Before Judges Keefe, A.A. Rodr¡guez and Collester.
The opinion of the court was delivered by: Keefe, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court, Law Division, Essex County.
We granted plaintiff's motion for leave to appeal from an interlocutory order permitting defendant Shop-Right Supermarkets, Inc. d/b/a Shop-Right of Kearney (Shop-Right) to subpoena and elicit expert testimony from plaintiff's medical malpractice expert, Dr. Roschelle, "for the purpose of establishing deviations from accepted standard [sic] of medical practice of settling Co-Defendants, Dr. Moaven, Dr. Marra, St. Michael's Hospital and United Hospital." In essence, Shop-Right intended to use the plaintiff's expert to establish that the settling defendants were tortfeasors and, thus, receive credit for their respective percentages of negligence in the event plaintiff prevailed against Shop-Right. Young v. Latta, 123 N.J. 584, 596 (1991). We reverse the order under review.
The relevant facts are undisputed. On January 23, 1994, Christina Deffer slipped and fell in the produce aisle of Shop-Right. She suffered a fractured right fibula. On March 9, 1994, Christina died of a pulmonary embolism, which was directly related to the fracture.
Plaintiff Miguel Deffer thereafter filed suit against Shop-Right alleging negligence. He also sued defendants St. Michael's Medical Center, United Hospitals Medical Center, and Drs. Dafer, Moaven, Napoli, Rosa, Dixon, Rajeswaran, Abdelmessieh, Marra, Aragona, and Lee (the medical provider defendants). Shop-Right filed a cross-claim for indemnification and/or contribution against the medical provider defendants.
Plaintiff retained Dr. Ira A. Roschelle as an orthopedic expert to testify with respect to the causal relationship between the fracture sustained at the Shop-Right and the fatal pulmonary embolism, as well as the defendant medical providers' deviations from accepted standards of medical care. In a report dated September 9, 1997, he concluded that several doctors, specifically Drs. Moaven, Rosa, Marra, Rajeswaran, and Lee deviated from the accepted standards of care in their treatment of the decedent. Dr. Roschelle's deposition was conducted on September 16 and October 14, 1997.
Shop-Right retained Dr. Andrew Newman, an orthopedist, as an expert. His de bene esse deposition was taken on November 19, 1998 to preserve his testimony with respect to the apportionment of damages in anticipation of trial. He was critical of but one of the named medical provider defendants: Dr. Marra.
A trial date was set for January 18, 2000. On January 11, 2000, plaintiff settled with St. Michael's Medical Center for $25,000 and United Hospitals Medical Center for $250,000. Plaintiff voluntarily dismissed all medical malpractice claims against the individual medical providers with prejudice. Following the settlement, Shop-Right served the subject subpoena on Dr. Roschelle requiring him to give deposition testimony on January 13. Plaintiff's attorney immediately advised Shop- Right that he did not intend to call Dr. Roschelle as a witness. (Apparently, plaintiff did not require Dr. Roschelle to testify with respect to the issue of the causal relationship between the fracture and the pulmonary embolism since he had also named Dr. DeGroot as an expert for that purpose as well.) Plaintiff then moved to quash the subpoena and prevent the use of Dr. Roschelle's testimony by Shop-Rite at trial for the purpose of establishing the fault of the medical provider defendants. Plaintiff also sought to bar Dr. Newman from testifying on the ground that he did not have the requisite credentials.
The trial judge denied the motion. He reasoned:
I'm satisfied that the thrust of plaintiff's case was one against wrongful death caused by the medical misconduct involved in this particular case. And given the further fact, which I consider exigent circumstances of the settlement with the doctors and the hospital on the day of trial, . . . it is this Court's opinion that the defendant has a right to call Dr. Rochelle [sic] as a witness in this particular case.
The court appeared to consider it unfair that defendant should be left with the burden of apportioning damages when, based on the judge's appraisal, the thrust of plaintiff's case rested against the defendant medical providers. Summarizing the positions of the parties, the court stated:
Counsel takes the position that the burden would lie upon the defendant to establish its right of indemnification [against the medical providers] by way of its independent proofs. . . . And now plaintiff seeks to forestall the defendant from pursuing that indemnification right because of the defendant's failure to have appropriate medical support in that, one, defendant now chooses to make use of . . . Dr. Rochelle [sic] . . . and the second argument being that the defendant's medical expert [Dr. Newman] should be denied the right to testify because . . . defendant's expert does not meet the standards which are permitted for him to testify with ...