Brawn v. Oral Surgery Associates

• Decision Date: 30 January 2003
• Citation: 819 A.2d 1014,2003 ME 11
• Court: Maine Supreme Court
• Parties: Patricia BRAWN et al. v. ORAL SURGERY ASSOCIATES et al. Robin Dutil et al. v. John Burns, D.D.S.

819 A.2d 1014

2003 ME 11

Patricia BRAWN et al. v. ORAL SURGERY ASSOCIATES et al.

Robin Dutil et al. v. John Burns, D.D.S.

Supreme Judicial Court of Maine.

Argued: January 9, 2002.

Decided: January 30, 2003.

Revised: March 14, 2003.

Philip P. Mancini, (orally), Drummond & Drummond, LLP, Portland, for plaintiffs.

Craig A. Fontaine, (orally), Cramer, Alissi & Fontaine, P.C., Hartford, CT, Bryan M. Dench, James E. Belleau, Esq., Skelton, Taintor & Abbott, P.A., Auburn, for defendants.

Panel: SAUFLEY, C.J., and RUDMAN, DANA, and CALKINS, JJ.

DANA, J.

[¶ 1] Twenty-one plaintiffs (plus thirteen spouses)¹ appeal from a judgment entered in the Superior Court (Cumberland County, Delahanty, J.) granting the defendants' motion for a summary judgment. The nineteen plaintiffs suing Oral Surgery Associates (OSA) and Lewis N. Estabrooks, O.M.D., Carlton E. Fairbanks, D.M.D., Russell J. Collett, D.D.S., and David J. Moyer, D.D.S., M.D. (hereinafter "the OSA defendants") contend the court erred when it concluded that the plaintiffs' negligence claims were barred by the statute of limitations and that they had not generated a genuine issue of material fact as to whether the OSA defendants had fraudulently concealed² some of their claims. All of the plaintiffs, including the two who brought suit against John Burns, D.D.S., challenge the court's dismissal of all of their claims after the court concluded that the defendants breached no duty to the plaintiffs following operations to implant devices to relieve malfunctions of the jawbone's temporomandibular joints. We vacate the judgment in part because there are genuine issues of material fact concerning both malpractice and a pattern of concealment following the dates of the original implants.

I. BACKGROUND

[¶ 2] This litigation seeks a remedy for the damage to the plaintiffs resulting from the alleged breakdown within their bodies of the teflon proplast implants manufactured, between February 1983 and June 1988, by the now-defunct Vitek Corporation. The implants were supposed to relieve malfunctions of the jawbone's temporomandibular joints. The twenty-one patients received Vitek implants from the OSA defendants and Dr. John Burns³ between 1983 and 1988 and filed notices of claim between 1993 and 1998.⁴ In late December 1990 the United States Food and Drug Administration distributed a safety alert to address "serious problems with proplast coated TMJ implant[s]."

These implants, all of which are made of Proplast® ... have been associated with implant perforation, fragmentation and/or foreign body response which may result in progressive bone degeneration of the mandibular condyle and/or glenoid fossa. If bone degeneration continues unchecked, patients may experience intense pain and severely limited joint function. One study found that all patients with Proplast®-coated ... implants who experienced complications demonstrated progressive bone degeneration in as little as one to two years. In a second study, implant failure and bone degeneration occurred in both symptomatic and asymptomatic patients.

FDA Alert 12/28/90. The FDA recommended that asymptomatic patients undergo "immediate and appropriate radiographic examination." Id.

[¶ 3] After the parties waived prelitigation screening,⁵ the OSA plaintiffs filed complaints against the OSA defendants asserting claims of product liability, breach of warranty, negligence, and loss of consortium. In July 1999 the Superior Court dismissed all the plaintiffs' claims for product liability, breach of warranty and loss of consortium, leaving only the negligence claims remaining.⁶ The complaints allege the defendants were negligent both prior to and after the implant surgery. In January 2000 the defendants moved for a summary judgment against seven⁷ of the plaintiffs based on the expiration of the three-year statute of limitations governing medical malpractice claims.⁸ In that judgment, the court found that these seven plaintiffs all learned of the dangers to their health more than three years before their notices of claim, and therefore, dismissed their "breach of the duty to warn" claims.⁹

A. The Second Motion for Summary Judgment Regarding Fraudulent Concealment

[¶ 4] In April 2001 the OSA defendants moved for a partial summary judgment on all the plaintiffs' claims that rely upon the six-year statute of limitations available following the discovery of a claim that a defendant has fraudulently concealed.¹⁰ The OSA defendants did not move for a summary judgment on any other claims.

[¶ 5] In their statement of material facts the OSA defendants state that they had, at some point, telephoned two of the plaintiffs (Farnum and Goddard) and urged them to come in for a checkup and had written fourteen other plaintiffs¹¹ with varying frequency also asking them to come in for an examination.

[¶ 6] According to their statement of material facts, in January and February 1991, following the December 1990 FDA alert, the OSA defendants wrote to eight of the plaintiffs¹² informing them that:

The Federal Drug Administration ... advises us that Proplast Implants "have been associated with implant perforation, fragmentation and/or foreign body response which may result in progressive bone degeneration of the mandibular condyle and/or glenoid fossa ...."

[¶ 7] Of the eight, five plaintiffs¹³ admit they either received the letter from the OSA defendants or otherwise learned of the FDA alert in 1991. Two plaintiffs¹⁴ deny they ever received a notice of the FDA alert, and one plaintiff¹⁵ heard from the FDA directly in 1992. When six¹⁶ of the eight plaintiffs consulted with their OSA oral surgeons in response to a letter or otherwise, two of the OSA surgeons, Dr. Estabrooks and Dr. Collett, assured them that their symptoms were unrelated to the implants.

[¶ 8] The OSA defendants state they sent another letter in October 1991 to the above eight plus an additional two plaintiffs¹⁷ containing copies of the Vitek notice of bankruptcy. The letter provided:

Our records show that you received a TMJ implant from Vitek. This letter is not to imply any damage in the material which was placed but only to inform you of our notification.

[¶ 9] The OSA defendants gave the names of twelve plaintiffs to the Medic Alert Implant Registry in 1991 and 1992. A March 1993 list added two more plaintiffs. The OSA defendants wrote these fourteen¹⁸ in May 1993 urging them to contact the office. In August 1993 the OSA defendants sent a letter to these fourteen plaintiffs containing an "information packet." An article from the Journal of Oral and Maxillofacial Surgery was sent in November 1993 and follow-up letters were sent in 1997 and 1998.

[¶ 10] The OSA defendants offer no evidence that they ever sent the five remaining OSA plaintiffs,¹⁹ any notice. Brawn and Foster state that Dr. Fairbanks refused to acknowledge any connection between their implants and their symptoms. Nickerson said that Dr. Collett also dismissed the existence of any causal relationship between his symptoms and the TMJ implant.

[¶ 11] In May of 2000 the OSA plaintiffs filed an opposition to the OSA defendants' motion for a partial summary judgment including their own statement of material facts as to which they contended that there existed genuine issues to be tried. The plaintiffs properly controverted certain statements of material fact²⁰ made by the OSA defendants, and did not sufficiently respond to others. Additionally, the plaintiffs presented further facts in support of their assertion that the OSA defendants had engaged in a pattern of conduct, which they asserted amounted to fraudulent concealment. In their statement of material facts, the plaintiffs reported thirteen "instances of concealment,"²¹ the following three being representative:

1. Bonnie Seavey

As a result of receiving the FDA notice in March, 1991, she made an appointment to see Dr. Collett and at the appointment she showed him the letter she received from the FDA and showed him her hearing aid for her left ear. She told him about the pain and all of the symptoms she was having. She described the pain in both jaw joints, the squeaking joints, eye ticks, facial muscle pain, neck pain on both sides down to the shoulder, hearing loss, wearing a hearing aid in her left ear .... She is not certain if she talked to him about her headaches, but the headache pain was more severe and had changed, and the intense pain she experienced on both sides of her jaw in March 1991 was chronic. Dr. Collett's records say that she had few complaints and that the complaints she did have consisted of occasional headaches. That statement is adamantly denied by Bonnie. Dr. Collett goes on to indicate that there was good mandibular function with very little TMJ pain. Dr. Collett is not accurate in recording his clinical evaluation. She states that she had restricted opening of her mandible and could not move her jaw side to side. Dr. Collett indicates that there was no change in her occlusion and she indicates that is not accurate; that her teeth were out of alignment and she was not able to bring them together. Dr. Collett took x-rays of her TMJ's at that time and told her everything looked fine. Dr. Collett told her that the symptoms were caused by her not taking good enough care of herself. There was too much stress in her life and the Teflon disks had nothing to do with the symptoms. She discussed the possibility of removing the disks when she met with Dr. Collett in March 1991 and Dr. Collett told her the FDA is panicking. He said there were a few clients who were misusing their joints. He told her that she was fine and she did not need to have them removed. He did suggest x-rays in six months. Dr. Collett [said] that the implants would not fall out, would not break down, and would be there permanently for the remainder of her lifetime ....

2. Barbara Connelly

She is very clear that she never received anything from Dr. Estabrooks' office

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