Opinion
DOCKET NO. A-2418-12T1
04-15-2015
WALTER MARTINEZ, Plaintiff-Appellant, v. NANCY HERBST, D.D.S. and DENTAL HEALTH ASSOCIATES, P.A., Defendants-Respondents.
Michael I. Okechuku, P.C., attorney for appellant (Chinemerem N. Njoku, on the brief). Schechner Marcus LLP, attorneys for respondent Nancy Herbst, D.D.S. (Stephen H. Schechner, of counsel and on the brief; Andrea S. Glaser, on the brief). Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent Dental Health Associates, P.A. (Robert T. Evers and Walter F. Kawale, III, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3021-10. Michael I. Okechuku, P.C., attorney for appellant (Chinemerem N. Njoku, on the brief). Schechner Marcus LLP, attorneys for respondent Nancy Herbst, D.D.S. (Stephen H. Schechner, of counsel and on the brief; Andrea S. Glaser, on the brief). Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent Dental Health Associates, P.A. (Robert T. Evers and Walter F. Kawale, III, on the brief). PER CURIAM
In this professional negligence action, plaintiff Walter Martinez appeals from the Law Division's denial of his motion for a new trial, which he filed after a jury returned a verdict of "no cause" in favor of defendant Nancy Herbst, an oral and maxillofacial surgeon (OMS), and her employer, defendant Dental Health Associates, P.A. (DHA). His complaint alleged Herbst was negligent when she severed his lingual and related nerves while extracting one of his wisdom teeth, resulting in loss of sensation, pain and suffering. Plaintiff argues he is entitled to a new trial because the trial court erred in finding his expert, a licensed general dentist, was not a specialist qualified to testify to the standard of care of an OMS, even though plaintiff's expert received the same training in the extraction of impacted wisdom teeth as an OMS, and the court's jury charge on the standard was improper and constituted reversible error. In addition, he claims the trial court erred in finding his expert's opinion was conclusory and not supported by any facts. Finally, plaintiff asserts the trial court wrongfully refused to charge the jury with a res ipsa loquitur charge, even though another judge informed counsel before the trial he believed the charge was applicable.
Plaintiff's notice of appeal indicates he is appealing the court's November 30, 2012 order denying his motion. His appendix does not contain copies of the subject motion or supporting certifications, if any, or even the order under appeal. In addition, his brief does not address the motion, but rather argues errors made in the trial judge's decisions regarding the qualification of plaintiff's expert, the nature of his opinion and the plaintiff's entitlement to a specific jury charge.
The lingual nerve is "a major branch of the mandibular nerve that carries general sensation from the oral part of the tongue, the mucosa on the floor of the oral cavity, and gingiva associated with the lower teeth. It also carries parasympathetic and taste fibers from the oral part of the tongue that are part of the facial nerve." Mosby's Medical Dictionary (8th ed. 2009), available at http://medical-dictionary.thefreedictionary.com/linqual+nerve.
As discussed in greater detail later in this opinion, "[t]he theory, which [is] translated from Latin as the maxim 'the thing speaks for itself,' permits the jury to infer negligence in certain circumstances, effectively reducing the plaintiff's burden of persuasion, but not shifting the burden of proof." Khan v. Singh, 200 N.J. 82, 91 (2009) (citing Eaton v. Eaton, 119 N.J. 628, 638 (1990)).
Following our review of the record and applicable law, we reverse and remand for a new trial.
I.
The following salient facts are derived from the motion and trial records.
Plaintiff was sixteen years old in 2008 when he went to DHA's offices to have his wisdom teeth extracted by Herbst. According to plaintiff, during the ensuing extraction of his lower left wisdom tooth (designated as number seventeen), Herbst performed the tooth's extraction negligently and improperly elevated the adjacent tooth (number eighteen), which caused her to sever plaintiff's lingual nerve and inferior alveolar nerve. After this occurred, plaintiff began to experience loss of taste, sensory pleasure and feeling in his mouth. Another surgeon, who specialized in lingual nerve treatment and repair, later operated on plaintiff in an attempt to correct the damage caused by Herbst but, because of scar tissue and other problems, could not repair plaintiff's lingual nerve. Two years after his treatment by Herbst, plaintiff continued to suffer from loss of taste, loss of sensation in his tongue, cheek and tongue biting during speech, spontaneous drooling, diminished sensory pleasure when kissing, and tongue swelling.
"A dental elevator is a device which is wedged between two teeth to loosen one tooth in order to extract it with forceps." Roper v. Blumenfeld, 309 N.J. Super. 219, 224 n.1 (App. Div.), certif. denied, 156 N.J. 379 (1998).
The inferior alveolar nerve is "formed from the merger of the incisive and mental nerves that serves the tissues of the chin, lower lip, and labial mucosa of the mandibular anterior and premolar teeth and later joins the posterior trunk of the mandibular division of the trigeminal nerve." Mosby's Dental Dictionary (2nd ed. 2008), available at http://medical-dictionary.thefreedictionary.com/inferior+alveolar+nerve.
As a result of his injuries, plaintiff filed a complaint against defendants in April 2010. In contemplation of trial, plaintiff retained the services of Michael I. Emele, D.D.S., as an expert. Emele is a board-certified dental surgeon licensed in this state, and has been practicing as a general dentist since 2000. He received his degree in dental surgery and subsequently "completed an Honor's Program at the New York University College of Dentistry, Department of Oral/Maxillofacial Surgery with emphasis on the extraction of wisdom [teeth], and Endodont[]ic Surgery." He later participated in a fellowship program, which "ha[d] an oversight in training, management and treatment of complicated dental issues including extraction of wisdom [teeth] and post-operative complications." Since 2000, the "scope of [his] practice covers simple and complicated extraction, oral surgery, operative and restorative dentistry, prosthodontics pediatric dentistry, prosthodontics[] and endodontics."
The complaint indicated an affidavit of merit, required by N.J.S.A. 2A:53A-27, was attached. A copy, however, was not included in any of the filed appendices.
After examining plaintiff and reviewing various records related to Herbst's treatment of plaintiff and his subsequent surgery, Emele concluded "within a reasonable degree of dental surgery certainty or probability . . . the failure of . . . Herbst to follow procedure[s] to prevent nerve damage during wisdom tooth extraction fell outside acceptable professional and occupational standards or treatment practices[; and,] . . . Herbst negligently severed the lingual, buccal, inferior alveolar nerve, and the chorda tympani which is the proximate cause of plaintiff's loss of sensations on [the] left side of [the] tongue, floor of the mouth and left side (inside) cheek." While noting "[n]umbness and loss of sensation are common postoperative sequelae of wisdom tooth extraction due to damage to the mandibular division of the trigeminal nerve (inferior alveolar nerve, mental nerve lingual nerve, buccal nerve) and the facial nerve (chorda tympani)[,]" he believed the procedure followed by Herbst should have been one described in a specific "oral maxillo facial surgery" textbook which is designed to successfully avoid nerve damage. Emele concluded:
Herbst's records did not indicate whether she followed those procedures.
Herbst's report could not substantiate that the principal of modus operandi for complex extractions as stipulated in surgery textbooks and other dental journals were observed in order to avoid permanent nerve damage. There is no doubt . . . had . . . Herbst observed such procedures prescribed in standard oral surgery texts . . . [she would have] avoid[ed] severe lacerating of vital nerve organs . . . .
[I]t is my professional opinion within [a] reasonable degree of medicodental certainty
that the care, skill and/or knowledge exercised or exhibited in the treatment practice or work by . . . Herbst pertaining to the failure to avoid nerve damage during wisdom tooth extraction . . . fell outside acceptable professional and occupational standard[s] or treatment practices.
. . . .
It is further [my] professional opinion within a reasonable degree of medicodental certain[ty] or probability that the said failure to follow the procedures to avoid nerve damage during dental surgery is the proximate cause of injury to the [p]laintiff.
Defendants subsequently retained Patrick Pirozzi, an OMS as their expert. While Pirozzi confirmed plaintiff was injured during Herbst's extraction of plaintiff's wisdom tooth, he opined the injury was a known and disclosed risk of the surgery and that there was no evidence Herbst breached the profession's standard of care.
We have not been provided with a copy of his report.
The experts' conflicting opinions were considered in May 2012 by the motion judge while deciding all three parties' summary judgment motions. In their motions, defendants argued Emele's expert report was not sufficient because it constituted a net opinion and was otherwise insufficient to support a res ipsa loquitur claim. After considering oral argument, the motion judge relied on the Court's decision in Buckelew v. Grossbard, 87 N.J. 512 (1981), and determined Emele's report satisfied the threshold for a finding of res ipsa loquitur because he minimally expressed the standard of care as one requiring an exercise of meticulous care, which was sufficient to meet the standard as expressed in Buckelew. The judge concluded:
We were also not provided copies of the motions or the supporting certifications. We glean our information from the transcript of oral argument conducted on May 25, 2012.
I think Dr. Emele met the standard [of care] by referring to text book articles which talk[] about . . . the right way and the wrong way to do things and with this type of surgery where things were so close that you would have to be extremely cautious, take every precaution possible and that suggests that if you don't that's when you're most likely to have a severance and here particularly the complete removal of the neural nerve if you aren't being, . . . particularly cautious taking every effort to do so when you're performing such surgery as removing these teeth where there's nerves all around them, underneath the[m], they're all over.He then noted a jury could also consider the extent and unusual nature of plaintiff's exact injuries before he concluded "the charge o[f] res ipsa would go to the jury in this case."
As to the issue of "net opinion," the judge concluded Emele's opinion contained a sufficient description of the information he relied upon to not be characterized as a net opinion. He found Emele's description of his experience in removing wisdom teeth and the textbook's description of what procedures should be followed to avoid damage to the nerves, as well as the extent and nature of plaintiff's injuries, provided the required basis for the expert's opinion.
As a result, the judge entered two orders denying each defendant's motion for summary judgment. Neither order referenced the court's specific finding as to either net opinion or res ipsa loquitur.
The order denying plaintiff's motion for summary judgment was not appealed and is not pertinent to our discussion.
At a pre-trial hearing before the trial judge, plaintiff's counsel raised the issue of his client's entitlement to a charge of res ipsa loquitur based on the motion judge's ruling which counsel argued became "the law of the case." In response, Herbst's counsel argued "a res ipsa charge can[not] become the law of the case before the case is heard." Counsel for DHA agreed. After considering counsels' arguments, the judge concluded "the particular theory of liability is heavily fact sensitive and should await the presentation of the facts before the trier of fact[,]" after the presentation of the evidence, before a ruling could be made. The court denied plaintiff's motion for the charge to be given, without prejudice.
The next day, just prior to jury selection, plaintiff's counsel asked the court to reconsider its decision regarding the res ipsa charge. The court denied the motion as having no basis.
During the trial, plaintiff, his mother and Emele testified on plaintiff's behalf. Herbst, Pirozzi and a clinical coordinator for DHA testified for defendants. Herbst's counsel also read to the jury portions of the deposition testimony from the surgeon who attempted to repair plaintiff's injury.
In addition to testifying consistently with the opinions in his report, Emele testified extensively about his training as a dental surgeon in the area of teeth extraction. He explained during his "hospital training[ he] did a lot of emergencies and, . . . acquaint[ed him]self a lot with impacted wisdom tooth extractions" because the hospital he was in had only two oral surgeons who were primarily "involved with people that have broken jaws, accident-related cases." Emele also informed the jury he received a certificate of recognition awarded by the Northeast Regional Board of Dentistry for his completion of an honors program in OMS. However, he never pursued any specialty programs required for him to become certified in any specialty field. In his current family dental practice he performs an average of one to two impacted wisdom tooth extractions per week, which comprises about fifteen percent of his practice.
At the conclusion of Emele's examination by counsel as to his qualifications, plaintiff's counsel offered him as an expert "[i]n the area of oral and general dentistry." Defendants' counsel objected based on Herbst's counsel's observation Emele was a "general dentist . . . not an [OMS]." Plaintiff's counsel responded by arguing "dental surgery is part of oral surgery. Dental practice is part of oral surgery. He has the training to remove any teeth." He further explained he was not offering Emele "as an [OMS] . . . [but rather] as an oral surgeon because he does oral dental surgery." After considering counsels' arguments, the judge instructed the jury that the court was qualifying Emele "as an expert witness in the field of general dentistry."
During his later cross-examination, Emele testified it was his opinion that as to the extraction of wisdom teeth, his training was the same as Herbst's, even though she went on and pursued a four-year residency in oral surgery, because that part of oral surgery was the same as dental surgery. The difference between him and Herbst was that, as an OMS, Herbst dealt with "trauma, busted teeth, [and] broken jaws."
Emele later concluded his direct examination by summarizing his opinion as to whether Herbst's treatment of plaintiff constituted a deviation from a standard of care:
[PLAINTIFF'S COUNSEL]: Does the dental community that you belong to, Doctor, recognize that the severance of the nerves in question is an event that does not ordinarily occur without the deviation from the standard of care[?]Emele then confirmed his opinion was based on the literature he cited and his own experience and training as a dentist.
. . . .
[EMELE]: Our community recognized total severance as a deviation from the standard of care.
. . . .
[THE COURT]: What are . . . the underlying facts that lead you to that conclusion?
[EMELE]: The underlying facts that lead me to the conclusion is that for severance to occur, you have to be out of the surgical site in question.
On cross-examination, Emele confirmed he never had a residency in OMS. However, according to Emele,
oral surgery is the part of dentist[ry] that starts below the eye lid . . . maxillofacial, they [can] do Botox, [and] they do facelift[s] — they close cleft palate. They fix jaws that are broken in accidents. [OMS] don't have the time [to do wisdom teeth extractions.]He then clarified, OMS's "training is so exorbitant and grueling that they don't even have time . . . to do wisdom teeth."
Plaintiff rested after Emele's testimony. Herbst's counsel moved for an involuntary dismissal pursuant to Rule 4:37-2(b). In support of the motion, counsel argued Emele "does not know the standard of care for oral and maxillofacial surgeons" and was not qualified by the court as an OMS. Counsel also argued Emele's opinion was a net opinion. After considering extensive argument and reviewing Emele's testimony in detail, the court applied the appropriate standard and denied Herbst's motion. Relying on our opinion in Rosenberg v. Tavorath, 352 N.J. Super. 385 (App. Div. 2002), the court concluded:
The court quoted the rule: "[T]he 'motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.'"
The [c]ourt is satisfied, giving Dr. Emele the benefit of all of the favorable inferences that can be drawn, based upon his education . . .; based on his residency; based on his practice in . . . general dentistry, which is now somewhere in the neighborhood of [ten] to [eleven] years; . . . to deem his opinion as an expert to be a qualified opinion with respect to the appropriate standard of care as it pertains to the extraction of impacted wisdom teeth . . . .
[(Emphasis added).]
The court then addressed the claim of net opinion, again relying upon Buckelew, Tavorath, and Parker, and concluded Emele's opinion did not fall into that category and, therefore, was sufficient to withstand Herbst's motion. In reaching his conclusion, the judge noted:
Parker v. Goldstein, 78 N.J. Super. 472, 483 (App. Div.), certif. denied, 40 N.J. 225 (1963).
Now, Dr. Emele stated, at trial, that his testimony was based upon the items that he identified; his own examination; and based upon his experience, his education and training in general dentistry, including the extraction of wisdom teeth. Now, more specifically, he . . . indicated there was, in his opinion to a reasonable degree of medical certainty, . . . a deviation from acceptable standards of care. And he based it on several . . . reasons.
. . . .
[T]he court concludes not only that Dr. Emele had the requisite qualifications to testify, but also to provide an opinion as to the . . . alleged deviation by the defendant.
After defendants presented their evidence and rested, the court conducted a charge conference at which plaintiff's counsel renewed his request for a charge permitting the jury to consider res ipsa loquitur. Citing to Buckelew, as the source of a court's authority to charge res ipsa in a medical malpractice action, the court noted expert testimony was required in order to establish "the appropriate basis for the jury to be able to use the inference." According to the judge, "there must be some evidential support, experience, or the like offered for the expert's conclusion that the medical community recognized that the mishap in question would not have occurred but for the physician's negligence." Relying on the Court's holding in Khan, supra, the judge explained,
the key is whether the expert has sufficient knowledge of professional standards applicable to the situation under investigation to justify his expression of an opinion and that his knowledge may [be] derive[d] from observations of the methods used by members of the profession, study of treatises and journals . . . .
[T]he expert must provide and must be qualified to provide the opinion that the relevant medical community agrees that the injury ordinarily does not occur in the absence of negligence.
After reviewing Emele's trial testimony, the judge considered whether Emele's training and education was "sufficient for him to render an opinion of this nature, that . . . a procedure performed by an oral surgeon — [OMS] could not have — should not have resulted in any injury to a nerve in the oral cavity in the absence of negligence." The court concluded Emele's "experience[ and] his training [were] insufficient." The judge stated:
Although he may offer an opinion as to causation or as to probability of one cause or another, he is not in the [c]ourt's judgment qualified to testify about common knowledge in the profession, more . . . so as to provide the foundation grounding required for a Buckelew res ipsa charge[.]
[H]e has not been trained in that field. He does not have the general experience in that field, that the defendant and similar oral and
maxillofacial surgeons have in their education and in their training in terms of the removal of the impacted wisdom teeth and the elevation of adjacent teeth.Accordingly, in its subsequent charge to the jury, the court did not instruct the jurors on res ipsa loquitur.
There is no evidence that he gained any knowledge from the study of any treatises and journals. Now he testified that he had referred to various journals, . . . but he could not and did not point out to the trier of fact specifically any peer reviewed excerpt concluding that in the oral maxillofacial community, there is a body of opinion . . . that a nerve injury . . . should not occur or could not occur in the absence of negligence. He did not provide any excerpt, any discussion, any commonality of experts in the field of [OMS] that would support that particular conclusion. His reference to the treatises were not pertinent at all . . . to that particular issue.
. . . .
Dr. Emele has failed to point to any training, education, or experience and has offered nothing from any medical literature, no excerpt reflecting an opinion or any kind of discussion or any other kind of alternate source of support for the proposition in question, the medical common knowledge . . . res ipsa charge.
That being the case, the [c]ourt is of the conclusion that Dr. Emele lacked the qualifications required to render an opinion, a conclusionary [sic] opinion without adequate support as required by the case law under the facts as the [c]ourt understands them in this case and, consequential to that, the [c]ourt finds an inadequate foundation established by the plaintiff to allow for an instruction to the trier of fact as to the applicability of the res ipsa proposition.
In its charge, the court instructed the jurors they had to consider whether Herbst was negligent based on the standard of care applicable to "a maxillofacial surgeon" without reference to general dentistry or dental surgery. The judge told the jurors:
The court's charge mirrored the Model Jury Charges.
In this case[,] the defendant is a maxillofacial surgeon. Therefore, to decide this case properly you must know the standard of care imposed by the law against which the defendant's conduct as a maxillofacial surgeon should be measured. The defendant in this case is a specialist. She is a specialist in the field of maxillofacial surgery.
. . . .
Thus, in this case where the defendant holds herself out as a specialist and undertakes to diagnose and treat . . . the dental needs of a patient, the law imposes a duty upon her to have and to use that degree of knowledge and skill which is normally possessed and used by the average specialist in that field, maxillofacial surgery, having regard to the state of scientific knowledge at the time that she attended and treated the plaintiff.
Given what I have just said, it [is] important to you to know the standard of care for which a specialist in maxillofacial surgery is required to observe in her treatment of a
patient under the circumstances of this case . . . .
The standard of practice by which the defendant's conduct is to be judged must be furnished by expert testimony. That is to say, by the testimony of persons who by knowledge, training or experience are deemed qualified to testify and to express their opinions on the pertinent subject matter . . . .
[Y]ou must determine the applicable standard from the testimony of the expert witnesses you have heard in this case.
The judge later corrected defendant's specialty to oral and maxillofacial surgery.
Subsequent to the return of the jury's verdict and entry of judgment in favor of defendants, plaintiff filed a motion for a new trial. At oral argument, plaintiff's counsel identified the basis for the motion. He explained:
[T]he main basis for our motion is that we believe . . . that charges or instructions that were given by this [c]ourt . . . basically prejudiced . . . plaintiff, confused the jury and basically resulted in a manifest injustice to plaintiff . . . .
[W]e believe that the [c]ourt's refusal to give the jury the res ipsa loquitur charge, . . . improperly prevented the jury from making an inference as to defendant['s]. . . negligence . . . .
The second category [of error was] the refusal of this [c]ourt to admit Dr. Emele as an expert in wisdom tooth extraction, on the basis that Dr. Herbst was an [OMS]. We believe that . . . the distinction that was made, . . . the standard that the court set up for Dr. Emele in front of the jury was very confusing.
After considering the parties' oral arguments, the court denied plaintiff's motion. In its oral decision, the court again discussed Emele's lack of qualification to testify to the standard of care for an OMS. The court recognized there could, however, in some circumstances be an "overlapping" of testimony from experts in similar fields, but found it inapplicable in this case. The judge noted:
[T]here is case law, where various — and particularly in the medical field, where the courts have allowed overlapping testimony. For example, a medical doctor testified as pertaining to the actions of a chiropractor or some other discipline. But, in those instances, . . . the testimony of the expert is more inclusive, includes more intrications [sic], includes more experience in the particular issue before the [c]ourt than the lesser inclusive individual. And there is, in those instances, . . . an overlapping to the extent that the over inclusive expert is deemed to be competent to testify as to the practitioner who has the lesser experience and commonality of experience.
In this case, we do not have a similar circumstance. As pointed out, [OMS] is a discipline that requires . . . additional training, additional residency, additional education . . . beyond the initial education of a dentist. And is indeed the standard of care that must be observed and the standard of care for which the [c]ourt . . . instructed [the jury].
The court next addressed plaintiff's argument about res ipsa loquitur. The court first reviewed its earlier rulings on the subject and how it viewed Emele as being unqualified to provide the threshold opinion required for the charge. The court reiterated,
Dr. Emele did not have the requisite qualifications to testify as an [OMS] as it pertained to the foundation proofs required for a res ipsa charge. [However, h]e did in fact have the qualifications to testify to the events in issue and to proximate cause, but he did not have the heightened qualifications required to provide the finder of fact with an opinion that an event of this nature by an [OMS] . . . could not have occurred, absent some negligence on the part of that practitioner.
The court entered an order denying plaintiff's motion. This appeal followed.
II.
A.
We begin by reciting some overarching principles concerning the limited scope of our review and the stringent requirements for granting a new trial. Rule 4:49-1 requires a "trial judge [to] grant [a] motion [for a new trial] if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." "Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) (citation omitted), certif. denied, 186 N.J. 242 (2006). That rigorous "standard applies whether the motion is based upon a contention that the verdict was against the weight of the evidence," or as here, "based upon a contention that the judge's initial trial rulings resulted in prejudice to a party." Hill v. N.J. Dep't of Corr., 342 N.J. Super. 273, 302 (App. Div. 2001) (citation omitted), certif. denied, 171 N.J. 338 (2002). "On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and all reasonable inferences must be drawn in favor of upholding the verdict." Boryszewski, supra, 380 N.J. Super. at 391.
The decision whether to grant a motion for a new trial is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. Baumann v. Marinaro, 95 N.J. 380, 389 (1984). "The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its feel of the case, including credibility." Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (citation and internal quotation marks omitted).
B.
Applying this standard, we first address plaintiff's arguments regarding the alleged prejudice to plaintiff caused by the trial court's rulings on Emele's qualifications to testify to the applicable standard of care in this case.
A negligence claim against a dental professional alleges "the improper performance of a professional service that deviated from the acceptable standard of care." Zuidema v. Pedicano, 373 N.J. Super. 135, 145 (App. Div. 2004), certif. denied, 183 N.J. 215 (2005). Generally, a plaintiff alleging dental malpractice, like one alleging medical malpractice, must prove "(1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury." Gardner v. Pawliw, 150 N.J. 359, 375 (1997) (citation omitted); see also Verdicchio v. Ricca, 179 N.J. 1, 23 (2004). The ordinary professional "negligence claim calls for expert testimony to establish the applicable standard of care . . . ." Khan, supra, 200 N.J. at 92. "Experts in negligence cases must establish the actual existence of a standard of care, . . . not simply declare their personal preferences or the conduct they wish to encourage . . . ." C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 64 (App. Div. 2006).
"The admission or exclusion of expert testimony is committed to the sound discretion of the trial court." Townsend v. Pierre, ___ N.J. ___, ___ (2015) (slip op. at 17). 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). "[W]e apply [a] deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Townsend v. Pierre, supra, slip op. at 17 (second alteration in original) (citation and internal quotation marks 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.) (quoting Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 411 (1960)), certif. denied, 79 N.J. 467 (1978). Generally, 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 "the witness [] have sufficient expertise to offer the intended testimony." Landrigan v. Celotex Corp., 127 N.J. 404, 413 (1992).
"The test of an expert witness's competency [to testify] in a malpractice action is whether he or she has sufficient knowledge of professional standards [applicable to the situation under investigation] to justify [his or her] expression of an opinion." Carey v. Lovett, 132 N.J. 44, 64-65 (1993) (citing Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961)). "The weight of any such testimony, of course, is for the jury." Id. at 65.
Usually, a witness presented as an expert at trial should be licensed as a member of the defendant's profession. Sanzari, supra, 34 N.J. at 136. However, licensed or even unlicensed individuals involved in another profession can testify as an expert depending on "the claim involved, the specific allegations made, and the opinions that the expert proposes to offer at trial." Garden Howe Urban Renewal Assocs., L.L.C. v. HACBM Architects Eng'rs Planners, ___ N.J. Super. ___, ___ (App. Div. 2015) (slip op. at 13). This can occur where there is an overlap between practices or disciplines. Any practitioner who is familiar with the situation in dispute and possesses "the requisite training and knowledge [can] express an opinion as an expert." Rosenberg v. Cahill, 99 N.J. 318, 331-32 (1985). We have therefore recognized, in certain cases, "a doctor in one field would be qualified to render an opinion as to the performance of a doctor in another with respect to their common areas of practice." Wacht v. Farooqui, 312 N.J. Super. 184, 187-88 (App. Div. 1998); see also Cahill, supra, 99 N.J. at 331-34; Sanzari, supra, 34 N.J. at 136.
As a result of the enactment of the "Patients First Act," N.J.S.A. 2A:53A-41 experts in medical malpractice cases must now practice in the same specialty or subspecialty as the defendant. See fn. 18 below.
For example, the Court held 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 because it 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. Cahill, supra, 99 N.J. at 334; see also Khan, supra, 200 N.J. at 101; Sanzari, supra, 34 N.J. at 136-37 (noting overlap between fields of medicine and dentistry). In Garden Howe Urban Renewal Assocs., L.L.C. v. HACBM Architects Eng'rs Planners, L.L.C., supra, slip op. at 18, a professional negligence action against an architect, we reversed a trial court's determination that an engineer was not qualified to give expert opinions in areas where the two professions overlapped. We stated:
We recently recognized that the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, requires an affiant be an expert who possesses the same category of professional license as a defendant but
"[m]inor variations in the scope or terms of the respective licenses held by the affiant and the defendant that do not bear upon material issues in the case will not disqualify the affiant, so long as both professionals are licensed to practice within the same category of professionals listed in the sixteen subsections of N.J.S.A. 2A:53A-26. A perfect match of credentials within the same license is not always required."
[Hill Int'l v. Atl. City Bd. of Educ, 438 N.J. Super. 562, 588 (App. Div. 2014).]
[W]e note that the judge's ruling that a licensed professional engineer may not testify as an expert in a case involving alleged architectural malpractice is not supported by the statutes that govern the practice of architecture and engineering in this state. These statutes indicate that there is no clear demarcation of the line between services that can be provided by licensed architects and by licensed engineers.
[Id. at 14-15.]
Similarly, our statutes do not demarcate, within the practice of dentistry, the various professionals who may perform the same service. Instead, they are all placed under the umbrella of dentistry. A dentist, by statute, includes anyone who "[e]xtracts a human tooth or teeth, or corrects or attempts to correct malpositions of the human teeth or jaws[.]" N.J.S.A. 45:6-19(5). The procedure can be performed by either a dental surgeon, oral surgeon or an OMS. According to Emele, and as recognized by the motion judge, the standard of care requires great care to avoid injury to the nerves by staying within the surgical field. A deviation from that standard could support a finding of negligence regardless of the credentials the individual performing dentistry might have.
We note in dental cases there is no requirement for experts to be members of the same specialty as required in medical malpractice cases, even when the medical experts are trained to treat patients for the same injury. See N.J.S.A. 2A:53A-41 (the "Patients First Act"); Nicholas v. Mynster, 213 N.J. 463, 468 (2013) (holding the Act "requires that plaintiffs' medical expert must 'have specialized at the time of the occurrence that is the basis for the [malpractice] action in the same specialty or subspecialty' as defendant physicians" (alteration in original)(quoting N.J.S.A. 2A:53A-41)).
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The trial court's instruction to the jury in this case, essentially stating there was no evidence as to the standard of care, was erroneous and constituted reversible error because Emele had, as the court earlier found, "sufficient knowledge of professional standards applicable to the situation under investigation to justify his expression of an opinion relative thereto." Sanzari, supra, 34 N.J. at 136 (emphasis added). The failure to properly instruct the jury as to the applicable standard of care was reversible error. R. 2:10-2.
"[E]rroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error." Komlodi v. Picciano, 217 N.J. 387, 417 (2014) (alteration in original) (citation and internal quotation marks omitted); see also Barbire v. Wry, 75 N.J. Super. 327, 331-35 (App. Div. 1962).
We conclude the trial court committed the same type of error as in Garden Howe, when it failed to instruct the jury Emele was qualified to testify to the standard of care required for the extraction of an impacted wisdom tooth, regardless of whether the extraction was performed by a dental surgeon or an OMS. Emele possessed sufficient specialized knowledge to express an expert opinion and to explain the basis of that opinion, Hake v. Manchester Twp., 98 N.J. 302, 314 (1985), as the trial judge actually found in this case when deciding defendants' Rule 4:37-2(b) motion. Emele testified he was not an OMS, but as a dentist, about fifteen percent of his practice involved tooth extractions. That fact and any other perceived difference between Emele's and Pirozzi's or Herbst's training and experience were proper considerations for the jury in determining the weight to give to each witnesses' testimony and opinion. See Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 48 (App. Div. 1990), modified on other grounds, 125 N.J. 421 (1991). It was not, however, a basis to find Emele was unqualified to give an opinion as to the standard of care when any dental professional performs a wisdom tooth extraction. For that reason alone, plaintiff was entitled to a new trial.
C.
We also disagree with the trial judge's conclusion to the extent he found Emele's opinions were "conclus[o]ry" and without support. We conclude Emele's testimony satisfied the requirement that an "expert opinion be grounded in facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts." Townsend v. Pierre, supra, slip op. at 18-19 (citations and internal quotation marks omitted).
An expert's opinion that does not meet this requirement is considered a "net opinion." "The net opinion rule is a corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." Id. at 19 (alterations in original) (footnote, citation and internal quotation marks omitted). Where "an expert's bare conclusions [are] unsupported by factual evidence," his or her testimony constitutes a net opinion and is therefore inadmissible. Buckelew, supra, 87 N.J. at 524; see also Parker, supra, 78 N.J. Super. at 483 (finding expert testimony to be a net opinion where the witness offered only a "naked assertion" unsupported by facts in the record). "Simply put, the net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Tavorath, supra, 352 N.J. Super. at 401).
However, the witness's conclusions can be based on his or her qualifications and personal experience, without citation to academic literature. Id. at 495 (allowing opinion testimony based on the expert's "education, training, and most importantly, her experience"); Tavorath, supra, 352 N.J. Super. at 403 ("Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experiences."). Moreover, "[t]he expert's failure to give weight to a factor thought important by an adverse party does not reduce his testimony to an inadmissible net opinion if he otherwise offers sufficient reasons which logically support his opinion." Townsend v. Pierre, supra, slip op. at 20 (quoting Tavorath, supra 352 N.J. Super. at 402).
Here, Emele stated his testimony was based on a thorough review of the record, including medical files, reports, and x-rays. In addition, he established extensive qualifications that included a lengthy education and at least ten years of experience in dental surgery. We are satisfied that he possessed the specialized knowledge necessary to offer competent testimony about the standard risks and practices of wisdom tooth extraction and the dental community's opinion about when injuries, like plaintiff's, occur. Cf. Riley v. Keenan, 406 N.J. Super. 281, 296 (App. Div.) (finding testimony constituted a net opinion where "there [was] nothing in the record to indicate that [the] expert had any specialized knowledge" relevant to the case), certif. denied, 200 N.J. 207 (2009).
Furthermore, we find Emele's lack of personal knowledge regarding plaintiff's particular extraction did not render his testimony a net opinion. No witness was able to definitively state how plaintiff's lingual nerve was severed. Even defendant, who admitted the severance occurred during the procedure, could not identify its source. Based on his experience, Emele was competent to testify about the ways in which the lingual nerve might be severed in this type of operation and offer his opinion that the injury ordinarily does not occur in the absence of negligence. Emele also had adequate support for his testimony regarding the opinion of the dental community, as his statements were based on his training and experience, along with medical literature. We find these factors sufficient to overcome the bar on net opinions.
III.
Because we are remanding this matter for a new trial, we do not resolve plaintiff's entitlement to a res ipsa loquitur charge and leave that to the discretion of the trial judge based on the evidence adduced at the trial. We add only the following observations.
We agree with the trial judge's rejection of plaintiff's claim that the motion judge's comment about res ipsa loquitur became the "law of the case," since its applicability could only be determined by a court after consideration of the merits of an issue. Lombardi v. Masso, 207 N.J. 517, 538-39 (2011). The "law of the case" doctrine is "a guide for judicial economy based on the sound policy that when an issue is once litigated and decided during the course of a . . . case, that decision should be the end of the matter." Feldman v. Lederle Labs., 125 N.J. 117, 132 (1991) (citation and internal quotation marks omitted). However, this is not an "absolute rule," but rather a "discretionary guideline." Gonzalez v. Ideal Tile Importing. Co. Inc., 371 N.J. Super. 349, 356 (App. Div. 2004), certif. denied, 182 N.J. 427 (2005), aff'd, 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006). The sound policy in deferring to earlier rulings "must be balanced against other considerations." Ibid. (citation and internal quotation marks omitted). "[T]he law of the case doctrine does not obligate a judge to slavishly follow an erroneous or uncertain interlocutory ruling." Ibid.
In this case the other consideration related to the trial judge's opportunity to hear the evidence at trial. By its very definition, the application of res ipsa loquitur is subject to proofs which must be adduced at trial, and which are necessary to support the delivery of the charge, the admission of which cannot be determined pre-trial unless they simply do not exist.
"[I]t is ordinarily a plaintiff's burden to prove negligence, and [negligence] is never presumed," Khan, supra, 200 N.J. at 91 (citation omitted); however, "[t]he doctrine of res ipsa loquitur permits an inference of defendant's negligence 'where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.'" Buckelew, supra, 87 N.J. at 525 (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)); see also Khan, supra, 200 N.J. at 91. This inference is permissive, and "the jury is free to accept or reject" it. Buckelew, supra, 87 N.J. at 526.
"Res ipsa loquitur has been described as a rule of circumstantial evidence." Roper, supra, 309 N.J. Super. at 230. "It is a doctrine that permits, but does not require, the jury to infer negligence, effectively satisfying that element of plaintiff's proofs[,]" Khan, supra, 200 N.J. at 91, which "is grounded in probability and the sound procedural policy of placing the duty of producing evidence on the party who has superior knowledge or opportunity for explanation of the causative circumstances." Buckelew, supra, 87 N.J. at 526 (citing Bornstein, supra, 26 N.J. at 269).
In a malpractice context, "expert testimony to the effect that the medical [(dental)] community recognizes that an event does not ordinarily occur in the absence of negligence may afford a sufficient basis for the application of the doctrine of res ipsa loquitur." Id. at 527. As we have stated:
[W]here there is expert testimony in a medical malpractice case that the particular event or injury would not have occurred had the targeted defendant adhered to the appropriate standard of his profession, and regardless of the strength or weakness of any other aspect of the expert's opinion, a plaintiff is entitled to rely upon res ipsa loquitur . . . as a basis for the jury to draw an inference of negligence.
[Roper, supra, 309 N.J. Super. at 231 (citing Buckelew, supra, 87 N.J. at 527).]
When res ipsa loquitur is used in this context, "the expert must provide, and must be qualified to provide, the opinion that the relevant medical community agrees that the injury ordinarily does not occur in the absence of negligence." Khan, supra, 200 N.J. at 94 (citing Buckelew, supra, 87 N.J. at 528-29).
[I]t will not be sufficient for plaintiff's expert simply to follow slavishly a "common-knowledge-within-the-medical-community" formula. There must be some evidential support, experiential or the like, offered for the expert's conclusion that the medical community recognized that the mishap in question would not have occurred but for the physician's negligence. If the plaintiff's expert's direct and cross-examination provide no basis for the witness's "common knowledge" testimony other than the expert's intuitive feeling — in other words, no more than a flat - out statement designed to satisfy the "common knowledge" test—then the court should not apply the res ipsa doctrine to the proceedings.Thus, "when an expert claims that the medical community recognizes that negligence is the most frequent cause of a particular injury, the opinion must be based on medical literature or the expert's experience." Khan v. Singh, 397 N.J. Super. 184, 197 (App. Div. 2007) (emphasis added), aff'd, 200 N.J. 82 (2009).
[Buckelew, supra, 87 N.J. at 528-29.]
Furthermore, "the weight to be given to the evidence of experts is within the competence of the fact-finder." LaBracio Family P'ship v. 1239 Roosevelt Ave., Inc., 340 N.J. Super. 155, 165 (App. Div. 2001). Therefore, the fact-finder is free to "accept some of the expert's testimony and reject the rest." State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div.), certif. granted, 181 N.J. 549 (2004), appeal dismissed, 187 N.J. 74 (2005).
Where a plaintiff's entitlement to the charge is dependent on the jury's resolution of a specific factual dispute, a court should consider what has been referred to as a "'conditional res ipsa' instruction." Khan supra, 200 N.J. at 95-99. As the Court observed, "[t]he "conditional res ipsa" theory proceeds from the premise that there is a question of fact that, if the jury decides it in plaintiff's favor, would entitle plaintiff to the res ipsa charge. Id. at 103.
[I]f the evidence presents a factual issue as to how an accident occurred, and the res ipsa loquitur doctrine would be applicable under only one version of the accident, the court should give a "conditional" res ipsa loquitur instruction, under which the jury is directed first to decide how the accident happened and to consider res ipsa loquitur only if it finds that the accident occurred in a manner which fits the doctrine.The charge should only be given if plaintiff's expert provides "the required basis needed for a conclusion that the injury [if the jury agrees with plaintiff's version] ordinarily bespeaks negligence or that the medical community recognizes the injury to be one that meets that defining criteria." Id. at 99 (citation and internal quotation marks omitted).
[Id. at 98 (citation and internal quotation marks omitted).]
Depending upon the testimony adduced at trial, the conditional charge could be given, if the trial court is satisfied that Emele satisfies the requirements for giving an opinion about the dental community's agreement that the injury ordinarily does not occur in the absence of negligence. Here, there is no dispute that Herbst caused the injury. The dispute related to how the injury occurred — did it occur as a result of Herbst straying from the surgical field or did it occur as a known and disclosed risk of extraction inside the parameters of the proper surgical area. If the former, then plaintiff may be entitled to the charge if Emele supports his opinion that the dental community recognizes "total severance as a deviation from [the] standard of care," and he testifies his opinion is based upon his extensive training and experience, or specific textbook literature. That evidence would "provide the required support for a res ipsa charge." Khan, supra, 200 N.J. at 102.
IV.
Because we have concluded the trial court's rulings regarding plaintiff's expert and its charge as to the applicable standard of care constituted reversible errors, the verdict of no cause of action is vacated and the matter is remanded for a new trial consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION