August 26, 2011
JENNIFER F. LOPRESTI AND JOSEPH LOPRESTI, PLAINTIFFS-APPELLANTS,
RONALD SAGLIMBENE, D.M.D., DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 9, 2011
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 treatment of patients and the event in question is sufficient to preclude the expert testimony from this witness. See N.J.S.A. 2A:53A-41(b)1; N.J.S.A. 2A:53A-41(d).
Under N.J.R.E. 702 and the case law interpreting that evidence rule, expert testimony is admissible in the courts of our State if it conveys "scientific, technical, or other specialized knowledge" and "will assist the trier of fact to understand the evidence or determine a fact in issue[.]" N.J.R.E. 702. Generally, our Supreme Court has applied a three-part test in reviewing such issues of expert admissibility:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.
[State v. Kelly, 97 N.J. 178, 208 (1984); see also Agha v. Feiner, 198 N.J. 50, 62 (2009) (applying this same three-part admissibility test in a civil context); Hisenaj v. Kuehner, 194 N.J. 6, 15-16 (2008) (same).]
Generally, a preliminary hearing should be held by the court to determine whether an expert witness has sufficient expertise to offer an opinion in front of the jury. N.J.R.E. 104; State v. Torres, 183 N.J. 554, 567 (2005). At his deposition, Dr. Swimmer, who was born in 1928, testified to the following facts. He is a board-certified and licensed dental surgeon in New Jersey and New York who retired from the active practice of dentistry in 1989. Since then he has treated friends and relatives on a limited basis, providing diagnostic and consulting assistance without payment. He is employed eight to ten hours a week as a MetLife Insurance Company national consultant for oral and maxillofacial surgery. He also works to a lesser extent as a consultant for PRN Review Organization in Arizona, which conducts reviews for benefit determinations and for a medical review organization in New York, which provides experts to attorneys.
As the trial court recognized, "discretion to reject expert testimony should be exercised with great caution." We defer to the trial court's discretion generally in matters such as the admissibility of evidence. See Hisenaj, supra, 194 N.J. at 16. Here, however, the trial court was not in a superior position to make a determination of admissibility because no preliminary hearing was held. Given the severe consequences of precluding plaintiffs' expert witness, without whom plaintiffs cannot maintain a cause of action for dental malpractice, the trial court abused its discretion by finding the expert had insufficient expertise to testify without holding a hearing.
Although Dr. Swimmer has not actively practiced oral surgery in many years, he was still a licensed and board-certified dentist. To maintain licensure, he was required to participate in continuing dental education. See N.J.S.A. 45:6-10.1 (providing that "[t]he New Jersey State Board of Dentistry shall require each person licensed as a dentist, as a condition for biennial registration . . . to complete 40 credits of continuing dental education as provided in section 2 of this act during each biennial registration period" (citations and footnote omitted)). While the field of oral surgery may have advanced considerably since Dr. Swimmer's days of active practice, we can not determine Dr. Swimmer's ability to opine on current practices based on the record before us. An evidentiary hearing is necessary to determine the extent to which the field has changed and whether Dr. Swimmer's absence from active practice has impaired his expertise sufficiently to bar him from the witness stand. The Supreme Court has observed that rather than using weaknesses in a person's experience or credentials to preclude him or her from testifying, trial courts should rely on "searching cross-examination" to guide the jury in the weight it ascribes to the expert's testimony. State v. Jenewicz, 193 N.J. 440, 455 (2008). Those determinations cannot be made by the trial court, or by us, without the more complete record that would result from a N.J.R.E. 104 hearing.
Reversed and remanded.