New Jersey Supreme Court Bars Jury from Faulting Out-of-Jurisdiction Doctor
May 1, 2025
By Damian D. Capozzola, Esq., and Jamie Terrence, RN
News
In a recent decision, the New Jersey Supreme Court ruled that a jury may not allocate fault under New Jersey’s Comparative Negligence Act (CNA) to an out-of-state physician over whom the state lacks personal jurisdiction. The case arose from a wrongful death suit filed after the death of the plaintiff following a surgical procedure. The plaintiff estate argued that New Jersey-based medical providers negligently proceeded with the surgery despite pending lab results. The defendants attempted to shift blame to an out-of-state rheumatologist who treated the plaintiff shortly before her death.
Although the trial court dismissed a third-party complaint against the rheumatologist for lack of jurisdiction, the defendants sought to include her on the verdict sheet so the jury could apportion fault. Both the trial court and Appellate Division rejected this effort. The Supreme Court affirmed, holding that under the CNA, only parties to the litigation may be included for allocation purposes. However, the Court clarified that, under the Joint Tortfeasors Contribution Law (JTCL), defendants may seek contribution from out-of-state joint tortfeasors in a separate action brought in a jurisdiction where the non-party is subject to suit.
The decision limits defendants’ ability to use the “empty chair” defense to reduce their liability at trial when jurisdictional constraints prevent a third party from being joined.
Background
The plaintiff, a New Jersey resident, died on Feb. 16, 2018, after experiencing a cardiac event during a gynecological procedure performed by the defendant doctor. The plaintiff had received anesthesia from another in-state defendant, whose medical group also was named in the resulting wrongful death suit. In the weeks leading up to the procedure, the plaintiff was under the care of an out-of-state rheumatologist for lupus. Lab results from an appointment with the rheumatologist revealed elevated creatinine and high blood pressure. In response, the rheumatologist doubled the plaintiff’s blood pressure medication and recommended a nephrology consult.
The plaintiff saw an out-of-state nephrologist on Feb. 15, 2018, one day before the scheduled procedure. The nephrologist ordered new lab tests, but the results were not available before the procedure. During the procedure performed by the defendant doctor, the plaintiff experienced a severe cardiac event and died later that day. The next day, the nephrologist’s records indicated that the plaintiff’s potassium and creatinine levels were critically elevated at the time of the surgery.
The estate filed suit in New Jersey against several medical providers involved in the procedure. The rheumatologist was not named as a defendant, and no claim was filed against her in New Jersey or New York. Defendants argued that the rheumatologist’s decision to increase the plaintiff’s Lisinopril dosage was the proximate cause of the fatal potassium spike. They served a report from a rheumatology expert asserting negligence on the rheumatologist’s part. The trial court required the defendants to file a third-party complaint if they wished to pursue allocation of fault.
The third-party complaint was filed, but the rheumatologist moved to dismiss for lack of personal jurisdiction. It was undisputed that she practiced exclusively in New York and had no contacts with New Jersey. The trial court granted her motion and declined to allow defendants to place her name on the verdict sheet. It held there was no precedent to support allocating fault to a non-party beyond the court’s jurisdiction.
The Appellate Division affirmed. It found that while contribution might be available after judgment, the CNA only permits allocation of fault among parties properly before the court. The court emphasized that including the rheumatologist on the verdict form would violate the CNA’s plain language and would deprive her of the opportunity to defend herself in court. The court also noted that the standard jury instruction on causation might help mitigate any perceived unfairness.
On appeal, defendants argued that excluding the rheumatologist from the verdict sheet would result in an unjust imposition of liability and an artificial inflation of fault against the in-state defendants. Plaintiffs countered that, while defendants might pursue contribution in New York, the CNA did not permit allocation of fault to someone over whom New Jersey courts lacked personal jurisdiction.
The New Jersey Supreme Court unanimously affirmed. It held that the CNA does not allow allocation of fault to a non-party outside the court’s jurisdiction. However, it clarified that the rheumatologist still could be a joint tortfeasor for purposes of contribution under the JTCL. The Court remanded the matter to the trial court to proceed without the rheumatologist on the verdict sheet.
What This Means for You
The New Jersey Supreme Court’s decision in this case offers important guidance on the relationship between two statutes governing liability: the CNA and the JTCL. The ruling confirms that defendants cannot allocate fault to a non-party physician if the court lacks personal jurisdiction over that individual, even when there is evidence suggesting the non-party’s conduct may have been negligent.
This case highlights a challenge in multi-provider medical malpractice litigation: the difficulty of distributing responsibility for harm when a potentially culpable actor is outside the forum state’s reach. The CNA is clear in requiring that fault be allocated only among parties to the lawsuit or those who have settled claims with the plaintiff. Because the out-of-state rheumatologist had not been sued in New Jersey and had no contacts with the state, the court lacked personal jurisdiction over her. The Court emphasized that due process prohibits assigning fault to someone who cannot appear to defend themselves. To do otherwise, it said, would permit a jury to make findings against someone who has no opportunity to contest them.
The in-state defendants contended that excluding the out-of-state provider would unfairly concentrate blame on them. They argued that the jury should be permitted to hear evidence of the out-of-state provider’s alleged negligence and decide how to apportion responsibility. Their goal was to reduce their own exposure by invoking what often is called the “empty chair” defense: attributing fault to someone who is not in the courtroom. The Court’s rejection of this strategy limits the availability of that defense when the absent party is beyond the court’s jurisdiction.
However, the Court did not completely foreclose relief. It clarified that defendants still could seek contribution under the JTCL in a separate action. Contribution is the process by which one party who pays more than its share of liability can recover from other joint tortfeasors. While the CNA controls how fault is assigned at trial, the JTCL governs post-trial efforts to reallocate liability among those found responsible. Defendants may, in theory, file a contribution claim against an out-of-state physician in a jurisdiction where that person can be properly sued. These procedures maintain fairness while preserving constitutional safeguards.
This ruling also signals that defense counsel must plan jurisdictional strategy with precision. If a potential non-party tortfeasor cannot be joined because of a lack of jurisdiction, their absence cannot be used to dilute liability during the trial. The burden falls on the defense to either bring claims against such individuals in the appropriate forum or prepare to face trial without the benefit of shifting blame. The decision thus raises the stakes for early pretrial jurisdictional motions and strategic third-party complaints.
Another important aspect of this case is its reaffirmation of the principle that procedural fairness matters. The court was particularly concerned with the idea that placing a non-party’s name on a verdict sheet could result in a finding of negligence without that person ever having a chance to appear, answer, or present evidence. This would violate basic tenets of due process. While this concern has always existed in the background, the court’s ruling puts it front and center. Litigants can no longer rely on vague or theoretical allegations against non-parties to escape liability in multi-provider disputes.
Practically speaking, this ruling also affects how jury instructions are crafted. The Appellate Division noted — and the Supreme Court agreed — that existing causation instructions may help mitigate the concern that jurors will automatically attribute all harm to the defendants if they hear no evidence about other actors. Defense attorneys concerned about this dynamic must consider how best to frame their narrative within the confines of admissible evidence and without resorting to fault allocation against non-joined parties.
In terms of broader implications, the decision could have ripple effects in product liability, construction, and other tort cases where out-of-state actors play roles in chains of causation. Any defendant seeking to point the finger at an absent party must now carefully assess whether the court has personal jurisdiction over that individual or entity. If not, the “empty chair” defense likely will not be an option at trial. Instead, defendants will have to pursue any potential reimbursement in a different forum — often at greater expense and with a lower likelihood of success.
Overall, this case draws a firm jurisdictional line: Parties who cannot be sued in New Jersey cannot be found liable in a New Jersey courtroom. That line is rooted in both statutory text and constitutional doctrine. The decision protects the rights of absent parties while ensuring that in-state defendants are tried fairly based on their own conduct — not speculation about someone else’s actions beyond the court’s reach. These sorts of issues may well vary state by state so always consult informed local counsel.
Reference
- Decided on March 11, 2025, in the Supreme Court of New Jersey, Case No. A-34-23.
Damian D. Capozzola, Esq., The Law Offices of Damian D. Capozzola, Los Angeles
Jamie Terrence, RN, President and Founder, Healthcare Risk Services, Former Director of Risk Management Services (2004-2013), California Hospital Medical Center, Los Angeles
In a recent decision, the New Jersey Supreme Court ruled that a jury may not allocate fault under New Jersey’s Comparative Negligence Act (CNA) to an out-of-state physician over whom the state lacks personal jurisdiction.
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