Mejia v. Quest Diagnostics, Inc., 241 N.J. 360 (2020). Today’s opinion by Justice Fernandez-Vina, for a unanimous Supreme Court, involved “whether a 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.” The Court concluded that the third-party defendant was required to participate at trial, affirming the decisions of both the Law Division and the Appellate Division to that effect.
The case grew out of medical malpractice claims. Plaintiff sued Quest Diagnostics and two of its employees, asserting that they failed to detect, through PAP smears, cervical cancer in plaintiff’s decedent. Those defendants then filed a third-party complaint against the decedent’s gynecologist and her family practitioner. Plaintiffs filed a direct claim against the family practitioner but did not do so against the gynecologist, Dr. Fernandez.
Before trial, Fernandez filed a motion to be treated “as the defendants were treated” in Jones v. Morey’s Pier, Inc., 230 N.J. 142 (2017), and Burt v. West Jersey Health Systems, 339 N.J. Super. 296 (App. Div. 2001). “In those cases,” Justice Fernandez-Vina stated, “third-party defendants were relieved from participating at trial, yet the remaining defendants were entitled to present evidence of their negligence.”
The Law Division denied Fernandez’s motion. After granting leave to appeal, the Appellate Division affirmed in an unpublished opinion. The Supreme Court then granted leave to appeal and today, applying de novo review, affirmed those courts’ rulings.
Justice Fernandez-Vina observed that “[t]hird-party defendants are subject to the contribution claims filed against them by joint tortfeasors, unless there exists a right to a dismissal of the claims against them.” In Jones and Burt, there was such a right. In Jones, the third-party defendant had a meritorious defense based on the Tort Claims Act, N.J.S.A. 59:8-8. In Burt, “a defendant was dismissed from the suit because of the plaintiff’s failure to timely serve an affidavit of merit, N.J.S.A. 2A:53A-27.”
Fernandez tried to equate himself to the defendant in Burt since no party served him with an affidavit of merit. But that argument was defeated by the fact that the Law Division had granted an unopposed motion by the Quest defendants that had declared that those defendants were not required to serve an affidavit of merit as to their third-party claims against Fernandez.
Justice Fernandez-Vina first laid out some basic principles surrounding contribution claims. In particular, he invoked the Comparative Negligence Act and the Joint Tortfeasors Contribution Law. He also noted that under Rule 4:81-(a), “a defendant may file a claim for contribution against a third party that was not sued by the plaintiff.” But “a third-party defendant who is never sued directly by the plaintiff is potentially liable only to the third-party plaintiff that filed the claim for contribution against him, if and after the third-party plaintiff “is compelled to pay more than his percentage share,” N.J.S.A. 2A:15-5.3(e), and the trier of fact accords a percentage of fault against the third-party defendant, N.J.S.A. 2A:15-5.2(a)(2). In that instance, the third-party plaintiff is entitled to recover contribution from the third-party defendant in the amount of the third-party defendant’s share in the judgment.”
“[T]he fact that plaintiff cannot recover from Fernandez directly does not mean that his participation is not necessary to enable the trier of fact to allocate fault.” As discussed above, Fernandez’s reliance on Burt was unavailing in light of the unopposed ruling that the Quest defendants need not serve Fernandez with an affidavit of merit.
Moreover, Justice Fernandez-Vina emphasized, the Affidavit of Merit Act, N.J.S.A. 2A:53A-27 to -29, requires only that “the plaintiff shall … provide each defendant” with an affidavit of merit (emphases added). Burt expressed no opinion as to whether a third-party plaintiff must serve a third-party defendant with an affidavit of merit. Though the Appellate Division later ruled that no affidavit of merit is required in connection with a third-party complaint for contribution or joint tortfeasor liability, Diocese of Metuchen v. Prisco & Edwards, AIA, 374 N.J. Super. 409, 418 (App. Div. 2005), the Supreme Court today saw no reason to address that issue. The unopposed order stating that the Quest defendants need not have served Fernandez with an affidavit of merit disposed of today’s case.