228 A.3d 456
N.J.2020Background
- Plaintiff Samuel Mejia sued Quest Diagnostics and two employees for failing to detect his wife’s cervical cancer via PAP smears.
- Quest filed third-party claims for contribution and common-law indemnification against Dr. Jacinto Fernandez (the patient’s gynecologist) and Dr. Simon Santos.
- Plaintiff never sued Fernandez; Fernandez demanded an affidavit of merit from Quest. Quest moved for—and obtained—an unopposed trial-court declaration that no affidavit of merit was required as to its third-party claims; Fernandez did not seek reconsideration.
- Months before trial Fernandez moved to be excused from trial participation, relying on Jones and Burt (cases where third-party defendants were dismissed and excused from trial), and sought judgment-molding so any fault allocated to him would reduce the remaining defendants’ liability to plaintiff.
- Trial court denied Fernandez’s motion; the Appellate Division affirmed. The New Jersey Supreme Court granted leave and affirmed: a third-party defendant who has not been dismissed meritoriously must participate at trial so fault can be allocated and contribution claims resolved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a third-party defendant whom plaintiff never sued must participate at trial where third-party plaintiffs seek contribution/indemnity | Mejia: Third-party defendant can be tried; allocating fault is necessary to protect plaintiff and co-defendants | Fernandez: Because plaintiff did not sue him (and no affidavit of merit was served), he should be dismissed/ excused from trial and any allocated fault should reduce remaining defendants’ liability | Held: Third-party defendants are active parties for allocation and contribution purposes and must participate unless they have a meritorious dismissal; Fernandez had no meritorious dismissal and must participate |
| Whether the Affidavit of Merit Act required the third-party plaintiffs to serve an affidavit on Fernandez | Mejia: Quest properly pursued contribution; plaintiff followed affidavit rules applicable to parties he sued | Fernandez: Failure to serve an affidavit circumvents the Affidavit of Merit Act and warrants dismissal (citing Burt) | Held: Court declined to decide whether a third-party plaintiff must serve an affidavit here because Quest’s motion that no affidavit was required was unopposed and Fernandez did not contest that ruling below or seek reconsideration |
Key Cases Cited
- Jones v. Morey’s Pier, Inc., 230 N.J. 142 (2017) (allocating fault and molding judgment where a third-party defendant was dismissed under a statutory bar)
- Burt v. West Jersey Health Sys., 339 N.J. Super. 296 (App. Div. 2001) (cross-claimant may seek contribution despite plaintiff’s failure to serve affidavit of merit)
- Holloway v. State, 125 N.J. 386 (1991) (procedural posture of a contribution defendant does not alter substantive right to contribution)
- Lee’s Hawaiian Islanders, Inc. v. Safety First Prods., Inc., 195 N.J. Super. 493 (App. Div. 1984) (trial must include third-party defendants not sued by plaintiff to allocate fault)
- Ginsberg v. Quest Diagnostics, Inc., 227 N.J. 7 (2016) (discussion of molding judgments and allocation under Comparative Negligence Act)
- Diocese of Metuchen v. Prisco & Edwards, AIA, 374 N.J. Super. 409 (App. Div. 2005) (holding no affidavit of merit required when defendant asserts third-party contribution against another professional)