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CARTER v. UNIVERSITY OF MED. & DENTISTRY OF NEW JE

June 2, 1994

Neal Anthony Carter, a minor by Gail P. Carter and Craig A. Carter, his Natural Parents and Next Friends, and Gail P. Carter and Craig A. Carter, individually
v.
University of Medicine and Dentistry of New Jersey - Rutgers Medical School d/b/a Robert Wood Johnson Medical School, Lawrence T. Taft, M.D., John Doe, M.D., Victor Tuma, M.D., Eleftherios Halivopolous, M.D. and Metuchen Pediatric Associates, P.A.



The opinion of the court was delivered by: NICHOLAS H. POLITAN

 Dear Counsel:

 This matter is presently before the Court on the motion in limine of defendants Lawrence Taft, M.D., and the University of Medicine and Dentistry of New Jersey ("UMDNJ") seeking a determination that the defendants in this action are entitled to have the jury determine and apportion the negligence of a settling physician, a Washington, D.C. pediatrician who is not a formal party to this proceeding. *fn1" The defendants further request a ruling that any verdict against them be molded as a matter of law to reflect a credit for any potential percentage of fault of the settling physician. Plaintiffs have submitted a cross-motion to preclude defendants from asserting at trial that the settling physician was negligent and/or that said negligence contributed to the infant plaintiff's injury. The motions are resolved pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons stated herein, defendants' motion is GRANTED and plaintiffs' motion is DENIED.

 I. STATEMENT OF FACTS

 The facts giving rise to the underlying cause of action have been chronicled in a prior pronouncement of this Court and need not be restated. See Carter v. University of Medicine and Dentistry of New Jersey, 838 F. Supp. 957 (D.N.J. 1993). For the purposes of this discourse it is sufficient to note that this negligence action and a separate but concurrent lawsuit in Washington, D.C. have been brought by Craig and Gail Carter on behalf of their son Neal Carter, now age ten. The claims in the action before me are directed against the two pediatricians, Dr. Victor Tuma and Dr. Eleftherios Halivopoulos of Metuchen Pediatric Associates, who treated infant Neal from his birth on December 15, 1983 to 6 1/2 months of age. Plaintiffs have also sued Dr. Lawrence Taft, a pediatric neurologist affiliated with UMDNJ, to whom the infant was referred for a neurological examination at age 3 1/2 months.

 After plaintiffs relocated to Washington, D.C., young Neal, then 7 months of age, came under the care of Dr. Clifford Booker and continued to receive treatment from Dr. Booker until age 18 months, at which time Neal's congenital brain condition, hydrocephalus, was diagnosed. Plaintiffs brought an action against Dr. Booker in the Superior Court of the District of Columbia. In August 1993, the parties in the D.C. action reached a settlement and pursuant thereto executed a Release and Settlement Agreement. The Agreement contains, inter alia, a provision whereby plaintiffs agreed to indemnify Dr. Booker in any contribution claims arising as a result of the New Jersey action:

 
The plaintiffs . . . agree to indemnify and hold Defendant, Dr. Clifford Booker, harmless from and against any and all claims, demands, obligations, actions, causes of action, and damages, including, but not limited to any and all claims which may hereafter be made by any or all of the Defendants in the second lawsuit involving the Plaintiff's alleged injury filed in the United States District Court for the District of New Jersey in Civil Action No: 91-3645, individually and [/] or jointly, for contribution and/or indemnity, as to any and all sums which may be paid and/or adjudged against the Defendants in Civil Action No: 91-3645 either by way of judgment or settlement.

 See Affidavit of Cynthia A. Walters, Esq., Ex. A at 3-4.

 The settlement agreement further contains an indemnification provision in anticipation that Dr. Booker may be found to be a joint tortfeasor of the New Jersey defendants:

 
The parties hereto acknowledge that in the event any settlement or judgment is reached or entered in the New Jersey action, and any action against Dr. Booker for contribution is brought by any or all of the settling Parties or Parties against whom any judgment is obtained by the Plaintiffs in the New Jersey suit, then any settlement or judgment against any or all of the Defendants in the New Jersey case shall be reduced (1) by the pro-rata share of Dr. Booker under the laws of contribution of the District of Columbia, in the event that he is found to be a joint tort-feasor in any suit of the New Jersey Defendants for contribution or (2) if the Court in any such suit for contribution applies the comparative negligence law of the State of New Jersey then Dr. Booker's share of responsibility, if he is adjudged a joint tort-feasor, shall be reduced by the percentage of liability he is found to share with all other persons, firms or corporations adjudged to be tortfeasor.

 See Affidavit of Cynthia A. Walters, Esq., Ex. A at 2-3.

 Defendants presently contend that the contractual obligations imposed by the settlement agreement, coupled with the virtual identity between the New Jersey and Washington lawsuits, warrant a determination by this Court that there must be an apportionment of causative fault between the settling and nonsettling defendants.

 II. DISCUSSION

 A court's determination whether certain conduct is amenable to apportionment under the New Jersey Comparative Negligence Act, N.J.S.A. 2A:15-5.1 et seq., affects not only a plaintiff's potential recovery, but also the liability among joint tortfeasors. Blazovic v. Andrich, 124 N.J. 90, 103, 590 A.2d 222 (1991). Prior to the passage of the Comparative Negligence Act, the Joint Tortfeasors Contribution Law ("JTCL"), N.J.S.A. 2A:53A-1 et seq., provided the means by which joint tortfeasors *fn2" could seek contribution from one another for any sums paid beyond their individual pro rata share of a judgment. Blazovic, 124 N.J. at 103; see also N.J.S.A. 2A:53A-3. The pro rata share was ascertained by simply dividing the total verdict by the number of available tortfeasors, ...


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