NOT FOR PUBLICATION WITHOUT THE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

KRANZ, Individually,

Plaintiffs-Appellants,

v.

STEVEN SCHUSS, M.D., and

TEANECK PEDIATRICS, P.A.,

Defendants-Respondents.

__________________________________________________

Argued October 26, 2015 – Decided 

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.

APPROVED FOR PUBLICATION

August 31, 2016

APPELLATE DIVISION

August 31, 2016
2 A-4918-13T1

"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).]
3 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 comparativenegligence 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.

. . . .
4 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.
5 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 
6 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 
7 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. AluriVallabhaneni, 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 
8 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.
9 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 
10 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. 
11 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 
12 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. 
13 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 nonsettling 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 nonsettling 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 
14 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. 
15 A-4918-13T1

Plaintiffs, however, argue that the circumstances are "almostidentical" 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.
16 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 
17 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).
18 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.
19 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 
20 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-ornothing" 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 
21 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.