                NOT FOR PUBLICATION WITHOUT THE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                APPROVED FOR PUBLICATION
KRANZ, Individually,                         August 31, 2016

     Plaintiffs-Appellants,                APPELLATE DIVISION

v.

STEVEN SCHUSS, M.D., and
TEANECK PEDIATRICS, P.A.,

     Defendants-Respondents.
__________________________________________________

         Argued October 26, 2015 – Decided August 31, 2016

         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.
    "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).]




                                        2                                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 comparative-
               negligence 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.

                   . . . .




                                          3                             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.



                                       4                             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




                                           5                                          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




                                            6                                   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.     Aluri-

Vallabhaneni,       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




                                           7                                         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.



                                            8                                 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



                                       9                            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.



                                          10                                   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




                                            11                                   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.



                                          12                                  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   non-

settling 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   non-

settling 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




                                              13                                        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.




                                             14                                        A-4918-13T1
Plaintiffs, however, argue that the circumstances are "almost-

identical" 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.




                                             15                                   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




                                       16                                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).



                                            17                                 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.



                                       18                                  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



                                     19                               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-or-

nothing" 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



                                         20                                 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.




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