Burden Shifting New Jersey
The principle of burden shifting is founded on the doctrine of alternative liability and a policy determination that a no cause of action verdict against all possible defendants in a medical malpractice case would work an unacceptable injustice where an unconscious or helpless patient has suffered an injury bespeaking negligence but cannot otherwise recover damages because the plaintiff cannot establish which of the defendants were culpable.
Anderson v. Somberg, 67 N.J. 291, 338 A.2d 1, cert. denied, 423 U.S. 929, 96 S.Ct. 279, 46 L.Ed.2d 258 (1975)
Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469-70, 734 A.2d 778 (1999)
Lyons v. Premo Pharm. Labs, Inc., 170 N.J.Super. 183, 192-93, 406 A.2d 185 (App.Div.), certif. denied, 82 N.J. 267, 412 A.2d 774 (1979).
That "radical shifting of burdens . . . is not undertaken lightly," and has absolutely no application where a plaintiff has already identified and recovered from a culpable defendant via settlement prior to trial. Lyons, supra, 170 N.J.Super. at 192-93, 406 A.2d 185.
Were plaintiff's theory viable, then followed to its logical extreme, plaintiff could systematically settle with each defendant, eliminating their exposure to further liability, and ultimately try the case against a lone remaining defendant claiming a burden shift to defendant not only to disprove culpability, but also to prove the negligence of at least one of the settling defendants that plaintiff voluntarily elected to eliminate from the case. Cf. Anderson, supra, 67 N.J. at 312, 338 A.2d 1 (Mountain, J., dissenting) ("The absence of sufficient evidence upon which a verdict might justly rest, coupled with the compulsion to reach a verdict against someone, removes from the case any semblance of rationality.").