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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...