Ottilio v. Deehan

• Decision Date: 16 October 2019
• Docket Number: DOCKET NO. A-3557-17T3
• Parties: VICTOR C. OTTILIO, Plaintiff-Appellant, v. STEPHEN T. DEEHAN, D.M.D., and STEPHEN T. DEEHAN, D.M.D., P.A., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

VICTOR C. OTTILIO, Plaintiff-Appellant, v. STEPHEN T. DEEHAN, D.M.D., and STEPHEN T. DEEHAN, D.M.D., P.A., Defendants-Respondents.

DOCKET NO. A-3557-17T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued September 11, 2019

October 16, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Whipple, Gooden Brown and Mawla.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0252-15.

Gary M. Meyers argued the cause for appellant (G. Martin Meyers, PC, attorneys; Gary M. Meyers, on the briefs).

David Lustbader argued the cause for respondents (Philip M. Lustbader & David Lustbader, attorneys; David Lustbader, on the brief).

PER CURIAM

Plaintiff Victor Ottilio appeals from a no cause jury verdict in favor of Stephen Deehan, D.M.D., and his practice, Stephen Deehan, D.M.D., P.A. (collectively, defendants). As a result of the verdict, on March 5, 2018, the trial court entered a judgment dismissing plaintiff's dental malpractice complaint with prejudice. According to the complaint, while plaintiff, then sixty-five-years-old, was treated by Dr. Deehan through "periodic adjustment[s], cleaning and recementing of an upper bridge held in place by [p]laintiff's upper front teeth[,]" during a September 2013 visit, "without [p]laintiff's knowledge or consent," Dr. Deehan "glued [p]laintiff's bridge to his teeth with a [permanent] cement." Thereafter, in order to loosen the bridge and gain "access to [p]laintiff's teeth" underneath, "[d]efendant repeatedly . . . 'knock[ed]' it[.]" As a result, "every one of [p]laintiff's . . . top front teeth which had been holding the bridge in place" broke off, causing plaintiff "pain" and "suffering," and requiring surgical intervention.

On appeal, plaintiff challenges three of the court's evidentiary rulings, raising the following points for our consideration:

I. THE TRIAL COURT ABUSED ITS DISCRETION BY BARRING PLAINTIFF'S LIABILITY EXPERT FROM PROVIDING ANY TESTIMONY REGARDING A KEY SET OF DENTAL X-RAYS [WITHOUT] CONDUCTING A RULE 104 HEARING TO SUBSTANTIATE

DEFENDANT[S'] CLAIM OF "SURPRISE" OR "PREJUDICE," AND [WITHOUT] EXPLORING AN ALTERNATIVE MEANS OF RESOLVING ANY "SURPRISE" OR "PREJUDICE" ACTUALLY PRESENTED[.]

II. PERMITTING DEFENDANT[S] TO INTRODUCE REPORTS AND OPINIONS OF NON-TESTIFYING EXPERTS, IN VIOLATION OF THE TRIAL COURT'S OWN [IN LIMINE] RULING AND OVER PLAINTIFF'S OBJECTION, WAS A GRAVE MISCARRIAGE OF JUSTICE REQUIRING REVERSAL [OF] THE RESULTING VERDICT AND REMAND FOR A NEW TRIAL[.]

III. THE TRIAL COURT ALSO ABUSED ITS DISCRETION BY PRECLUDING PLAINTIFF FROM MAKING ANY REFERENCE TO DEFENDANT'S DISCIPLINARY PROCEEDINGS AND CONSENT DECREE WITH THE NEW JERSEY STATE BOARD OF DENTISTRY[.]¹

Based on our review of the record and the applicable legal principles, we affirm.

I.

The proofs adduced at the trial revealed that over the course of ten years, plaintiff visited several dentists,² most of whom recommended the extraction of some or all of plaintiff's teeth due to loosening of the teeth caused by bone loss resulting from periodontal disease.³ Notably, plaintiff acknowledged consulting Dr. Mark Terry, a periodontist, in 2000, who diagnosed plaintiff with advanced periodontitis and advised him to extract "all [his] teeth[.]" More recently, in January 2010, plaintiff consulted with Dr. Thomas Bissell, another periodontist, who recommended extracting plaintiff's remaining six upper front teeth⁴ and replacing them with implants in order to avoid future problems. However, plaintiff rejected Dr. Bissell's recommendation because he wanted to keep his teeth for as long as possible. As a result, plaintiff saw Dr. Deehan in March2010, for a second opinion. Based on Dr. Deehan's alternate recommendation, plaintiff began treating with him thereafter.

Over the next three years, Dr. Deehan administered a course of treatment that allowed plaintiff to keep his teeth by continuing to use a "cantilevered" bridge⁵ held in place by plaintiff's six upper front teeth. During the treatment, every three months, after plaintiff removed the bridge, Dr. Deehan would conduct deep cleanings and then affix the bridge back to the teeth with temporary cement. However, in September 2013, unbeknownst to plaintiff, Dr. Deehan used permanent cement to affix the bridge, instead of the temporary cement he used in the past. Over the next six months, despite using various dental implements, including a hammer-like instrument, Dr. Deehan had difficulty removing the bridge, which loosened when one of plaintiff's six front teeth broke off at or near the gum line. In December 2013, Dr. Deehanrecommended three alternative treatment plans, involving extracting the teeth and using implants or dentures, ranging in cost from $1,200 to $22,500. However, because plaintiff wanted to save his teeth, he rejected Dr. Deehan's recommendations. As a result, according to plaintiff, he suffered extreme pain and discomfort for sixteen months, while the loose bridge was cutting into his gums. When the bridge eventually came out in March 2015, all of plaintiff's upper front teeth broke, ultimately requiring surgical intervention to remove the roots.

During his deposition and trial testimony, Dr. Deehan agreed with Dr. Bissell's diagnosis that plaintiff had "advanced periodontal disease."⁶ The defense played the deposition testimony of Dr. Bissell at trial, during which Dr. Bissell testified that based on his examination of plaintiff on January 5, 2010, he determined that "all of [his] upper teeth were mobile" or "loose." Dr. Bissell's "long-term" "prognosis" was that plaintiff's "upper teeth would not last[,]" and "[n]othing could be done to improve the situation," or "make the [upper] teeth any stronger," and "any type of prosthesis . . . was doomed to fail." Dr. Bissell'srecommended treatment plan, which plaintiff rejected, was extraction and replacing the teeth with dentures or dental implants.

In an effort to avoid extraction as long as possible, Dr. Deehan agreed to treat plaintiff with "periodontal therapy," consisting of cleanings, "[d]eep scaling[,]" "root planing under local anesthetic," and "irrigation" with medication. Dr. Deehan acknowledged that on September 3, 2013, he used a permanent cement when he re-cemented plaintiff's bridge, instead of the temporary cement used in the past. He explained that "the teeth were . . . starting to truly fail[,]" and he "had no other option . . . to try to keep [the] bridge in [place]." According to Dr. Deehan, on that date, he observed that "one tooth was periodontally mobile,"⁷ and another tooth was "fractured to the gum line." Dr. Deehan admitted that he did not discuss the change in cement with plaintiff but explained that "[i]t was a clinical judgment."

Dr. Deehan also acknowledged that he unsuccessfully "tapped" on the bridge with "a crown tapper," which he described as a hammer like device, "totry to get the bridge off" as plaintiff requested.⁸ Despite being unable to remove the bridge during six different office visits from December 2013 to February 2014, Dr. Deehan testified that "[he] was still able to clean [plaintiff's] teeth with the bridge in place" by using "[p]iezoelectric scalers and irrigation."⁹ Dr. Deehan acknowledged that on December 30, 2013, he presented plaintiff with three alternative treatment plans. He also later prescribed painkillers to treat plaintiff's complaints of pain and discomfort. Ultimately, on April 22, 2014, after plaintiff rejected all three of Dr. Deehan's treatment plans, Dr. Deehan notified plaintiff in writing that he was terminating him as a patient due to his non-compliance with the treatment plan recommendations and a physical confrontation during his last visit.

Plaintiff's expert, Dr. Jay Marks, "a general dentist[,]" opined that while treating plaintiff, Dr. Deehan deviated from the applicable standard of care for the practice of dentistry in a variety of ways. As to the diagnosis and treatment protocol, Dr. Marks disagreed that plaintiff suffered from periodontal disease sosevere that it warranted extracting all of his teeth. Dr. Marks also opined that a tooth "broken at the gum line" could be restored through a "[p]ost-and-core procedure[,]" without the need for extraction. As to specific deviations, Dr. Marks testified Dr. Deehan should have informed plaintiff that "the cement was changed from temporary cement to permanent cement." Dr. Marks also opined that Dr. Deehan should not have used "a crown tapper" to remove the bridge without informing plaintiff of the risk that "the tooth could break," and should have offered a less traumatic alternative "technique" when the crown tapper proved unsuccessful.

Further, according to Dr. Marks, Dr. Deehan should have "verbally" explained to plaintiff and documented the risks and benefits of the alternative treatment plans. Additionally, Dr. Marks testified that Dr. Deehan should have taken "baseline x-rays" when plaintiff first visited him, rather than "four years after" plaintiff's first visit. Dr. Marks also opined that during the four years of treatment, Dr. Deehan failed to treat plaintiff for teeth decay. Dr. Marks concluded that given the slight nature of periodontal disease, had plaintiff's teeth been treated for decay and had the crown tapper not been used as excessively, plaintiff's teeth could have been saved.

In formulating his opinion, unlike Dr. Marks, the defense expert, Dr. Steven Scrivo, a periodontist, examined plaintiff and reviewed his complete dental history, both before he treated with Dr. Deehan and after. Based on his review of plaintiff's dental history, he diagnosed plaintiff with chronic periodontal disease dating back to 2000. According to Dr. Scrivo, plaintiff's dental prognosis at that...