SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0607-20

THE ESTATE OF JAMES 

RHODA, by and through his

Executor, KAREN RHODA,

Plaintiff-Respondent,

v.

SOUTH JERSEY EXTENDED

CARE, H.W./WEIDCO/REN,

LLC, BRIDGETON H&V

REALTY LLC, COMPREHENSIVE 

HEALTHCARE MANAGEMENT, 

BROADWAY HEALTHCARE, and 

ROBERT PATITUCCI, M.D.,

Defendants-Appellants.

______________________________

Submitted March 9, 2021 – Decided May 4, 2021

Before Judges Fisher and Moynihan.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Cumberland 

County, Docket No. L-0704-16.

Marshall Dennehey Warner Coleman & Goggin, 

attorneys for appellants South Jersey Extended Care, 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-0607-20

H.W./WEIDCO/REN LLC, Bridgeton H & V Realty 

LLC, Comprehensive Healthcare Management and 

Boadway Healthcare (Walter F. Kawalec, III, Lynne N. 

Nahmani, Sharon C. Suplee, and Evan H. Holland, on 

the briefs).

German, Gallagher & Murtagh, PC, attorneys for 

appellant Robert Patitucci, M.D., join in the briefs of 

appellants South Jersey Extended Care, 

H.W./WEIDCO/REN LLC, Bridgeton H & V Realty 

LLC, Comprehensive Healthcare Management and 

Boadway Healthcare.

Davis & Brusca, LLC, attorneys for respondents (Mark 

W. Davis and Michael Brusca, on the brief).

PER CURIAM

On leave granted, defendants South Jersey Extended Care (SJEC),

H.W./Weidco/Ren, LLC, Bridgeton H&V Realty, LLC, Comprehensive 

Healthcare Management and Broadway Healthcare (collectively the nursing 

home defendants)

1

appeal from the trial court's order denying their motion to 

file a third-party complaint joining Inspira Medical Centers, Inc., Inspira 

Medical Center Vineland (collectively Inspira) and Delaware Valley Urology, 

LLC to an action filed against SJEC based in negligence, violation of the New 

Jersey Nursing Home Responsibilities and Rights of Residents Act, N.J.S.A. 

1

 The nursing home defendants claim they were improperly pled and should 

have been named as H.W./Weidco/Ren, LLC, d/b/a South Jersey Extended Care. 

This issue has no impact on our analysis.
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30:13-1 to -17, and willful and wanton acts resulting in an infection that led to 

a partial amputation of plaintiff James Rhoda's penis.2

"The grant or denial of a motion for leave to proceed against a third-party 

defendant is a matter left to the sound discretion of the trial" court. Scott v. 

Garber, 82 N.J. Super. 446, 451 (App. Div. 1964). We will overturn the trial 

court's determination only when there is a clear abuse of discretion. Ibid. We 

have sustained a trial court's exercise of discretion where it "refuse[d] to permit 

new claims and new parties to be added late in the litigation and at a point at 

which the rights of other parties to a modicum of expedition will be prejudicially 

affected." Du-Wel Prods., Inc. v. U.S. Fire Ins. Co., 236 N.J. Super. 349, 364 

(App. Div. 1989). We do not perceive that to be the case here and reverse.

Plaintiff was admitted as a resident of SJEC, a nursing facility, in August 

2014. He alleged the nursing home defendants failed to: (1) adequately monitor 

and care for plaintiff's Foley catheter which led to an infection, specifically 

Fournier's gangrene; and (2) assess and treat that infection leading to a partial 

penectomy, penile debridement and placement of a suprapubic tube through 

2

 Plaintiff's wife also brought a per quod claim. Plaintiff passed away from 

causes unrelated to this action during its pendency. 
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plaintiff's lower abdomen performed at Inspira on December 23, 2014, following 

his admission to the hospital three or four days earlier.3

Plaintiff did not file a direct claim against third-party defendants. In 

August 2020, the nursing home defendants sought leave to file a third-party 

complaint and to extend the then-August 21, 2020 discovery end date (DED) for 

120 days. The nursing home defendants, if it was determined they were liable 

to plaintiff, sought contribution from third-party defendants—including 

Delaware Valley Urology, LLC, which treated plaintiff before his admission to 

SJEC and after his admission to Inspira—alleging they improperly assessed, 

monitored and treated plaintiff's urological needs, and that their delay in 

diagnosing the infection—which was not confirmed until the day of plaintiff's 

surgery—and treatment led to plaintiff's injuries. 

The trial court found "[t]he problem/concern with the motion is timing." 

Noting the complaint was filed on October 17, 2016, the court recognized the 

case was "nearly four years old," the DED had been extended ten times and had 

3

 The record is not clear as to the exact date plaintiff was transferred to Inspira. 

The nursing home defendants' merits brief avers plaintiff "was transferred to the 

emergency department at Inspira" and, without factual citation, further claims

"[n]one of [the] medical personnel attending [plaintiff] at Inspira diagnosed 

[him] with Fournier's gangrene on December 19, 2014." The balance of the

record sets plaintiff's admission date as December 20, 2014. 
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only fifteen days remaining when the nursing home defendants' motion was filed 

and only some experts' depositions had not yet been taken because of COVIDrelated delays. The court, which had been actively managing the case, observed 

the motion to join the third parties had never before been mentioned. It found:

There are at least [twelve] expert reports that have been 

exchanged. The adding of [two] medical defendants 

would require additional expert reports that may or may 

not challenge or introduce liability or causation issues 

not addressed earlier requiring supplemental expert 

report[s] from the [twelve] existing experts. Though 

defendant at oral argument suggested that adding these 

parties would not prejudice . . . plaintiff, this court is 

not at all convinced. Although this case will not be 

tried in the foreseeable future because of COVID 

restrictions, this case will be substantially delayed if 

this motion is granted.

The only prejudice specified by the trial court was the delay caused by the grant 

of the motion, finding "[t]his delay, not caused by . . . plaintiff in any fashion, 

is prejudice itself." The trial court concluded "the equities of judicial economy 

in having the entire matter litigated at the same time weighed against the 

prejudice to . . . plaintiff which is delay and having even more experts added to 

this already complicated case" warranted denial of the motion. We cannot abide 

the court's exercise of discretion that was too deeply wed to "delay" which, in 

this case, was inevitable.
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We first note, as set forth in plaintiff's merits brief, many of the discovery 

extensions were requested by plaintiff. Moreover, the trial court realized when 

it adjourned the trial without date that the COVID-19 pandemic has caused a 

tremendous trial backlog; that situation is extant even though remote civil trials 

have slowly been implemented. The trial court has shepherded this case from 

inception and, without doubt, can strictly control the limited discovery that will 

be engendered by granting defendant's motion; the added sixty-day delay may 

even be reduced by the trial court for good cause. See R. 4:24-1(b). 

The resulting damages plaintiff excruciatingly suffered were allegedly 

caused by the lack of care he received prior to the partial penectomy and related 

procedures. It will be up to a jury to determine if the lack of care occurred 

before he was admitted to the nursing home, while he was in the nursing home, 

after he was admitted to Inspira, or during any combination of those time 

periods. They are the series of transactions out of which arose the accrual of 

plaintiff's cause of action. See R. 4:8-1(a). "If there is common liability to 

plaintiff at that time—that is, common liability as a matter of fact even although, 

necessarily, then unadjudicated—defendant[s] cannot be deprived of [their] 

inchoate right by reason of plaintiff's loss thereafter of [their] own right of direct 
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action against the joint tortfeasor[s]." Markey v. Skog, 129 N.J. Super. 192, 

200-01 (Law Div. 1974).

The trial court correctly opined defendants could pursue a claim for 

contribution against third-party defendants if and after a judgment against them 

is rendered. But the claims now proposed by the nursing home defendants, if 

litigated in this action, would present to the jury the continuum of care—or lack 

thereof—afforded plaintiff before, during and after his stays at SJEC. The jury 

would be able to determine, on an economy of proofs, the total amount of 

damages due plaintiff and the percentage of each party's negligence or fault, see

N.J.S.A. 2A:15-5.2(a), allowing the judge to mold the judgment, see N.J.S.A. 

2A:15-5.2(d). If the jury determines defendants are sixty percent or more 

responsible for plaintiff's damages, plaintiff may still recover the full amount 

from them, see N.J.S.A. 2A:15-5.3(a), but the need for a second contribution 

trial will be obviated because the jury will have allocated that percentage based 

on the actions of all purported tortfeasors, see Mejia v. Quest Diagnostics, Inc., 

241 N.J. 360, 373-74 (2020). 

We agree with the trial court that the long delay—almost four years after 

plaintiff filed the complaint—before the instant motion was filed cannot 

ordinarily be countenanced. But, on balance, the better exercise of discretion 
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under the unusual circumstances occasioned by the COVID-19 pandemic would 

allow third-party defendants to be joined and pause proceedings for a period not 

exceeding sixty days.4 We would not normally tolerate such a delay, but the 

pandemic would have caused delays whether or not the motion was granted. 

Adding third-party defendants to the action would result in, as Judge Pressler 

cogently and eloquently stated, "the most orderly and logical manner in which 

proof of common liability can be established[.]" Markey, 129 N.J. Super. at 200; 

see also Bendar v. Rosen, 247 N.J. Super. 219, 237 (App. Div. 1991) ("While 

technically a right of contribution does not arise until a tortfeasor has paid more 

than his pro rata share, the entire-controversy doctrine and judicial economy 

militate for the claim being asserted in the underlying tort action.") (citing Tino 

v. Stout, 49 N.J. 289, 298 n.3 (1967)).

We do not pass on the merits of the nursing home defendants' claims 

against third-party defendants and leave any motion practice after the 

completion of discovery to the trial court.

4

 We note the trial court granted the nursing home defendants' motion to extend 

discovery, and the last DED extension ended December 19, 2020. Discovery 

should have continued during that extension, reducing the need for protracted 

ongoing discovery.
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Reversed and remanded for proceedings consistent with this opinion. We 

do not retain jurisdiction.