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LiPira v. Maron

January 12, 2009

PAMELA LIPIRA, PLAINTIFF-APPELLANT,
v.
ANDREW MARON, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1124-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 2, 2008

Before Judges C.L. Miniman and Baxter.

Plaintiff Pamela LiPira appeals from the December 13, 2007, denial of her motion for reconsideration of an order entered on November 2, 2007. The earlier order granted summary judgment to defendant Andrew Maron, dismissing plaintiff's dental malpractice claims against him because plaintiff had produced no expert report opining that defendant had deviated from any applicable standard of care. We affirm.

Plaintiff contends that she developed a bone infection in her jaw secondary to dental implant procedures performed by defendant on February 14 and November 1, 2004. As a result of the infection, plaintiff underwent additional surgeries to remove two teeth and a portion of her infected jaw that required a reconstructive plate. Although plaintiff produced an affidavit of merit, she did not serve an expert report opining on the issue of deviation prior to the grant of summary judgment or prior to the denial of her motion for reconsideration.

At the motion for reconsideration, plaintiff argued that defendant failed to secure an informed written consent to the implant procedures and, in any event, the doctrine of res ipsa loquitur precluded summary judgment, especially where the defendant impliedly admitted negligence by offering to pay for plain-tiff's subsequent treatment. The judge determined that, unlike a hospital procedure, no writing is required to secure an informed consent to a dental procedure. He also held that the doctrine of res ipsa loquitur did not apply to the facts before him because infection can result from a dental procedure in the absence of negligence. Thus, he reaffirmed his earlier ruling that an expert report was required to proceed with the claim and denied plaintiff's motion for reconsideration. This appeal followed.*fn1

Plaintiff raises three issues on appeal. First, she contends for the first time on appeal that her subsequent treating dentist should have been permitted to testify to a deviation at the time of trial even in the absence of a written report opining on that issue, citing Bird v. Somerset Hills Country Club, 309 N.J. Super. 517 (App. Div.), certif. denied, 154 N.J. 609 (1998). Second, she asserts, also for the first time on appeal, that dismissal of her complaint was an improper sanction under Rule 4:23-5(b), which only permits exclusion of expert testimony at trial; instead, she contends that she should have been given an opportunity to serve a late expert report, citing Rush v. Kuhn, Smith & Harris, Inc., 193 N.J. Super. 389 (App. Div.), certif. denied, 99 N.J. 142, 143 (1984). Third, she argues that the judge should have reconsidered the summary judgment because plaintiff's "extreme injuries . . . were presumptive evidence of negligence," which defendant tacitly acknowledged by offering to pay for plaintiff's subsequent treatment.

Regarding issues raised for the first time on appeal--here arguments advanced under Bird, Rule 4:23-5(b), and Rush--our Supreme Court has observed:

It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." [Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]

Here, these new issues do not affect the trial court's jurisdiction, nor are they a matter of great public concern. As a consequence, we will not consider them for the first time on appeal.*fn2

With respect to the third issue, "'[r]econsideration is a matter within the sound discretion of the [c]court, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). We will not interfere with such an exercise of discretion unless "'the trial judge pursues a manifestly unjust course.'" Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.) (quoting Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968)), certif. denied, 144 N.J. 174 (1996); see also Union County Improvement Auth. v. Artaki, 392 N.J. Super. 141, 149 (App. Div. 2007). To the extent that the motion for reconsideration presents a question of law, our review of that question is plenary because "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The essence of the first branch of plaintiff's third argument is that the judge should have reconsidered the summary judgment because her injuries would not have occurred in the absence of negligence. In most negligence cases, "[i]t is sufficient for plaintiff to show what the defendant did and what the circumstances were." Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961). The jury then determines what precautions a reasonably prudent person in defendant's position would have taken to avoid the harm. Ibid. However, professional negligence cases are governed by different rules:

In the ordinary dental or medical malpractice case, however, the jury is not competent to supply the standard by which to measure the defendant's conduct. Since it has not the technical training necessary to determine the applicable standard of care, it cannot, without more, form a valid judgment as to whether the defendant's conduct was unreasonable under the circumstances. Therefore, ordinarily when a physician or dentist is charged with negligence in the treatment of a patient, the ...


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