Estate of Crystal Walcott Spill v. Jacob E. Markovitz, M.D.
A-34-23
N.J.Mar 11, 2025Background
- Plaintiffs (Estate of Crystal Walcott Spill) filed a wrongful death action in New Jersey after Spill’s death from a cardiac event following surgery; the claims targeted several physicians and medical groups involved in her care, including New Jersey-based doctors.
- Spill had also been recently treated by Dr. Jenny T. Diep, a New York-based rheumatologist who increased Spill’s blood pressure medication; Dr. Diep was not named as a defendant and had never been present or practiced in New Jersey.
- Defendants (including Dr. Paganessi and his practice) sought to allocate fault to Dr. Diep, arguing her care contributed to Spill’s death, and filed a third-party complaint against her.
- Dr. Diep moved to dismiss for lack of personal jurisdiction; the trial court granted dismissal and barred inclusion of Dr. Diep on the verdict form for allocation of fault.
- The Appellate Division affirmed, holding Dr. Diep could not be allocated fault as she was not a “party” under the Comparative Negligence Act (CNA); Defendants appealed to the New Jersey Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can jury allocate fault to out-of-state non-party lacking NJ jurisdiction? | CNA forbids allocation to non-parties; only actual parties count. | Exclusion is unfair; all responsible tortfeasors should be on verdict. | No, not for CNA allocation—"party" requires NJ jurisdiction. |
| Does exclusion of Dr. Diep create unfairness to defendants? | No unfairness; defendants have separate right of contribution in NY. | Yes; inability to allocate raises liability for others’ negligence. | No prejudice; defendants not deprived by plaintiffs’ choices here. |
| Is Dr. Diep a “joint tortfeasor” under the JTCL for contribution post-judgment? | Should be addressed in contribution action, not at trial. | JTCL allows seeking contribution from liable non-parties after trial. | Yes, defendants can pursue contribution against Dr. Diep elsewhere. |
| Can model jury instructions on causation resolve any allocation unfairness? | Jury charge suffices to mitigate unfairness of not allocating fault. | Jury charge (substantial factor) is not a substitute for allocation. | Court disagrees that instructions are an adequate substitute. |
Key Cases Cited
- Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 103 N.J. 177 (allocation not allowed to immune absent party under Workers’ Comp Act)
- Young v. Latta, 123 N.J. 584 (CNA allows allocation to settling tortfeasors)
- Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102 (allocation to dismissed parties permitted if no prejudice)
- Town of Kearny v. Brandt, 214 N.J. 76 (CNA and JTCL aim for fair allocation among parties and joint tortfeasors)
- Burt v. Western Jersey Health Sys., 339 N.J. Super. 296 (allocation allowed where defendants deprived of cross-claims by circumstances outside their control)
- Kranz v. Schuss, 447 N.J. Super. 168 (allocation to out-of-state settling defendant allowed if no prejudice; distinguished here due to no settlement)