August 6, 2012
MATTHEW MALLINSON, PLAINTIFF-APPELLANT,
ELLIOT H. GOLDMAN, D.D.S., DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3182-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 24, 2012 -
Before Judges Payne and Hayden.
Plaintiff, Matthew Mallinson, appeals from a no cause verdict rendered by a jury in his dental malpractice action against defendant, Elliot Goldman, D.D.S., claiming error in the trial judge's determination, upon admission of testimony by defendant's expert that plaintiff deemed to be hearsay, not to instruct the jury to disregard the testimony.
The record reflects that, on August 7, 2006, defendant extracted plaintiff's two bottom wisdom teeth, which had grown horizontally and were impacted. Following the dental surgery, plaintiff experienced numbness on the left side of his face in the area of his gum and lower lip. Additionally, he experienced what he perceived to be swelling, together with numbness and a pins and needles sensation on the left side of his tongue. Upon further consultation with defendant, plaintiff was informed that he had left lingual paresthesia, and that it would go away over time. However, if he wished a further consultation, he should see Dr. Vincent Ziccardi. However, plaintiff did not do so at the time.
In February 2007, plaintiff consulted with Dr. Steven Rosenberg, who prescribed steroid treatments. Similar treatments were also prescribed by a Dr. Schneider. In June 2008, plaintiff was examined by Dr. Ziccardi, who performed neurological reparative surgery on plaintiff in January 2009. The surgery, which plaintiff claimed revealed that the lingual nerve had been severed, consisted of the removal of a neuroma*fn1 and the suturing together of the resulting two ends of the nerve. However, the surgery did not reduce the symptoms that plaintiff experienced in his tongue. His other symptoms dissipated over time.
On August 4, 2008, plaintiff filed suit against defendant, alleging dental malpractice. The matter came to trial, commencing on April 19, 2011. At trial, plaintiff established through his expert, Dr. Elvin Marged, that peripheral nerve injuries had been classified by Seddon into three classes: (1) neuropraxia, injuries caused by insults such as stretching or bruising, the symptoms of which disappear over weeks or months; (2) axonotmesis, a more severe injury in which nerve fibers have been damaged; and (3) neurotmesis, a severance of the nerve. Neuropraxia can occur without negligence on the part of the dentist. However, it was plaintiff's position that axonotmesis and neurotmesis can occur only as the result of negligence. In particular, neurotmesis requires "a severe insult and trauma with a sharp instrument of some kind[.]" This was the type of injury that plaintiff claimed.
Defendant's expert, oral maxillofacial surgeon Salvatore Ruggiero, did not support plaintiff's position that defendant had been negligent in his treatment, testifying that nerve damage constituted an accepted risk inherent in wisdom tooth extraction. Further, Dr. Ruggiero testified that one could not tell in plaintiff's case whether there had been a complete transection of the nerve. He testified: "Well, when you remove the scar tissue and you have the two ends of the nerve you're going to have a gap, there's going to be a section of the nerve that's not there cause it's still inside that scar tissue." The doctor opined that when a patient experienced a pins and needle type sensation, the chances were that there was some level of nerve continuity present.
In his direct examination, Dr. Ruggiero did not refer to the Seddon classification of nerve injuries. However, on cross-examination, he was asked about them by plaintiff's counsel. The following exchange occurred:
Q Now, when you - when you do a consultation . . . you make a preliminary finding of neurotmesis, based on the patient's complaints that the nerve has been severed in half; correct?
A That - that's not usually something that I do on a clinical exam. I - I make - I don't necessarily classify them. What I can rule out - I can't distinguish between axonotmesis and neurotmesis clinically, that - that's an intraoperative finding . . . .
Q Have you ever done it, have you ever put in . . . a consultation note . . . that the reason for the surgery is that there is a probable neurotmesis -
Q - and that's why you're going to operate?
A No, what I put in my clinical note is that the patient has a poor level of sensory dysfunction consistent with anesthesia, dysesthesia, you know I describe the type of altered sensation that they have.
At this point, plaintiff's counsel sought to impeach Dr. Ruggiero by showing him a consultation note that the doctor had written in connection with another matter of which counsel had knowledge, because he was representing the plaintiff in that matter - a dental malpractice action captioned Simhon v. Elbaum. The following exchange occurred:
Q Doctor, let me show you what's been marked for identification as P-5, and ask if it refreshes you recollection?
Q Is that inconsistent with what you just testified to?
A No, tell me what - can I -
Q Read the highlighting.
A Yea. No, because this particular patient it's - my recollection is that there was a witness - this was a witnessed injury, witnessed. The oral surgeon witnessed this, and he told me on the phone that there was an issue and he's almost certain that transected that nerve, okay. So, that's different, yes.
At the conclusion of Dr. Ruggiero's testimony, surrebuttal testimony was offered by Dr. Goldman, and then the defense rested. The day concluded with summations and a charge conference.
That evening, plaintiff's counsel established that the statement by Dr. Ruggiero that he had been informed by Dr. Elbaum that Elbaum thought he had severed Simhon's lingual nerve was contrary to testimony given by Dr. Elbaum in the deposition he had given in the malpractice filed by Simhon against him. On the following day counsel, citing this evidence, moved alternatively for a mistrial or for a jury instruction that it was to disregard Dr. Ruggiero's testimony that he had been informed by Dr. Elbaum that the nerve was likely severed. Counsel claimed that Dr. Ruggiero had committed perjury in uttering his "ridiculous fabrication" to explain the appearance of the word neurotmesis in his clinical note. The judge denied the motion. Following entry of a verdict against plaintiff, and the denial of plaintiff's motion for a new trial, this appeal was filed.
On appeal, plaintiff claims that Dr. Ruggiero's statement regarding what he was told by Dr. Elbaum was hearsay, and that its admission at trial by the judge constituted an abuse of discretion warranting a new trial. We disagree.
First of all, we are satisfied that the doctor's statement was not hearsay. Although the fact was not disclosed to the jury, it appears that Dr. Ruggiero used the term "neurotmesis" or "neurotmesis type injury" in his consultation note following his examination of Naomi Simhon. As a consequence, plaintiff's counsel sought to use the note to impeach Dr. Ruggiero's testimony that use of the term neurotmesis was "not usually something that I do on a clinical exam" because axonotmesis and neurotmesis cannot be distinguished clinically, but only during surgery. When the doctor testified, after looking at the allegedly impeaching note, that Dr. Elbaum had told him that he likely had severed the nerve, Dr. Ruggiero was merely explaining why he used the term. Because the statement was not offered for its truth - that the nerve had in fact been severed - the statement was properly admissible.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). We have held that "[w]here statements are offered, not for the truthfulness of their contents, but only to show that they were in fact made and that the listener took certain action as a result thereof, the statements are not deemed inadmissible hearsay." Russell v. Rutgers Health Plan, 280 N.J. Super. 445, 456 (App. Div. 1995) (citing Jugan v. Pollen, 253 N.J. Super. 123, 136-37 (App. Div. 1992) and Statham v. Bush, 253 N.J. Super. 607, 615 (App. Div. 1992)). That is what occurred here.
Further, even if there were error in the admission of the statement, which we do not regard to have been the case, that error, in our view, was harmless under Rule 2:10-2.
Under that rule, a reviewing court should reverse only if a trial error is clearly capable of producing an unjust result.
Campo v. Tama, 133 N.J. 123, 132 (1993).
That standard demands that the reviewing court determine whether an error at issue was so grave that it caused the jury to be misled, confused, or inadequately informed.
See, e.g., Feldman v. Lederle Labs, 132 N.J. 339, 345 (1993). [Boland v. Dolan, 140 N.J. 174, 189 (1995).]
In seeking to demonstrate reversible error, plaintiff claims:
The jury could infer from Dr. Ruggiero's hearsay testimony that: (1) Dr. Ruggiero testified truthfully about not using the term neurotmesis, save for the aberrational situation with Dr. Elbaum; (2) But for Dr. Elbaum's having witnessed the transection, Dr. Ruggiero would never have used the term neurotmesis in his consult note; (3) One can't distinguish preoperatively between axonotmesis and neurotmesis injuries unless there is a witnessed injury; (4) There is no correlation between the manner in which the nerve is injured and the Seddon classification of degree of injury; (5) Dr. Ruggiero isn't really concerned with the cause of the injury - he only wrote "neurotmesis" because of his conversation with Dr. Elbaum; (6) Oral surgeons are forthright and honest. When they witness a transection of the lingual nerve they telephone the microsurgeon and freely admit to severing the lingual nerve; and (7) The Seddon classification has no significant bearing on the issues in the case.
We do not accept plaintiff's position in this regard, finding the issue raised to have been peripheral, at best, and incapable of leading to the parade of horrors that plaintiff posits. We regard the conclusions that plaintiff claims the jury would draw from the testimony that was offered to be entirely speculative in nature and not logically grounded on the trial record.
We note in that regard that the jury was never informed that Dr. Ruggiero's consultation note contained the term "neurotmesis type injury." As a consequence, we find it difficult to regard counsel's attempted impeachment as having any effect on the jury's perception of the evidence. Additionally, we note that the doctor did not testify that he never used the term neurotmesis on a clinical note, but only that he "usually" did not do so. Thus, the fact that he did so on one occasion could not be regarded by the jury as inconsistent with the testimony that the doctor provided. And further, we do not find the fact that a surgeon declines to use a descriptive term when performing clinical examinations for potential nerve damage to have any relevance to the matter at issue here - whether surgical evidence demonstrated that plaintiff had neurotmesis and whether that condition was the result of defendant's negligence. As a consequence, we find no reversible error to have occurred.