Opinion
DOCKET NO. A-5282-12T4
01-06-2015
LYNNETTE COLON, Plaintiff-Respondent, v. LEALON A. ROBINSON, D.M.D., Defendant-Appellant.
Philip M. Lustbader and David Lustbader, attorneys for appellant (David Lustbader, on the brief). Molod Spitz & DeSantis PC, attorneys for respondent (David B. Owens, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5878-10. Philip M. Lustbader and David Lustbader, attorneys for appellant (David Lustbader, on the brief). Molod Spitz & DeSantis PC, attorneys for respondent (David B. Owens, on the brief). PER CURIAM
This is a dental malpractice lawsuit stemming from the alleged extraction of the wrong tooth by defendant Lealon A. Robinson, D.M.D resulting in a jury award of $20,000 for pain and suffering and $30,000 for future dental treatment in favor of plaintiff Lynnette Colon. Defendant contends plaintiff's claims should have been dismissed, or in the alternative a new trial should be granted, because plaintiff's expert was not qualified to provide testimony regarding defendant's deviation from the appropriate standard of care and plaintiff failed to establish that future dental expenses were based upon a reasonable degree of probability. We disagree and affirm.
I
We start by reviewing the pertinent facts presented at trial. Plaintiff sought emergency dental treatment due to a toothache causing what she described as the most excruciating pain in her life, outside of childbirth. After x-rays and an examination, plaintiff decided to have the tooth extracted rather than undergo a root control procedure. She was referred to defendant, an oral surgeon, and two days later, he extracted tooth number three. Plaintiff testified that other than some small talk with her, defendant did not discuss her treatment, review her x-rays with her, or perform an examination of her mouth, prior to extracting her tooth.
In anticipation of plaintiff testifying regarding the condition of the tooth that defendant extracted, defense counsel made a preemptive objection, and the trial judge conducted a N.J.R.E. 104 hearing outside the jury's presence. Plaintiff testified that she possessed no formal training but derived her knowledge about decayed teeth from raising children and having seen pictures of decayed teeth on the internet and in textbooks. Defendant argued that plaintiff was not listed in discovery as an expert and was not qualified to testify whether the tooth was decayed. The judge overruled the objection, stating:
So, I'll allow her to testify, so long as we all know, and the jury will know that the lay context for her knowledge of decay, that it came from rotten teeth from babies drinking from a bottle. That [] was what she was looking for. She didn't see that.
. . .
But in any event, in that context I'll allow her to say that. Especially since it leads up to the event that she testifies, actually occurred beyond her request for the tooth.
Consequently, plaintiff was permitted to tell the jury that the tooth defendant extracted,
. . . didn't look rotted and grossly decayed, . . . as I would anticipate something to cause so much pain in my mouth to be. I was expecting something really bad coming out of my mouth. And it didn't seem that bad.Defendant denied her request, contending at trial it was biological waste and state law requires him to dispose of it. Following the extraction, plaintiff testified that she continued to have a lot of pain throughout the day and especially at night, so a few days later, she saw another dentist at defendant's office. The dentist conducted an evaluation and prescribed medication, but did not provide or recommend any treatment.
. . .
Because I felt like the tooth was fine and I thought that, maybe, perhaps, wasn't right and I wanted to have my tooth. It's my tooth. But I thought it would be okay if I took it with me.
Almost two months after the defendant extracted her tooth, plaintiff stated her pain continued so she consulted with another dentist, who reviewed her records and x-rays from defendant's office. However, despite her request, this dentist did not provide any treatment to alleviate her pain. There was no explanation given why treatment was not provided.
Approximately three weeks later, plaintiff saw another dentist who treated her complaints and extracted tooth number two. Plaintiff testified that while the extraction alleviated her constant pain, she now has a two tooth gap in the upper right part of mouth which causes her embarrassment, sensitivity to hot or cold drinks and food, and difficulty chewing on her right side her mouth. It was recommended that she have a bridge done to fill in the gap but it was not covered by her insurance and she did not have the money to get it done.
Plaintiff's testimony again drew the objection of defense counsel when she stated on redirect examination that she continued to have pain after defendant's extraction, concluding the "bad" tooth remained in her mouth, and she didn't go back to defendant for postoperative care because she felt he was "incompetent." The judge sustained the objection on the basis that plaintiff's answer was not responsive to the question. She was asked whether she went back to defendant for postoperative care, not why she did not go back for postoperative care. The judge directed the comment be stricken from the record but left open the possibility for plaintiff to explain why she did not return to defendant. When plaintiff was asked to explain why, defense counsel objected, and after a sidebar discussion was held, plaintiff was allowed to testify that she felt defendant was incompetent and it was in her best interest to see another dentist because defendant caused her "very, very, very, very, very, great amounts of pain."
The discussion was not on the record and was not set forth in the trial transcript. In accordance with Rule 1:2-2, all side-bar conferences must be recorded. See Brough v. Hidden Valley, Inc., 312 N.J. Super. 139, 152 n.3 (App. Div. 1998)(expressing our continuing concern over unrecorded side-bars).
To establish defendant committed malpractice by extracting the wrong tooth and that future expenses would be incurred to remediate her problems, plaintiff presented an expert witness, Gary J. Nicoletti, D.M.D. After voir dire, defendant objected to Dr. Nicoletti's qualifications to testify that defendant breached the standard of care and extracted the wrong tooth. Defendant argued that Dr. Nicoletti, a general dentist, not a specialist in defendant's practice of oral and maxillofacial surgery, rendered him unqualified to testify as an expert to support plaintiff's claim of malpractice. The trial judge disagreed and found that Dr. Nicoletti could provide expert testimony, ruling:
[New Jersey Rule of Evidence] 702, testimony by experts, directs the [c]ourt's attention to a witness' knowledge, skill, experience, training or education. And I'm going to [find] that the witness is qualified to give an opinion in this case. Notwithstanding the point that was just made.
I understand the issue in this case, is whether or not tooth number three should have been extracted because of decay.
That being the issue, while [defendant] is an oral surgeon, the issue is one of tooth decay. Not so much the manner of extraction, which would fall within the narrow field of oral surgery.
But, the issue was whether or not this tooth suffered from decay. So, I'm satisfied that this witness can give an opinion regarding the issue in this case.
Dr. Nicoletti's testimony to prove plaintiff's claim for future damages also faced objection. Dr. Nicoletti stated that plaintiff had three options to replace her missing teeth: a fixed bridge, implants, or a removable partial denture. Defendant objected to Dr. Nicoletti testifying regarding the costs to perform x-rays and a CAT scan for the respective options because Dr. Nicoletti could not opine what option was appropriate for plaintiff. In fact, Dr. Nicoletti acknowledged that he did not know which option would be appropriate at the time of trial because he had not examined plaintiff and did not review any current x-rays. The court overruled the objection finding that it was clear that there were several options available to plaintiff, and allowed Dr. Nicoletti to testify as to the costs of each of the optional treatments.
Dr. Nicoletti stated the following costs would be incurred: fixed bridge for five teeth, $6500; removable partial denture, $2250; implants, $2000-2500 per tooth; cat scan for implants, $750-1000; possible sinus lift for implants, $2500-$3500; and a complete set of x-rays needed for any option, $150.
Defendant also objected to Dr. Nicoletti testifying about the future replacement costs for any of the three options that were available to plaintiff, on the grounds that none of the discovery, including Dr. Nicoletti's expert report, mentioned such costs. Defendant argued that had this information been provided, he would have sought an expert to evaluate the reasonableness of the claimed costs. The judge again overruled the objection, finding no prejudice, ruling "I think it should have been spelled out by [p]laintiff's expert in discovery. But I don't think it really comes as a surprise. This is not earthshattering, [a] revelation that these don't last forever." Therefore, Dr. Nicoletti testified regarding the procedures involved in each option and the life expectancy of the removable partial dentures. There was no testimony as to the life expectancy of a fixed bridge or implants.
Defendant's testimony refuted plaintiff's assertions. He testified he examined plaintiff before properly extracting decayed tooth number three. Defendant's expert, a board certified oral and maxillofacial surgeon, supported that testimony. Yet, seemingly contrary to defense counsel's argument that he was not prepared to address Dr. Nicoletti's testimony concerning future expenses, defendant's expert, who was present in court when both Dr. Nicoletti and defendant testified, contradicted Dr. Nicoletti's testimony regarding the reasonable cost for a CAT scan. Although it was clear defendant was aware that plaintiff was seeking future damages, that was the extent of the defense expert's testimony challenging future dental expenses.
Following deliberations, as noted earlier, the jury rendered a verdict in favor of plaintiff. This appeal followed.
II
We initially address defendant's contentions that the trial judge erred in admitting plaintiff's testimony concerning the absence of decay on the tooth extracted by defendant and defendant's incompetence in extracting the wrong tooth.
We are guided by the well settled principle that "rules of appellate review require substantial deference to a trial court's evidentiary rulings." Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (1999), certif. denied, 163 N.J. 79, (2000) (quoting State v. Morton, 155 N.J. 383, 453 (1998)). We limit our review "to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12, (2008); see also Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (collecting appellate cases under several rules of evidence applying the abuse of discretion standard of review). A trial court can be said to have abused its discretion when "its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
Applying these principles, we do not find that the judge abused his discretion in permitting plaintiff's testimony regarding the absence of decay on the tooth extracted by defendant and the assertion that defendant was incompetent in extracting the wrong tooth. Plaintiff's observations regarding the tooth's healthy appearance did not constitute expert testimony. She merely stated her observations in the manner of a lay person. While there is some concern that her knowledge of what a decayed tooth looks like is based upon unnamed internet sites and textbooks, her testimony did not prejudice the defendant and constitute a manifest denial of justice. There is no reason to believe the jury considered plaintiff's comments to serve as expert testimony. She never asserted or implied that she possessed any expertise in dentistry. The judge instructed the jury that her testimony was limited to her understanding that teeth decay can be caused by young children continuing using a bottle. She reiterated the same assertions she gave at her deposition, so the defendant cannot profess to be caught off guard by her testimony.
Moreover, plaintiff's theory of defendant's liability was articulated by her expert witness, Dr. Nicoletti, who examined the plaintiff's x-rays and medical records, and in accordance with N.J.R.E. 702, rendered his opinion based upon his education, skill, experience and training. Defendant cross-examined Dr. Nicoletti and presented his own expert who opined defendant did not deviate from the appropriate standard of care.
Lastly, even if there had been error to admit plaintiff's testimony that she so saw no decay on the tooth extracted by defendant, we would conclude the admitted testimony to be harmless error. R. 2:10-2.
Similarly there is no reason for concluding there was prejudice or manifest denial of justice to defendant when plaintiff stated defendant was incompetent. Defendant was aware that plaintiff contended his treatment was unskilled due to her claim that she continued to suffer agonizing pain after defendant extracted a healthy tooth, until another dentist later extracted the decayed tooth. Plaintiff calling defendant incompetent, while not based upon acquired expertise, was not expert testimony. We detect no abuse of discretion in the trial judge's decision to allow this testimony. Even if we did, we would view it as harmless error. Id.
Next we address defendant's contention that Dr. Nicoletti did not possess the qualifications to testify as an expert that defendant breached the appropriate standard of care in extracting the wrong tooth. It is within the sound discretion of the trial judge to determine the qualifications or competency of an expert witness. State v. Pemberthy, 224 N.J. Super. 280, 301 (App. Div.), certif. denied, 111 N. J. 633 (1988) (citations omitted). The trial judge's determination will not be disturbed "unless a clear abuse of discretion appears." State v. Chatman, 156 N.J. Super. 35, 40, (App. Div. 1978), (quoting Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 411 (1960)). A court may admit expert testimony "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. In addition, Rule 702 requires that "the witness must have sufficient expertise to offer the intended testimony."
In a malpractice action, a witness "is competent to testify as an expert . . . [if] he has sufficient knowledge of professional standards applicable to the situation under investigation to justify his expression of an opinion relative thereto." Sanzari v. Rosenfeld, 34 N.J. 128, 136, (1961) (citing Carbone v. Warburton, 11 N.J. 418, 425 (1953)). Generally, a witness presented as an expert should be licensed as a member of the defendant's profession. State v. Frost, 242 N.J. Super. 601, 615, 577 (App. Div.), certif. denied, 127 N.J. 321, (1990). Yet, where there is an overlap between practices or disciplines, a licensed medical practitioner who is familiar with the situation in dispute would therefore possess the requisite training and knowledge to express an opinion as an expert. Rosenberg v. Cahill, 99 N.J. 318, 332 (1985).
In Rosenberg, it was held that where the controversy involved the review of x-rays and the diagnosis of physical conditions, a medical doctor was competent as an expert in a malpractice claim against a chiropractor. Id. at 334. More recently, it has been recognized that a medical professional can provide an expert opinion where the professional has sufficient knowledge of the professional standard relevant to the situation under scrutiny. See Khan v. Singh, 200 N.J. 82, 101 (2009)(citing Rosenberg, supra, 99 N.J., at 328-331; Klimko v. Rose, 84 N.J. 496, 506, (1980) (permitting physician to opine on matters relating to negligence claim against chiropractor); Sanzari, supra, 34 N.J. at 136-37 (noting overlap between fields of medicine and dentistry)).
We recognize that N.J.S.A. 2A:53A-41 now requires that "an expert must have the same type of practice and possess the same credentials, as applicable, as the defendant health care provider" in a medical malpractice case. See, e.g., Nicholas v. Mynster, 213 N.J. 463, 479 (2013) (internal quotation marks and citation omitted); see also N.J.S.A. 2A:53A-27 (applying standard set by N.J.S.A. 2A:53A-41 to person executing affidavit of merit [AOM] in medical malpractice case). However, by its plain terms, the statute does not apply to dental malpractice. Pursuant to N.J.S.A. 2A:53A-27, an expert in a dental malpractice action must have a particular expertise in the general area or specialty involved in the action. Although there is no challenge to the AOM herein, for the reasons that we articulate, our ruling would be consistent with this statutory requirement.
--------
In this case, the record supports the judge's conclusion that Dr. Nicoletti could provide expert testimony to support plaintiff's dental malpractice claim. Dr. Nicoletti practices in the same general field as the defendant. They are both licensed dentists. The fact that Dr. Nicoletti does not specialize in the defendant's field of oral and maxillofacial surgery was not a barrier to allow him to testify as an expert in this case regarding the correct tooth to extract. Dr. Nicoletti was not testifying regarding the technique used by defendant as an oral and maxillofacial surgeon to extract plaintiff's tooth. As a general dentist, Dr. Nicoletti is qualified to review plaintiff's x-rays and records to determine what tooth is decayed and should be extracted, just as the defendant would do. Simply put, there is an overlap between what Dr. Nicoletti does as a general dentist and defendant's oral and maxillofacial specialty that affords Dr. Nicoletti sufficient knowledge to opine, based upon his review of plaintiff's x-rays and records, whether defendant extracted a decayed tooth. We therefore find no error in the judge's decision that Dr. Nicoletti could provide expert testimony.
We now turn to defendant's contention that plaintiff's claim for future dental expenses was not supported by sufficient testimony. It is well settled that a jury can award fair and reasonable compensation for future medical expenses where there is a reasonable probability of incurring future medical expenses to treat or cure the injury sustained as a result of a defendant's negligence. Schroeder v. Perkel, 87 N.J. 53, 69-70 (1981); Coll v. Sherry, 29 N.J. 166, 175 (1959). The amount of the award is left to the good judgment of the jury as long as there is some basis in the admissible trial evidence, not mere speculation, that there is a reasonable probability such treatments may be required. Coll, supra, 29 N.J. at 174-75.
Here, there were no objections to the trial judge's jury instructions regarding the guidelines to determine to plaintiff's entitlement to future dental expenses and the amount. Instead, defendant argues that since Dr. Nicoletti could not opine which one of the three possible options for future treatment were appropriate there was no basis for the jury to conclude it was reasonably probable that plaintiff would need future dental expenses. We are not persuaded by defendant's argument.
As noted, we have concluded that Dr. Nicoletti was properly admitted by the court as an expert. This allowed him to testify regarding the three options available for plaintiff to remedy what he concluded was the extraction of the wrong tooth. The fact that Dr. Nicoletti could not testify what procedure was viable did not prevent the jury from awarding plaintiff future dental treatment damages. Once the jury determined defendant committed malpractice it was reasonable to conclude based upon testimony by plaintiff and Dr. Nicoletti that plaintiff would need treatment to correct the loss of a wrongly extracted tooth. The subsequent removal of the decayed tooth by another dentist obviously meant plaintiff had two missing teeth, and based upon the jury's verdict she should have had only one missing tooth. At the minimum, one of the options laid out by Dr. Nicoletti was reasonably probable to correct plaintiff's tooth gap.
As to the specific amount of $30,000, defendant does not assert there was no testimony to support that amount. Dr. Nicoletti testified regarding the costs associated with each option and indicated that at least for the removable bridge it would have to be replaced every five years or so. The jury was instructed that if it decided to award future dental expenses, it did not have to use mathematical exactness, and could consider plaintiff's life expectancy and increases in future expenses due to inflation. Thus, we conclude that there was sufficient evidence in the record from which the jury could reasonably determine the need for future dental treatment and to arrive at an award for future dental expenses.
Finally, defendant contends that the cumulative effect of numerous errors requires a new trial if plaintiff's claims are not dismissed due to the lack of expert testimony. Since we have not found any errors, there is no merit to this contention.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION