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Sacawa v. Polikoff

Decided: May 23, 1977.

JOSEPH SACAWA, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
BRAHAM D. POLIKOFF, D.D.S., DEFENDANT-RESPONDENT AND CROSS-APPELLANT



Carton, Kole and Larner.

Per Curiam

[150 NJSuper Page 173] Plaintiff Sacawa brought this malpractice action against defendant Polikoff, a licensed dentist, alleging

that defendant was negligent in failing to take proper measures to prevent trismus (lockjaw) from developing after he had performed dental work on plaintiff. After a four-day trial the jury returned a 10-2 verdict finding no cause of action in favor of defendant dentist. Thereafter the trial judge granted plaintiff's motion for a new trial. During the second trial the judge ruled certain expert testimony offered by plaintiff inadmissible. Thereafter, upon stipulated facts, the judge entered a judgment for defendant. Plaintiff appealed the latter judgment of the second trial judge, while defendant appealed the first trial judge's grant of a new trial.

We consider, first, defendant's cross-appeal from the order granting plaintiff a new trial. The evidence presented at the first trial tended to show, among other things, the following: Plaintiff went to defendant's dental office for an examination on October 30, 1970. As a result of the findings of this examination, plaintiff returned to defendant on December 11 for repair work on an extensively decayed molar. During the course of this appointment defendant unsuccessfully attempted to insert artificial pins into the tooth as supports for a filling. The resulting failure of this technique left plaintiff with only part of a filling in the molar.

Plaintiff's expert witness testified at the first trial that one of the pins inserted into the molar by defendant to support the filling migrated into the nerve cavity or pulp chamber of the tooth, causing infection and the lockjaw condition. Plaintiff's expert identified the failure to take X-rays of the molar after inserting the pins as defendant's most glaring deviation from accepted standards of dental practice.

Defendant himself testified that he had in fact taken X-rays of the molar on December 11 after inserting the pins into plaintiff's molar in order to ascertain whether they had "perforated" from the tooth structure into the bone, and he produced the purported photographs for the

first time at trial. Neither plaintiff nor his attorney knew of the existence of these X-rays prior to defendant's testimony, and counsel extensively cross-examined defendant about his failure to mention in his answers to plaintiff's interrogatories or in his deposition testimony that he had taken the office X-rays. Plaintiff's counsel then made a motion to strike all testimony regarding the X-rays. Before the trial judge could rule on the motion, counsel for both parties reached an agreement in which plaintiff consented to withdraw his motion to strike, and defendant agreed that no further questions about the X-rays could be asked of any witness. This settlement did permit counsel to comment on the X-rays in summation.

Defendant's expert testified that a dentist could not discern from an X-ray whether any of the pins had migrated into the cavity. The expert stated that, in his opinion, defendant had no reason to suspect that Sacawa was developing the lockjaw condition until he observed plaintiff's swollen jaw on December 21. According to this expert, defendant complied with accepted dental practice by referring plaintiff to an oral surgeon, and the witness concluded that at no time did defendant deviate from accepted standards of dental practice.

During his summation plaintiff's counsel discussed the X-rays and their belated presentation, and then stated that "that X-ray was talked about by Dr. Polikoff. You know who asked him about the X-ray, I did. It wasn't asked about anything on direct and he has yet to be asked, does the little X-ray, the one he says is of this man, does that show a pin in the pulp?" Defendant's counsel immediately objected to plaintiff's attorney's suggestion that further testimony on the X-ray was not introduced due to defendant's unwillingness. The trial judge agreed with defendant and informed the jury that "as a result of objections * * * made after the conclusion of Dr. Polikoff's testimony, it was agreed by counsel and directed by the Court that no

other witness [would] be permitted to be asked any questions in regard to that X-ray."

After the jury returned a verdict in favor of defendant, plaintiff moved for a new trial, primarily on the basis that defendant had failed to reveal the existence of the purported December 11 X-rays prior to his testimony at trial. In granting plaintiff's motion the trial judge noted that defendant's failure to reveal the disputed X-ray before trial had created a "touchy situation," particularly because plaintiff's expert, not knowing of the X-ray, had testified that defendant breached the standard of dental care by failing to take an X-ray after the pin insertion, and because the expert had had no opportunity to examine the purported X-ray. Characterizing the question raised by defendant's objection to plaintiff's summation comments on the X-ray as "difficult," the trial judge concluded that he had erroneously foreclosed plaintiff's counsel from commenting on defendant's direct testimony concerning the X-ray. Viewing the entire ...


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