NEWS Notes green


November 19, 2018

Robert B. Spawn reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division.

In a recent New Jersey case, a Plaintiff claimed that he suffered permanent neurological damage resulting from negligent procedures utilized by a Defendant-dentist.  In support of his contention, Plaintiff introduced a dental expert, who concluded that Defendant deviated from the standard of care by using a Septocaine injection during a mandibular block procedure.  The dental expert reached this conclusion based on Plaintiff’s description of the physical action of the Septocaine injection, which was commensurate with such a procedure.  However, Defendant’s own office notes did not definitively confirm whether a mandibular block procedure was performed, and, for that reason, the trial court held that the dental expert’s conclusion was a net opinion, which barred the dental expert from testifying at trial. 

Plaintiff also introduced a neurological expert, who opined that Plaintiff’s neurological problems were directly related to the dental procedure at issue.  The neurological expert explained that the needle used for the injection or the drug itself could have caused Plaintiff’s injuries, although it was unclear which means actually did so in this case.  The trial court again held that this conclusion was a net opinion, reasoning that the neurological expert’s failure to determine the precise cause of Plaintiff’s injury barred the expert’s testimony.  Thus, because both of Plaintiff’s experts were prevented from testifying at trial, the lower court granted summary judgment in favor of Defendant and dismissed Plaintiff’s complaint.  Plaintiff appealed.

In analyzing the trial court’s ruling, the Appellate Division asserted that “a net opinion consists of nothing more than bare conclusions, unsupported by factual evidence.”  Applying that principle to the instant matter, the Appellate Division held that the dental expert’s conclusion could not be barred as a net opinion because it was adequately supported by facts in the record, namely, the deposition testimony of both Plaintiff and Defendant describing the procedure and the Septocaine injection.  Indeed, the trial judge, on summary judgment, was obligated to view all the evidence in a light most favorable to Plaintiff and determine if there were factual issues for a jury to decide.  The trial judge violated this standard by finding Defendant’s version of the facts more persuasive, focusing solely on the content of the doctor’s notes and disregarding other evidence in the record that supported the dental expert’s conclusion.

Regarding the neurological expert, the Appellate Division analogized the situation in the case at hand to one in which a person dies after a bullet passes through multiple organs.  In that circumstance, an expert might not be able to definitively conclude whether the victim died from the bullet’s perforation of the heart or liver, but the rules of evidence impose no such obligation.  Similarly, the neurological expert was not required to determine whether the needle or the drug caused Plaintiff’s injuries.  His conclusion that the injury was, in all reasonable probability, caused by the dental procedure was enough to bar the trial judge from excluding the testimony as a net opinion.  Therefore, as both of Plaintiff’s experts were allowed to testify, the Appellate Division reversed the grant of summary judgment to Defendant and remanded the matter back to the lower court for a trial.

Please contact Robert B. Spawn if you have any questions or need assistance in connection with this subject.