After a New Jersey medical malpractice trial in which a jury found defendant Dr. Joseph Popovich (Popovich) liable for sixty percent of plaintiffs’ damages, he moved to mold the verdict to reduce his liability consistent with Burt v. W.
Jersey Health Sys., 339 N.J. Super. 296 (App. Div. 2011). The trial court denied the motion and imposed one hundred percent liability on defendant pursuant to the Comparative Negligence Act (CNA), N.J.S.A. 2A:15-5.1, to -5.8. Popovich appealed, arguing that the court erred in entering the total amount of damages against him because the court was required to reduce the verdict to reflect the jury’s 60/40 allocation of fault between himself and a dismissed defendant pursuant to Burt.
The jury found that plaintiffs proved Popovich deviated from the requisite standard of care and that his negligence was a proximate cause of Victor Gaza’s injuries; Popovich proved Goldsmith deviated from the standard of care and that his negligence was a proximate cause of Victor Gaza’s injuries; and Popovich failed to prove that Nguyen deviated from the requisite standard of care. Allocating sixty percent of the fault to Popovich and forty percent to Goldsmith, the jury awarded plaintiffs $1.43 million for pain and suffering, including damages for loss of services and companionship, as well as funeral expenses.
The Superior Court of New Jersey Appellate Division stated in its decision dated October 6, 2025: “Apportionment of liability among joint tortfeasors, when one or more have been dismissed with prejudice from the litigation, is a question of law … Ordinarily, a plaintiff can recover “[o]nly that percentage of the damages directly attributable to that party’s negligence.” N.J.S.A. 2A:15-5.3(c). If a party is found to be sixty percent or more at fault, however, the plaintiff can recover the full amount of damages from that party, N.J.S.A. 2A:15-5.3(a), who may in turn “seek contribution from the other joint tortfeasors.” N.J.S.A. 2A:15-5.3(e).”
“The record shows that Popovich timely answered plaintiffs’ complaint, and it further shows that he answered every
amended complaint filed by plaintiffs. The record also shows that each answer by Popovich pled third party claims for contribution against various other providers. When plaintiffs successfully moved to amend their complaint to directly add the various third-party defendants identified by Popovich, those newly added direct defendants in turn moved for dismissal with prejudice against plaintiffs on statute of limitations grounds. Ultimately, the direct defendants’ dismissals based on the statute of limitations do not adversely affect Popovich’s right to contribution, which derives solely from the JTCL [Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to -5].”
“On these facts, where Popovich’s answers timely placed the third-party defendants, including Ngyuen and Goldsmith, on notice of the potential claims against them, they suffered no prejudice in preparing their defenses. Like the Quest defendants, Popovich’s statutory right of contribution is not constrained or limited by the viability of plaintiffs’ direct claims. It follows that the trial court’s order was proper, and we find no error in the court’s interpretation of the law and its application of the facts to it.”
Source Estate of Victor Gaza v. Popovich, Docket No. A-2310-22.
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