Imagine this scenario: you are representing a physician in a complex, medical malpractice case. Not unexpectedly, a co-defendant settles with the plaintiff. In your mind, that physician’s expert will not be testifying—you certainly do not see the need to call that expert. On the eve of trial, however, the plaintiff announces that she will call the settling defendant’s expert on her case. Instinctively, you move to bar the plaintiff from calling the expert, crying foul in the plaintiff’s attempt to turn the tables and use what was a defense expert against the defense. Much to your surprise, the trial court denies the motion, and you move for leave to appeal, believing the Appellate Division will right the obvious wrong. However, to your shock, the appellate judges not only affirm, but also praise the plaintiff for employing “sound trial strategy.” This is not a nightmare conjured in the mind of a sleepless trial lawyer preparing for a six-week trial; rather, this is the factual background and holding of a recent New Jersey Appellate Division ruling, destined to have a decided impact on the way civil cases are tried for some time. 

The decision in Adams v. Yang, __ N.J. Super. __, (App. Div. 2023), arose from the following facts: plaintiff’s estate brought a medical malpractice action against Dr. Steven Yang, and several others, alleging that the defendants had timely missed a cancerous gastric mass, which ultimately caused the decedent’s demise. In his defense, Yang served the expert report of Dr. Andrew Bierhals who opined that Yang’s interpretation of the subject CT scan was well within the standard of care, and that “even if a malignant tumor [was] evident on the CT scan, it would have already been at an advanced stage as of that date.” Thereafter, the plaintiff settled with Yang, causing the remaining defendants to assert claims for contribution and indemnification against him.