On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-0194-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
Plaintiff Carol Ridler, as Guardian in Fact and Guardian ad litem for her twin daughters Ashley and Morgan, commenced this civil action contending that defendants formulated and started to implement a dental treatment plan upon the twins that included unnecessary drilling and filling of healthy teeth. Plaintiff appeals from January 30, 2009 orders partially dismissing her complaint without prejudice and from July 17, 2009 orders dismissing her remaining negligence claim on summary judgment.*fn1 We affirm.
Plaintiff filed her complaint on April 4, 2007 against Dr. Scott M. Bruggeworth, individually and doing business as Signature Smiles, LLC. On April 24, 2007, before receiving any answer, plaintiff filed an amended complaint adding Winter Enterprises, LLC as a defendant. Thereafter, the Law Division granted plaintiff leave to file a second amended complaint, in which she added Dr. James E. McKean as a defendant. Dr. McKean, who was semi-retired, worked primarily as a hygienist, cleaning teeth and performing dental examinations for Signature Smiles.
On September 20, 2007, the parties entered into a consent order confirming that all issues involving the Affidavit of Merit statute had been appropriately addressed. In the stipulation, defendants expressly waived any objections to the adequacy of the affidavits, submitted by Dr. Frank Sammartino, a dentist licensed to practice dentistry in the State of Pennsylvania.
In mid-September 2008, the Bruggeworth defendants moved for partial dismissal of the second amended complaint pursuant to Rule 4:6-2(e), and defendant Dr. McKean sought the same relief. The motions sought dismissal of plaintiff's claims for breach of implied warranty, breach of contract, battery, fraud and the tort of outrage. Following oral arguments, the court granted defendants' motions and dismissed without prejudice all claims except the claims of dental negligence. In a memorandum of decision, the court explained that it dismissed plaintiff's claim for breach of implied warranty because "New Jersey courts have made it clear that they will not recognize a claim for breach of implied warranty for services provided by dentists" and "[p]laintiff's entire complaint arises out of the provision of dental services." Plaintiff's claim for breach of contract was dismissed because "there is no allegation of a special agreement by a dentist to perform medical services." The court dismissed plaintiff's claim for battery because plaintiff had alleged that she gave consent, albeit induced by deceit, and because the dentist did not "perform a substantially different procedure from that which was authorized." In dismissing plaintiff's cause of action for fraud, the court cited a factually similar unpublished Appellate Division case that "declined to recognize a fraud in inducement cause of action." Last, the court dismissed plaintiff's claim for the tort of outrage, noting that "the [c]court does not find that [emotional distress] can be proved under the current circumstances" and "[d]efendant's alleged conduct . . . does not rise to a level of behavior beyond 'all bounds of human decency,' such that it would be called outrageous."
Plaintiff moved for leave to amend her complaint, which was granted, to reflect that "Ashley Morgan [sic] was diagnosed with twelve cavities present in seven teeth; and Morgan Ridler was diagnosed as having six cavities present in five teeth." Plaintiff's third amended complaint, asserting claims of dental negligence and negligent hiring, negligent training and negligent retention and vicarious liability, was filed on February 25, 2009.
In May 2009, defendants moved for summary judgment. Plaintiff filed opposition and cross-moved for reinstatement of her battery claim. The court denied plaintiff's motion for reinstatement and dismissed her complaint with prejudice, finding that plaintiff could not sustain her claim against defendants for dental negligence because her expert "retracted his expert opinion, admitting that he could not state within a reasonable degree of dental certainty that the children had no cavities or decay on June 23, 2009." Regarding plaintiff's negligent hiring claim, the court found that "there is no evidence on the record that Signature [Smiles] or Winter knew or should have known of any unfitness, incompetence, or dangerous attributes of Dr. Bruggeworth or Dr. McKean."
Plaintiff's cross-motion to reinstate her claim of battery was denied because "[p]laintiff, in [her] opposition to the motion to dismiss [her] claim for battery, admitted that she consented to the operation but stated that she did so as a result of deceit. The [p]laintiff now completely changes her stance on the issue of consent, claiming consent was never obtained, without explaining the contradiction."
This appeal ensued, and the facts associated with plaintiff's claims are as follows.
On June 23, 2006, plaintiff's minor children, then fifteen years old, visited Signature Smiles for dental cleanings and examinations. Prior to that visit, the twins had not visited a dentist for about two years. Ashley exhibited tooth decay in one tooth for the first time eleven years earlier when she was seen by Joel M. Applebaum, D.M.D. Morgan had never been diagnosed with any cavities before her visit to Signature Smiles.
Dr. McKean performed a cleaning for Ashley, while another hygienist saw Morgan. Dr. McKean took x-rays and after he performed an examination of both girls' teeth, he prepared proposed treatment plans showing Ashley had twelve cavities in seven teeth and Morgan had six cavities in five teeth. The twins had been brought to the dentist by their father, who testified in his deposition that after he and his daughters walked outside Signature Smiles, "Ashley was happy and said she had [no cavities] and Morgan was sad that she had one [cavity]."
Three days later, Ashley and Morgan's grandmother took them back to Signature Smiles, where Dr. Bruggeworth treated two of the seven teeth diagnosed as having cavities in Ashley's mouth and three of the five cavities diagnosed in Morgan's teeth. A few days after that visit, plaintiff and the girls returned to Signature Smiles for a repair of a cracked filling.
Within a month, plaintiff took her daughters to their former dentist, Dr. Applebaum. He performed a visual exam with an explorer, and he eventually wrote a May 4, 2007 letter to John C. Grady, a Deputy Attorney General investigating the case, in which he reported:
After examining both Ashley and Morgan Ridler on July 8, 2006[,] I feel confident that the cavities found at Signature Smiles on the teeth that have not yet been restored do not exist. The only exception would be the small buccal cavity that I repaired on Morgan on tooth #30 on August 4, 2006.
Please note that diagnosing decay is somewhat subjective. What one dentist may diagnose a cavity will not be a cavity to another dentist. This being said, I examined both girls very closely and I could not find the decay found at Signature Smiles.
In a deposition taken on January 20, 2009, Dr. Appelbaum testified that "without looking at the tooth before the filling was done, it would be impossible for me to tell whether or not there was decay in the tooth."
On September 30, 2006, plaintiff's expert, Dr. Sammartino, examined Ashley and Morgan. He conducted a "visual examination, a radiographic examination . . . and a clinical examination with a sharp explorer." Dr. Sammartino "detected no dental [cavities] on the original films" taken by Signature Smiles. He opined that "[b]ased on the size and the depth of the amalgams that I examined in teeth [fourteen] and [fifteen], I would have expected that to appear radiographically on the pre-op films[.]" However, at his deposition, Dr. Sammartino acknowledged that he could not say "within a dental-legal degree of certainty that there was no decay on Morgan and Ashley's teeth when they visited Signature Smiles[.]"
On this appeal, plaintiff argues that the motions to dismiss her complaint were improperly granted because (1) the defendants had already filed their answers; (2) the motion court relied on an unpublished opinion in dismissing plaintiffs' allegation of fraud; and (3) the motion judge considered matters outside the pleadings, thereby converting the motions to motions for summary judgment under Rule 4:6-2(e) without affording plaintiff an opportunity to present a defense.
First, we address whether it was error for defendants to move for dismissal under Rule 4:6-2(e) after they filed their answers. Rule 4:6-2(e) allows a party to move to dismiss for "failure to state a claim upon which relief can be granted." If a motion is made raising a defense under Rule 4:6-2 "it shall be made before pleading if a further pleading is to be made." In Allstate New Jersey Insurance Co. v. Cherry Hill Pain & Rehabilitation Institute, 389 N.J. ...