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Anthony J. Corino v. Elliot H. Goldman


July 8, 2011


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3815-07.

Per curiam.


Argued telephonically February 17, 2011

Before Judges Carchman, Graves and Waugh.

In this dental malpractice case, defendant Elliot H. Goldman, D.D.S., appeals from a judgment entered October 6, 2009, awarding plaintiff Anthony J. Corino damages with prejudgment interest in the total amount of $138,669.50 and a subsequent order denying his motion for a new trial. After reviewing the record in light of the applicable law, we affirm.

Plaintiff first visited defendant on June 21, 2005, when he learned that his wisdom teeth, or "third molars," were impacted. Defendant recommended extraction, and four teeth were removed on July 18, 2005.

At a follow-up appointment on September 8, 2005, plaintiff advised defendant that his tongue had been numb since the operation. Defendant referred plaintiff to Vincent B. Ziccardi, D.D.S., M.D., who administered a number of neurosensory tests. Based on the results, Ziccardi recommended "exploration repair microsurgery."

The corrective procedure took place on November 22, 2005, and Ziccardi discovered a "[c]ontinuity defect," a complete severance of plaintiff's left lingual nerve. He attempted to repair the damage and took several photographs. Nevertheless, testing in May and November 2006 revealed that plaintiff's tongue had only "primitive sensations" and was unlikely to recover fully.

On May 11, 2007, plaintiff filed a complaint alleging that defendant negligently damaged his lingual nerve. He sought both compensatory and punitive damages.*fn1 Defendant's answer denied the allegations contained in the complaint.

Plaintiff retained E. Joseph Marged, D.D.S., as an expert. In a report dated April 29, 2008, Marged stated that "[t]he risk of a severed lingual nerve is not a potential complication recognized within the medical community." He further stated: "The standard of care dictates that proper flaps and retraction be utilized so that the lingual nerve remains out of the surgical field. In my opinion [defendant] practiced below the standard of care in allowing that to occur."

In response, defendant obtained an expert report from Patrick J. Pirozzi, D.M.D., that stated:

In the dental and more specifically, the oral surgery community, the potential risk for injury to the inferior alveolar or lingual nerve during third molar surgery is well established. Our literature is replete with surveys, articles, research and discussions regarding the inherent risk of nerve injury associated with the extraction of wisdom teeth. It is the proximity, anatomical relationship and variability of these nerves that account for this inherent potential risk when performing third molar surgery.

A review of the records provided failed to identify any inappropriate [or] negligent technique utilized by [defendant] in the removal of [plaintiff's] wisdom teeth.

While the records identify complications in the form of lingual nerve deficit, there is no indication that [defendant's] treatment deviated from the standard of care.

Trial commenced on September 8, 2009, with plaintiff as the first witness.*fn2 He testified that prior to Ziccardi's corrective surgery, he was biting his tongue and the inside of his cheek "several times a week," resulting in pain and bleeding. According to plaintiff, Ziccardi's corrective procedure partially alleviated this biting and improved his lingual sensation, but did not solve the problem completely. He complained of decreased sensation in his left lower lip, cheek, and gum line and stated that although he had no sensation on the left side of his tongue, he was constantly aware of its presence in a way that was "very, very distracting."

Plaintiff also testified at length about the negative impact the injury had on his life, both physically and socially. He stated that he continued to bite his tongue; had difficulty speaking, drinking, and eating; and had lost the ability to play the saxophone. According to plaintiff, all of these issues made him "extremely self-conscious," and he was continually forced to confront the reality of being "stuck with this problem."

On cross-examination, plaintiff explained that his speech sounded normal in court because he was making "every conscious effort" to speak properly. However, he confirmed that the problem was "always in the back of [his] mind."

Ziccardi testified on September 9, 2009.*fn3 Although he presented extensive qualifications, Ziccardi appeared as a fact witness rather than an expert. He described his initial appointment with plaintiff, the tests he performed, and the remedial procedure itself. Ziccardi confirmed that plaintiff's lingual nerve had been separated. He also testified that plaintiff did not complain to him about any speech issues and that he had "never had the need to refer a patient for speech therapy after [a] lingual nerve injury."

Plaintiff's mother, Marianne Corino, also testified. She generally described plaintiff's condition following the extraction and the negative impact the event had on his life. Jocelyn Heelan, one of plaintiff's friends, testified that plaintiff's drooling and difficulty speaking "seemed [to make] him a lot less confident."

Marged testified on September 10, 2009, and was certified as an expert in the fields of oral and maxillofacial surgery. He stated that he had reviewed the records of defendant, Ziccardi, and the hospital where remedial surgery was performed, as well as defendant and Ziccardi's depositions and plaintiff's answers to interrogatories. Marged also indicated that he had personally performed several neurosensitivity tests on plaintiff on March 5, 2008.

According to Marged, the lingual nerve was outside the "field of surgery" during plaintiff's operation, so there was no need for defendant to "go anywhere near" it. He further stated: "I believe based on all the records that I reviewed, and all the deposition transcripts, and pictures that I saw from Dr. Ziccardi, that [defendant] did deviate from the accepted standards of care by cutting that lingual nerve. That should never have happened."

In addition, Marged posited five possible ways in which a lingual nerve could be severed during the extraction of a wisdom tooth:

[T]he main cause could be a misplaced or improper incision. If that . . . initial incision is not made far enough to the buccal surface, then the nerve could be cut during [the] act of making that incision.

Secondly, when the tissue is retracted, the lingual tissue has to be held back in retracted in a certain way. Possibly, if the retractor is very sharp and it is not held properly, that could cause the lingual nerve to be cut.

Thirdly, it could be cut by slipping with an instrument, such as the elevators. Very often those elevators, which are very pointy and have to be wedged in to try to remove a tooth, if it's not controlled force and all of a sudden one slips, that elevator can go where it shouldn't be going and tear the nerve.

Also, another way that it can happen is when we use our burs, our rotary instruments to section the tooth, if that bur slips out or if the tooth is sectioned and it goes . . . too far toward that lingual plate of bone, sometimes it can perforate and go right through and cut the nerve.

And, another mechanism could be during the final stages when the tooth is removed, if we use our curettes improperly and curette out what we think is soft tissue against the lingual place and is actually nerve tissue, that can also sever a nerve.

Asked if a severance that occurred in any of these ways would constitute a deviation from the accepted standard of care, Marged responded: "Yes, it would." He further stated that "if everything is done in a judicious manner and a proper technique, severing of the lingual nerve should never happen." According to Marged, injury to the lingual nerve was a recognized risk, but complete severance was not:

[Severance of the lingual nerve] shouldn't happen because it's not in the field of surgery where it is in a position to be severed. It can be pushed out of the way, it can be retracted a little bit if we retract lingual tissue, it can be bruised, it can be stretched, but it shouldn't ever be severed.

. . . [T]here's no reason to stretch it beyond its limits of elasticity because you're dealing in a small area, and the most you could do is just push it a little bit out of the way if it's in the lingual tissue.

At this point in the proceedings, the court held a sidebar to discuss whether Marged's testimony would be sufficient to sustain a jury charge regarding res ipsa loquitur. Citing Khan v. Singh, 200 N.J. 82 (2009), and Buckelew v. Grossbard, 87 N.J. 512 (1981), the court acknowledged that "experts could provide the appropriate basis for a jury to be able to use the [res ipsa loquitur] inference." Therefore, the judge ruled that plaintiff's counsel could ask Marged whether the "dental community" recognized that the lingual nerve would generally not be severed in this type of operation without negligence. He further advised counsel that he could not elicit testimony that Marged had extracted many wisdom teeth without ever severing the lingual nerve.

After the sidebar, the following exchange occurred:


Q. Dr. Marged, does the dental community recognize that the severing of the lingual nerve when removing a third molar is an event that does not ordinarily occur in the absence of negligence?

A. Yes.

Q. What are the facts upon which you base that testimony?

A. Well, based on the fact that I've taken out tens of thousands of --


THE COURT: The fact that you have taken out teeth does not necessarily mean that the dental community believes. . . .

[I]t just means that you do. We want to know . . . the facts that cause you to believe that the dental community believes as you do.

DR. MARGED: Based . . . on my training, based on many lectures that I've attended, based on literature that I've read, based on my conversations with colleagues, other doctors at my hospitals, based on my conversations with my residents these are all the things that I based my opinions on.

During cross-examination, defense counsel attempted to elicit testimony eliminating several of the potential causes of severance during a wisdom tooth extraction. However, the only concession that Marged made was that the incision was in the proper location. Although defense counsel repeatedly attempted to elicit testimony that the absence of bur marks in plaintiff's mouth indicated that the bur did not sever the lingual nerve, Marged maintained that the bur could nevertheless have slipped and gone into the lingual tissues. He gave similar testimony regarding the periosteal elevator, noting that it could have "slip[ped] and go[ne] into the lingual tissues in the floor of the mouth." Marged admitted that because he did not witness the surgery, these possibilities were "pure speculation."

In addition, Marged confirmed his belief that the medical community agreed that "this is a type of injury that could only happen if someone was negligent." However, defense counsel impeached this statement using a portion of Marged's deposition testimony in which he had acknowledged that there were others who disagreed with this opinion. When asked during the deposition whether the literature agreed with his conclusion, Marged had stated that there were "[a]rticles on both sides of the fence."

Testimony continued on September 14, 2009, when plaintiff called defendant as a fact witness. During direct examination, defendant indicated that his office notes provided no details regarding the techniques used during plaintiff's wisdom tooth removal. However, he did admit that his actions "caused the severance of the [lingual] nerve."

On cross-examination, defendant testified that there was a cyst around plaintiff's lower left wisdom tooth. He further stated that extraction was necessary to prevent "the continued expansion of cysts around the teeth destroying the bone and allowing . . . more room for infection." Defendant then explained the procedure to the jury, once on his own and once with the aid of a video. He also noted that in order to protect the lingual nerve during the procedure, the lingual tissue was elevated and held back with a retractor. Nevertheless, he acknowledged that the nerve could be bruised by "just the pressure of the [periosteal] elevator" or the removal of a tooth with a cyst. According to defendant, he would have recorded anything "out of the ordinary" that happened during plaintiff's procedure, but nothing was recorded. He also testified: "I know I didn't cut [the nerve] with a blade and I know I didn't hit it with a bur." However, defendant admitted that there were three other possibilities: the first was that "the pressure of the periosteal elevator against the soft tissue . . . reflected against the lingual nerve causing it to [sever]"; the second was that he held the sharp end of the periosteal elevator at a "bad angle" and punctured the nerve; and the third was that the curette he used to clean the site punctured the lingual plate and severed the nerve.

Pirozzi, defendant's only witness, testified on September 15, 2009, as an expert in oral and maxillofacial surgery. He stated that in making his report, he reviewed all the relevant legal documents, including depositions and answers to interrogatories, the records of defendant and Ziccardi, and Marged's report. He also indicated that he examined plaintiff personally.

Pirozzi testified that defendant did conform with the accepted standard of care. He based this opinion "on a collection of experience, training, readings, a review of the material [in the record], and . . . principally 27 years of practice in oral surgery."

According to Pirozzi, the lingual nerve is in the operative field at the start of a wisdom-tooth extraction. Furthermore, he stated that the whole procedure "is done with that nerve in mind." Nevertheless, Pirozzi indicated that there is always a risk that the manipulation of lingual tissue can result in injury to the lingual nerve.

Pirozzi also disagreed with Marged about whether severance always implied negligence:

I'm not sure who's drawing this line, this arbitrary line somewhere where you can have this much injury, but not that much injury. The same injuries . . . that you're saying would be permissible or not negligent are the same . . . causes that would cause the injury that in some cases . . . someone's trying to call negligent. It's . . . the same process, the same procedure.

So . . . I think that if . . . the incision, the retraction of the tissue, the sectioning of the tooth, the elevation of the tooth, . . . if it's done in conformity with accepted standards of practice, and it's done with regard and consideration for . the anatomy and the nerve, then the gravity of the injury doesn't dictate [whether there is] negligence or not . . . .

On cross-examination, Pirozzi stated that the severance of plaintiff's lingual nerve was caused by neither touching nor bruising. Instead, he indicated that the injury may have been caused by stretching "sufficient to cause a separation." However, he acknowledged that this hypothesis was his personal opinion and was not discussed in any of the literature referenced in his report.

During re-direct examination, Pirozzi stated that the type of removal performed on plaintiff ("distal angular extraction") was found by most oral surgeons to be "the most difficult extraction." This conclusion was motivated by the fact that the physical removal of a tooth at this angle is impeded by the presence of the jawbone.

After counsel for both sides made completed their summations, the judge instructed the jurors that "[r]egardless of whether the witness is a lay person or an expert, you may believe everything a witness said or any part of it or none of it." He further stated:

You as jurors should not speculate or guess about the standards of care by which the defendant physician or dentist should have conducted himself in the treatment of the plaintiff. Rather, you must determine the applicable standard from the testimony of the expert witnesses you have heard in this case. Where there is a conflict in the testimony of the expert on a subject, it is for you, the jury, to resolve that conflict . . . .

The court also gave the following charge on res ipsa loquitur:

In any case in which there is a claim that a defendant was negligent, it must be proven to you that the defendant breached a duty of reasonable care which was a proximate cause of the plaintiff's injuries. Generally, the mere fact that an accident happened with nothing more, does not provide proof that the accident was a result of negligence.

In a negligence case, the plaintiff must prove that there was some specific negligent act or omission by the defendant which proximately caused the accident. However, in certain circumstances, the very happening of an accident may be an indication of negligence. Thus, the plaintiff may be providing facts and circumstances [that] establish negligence by circumstantial evidence.

If the instrumentality causing the injury was in the exclusive control of the defendant and the circumstance surrounding the happening were of such a nature that in the ordinary course of events, that incident would not have occurred if the person having control of the instrumentality had used reasonable care under the circumstances, the law provides but does not require . . . the jury to infer negligence from the happening of the incident.

Plaintiff's voluntary act or negligent contributing to the occurrence prevents the inference from being drawn. However, the mere fact that the plaintiff was present . . . does not defeat the inference. And here, the defendant does not suggest that the plaintiff had any role in causing the occurrence.

What is in question here, however, is whether in the ordinary course of oral surgery to remove a third molar, a wisdom tooth, plaintiff's injury would not have occurred if the defendant had exercised reasonable care. You must make that finding before you can infer negligence.

In summary, if you find by the greater weight of the evidence that at the time of the incident:

1.) the defendant had exclusive control of the instrumentality causing the occurrence;

2.) that the circumstances were such that in the ordinary course of events, the incident would not have occurred if the defendant had exercised reasonable care; and

3.) plaintiff's voluntary act or negligence did not contribute to the occurrence, then you may infer that the defendant was negligent.

The jury found defendant liable and rendered a verdict for plaintiff in the amount of $125,000. By votes of six to one, the jury found that (1) defendant "deviate[d] from accepted standards of oral and maxillofacial surgery practice," and (2) defendant's deviation "proximately cause[d] injury to the plaintiff." On October 6, 2009, the court entered judgment for plaintiff in the amount of $138,669.50, including $13,669.50 in prejudgment interest accumulated since the complaint was filed.

Defendant subsequently filed a motion for a new trial, arguing that (1) Marged's testimony "was a net opinion"; (2) Marged's testimony was based on an inaccurate interpretation of Ziccardi's report; and (3) res ipsa loquitur should not have been charged because Marged equivocated about whether his opinion was consonant with that of the dental community. The court denied defendant's motion on October 23, 2009.

On appeal, defendant presents the following arguments:







As an initial matter, we note that the decision to include or exclude a jury instruction is a legal determination. See, e.g., Eaton v. Eaton, 119 N.J. 628, 642 (1990) (describing the failure to charge res ipsa loquitur as "error" instead of an abuse of discretion). Therefore, the trial judge's decision to include the res ipsa loquitur instruction is "not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

"[I]t is ordinarily a plaintiff's burden to prove negligence, and [negligence] is never presumed." Khan v. Singh, supra, 200 N.J. at 91 (citing Hansen v. Eagle-Pitcher Lead Co.,

8 N.J. 133, 139 (1951)). Nevertheless, "[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 v. Grossbard, supra, 87 N.J. at 525 (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)). This inference is permissive, and "the jury is free to accept or reject" it. Id. at 526.

"Res ipsa loquitur has been described as a rule of circumstantial evidence." Roper v. Blumenfeld, 309 N.J. Super. 219, 230 (App. Div.), certif. denied, 156 N.J. 379 (1998). The doctrine "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 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. 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). 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.]

However, the Buckelew Court also struck the following "note of caution":

[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. [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).

In this case, we find that the court properly charged res ipsa loquitur. During direct examination, Marged was asked whether "the dental community recognize[d] that the severing of the lingual nerve when removing a third molar . . . does not ordinarily occur in the absence of negligence"; he responded, "Yes." Furthermore, he testified that his opinion rested on his extensive qualifications and experience, as well as "literature."*fn4 The record indicates that Marged was professionally qualified to reach that conclusion. Moreover, the defense had the opportunity to counter Marged's opinion, and it did so using his own prior deposition statement and Pirozzi's testimony.

Furthermore, the trial judge instructed the jury that it could accept or reject the testimony of any expert witness.

This instruction was followed by another stating that the jury had to "resolve" any conflicts between the two experts as a matter of credibility. Effectively, the court treated the opinion of the oral surgery community as a fact and left the jury to decide which expert more convincingly established the professional standard. In our view, this approach was entirely proper given juries' proficiency in evaluating witness credibility. See, e.g., City of Long Branch v. Liu, 203 N.J. 464, 491 (2010) ("It is the unique role of the jury to assess the credibility of the witnesses and the weight to be given to their testimony.").*fn5

In addition, we find the instant case to be distinguishable from Khan, supra, 200 N.J. at 102, in which the Court held that an expert had failed to "provide the required support for a res ipsa charge." The witness in Khan failed to "point to [any] training, education, or experience" and "offered nothing from the medical literature as an alternate source of support." Ibid. As discussed above, Marged supported his opinion with considerable education and experience as an oral surgeon. Therefore, the outcome in Khan is inapposite to this case.

Regarding defendant's second point, we note that "an expert opinion must be supported by facts or data either in the record or of a type usually relied on by experts in the field." Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002) (citing N.J.R.E. 703). 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 v. Goldstein, 78 N.J. Super. 472, 483 (App. Div.) (finding expert testimony to be a net opinion where the witness offered only a "naked assertion" unsupported by facts in the record), certif. denied, 40 N.J. 225 (1963). "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 Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)).

However, the failure to cite academic literature does not render expert testimony a net opinion where the witness's conclusions are based on his or her qualifications and personal experience. Id. at 495 (allowing opinion testimony based on the expert's "education, training, and, most importantly, her experience"); Rosenberg, 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 experience."). Moreover, "[t]he failure of an expert 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." Rosenberg, supra, 352 N.J. Super. at 402.

Here, Marged stated at trial that his testimony was based on a thorough review of the record, including medical files, reports, and photographs. In addition, he established extensive qualifications that included a lengthy education and over forty years of experience in oral and maxillofacial surgery. We are satisfied that Marged possessed the specialized knowledge necessary to offer competent testimony about the standard risks and practices of wisdom tooth extraction. Cf. Riley v. Keenan, 406 N.J. Super. 281, 296 (App. Div.) (finding that 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 that Marged's lack of personal knowledge regarding plaintiff's particular extraction did not render his testimony a net opinion. As both parties recognize, no witnesses were able to definitively state how plaintiff's lingual nerve was severed. Even defendant, who admitted that the severance occurred during his procedure, could not identify its source. Based on his experience, Marged 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.*fn6

Marged 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.

Finally, we are satisfied that the verdict did not constitute "a miscarriage of justice under the law." R. 2:10-1; see also Dolson v. Anastasia, 55 N.J. 2, 6 (1969). The record in this case provides sufficient credible evidence for the jury's conclusion that defendant violated the accepted standard of care by severing plaintiff's lingual nerve. Accordingly, we affirm both the October 6, 2009 judgment and the October 23, 2009 order denying defendant's new trial motion.


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