In its holding and opinion in Est. of Spill v. Markovitz, (A-34-23), 2025 N.J. LEXIS 211 (March 11, 2025), the Supreme Court of New Jersey contemplated whether a jury may allocate fault to an out-of-state tortfeasor not subject to personal jurisdiction in New Jersey.
The underlying malpractice and wrongful death matter stems from medical care and surgery received by deceased Crystal Walcott Spill (“Spill”). The Estate of Spill (“Plaintiff”) alleges that up to the time of her passing, Spill suffered from lupus and was under the care of Dr. Jenny T. Diep, M.D., a NY rheumatologist. Concurrently, Spill also received unrelated care from Dr. Jacob E. Markovitz, M.D., a NJ gynecologist. In the course of his care, Dr. Markovitz found low-grade squamous intraepithelial lesions by colonoscopy and suggested a loop electrosurgical excision procedure (“LEEP” or, i.e. “the surgery”) to remove the abnormal tissue, which Spill scheduled for February 16, 2018.
Prior to the scheduled LEEP, Spill had an appointment with rheumatologist Dr. Diep, wherein laboratory testing revealed elevated creatinine levels and high blood pressure. In response, Dr. Diep doubled Spill’s blood pressure medication and recommended Spill to see a nephrologist. On February 15, 2018, one day before her scheduled LEEP, Spill had an initial visit with Dr. Holly M. Koncicki, M.D., a NY nephrologist. Dr. Koncicki performed additional tests but did not receive the results or have an opportunity to discuss with Dr. Diep before Spill’s LEEP. Spill went ahead with the LEEP on February 16, 2018, performed by Dr. Markovitz, in which during the application of anesthesia, Spill suffered a significant cardiac event, and sadly passed away later that day. On February 17, 2018, Dr. Koncicki’s records showed that Spill’s test results, which revealed critically elevated creatinine and potassium levels, had been available on the evening of her death.
Suit was filed by Estate of Spill (“Plaintiff”) in Superior Court against the group of doctors and practices involved in Spill’s care and surgery, including Dr. Koncicki, Dr. Markovitz, and the anesthesiologist, and their practices, and others (“Doctor Defendants”) on a theory that they negligently proceeded with the LEEP without waiting for Dr. Koncicki’s test results. Saliently and significantly, Plaintiff never once asserted claims against Dr. Diep as a Defendant through the pendency of her lawsuit. Notwithstanding, the Doctor Defendants moved to allocate fault against Dr. Diep, and also filed a third-party complaint against Dr. Diep, and produced at least one expert report highlighting Dr. Diep’s possible negligence in her care of Spill; while Dr. Diep moved to dismiss the third-party complaint for lack of personal jurisdiction.
Superior Court sided with Dr. Diep, and dismissed the third-party complaint against Dr. Diep AND denied Doctor Defendants’ motion to include Dr. Diep on the verdict form for apportionment of fault. Superior Court found no precedent to support inclusion of Dr. Diep on the verdict form, as Dr. Diep was an alleged joint tortfeasor but was also a non-party, over whom the court did not have personal jurisdiction. The Appellate Division affirmed Superior Court, and held that a New Jersey court does not have personal jurisdiction over Dr. Diep as an out-of-state individual, and that Dr. Diep is neither a party nor a tortfeasor, and that there should not be an allocation as to such an individual.
Before the Supreme Court, the Doctor Defendants argued that the court’s lack of jurisdiction over Dr. Diep should not deprive them of the jury’s apportionment of fault as to Dr. Diep’s responsibility for harm to Spill. Doctor Defendants insisted that Dr. Diep’s absence from the verdict sheet would lead to an unjust imposition of liability because all responsible tortfeasors will not be included in the jury’s apportionment of fault.
In opposition, Estate of Spill (“Plaintiff”) contended that the Comparative Negligence Act (“CNA”) forbids apportionment of fault to non-party Dr. Diep, and maintained that there is no authority to support Doctor Defendants’ position. Plaintiff further argued Doctor Defendants mistakenly relied on the Joint Tortfeasor Contribution Law (“JTCL”) because the CNA is the sole authority on jury allocation of comparative fault percentages among multiple parties. Plaintiff argued for a traditional contribution-after-judgment claim to address Doctor Defendants’ allegation of Dr. Diep’s fault.
Having these arguments, the Supreme Court affirmed but modified Appellate Division’s Judgment, and held 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, such an individual may still be a joint tortfeasor for purposes of seeking contribution under the JTCL.
All parties agree that the Superior Court lacked personal jurisdiction over Dr. Diep in this matter. Under the prevailing policy of not letting the procedural status of a joint tortfeasor affect substantive right of contribution as articulated in Mejia v. Quest Diagnostics, Inc., 241 N.J. 360, 371 (2020), the Supreme Court’s reasoning included a thorough examinations of the CNA and the JTCL and found that they differ in that 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.”
The Supreme Court also examined a line of relevant cases including Young v. Latta, 123 N.J. 584 (1991), which held that so long as a non-settling defendant provides the plaintiff with fair and timely notice that it intends to assert the liability of a settling defendant, cross-claims are not required to seek an allocation against that settling defendant. Even though the language of the CNA did not provide for apportionment of fault to settling tortfeasors, the court recognized that a defendant who settles and is dismissed from the action remains a party to the case for the purpose of determining the non-settling defendant’s percentage of fault.
The Supreme Court also examined Kranz v. Schuss, 447 N.J. Super. 168 (App. Div. 2016), in which a plaintiff launched two parallel suits in NJ and NY to recover for the same harm, but the NY defendants settled, whereas the NJ defendants did not; the court, having found no prejudice due to the relatedness in the two actions, permitted the non-settled NJ defendants to obtain credit for the settled NY defendants for the amount of fault found by jury.
The Court only found guidance in Young and Kranz, but not precedent, and differentiated these cases from the Spill matter at bar, in that Young and Kranz involved apportioning fault to settled defendants, whereas Spill matter involved apportioning fault to a non-party tortfeasor with no settlement.
Turning back to Spill, the Supreme Court emphasized that Dr. Diep was never made a party to the case within definition of the CNA, and that Plaintiff deliberately chose not to pursue action against Dr. Diep in NJ or NY – and cannot be compelled to pursue action. To remedy the prejudicial hampering effect this would have on the Doctor Defendants’ ability to pursue Dr. Diep for contribution, the Supreme Court noted that the JTCL allows any joint tortfeasor to seek contribution from any other “persons” alleged to be “jointly or severally liable in tort for the same injury,” and which therefore would not bar the Doctor Defendants from independently pursuing Dr. Diep for contribution.
Take-Home Message: NJ civil defense practitioners are encouraged to review this opinion and the authority cited and analyzed therein, with special attention to Court’s breakdown of both the CNA and the JTCL. Practitioners must remain cognizant that the CNA has a requirement of “party” whereas JTCL has a (more lax) requirement of “person.” While public policy favors fair apportionment of fault, procedural standing of parties at the outset of the litigation will impact joint tortfeasors’ timing, ability, convenience, and cost in seeking contribution from other joint tortfeasors.
Capehart Scatchard attorneys,