In this medical malpractice matter, defendants Herve Boucard, M.D. and Hamilton Gastroenterology Group, PA appeal from a July 26, 2022 order, which denied defendants' motion to bar the standard of care opinions of plaintiff's expert, Dr. Andrew Bierhals, at trial. That expert opined that codefendant Yang, who settled prior to trial, did not deviate from the standard of care, contrary to plaintiff's prior position that Yang (as well as Boucard and others) was negligent. On appeal, defendants argue that Glassman v. Friedel, 249 N.J. 199 (2021), which precludes a plaintiff from disavowing the negligence of an initial tortfeasor who settled in a later action against a successive tortfeasor, should be extended to cases involving a settling joint tortfeasor.
The court concludes that Glassman is expressly limited to successive tortfeasors and an extension of its holding to joint tortfeasors is not warranted. Glassman sets forth a method of fixing damages caused by a first, independent source of injury to afford a credit to a successive tortfeasor who would otherwise have no remedy against the settling tortfeasor. Glassman's assignment of damages to a preceding event is not possible where, as here, plaintiff seeks to establish fault as to a single, indivisible injury where two or more persons are subject to common liability.
Equally important is the fact that, unlike a successive tortfeasor, joint tortfeasors are not left without remedies against a settling codefendant. Whereas Glassman expressly prohibits an allocation of fault against an initial tortfeasor, a joint tortfeasor may seek an allocation of liability against the settling codefendant at trial. Any percentage of fault thus allocated "operates as a credit to the remaining defendants." In addition, the right of contribution assures that a joint tortfeasor can seek a remedy for the fault allocated to settling codefendants. It is plain that the equitable concerns underpinning Glassman do not exist in the joint tortfeasor context.
Finally, the court is unpersuaded by defendant's argument that it would be unfair to allow plaintiff to disavow its prior position that Yang was negligent. Defendant bears the burden of proving Yang's negligence for purposes of an allocation. That plaintiff will not assist him in that endeavor does not evince any intent to manipulate or mislead the court; rather, the court finds it to be sound trial strategy. Given the remedies available to defendant, the court concludes it is unwarranted to invoke the extraordinary remedy of judicial estoppel as it is not "necessary to secure substantial equity." Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir. 1996) (quoting Gleason v. United States, 458 F.2d 171, 175 (3d Cir. 1972)).
