier of fact."
Boryszewski v. Burke, 380 N.J. Super. 361, 384 (App. Div. 2005),
certif. denied, 186 N.J. 242 (2006).
Plaintiffs argue that the motion judge accorded defendants
a "windfall," because given the statutory scheme, there is no
legal authority for a pro tanto credit equal to the amount of
the New York settlement. They note that if the New York
defendants were parties to the suit, defendants would not
receive a credit for the full settlement amount, but rather
would be entitled to a credit based only upon an allocation of
fault to the New York defendants.3
3
Plaintiffs also contend that their cross-motion to bar any
further discovery and bar defendants from introducing any
evidence of the New York settlement should have been granted.
As a result, defendants, who have not produced any proof of the
New York defendants' liability, are not entitled to any
allocation of fault or resulting credit. We deal with these
issues later in this opinion.
10 A-4918-13T1
Defendants argue the collateral source rule, N.J.S.A.
2A:15-97, and general notions of public policy support the
judge's decision. We disagree.
The "primary effect" of the collateral source rule "was to
eliminate double recovery to plaintiffs." Perreira v. Rediger,
169 N.J. 399, 409 (2001). However, by its terms, the collateral
source rule does not apply when a plaintiff receives benefits
for injuries caused by a joint tortfeasor. N.J.S.A. 2A:15-97.
Defendants argue the New York defendants could not be
"joint tortfeasors" because they "were not, and could never have
been . . . parties to the New Jersey action." We discuss the
significance of that below. However, defendants urged the
motion judge to grant them a pro tanto credit precisely because
plaintiffs were seeking damages for "the exact same harm" as
alleged in the New York litigation. The judge accepted this
argument, because his order provided that the New York
litigation "involv[ed] the same claims of negligence and
compensat[ed] the plaintiff for the same injuries that are at
issue in the instant litigation." Although defendants deny any
negligence, it would appear from the record before us that the
New York defendants and defendants are not successive
tortfeasors, but rather joint tortfeasors, whose alleged
11 A-4918-13T1
collective negligence delayed the diagnosis of Rachel's
dysplasia.4
We also reject defendants' public policy arguments.
Defendants argue that under New York law, they would be entitled
to a pro tanto credit for the settlement plaintiffs reached with
the New York defendants. See Williams v. Niske, 81 N.Y.2d 437,
440 (1993) (explaining New York's General Obligations Law § 15-
108(a)). Defendants contend that permitting a pro tanto credit
discourages forum shopping, such as occurred here. However, the
statutory interplay we described above is evidence of New
Jersey's public policy, and granting defendants a pro tanto
credit is contrary to that policy.
We must address, nevertheless, defendants' implicit
argument that apportionment under N.J.S.A. 2A:15-5.2(a)(2) is
inappropriate because the New York defendants could not have
been joined in the same suit. In other words, they could never
4
As noted, one of plaintiffs' experts opined in his report that
certain symptoms of Rachel's dysplasia were observable before
defendants began their care. The record does not include the
expert reports from the New York litigation; however, the
"verified bill of particulars" from that suit includes
allegations that the New York defendants, among other things,
failed to "timely recognize the presence of left hip dysplasia."
Because we are reversing and requiring the re-opening of
discovery, we hasten to add that our conclusion that the New
York defendants and defendants are joint tortfeasors is based
solely upon the record before us, and we do not foreclose a
contrary conclusion if further discovery proves otherwise.
12 A-4918-13T1
have been parties. See ibid. (emphasis added) (the fact finder
must determine the "extent, in the form of a percentage, of each
party's negligence or fault").
We start by recognizing that our courts have permitted
apportionment of fault by the factfinder in a variety of
circumstances, even though a joint tortfeasor is no longer a
party in the suit. For example, as already noted, in Young,
supra, 123 N.J. at 596, the Court held that, even in the absence
of a specifically-pled cross claim for contribution, a non-
settling tortfeasor was entitled to a credit based upon the
allocation of fault to the settling defendant who was no longer
in the litigation. In Brodsky v. Grinnell Haulers, Inc., 181
N.J. 102, 116 (2004), the Court similarly held that a non-
settling tortfeasor was entitled to have any award reduced by
the percentage of fault attributable to a joint tortfeasor
dismissed from the litigation due to a discharge in bankruptcy.
In Brandt, supra, 214 N.J. at 103-04, the Court held that the
non-settling defendants were entitled to have the jury allocate
fault as to the defendants dismissed from the litigation because
of the statute of repose. N.J.S.A. 2A:14-1.1(a). And, in Burt
v. West Jersey Health Systems, 339 N.J. Super. 296, 307-08 (App.
Div. 2001), we held that the plaintiff's recovery should be
reduced by the percentage of fault allocated to those defendants
13 A-4918-13T1
dismissed from the litigation because the plaintiff failed to
comply with the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26
to -29.
In some cases, however, the joint tortfeasor's absence from
the suit at its inception has barred a defendant's right to
apportionment. See, e.g., Ramos v. Browning Ferris Indus. of S.
Jersey, Inc., 103 N.J. 177, 184 (1986) (no right to
apportionment against an employer immune from liability under
the Workers' Compensation Act); Bencivenga v. J.J.A.M.M., Inc.,
258 N.J. Super. 399, 406-07 (App. Div.) (no right to
apportionment against a fictitiously-named defendant not
identified or served prior to trial), certif. denied, 130 N.J.
598 (1992); but see Cockerline, supra, 411 N.J. Super. at 617-19
(concluding that, based upon public policy concerns,
apportionment was appropriate as against fictitious phantom
drivers who allegedly caused the accident). Apportionment was
not permitted in Ramos and Bencivenga because "as a matter of
law, [the] defendant[s] could not under any circumstances be []
joint tortfeasor[s] under [the JTCL]." Brandt, supra, 214 N.J.
at 102 (citing Brodsky, supra, 181 N.J. at 115).
In this case, the New York defendants were never parties to
this suit, nor could they have been, because it is undisputed
that New Jersey lacked personal jurisdiction over them.
14 A-4918-13T1
Plaintiffs, however, argue that the circumstances are "almost-
identical" to the facts presented in Carter v. University of
Medicine and Dentistry of New Jersey, 854 F. Supp. 310 (D.N.J.
1994).
In Carter, plaintiffs filed two separate but concurrent
actions. Id. at 311. One, filed in the Superior Court for the
District of Columbia, alleged the failure on the part of a
Washington, D.C., doctor to diagnosis and treat their infant
son's congenital brain condition while under the doctor's care,
i.e., after he was seven months of age. Id. at 311-12. The
parents filed a second suit in federal district court in New
Jersey making similar claims against New Jersey medical
providers for the period of time before the family moved to
Maryland, while their son was under their care, i.e., from birth
to the age of six and one-half months. Ibid. Plaintiffs
settled with the Washington, D.C., physician, and the New Jersey
defendants moved in limine to have the jury apportion the
"causative fault between the settling and nonsettling
defendants." Id. at 312. The plaintiffs sought to preclude the
defendants from asserting the Washington, D.C., doctor was
negligent or that his negligence contributed to their son's
condition. Id. at 311.
15 A-4918-13T1
Examining at length the JTCL, the CNA and precedent we
cited above, the judge rejected the plaintiffs' argument that
apportionment was improper because the settling doctor was "not
technically a party to this lawsuit and hence cannot be a joint
tortfeasor within the meaning of the relevant statutes." Id. at
314. The judge concluded that the "splitting of the action for
purely jurisdictional purposes does not vitiate [the Washington,
D.C., doctor's] status as a settling defendant insofar as this
action is concerned." Id. at 315. The judge said the claims
against all the defendants were "identical and inextricably
interwoven," explaining:
[D]istilled to its purest essence, the New
Jersey action concerns the alleged
misdiagnosis of the infant plaintiff's
hydrocephalic condition from birth to [six
and one-half] months of age, while the
Washington action was predicated on a simple
extension of that purported misdiagnosis
from seven to eighteen months. Thus, given
the fact that the Washington, D.C. lawsuit
is distinguishable from the present action
only by jurisdictional happenstance, it
logically (and equitably) follows that the
jury in this case should be entitled to
consider the relative fault of the settling
Washington, D.C. physician.
[Ibid.]
Defendants' attempts to distinguish Carter are wholly
without merit. They note the Washington, D.C., settlement
agreement specifically permitted a reduction in damages in the
16 A-4918-13T1
New Jersey litigation by the percentage of liability attributed
to the settling doctor, that certain experts were the same in
both cases and the suits were pending at the same time.
However, the JTCL and the CNA permit the non-settling tortfeasor
a reduction of damages without regard to whether it is expressly
permitted by a settlement agreement. There is nothing in this
record to demonstrate defendants are unable to obtain the name
of plaintiffs' experts in the New York action and depose them,
thereby establishing their status as joint tortfeasors and
obtaining the benefit of apportionment under the JTCL and the
CNA. Although this case was not prosecuted concurrently with
the New York case, as a minor, Rachel's cause of action did not
have to be commenced in New Jersey until two years after she
turned eighteen years of age, N.J.S.A. 2A:14-2.5 We might
conclude the lack of concurrent litigation mattered if
defendants were in fact prejudiced by the delay in prosecuting
the New Jersey suit, but we fail to see any prejudice to
defendants' contribution rights. See, e.g., Mettinger v. Globe
Slicing Mach. Co., 153 N.J. 371, 387 (1998) (a defendant's claim
5
We assume the claim was not for medical malpractice resulting
in "injuries sustained at birth," which has a different
limitations period. N.J.S.A. 2A:14-2(b).
17 A-4918-13T1
for contribution does not accrue until the plaintiff recovers a
judgement against it).6
The lack of actual prejudice is compelling. In Yousef v.
General Dynamics Corp., 205 N.J. 543, 548 (2011), the Court
considered whether a suit brought in New Jersey by New Jersey
residents injured while on a business trip in South Africa due
to the alleged negligence of the defendant corporation and its
employee-driver, a resident of Florida, should be dismissed
under the doctrine of forum non conveniens. The defendants
argued that the suit should have been brought in South Africa.
Id. at 551.
Although the facts involving the accident were disputed,
the front-seat passenger of the car said that a stop sign
regulating the unilluminated intersection where the crash
occurred was bent, making it difficult to see. Ibid.
Defendants also obtained information from a South African
witness corroborating the condition of the sign and stating that
the intersection was the site of frequent accidents. Id. at
552. Additionally, there were provisions of South African law
that mostly favored the defendants and would have the likely
result of limiting any award of damages. Id. at 553.
6
Defendants have not, for example, claimed that they would be
unable to obtain contribution in a subsequent federal diversity
action.
18 A-4918-13T1
We affirmed the trial court's decision denying the
defendants' motion to dismiss. Id. at 555-56. The Court
conducted an exhaustive review of the equitable considerations
that underpin the doctrine of forum non conveniens, and noting
"[a]t least presumptively, a plaintiff is entitled to his choice
of forum," the Court concluded that the "defendants failed to
carry their burden of demonstrating that New Jersey [was] a
'demonstrably inappropriate' forum." Id. at 567.
Addressing specifically the defendants' argument that they
were prejudiced by the lack of ability to implead the South
African municipality as a third-party defendant, the Court said:
Because the South African municipality
cannot be impleaded as a party, New Jersey's
[CNA], which only applies to "parties," does
not permit allocation of fault between
defendants and the non-party municipality.
See N.J.S.A. 2A:15-5.2(a)(2) ("The
percentage of negligence or fault of each
party shall be based on 100% and the total
of all percentages of negligence or fault of
all the parties to a suit shall be 100%."
(emphasis added)). Assuming that defendants
have taken steps necessary to preserve their
rights against the municipality under South
African law, and assuming that there is
adequate evidence to support a claim of
municipal liability going to the jury, the
trial court may consider -- as a matter of
equity -- allowing the jury to consider
apportioning fault between defendants and
the municipality. In this way, the
disadvantage to defendants in trying this
case in New Jersey will be greatly
diminished if, in the event of a
determination of liability, they can
19 A-4918-13T1
apportion damages in a way consistent with
the [CNA].
[Id. at 570-71.]
Although the federal district court's decision in Carter is
not controlling, we believe its reasoning, tempered by the
Court's dicta in Yousef, is persuasive. Defendants' "all-or-
nothing" defense may undercut their ability to prove that the
New York defendants were in fact negligent, thereby denying
defendants, at the least, the benefit of apportionment. That
strategic decision, however, is not prejudice that inexorably
results from application of the JTCL and the CNA to the unique
circumstances of this case.
We are convinced that equity is not achieved by providing
defendants with a pro tanto credit in this litigation for the
amount of the New York settlement. That result is an undeserved
windfall for defendants, and it finds no support in relevant
case law. The equitable result is to permit defendants to have
any judgment that plaintiffs may secure against them reduced by
the amount of fault a jury attributes to the New York
defendants. We are therefore compelled to reverse the order
under review.
Finally, plaintiffs claim that their cross-motion should
have been granted, discovery should have been closed, and
defendants should have been barred from furnishing any further
20 A-4918-13T1
expert reports or introducing evidence regarding the New York
settlement. The natural consequence of plaintiffs' argument is
that defendants are not entitled to any credit, because they
proffered no evidence establishing that the settling defendants
were negligent, and, hence, no basis for a jury to apportion
fault.
In light of our decision which completely upends the
posture of the litigation, we conclude the result urged by
plaintiffs is unfair. We therefore direct the Law Division to
reinstate the complaint, re-open the discovery period and
provide the parties with a reasonable amount of additional time
to conduct discovery and serve additional reports, anticipating
the likelihood of discovery that might necessarily cross state
lines.
Reversed and remanded. We do not retain jurisdiction.
21 A-4918-13T1