After the death of Crystal Walcott Spill, her estate and beneficiaries brought a New Jersey 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.
On February 15, 2018 — 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. 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 the 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 affirmed, holding 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.
The New Jersey Supreme Court held in its March 11, 2025 decision 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. But that individual may be a joint tortfeasor for purposes of seeking contribution under the Joint Tortfeasors Contribution Law (“JTCL”) (the CNA allows allocation of fault during a trial only to a “party” or “parties,” N.J.S.A. 2A:15-5.2(a), 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,” N.J.S.A. 2A:53A-1, -3).
“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. But here, defendants are unable to make any such allegation. This matter is similarly devoid of any evidence of prejudice to the defendants … Dr. Diep, as a nonparty 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.”
“The same is not true, however, under the JTCL. 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. The Court takes no position on the merits of any such potential litigation. To the extent that the Appellate Division’s decision found that Dr. Diep could not be a joint tortfeasor under the JTCL, the Court modifies that judgment.”
“The Court also notes that it does not concur in the Appellate Division’s conclusion that the model civil jury instruction on causation abates any unfairness that the lack of application of the CNA may impose on defendants.”
Source Estate of Crystal Walcott Spill v. Jacob E. Markovitz, M.D. (A-34-23) (088764).
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