Testimony of Plaintiff’s Expert May Be Used to Establish “Fault” of Settling Defendant for Purposes of “Young v. Latta” Apportionment – Gatesy v. Perotte and Elliot, et al., Decided April 7, 2016 (A-0360-13T3)

By Michael Zerres

In this medical malpractice action, the plaintiff experienced pain in his neck and difficulty breathing after engaging in playful wrestling the previous evening. The attending emergency physician, Dr. Perotte, applied a hard cervical collar and ordered an x-ray of plaintiff’s cervical spine. A CT scan was then performed, which revealed that plaintiff was experiencing a spinal cord compression, and “plaintiff had suffered a stable neck fracture with locked facets in the same area of his neck which contributed to the compression.” Dr. Perotte chose not to further immobilize plaintiff’s neck. Plaintiff later complained of numbness in both upper limbs but the nurse failed to update his chart or inform Dr. Perotte. He was also administratively admitted into the intensive care unit (ICU) but physically remained in the emergency department, which was no longer permitted to provide medical care to plaintiff except in the case of a life-threatening emergency. When the neurosurgeon started to initiate treatment, he was already suffering clinical paralysis and experiencing loss of normal neurological function, which had steadily declined since he was brought to the hospital.

Plaintiff filed a Complaint in which he named multiple parties, including Dr. Perotte, who was alleged to have strayed from the standard of care with regards to plaintiff’s medical care and treatment. While the other parties settled with plaintiff before and during the trial, Dr. Perotte filed an answer and cross-claims against his co-defendants for contribution, indemnification, and/or settlement credit, claiming the right to seek allocation against any settling defendant pursuant to Young v. Latta, 123 N.J. 584 (1991). Plaintiff filed a motion in limine to bar Dr. Perotte from arguing that any of the settling defendants were negligent pursuant to Young, 123 N.J. at 586, 597.

In Young, the N.J. Supreme Court held that a defendant may argue the liability of a settling defendant and demand a credit against a judgment and that the non-settling defendant has the right to have the jury apportion a settling defendant’s liability. The court in that case held that when considering whether non-settling defendants are entitled to receive a credit or have the settling defendant’s liability apportioned by the fact finder, courts should first consider (1) whether the settling defendant has produced an expert witness asserting fault against the settling defendant, and (2) whether the non-settling defendant has claimed well before the trial the causative fault of the co-defendant(s). If the non-settling defendant did not produce its own or a settling defendant’s expert and also failed to allege well before trial the causative fault of a settling defendant, the defendant may be precluded from alleging the settling defendant’s fault at trial. To establish a settling defendant’s fault, an expert report from a medical expert in the same field as settling defendant must be produced by the non-settling defendants.

At trial, Dr. Macon, the neurological surgeon serving as Plaintiff’s causation expert, testified that because a settling defendant deviated and failed to treat plaintiff in a timely manner, plaintiff suffered a spinal cord injury in the emergency department. He further admitted that plaintiff may not have completely or permanently become a quadriplegic if a settling defendant visited plaintiff earlier in the day. At trial, the jury had found that while Dr. Perotte “deviated from accepted standards of medical practice . . . the deviations did not increase the risk of harm posed by plaintiff’s pre-existing condition so as to be a substantial factor in producing the ultimate injury.”

Plaintiff filed a Motion for a New Trial which was denied. Plaintiff then filed an Appeal of that Order. The Appellate Court found that plaintiff successfully established the first prong establishing fault through Dr. Macon’s testimony during his cross-examination. Thus, the since the second prong of Young v. Latta had been met, the Trial Court’s Order denying plaintiff’s motion for a New Trial was affirmed.

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