In a recent unpublished decision, Gatesy v. Perotte, the New Jersey Appellate Division reinforced the principle that a non-settling defendant may seek a jury apportionment from a settling defendant at trial pursuant to Young v. Latta, 123 N.J. 584 (1991), assuming that sufficient notice had been provided that the settling defendant's fault would be an issue at trial. Furthermore, the Appellate Court reaffirmed that a non-settling defendant could rely on other parties' expert opinions as to the malpractice of a settling defendant, without the need to retain its own expert, or formally adopt a party's expert report.
In Gatesy v. Perotte, the plaintiff brought a medical malpractice action against several medical providers and before trial, all parties settled except for defendant Perotte. During the trial, one of the plaintiff's experts established the fault of a settling defendant through Perotte's cross-examination, during a de benne esse deposition which was shown to the jury. The jury ultimately found defendant Perotte liable, but that his deviations were not a substantial factor in the plaintiff's injuries.
The plaintiff then filed an in limine motion to bar Perotte from asserting any negligence claims against the settling defendants, arguing under Young that he failed to support such an opinion with his own expert, or that of another non-settling party, and failed to provide sufficient notice to the plaintiff before trial that he would seek contribution. The motion was denied.
In affirming the trial judge's decision, the Gatesy Court held that Perotte provided fair and timely notice to the plaintiff in his answer and cross-claims for contribution against the co-defendants, by specifically citing to Young v. Latta. The Appellate Division also held that the trial court did not abuse its discretion in permitting the plaintiff's expert's testimony to establish a settling co-defendant's liability, because New Jersey policy disfavors depriving an opposing party from obtaining and presenting relevant information at trial.
Comment: This case reinforces the concept that a defendant's Young v. Latta notice in the pleadings sufficiently puts a plaintiff on notice that a jury allocation will be sought from other settling parties. In most cases, a jury allocation will still need to be obtained through the use of expert testimony from defense experts, as typically plaintiff's counsel will not call expert witnesses at the time of trial who were retained to offer testimony against settling defendants. In this scenario, defense counsel should retain so-called "pocket experts" to be utilized only in the event that certain co-defendants settle out.
Jennifer R. Williams