On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-296-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Koblitz.
This is a dental malpractice case stemming from alleged permanent nerve damage following the extraction of four wisdom teeth (third molars) by defendant Ronald Saglimbene, D.M.D. on June 6, 2003. Plaintiffs Jennifer F. LoPresti and her husband Joseph LoPresti, suing per quod, appeal from the trial court's decision, memorialized in a November 16, 2010 order precluding their expert, Leonard Swimmer, D.D.S., from testifying because he had retired from the practice of dentistry in 1989. The court dismissed their complaint with prejudice because plaintiffs represented that they could not proceed without an expert. After reviewing the record in light of the contentions advanced on appeal, we conclude that the trial court was precipitous in precluding plaintiffs' expert without conducting a N.J.R.E. 104(a) hearing and reverse.
When she was twenty-nine years old, plaintiff Jennifer F. LoPresti went to defendant to consult and eventually have her wisdom teeth extracted. She had never previously required any type of dental treatment other than cleanings. Plaintiffs claim that after defendant extracted all four wisdom teeth at the same time, he did not follow-up appropriately, causing permanent numbness to Jennifer's cheeks, gum, tongue and mouth. The LoPrestis claim that defendant was negligent in not recognizing the injury within one to three days after the surgery when treatment with corticosteroid medication and microsurgical repair within three weeks could have been effective. Instead, defendant waited three months before referring Jennifer to a surgeon who, by that time, was unable to repair the nerve damage through microsurgery. Defendant's expert disagreed, pointing out that Dr. Swimmer cited no authority for his opinion regarding the consequences of a delayed referral and citing a recent article, co-authored by Jennifer's microsurgeon, in the Journal of Oral and Maxillofacial Surgery, which recommended microsurgery in these situations within one year of initial nerve damage.
The LoPrestis filed their complaint on June 3, 2005, and served defendant with their affidavit of merit, which was prepared by Dr. Swimmer, on December 8, 2005. On July 5, 2007, Dr. Swimmer's expert report and curriculum vitae were served on defendant.
On November 5, 2010, immediately prior to the empanelling of the jury, defendant moved to preclude the testimony of Dr. Swimmer based on provisions of the New Jersey Medical Care Access and Responsibility and Patients First Act (Medical Care Act), N.J.S.A. 2A:53A-37 to -42, which went into effect on July 7, 2004. These provisions of the Medical Care Act require that healthcare experts who provide expert testimony or execute an affidavit of merit in medical malpractice actions, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:
(a) the active clinical practice of the same health care profession in which the defendant is licensed . . . ; or
(b) the instruction of students in an accredited medical school . . . ; or
(c) both. [N.J.S.A. 2A:53A-41a(2).]
The Act also provides: "Nothing in this section shall limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in this section." N.J.S.A. 2A:53A-41d.
The trial court explicitly determined at the time of its decision that the statute did not control because it applies only to "causes of action for medical malpractice that accrue on or after" July 7, 2004. L. 2004, c. 17, § 33.*fn1 In a supplemental written decision issued on December 2, 2010, the trial court explained that it precluded plaintiffs' expert's testimony because Dr. Swimmer had retired from the practice of dentistry in 1989 and "had not extracted wisdom teeth since that time." The trial court explained,
While discretion to reject expert testimony should be exercised with great caution in view of the public policy to admit relevant evidence under N.J.R.E. 402, where factual underpinnings of the testimony is diluted by the passage of a significant amount of time removed from the active treatment of patients, the evidence is lacking in foundation requiring its exclusion. N.J.R.E. 702. Here there was a fourteen year period between the last clinical treatment of a patient and the event giving rise to this claim. It is now twenty one years since Dr. Swimmer has regularly treated patients. The passage of time between the clinical ...