In Estate of Crystal Walcott Spill v. Jacob E. Markovitz, M.D. (A-34-23/088764) (Decided March 11, 2025), the Supreme Court of New Jersey held that an individual outside the reach of New Jersey’s jurisdiction is not a party within the definition of the Comparative Negligence Act (CNA) for purposes of allocation. However, that individual may be a joint tortfeasor for purposes of seeking contribution under the Joint Tortfeasors Contribution Law (JTCL).
Facts of Estate of Crystal Walcott Spill v. Jacob E. Markovitz, M.D.
After the death of Crystal Walcott Spill, her estate and beneficiaries (plaintiffs) brought a wrongful death suit against doctors who treated her. Spill was under the care of Jenny T. Diep, M.D., a rheumatologist based in New York. Spill also received unrelated care from Jacob E. Markovitz, M.D., a gynecologist based in New Jersey.
Spill scheduled a surgical procedure with Dr. Markovitz for February 16, 2018. Before the procedure, Spill had a routine appointment with Dr. Diep, and laboratory tests from that appointment revealed elevated creatinine levels and high blood pressure. In response, Dr. Diep doubled Spill’s daily dosage of a blood pressure medication and recommended that Spill see a nephrologist.
One day before her scheduled surgical procedure, Spill had an initial visit with Holly M. Koncicki, M.D., a nephrologist based in New York. Dr. Koncicki performed additional laboratory tests but did not receive the results or have an opportunity to discuss those results with Dr. Diep before Spill’s surgery. During the procedure, Spill suffered a significant cardiac event. She died later that day. On February 17, 2018, Dr. Koncicki’s records indicated that Spill’s laboratory test results — which revealed critically elevated creatinine and potassium levels — had been available on the evening of her death.
Plaintiffs filed suit and named as defendants, among others, Dr. Steven Paganessi, the attending anesthesiologist for Spill’s surgery, and his medical group (collectively, the “defendants”). Plaintiffs alleged that the doctors negligently proceeded with the surgery without waiting for the laboratory results from Dr. Koncicki. Plaintiffs did not name Dr. Diep as a co-defendant and have never attempted to assert claims against her in this action or any other suit. Defendants moved for an allocation of fault against Dr. Diep and filed a third-party complaint against Dr. Diep and her practice.
Dr. Diep moved to dismiss defendants’ third-party complaint for lack of personal jurisdiction. The trial court granted Dr. Diep’s motion and denied defendants’ motion to include Dr. Diep on the verdict form, citing a lack of precedential authority to support defendants’ theory that Dr. Diep — a non-party alleged joint tortfeasor over whom the court did not have personal jurisdiction — should be included on a verdict form for apportionment of fault.
The Appellate Division agreed. It held that an out-of-state individual over whom a New Jersey court does not have personal jurisdiction, such as Dr. Diep, is neither a party nor a tortfeasor, and there should not be an allocation as to such an individual.
NJ Supreme Court’s Decision in Estate of Crystal Walcott Spill v. Jacob E. Markovitz, M.D.
The New Jersey Supreme Court partly agreed with the Appellate Division. The Court agreed that an individual outside the reach of New Jersey’s jurisdiction is not a party within the definition of the CNA for purposes of allocation. However, it further found that an individual may be a joint tortfeasor for purposes of seeking contribution under the JTCL.
In reaching its decision, the New Jersey Supreme Court explained that while the CNA and the JTCL both provide for allocations of fault against, or contributions from, individuals and entities, the language of the statutes differs in important respects. Notably, the CNA allows allocation of fault during a trial only to a “party” or “parties,” whereas the JTCL allows “joint tortfeasors” to seek contribution after a trial from other “persons” alleged to be “liable in tort for the same injury.”
Relying on the text of the statute and prior cases where the Court and the Appellate Division considered whether allocation of fault is permissible when an alleged tortfeasor is absent, dismissed, or barred from the litigation in a variety of circumstances, the New Jersey Supreme Court determined that permitting an allocation of fault against Dr. Diep would be inconsistent with the CNA under the circumstances of this case.
In support, it the Court cited that Dr. Diep, as a non-party alleged tortfeasor who is outside the jurisdictional arm of New Jersey courts, is not a “party” subject to allocation by the jury pursuant to the CNA. “Dr. Diep has never been and may never be a party to this case within the definition of the CNA. She is not subject to personal jurisdiction in this state; she has no contacts to this state; and none of the underlying conduct in which she was involved is alleged to have occurred within this state,” the Court wrote. “There are no circumstances in which a court in New Jersey could exercise jurisdiction over her on this record.”
The New Jersey Supreme Court also highlighted that Dr. Diep’s exclusion from the lawsuit in New Jersey — i.e., the reason she is a non-party — is not the result of any act, or failure to act by plaintiffs. “Although plaintiffs could have maintained an action against Dr. Diep in New York, they chose not to pursue that course. In other cases, the plaintiffs’ litigation strategies caused the defendants’ inability to pursue contribution from potential joint tortfeasors,” the Court explained. “But here, defendants are unable to make any such allegation. This matter is similarly devoid of any evidence of prejudice to the defendants.”
The New Jersey Supreme Court went on to find that the same is not true under the JTCL, emphasizing that prohibiting apportionment of fault to Dr. Diep as a non-party is not inconsistent with defendants’ allegation that she may be a joint tortfeasor. Accordingly, if a judgment is rendered in this matter against defendants, they may pursue any available contribution claims in a jurisdiction relevant to any additional alleged tortfeasors.