VICTOR C. OTTILIO VS. STEPHEN T. DEEHAN, D.M.D. (L-0252-15, SOMERSET COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3557-17T3
VICTOR C. OTTILIO,
Plaintiff-Appellant,
v.
STEPHEN T. DEEHAN, D.M.D.,
and STEPHEN T. DEEHAN,
D.M.D., P.A.,
Defendants-Respondents.
_____________________________
Argued September 11, 2019 – Decided October 16, 2019
Before Judges Whipple, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-0252-15.
Gary M. Meyers argued the cause for appellant (G.
Martin Meyers, PC, attorneys; Gary M. Meyers, on the
briefs).
David Lustbader argued the cause for respondents
(Philip M. Lustbader & David Lustbader, attorneys;
David Lustbader, on the brief).
PER CURIAM
Plaintiff Victor Ottilio appeals from a no cause jury verdict in favor of
Stephen Deehan, D.M.D., and his practice, Stephen Deehan, D.M.D., P.A.
(collectively, defendants). As a result of the verdict, on March 5, 2018, the trial
court entered a judgment dismissing plaintiff's dental malpractice complaint
with prejudice. According to the complaint, while plaintiff, then sixty-five-
years-old, was treated by Dr. Deehan through "periodic adjustment[s], cleaning
and recementing of an upper bridge held in place by [p]laintiff's upper front
teeth[,]" during a September 2013 visit, "without [p]laintiff's knowledge or
consent," Dr. Deehan "glued [p]laintiff's bridge to his teeth with a [permanent]
cement." Thereafter, in order to loosen the bridge and gain "access to
[p]laintiff's teeth" underneath, "[d]efendant repeatedly . . . 'knock[ed]' it[.]" As
a result, "every one of [p]laintiff's . . . top front teeth which had been holding
the bridge in place" broke off, causing plaintiff "pain" and "suffering," and
requiring surgical intervention.
On appeal, plaintiff challenges three of the court's evidentiary rulings ,
raising the following points for our consideration:
I. THE TRIAL COURT ABUSED ITS
DISCRETION BY BARRING PLAINTIFF'S
LIABILITY EXPERT FROM PROVIDING ANY
TESTIMONY REGARDING A KEY SET OF
DENTAL X-RAYS [WITHOUT] CONDUCTING A
RULE 104 HEARING TO SUBSTANTIATE
A-3557-17T3
2
DEFENDANT[S'] CLAIM OF "SURPRISE" OR
"PREJUDICE," AND [WITHOUT] EXPLORING AN
ALTERNATIVE MEANS OF RESOLVING ANY
"SURPRISE" OR "PREJUDICE" ACTUALLY
PRESENTED[.]
II. PERMITTING DEFENDANT[S] TO
INTRODUCE REPORTS AND OPINIONS OF NON-
TESTIFYING EXPERTS, IN VIOLATION OF THE
TRIAL COURT'S OWN [IN LIMINE] RULING AND
OVER PLAINTIFF'S OBJECTION, WAS A GRAVE
MISCARRIAGE OF JUSTICE REQUIRING
REVERSAL [OF] THE RESULTING VERDICT AND
REMAND FOR A NEW TRIAL[.]
III. THE TRIAL COURT ALSO ABUSED ITS
DISCRETION BY PRECLUDING PLAINTIFF FROM
MAKING ANY REFERENCE TO DEFENDANT'S
DISCIPLINARY PROCEEDINGS AND CONSENT
DECREE WITH THE NEW JERSEY STATE BOARD
OF DENTISTRY[.]1
Based on our review of the record and the applicable legal principles, we affirm.
1
In his reply brief, plaintiff argues for the first time that "the cumulative impact
of all three of the trial court's errors" warrant a reversal of the jury's verdict.
However, a party may not advance a new argument in a reply brief. See Borough
of Berlin v. Remington Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.
2001) ("Raising an issue for the first time in a reply brief is improper") (citing
State v. Smith, 55 N.J. 476, 488 (1970)).
A-3557-17T3
3
I.
The proofs adduced at the trial revealed that over the course of ten years,
plaintiff visited several dentists,2 most of whom recommended the extraction of
some or all of plaintiff's teeth due to loosening of the teeth caused by bone loss
resulting from periodontal disease. 3 Notably, plaintiff acknowledged consulting
Dr. Mark Terry, a periodontist, in 2000, who diagnosed plaintiff with advanced
periodontitis and advised him to extract "all [his] teeth[.]" More recently, in
January 2010, plaintiff consulted with Dr. Thomas Bissell, another periodontist,
who recommended extracting plaintiff's remaining six upper front teeth4 and
replacing them with implants in order to avoid future problems. However,
plaintiff rejected Dr. Bissell's recommendation because he wanted to keep his
teeth for as long as possible. As a result, plaintiff saw Dr. Deehan in March
2
Plaintiff estimated that he saw approximately ten dentists over the years.
3
Periodontal disease was described by defendants' expert as "losing the bone
. . . holding the teeth in place" from "bacteria underneath the gum," resulting in
the loosening and ultimate loss of the teeth if untreated. The condition is
"accelerated by the occlusal forces on the teeth."
4
Plaintiff had already lost eight of his upper back teeth.
A-3557-17T3
4
2010, for a second opinion. Based on Dr. Deehan's alternate recommendation,
plaintiff began treating with him thereafter.
Over the next three years, Dr. Deehan administered a course of treatment
that allowed plaintiff to keep his teeth by continuing to use a "cantilevered"
bridge5 held in place by plaintiff's six upper front teeth. During the treatment,
every three months, after plaintiff removed the bridge, Dr. Deehan would
conduct deep cleanings and then affix the bridge back to the teeth with
temporary cement. However, in September 2013, unbeknownst to plaintiff, Dr.
Deehan used permanent cement to affix the bridge, instead of the temporary
cement he used in the past. Over the next six months, despite using various
dental implements, including a hammer-like instrument, Dr. Deehan had
difficulty removing the bridge, which loosened when one of plaintiff's six front
teeth broke off at or near the gum line. In December 2013, Dr. Deehan
5
Traditional bridges "involve creating a crown for the tooth or implant on either
side of the missing tooth, with a pontic [(fake teeth)] in between." Cantilever
bridges "are used when there are adjacent teeth on only one side of the missing
tooth or teeth." Dental Health and Bridges, WebMD.com,
https://www.webmd.com/oral-health/guide/dental-health-bridges#1 (last visited
July 8, 2019). Plaintiff had a double cantilevered upper bridge, and a
"[p]ermanently cemented . . . lower bridge[.]" In plaintiff's case, because "the
teeth that were missing were the back teeth[,]" plaintiff's upper bridge was
"fabricated . . . using his six front teeth, but adding two teeth on either side of
the bridge." Plaintiff had been advised by prior dentists that the bridge would
not last and could cause early tooth loss.
A-3557-17T3
5
recommended three alternative treatment plans, involving extracting the teeth
and using implants or dentures, ranging in cost from $1,200 to $22,500.
However, because plaintiff wanted to save his teeth, he rejected Dr. Deehan's
recommendations. As a result, according to plaintiff, he suffered extreme pain
and discomfort for sixteen months, while the loose bridge was cutting into his
gums. When the bridge eventually came out in March 2015, all of plaintiff's
upper front teeth broke, ultimately requiring surgical intervention to remove the
roots.
During his deposition and trial testimony, Dr. Deehan agreed with Dr.
Bissell's diagnosis that plaintiff had "advanced periodontal disease."6 The
defense played the deposition testimony of Dr. Bissell at trial, during which Dr.
Bissell testified that based on his examination of plaintiff on January 5, 2010,
he determined that "all of [his] upper teeth were mobile" or "loose." Dr. Bissell's
"long-term" "prognosis" was that plaintiff's "upper teeth would not last[,]" and
"[n]othing could be done to improve the situation," or "make the [upper] teeth
any stronger," and "any type of prosthesis . . . was doomed to fail." Dr. Bissell's
6
Dr. Deehan testified that after plaintiff's first visit, he obtained plaintiff's
records, including his x-rays, from Dr. Bissell.
A-3557-17T3
6
recommended treatment plan, which plaintiff rejected, was extraction and
replacing the teeth with dentures or dental implants.
In an effort to avoid extraction as long as possible, Dr. Deehan agreed to
treat plaintiff with "periodontal therapy," consisting of cleanings, "[d]eep
scaling[,]" "root planing under local anesthetic," and "irrigation" with
medication. Dr. Deehan acknowledged that on September 3, 2013, he used a
permanent cement when he re-cemented plaintiff's bridge, instead of the
temporary cement used in the past. He explained that "the teeth were . . . starting
to truly fail[,]" and he "had no other option . . . to try to keep [the] bridge in
[place]." According to Dr. Deehan, on that date, he observed that "one tooth
was periodontally mobile," 7 and another tooth was "fractured to the gum line."
Dr. Deehan admitted that he did not discuss the change in cement with plaintiff
but explained that "[i]t was a clinical judgment."
Dr. Deehan also acknowledged that he unsuccessfully "tapped" on the
bridge with "a crown tapper," which he described as a hammer like device, "to
7
Tooth mobility was defined as "movement of the teeth in the jawbone."
However, according to plaintiff's expert, normal, healthy teeth are supposed to
move to "a very minor" degree.
A-3557-17T3
7
try to get the bridge off" as plaintiff requested. 8 Despite being unable to remove
the bridge during six different office visits from December 2013 to February
2014, Dr. Deehan testified that "[he] was still able to clean [plaintiff's] teeth
with the bridge in place" by using "[p]iezoelectric scalers and irrigation." 9 Dr.
Deehan acknowledged that on December 30, 2013, he presented plaintiff with
three alternative treatment plans. He also later prescribed painkillers to treat
plaintiff's complaints of pain and discomfort. Ultimately, on April 22, 2014,
after plaintiff rejected all three of Dr. Deehan's treatment plans, Dr. Deehan
notified plaintiff in writing that he was terminating him as a patient due to his
non-compliance with the treatment plan recommendations and a physical
confrontation during his last visit.
Plaintiff's expert, Dr. Jay Marks, "a general dentist[,]" opined that while
treating plaintiff, Dr. Deehan deviated from the applicable standard of care for
the practice of dentistry in a variety of ways. As to the diagnosis and treatment
protocol, Dr. Marks disagreed that plaintiff suffered from periodontal disease so
8
During the trial, an audio recording of a visit when Dr. Deehan used the crown
tapper on plaintiff's bridge indicated approximately fifty or sixty taps. The visit
was recorded by plaintiff without Dr. Deehan's knowledge.
9
Dr. Deehan testified that while treating plaintiff, he had also been cleaning
and scaling the lower teeth without removing the bridge.
A-3557-17T3
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severe that it warranted extracting all of his teeth. Dr. Marks also opined that a
tooth "broken at the gum line" could be restored through a "[p]ost-and-core
procedure[,]" without the need for extraction. As to specific deviations, Dr.
Marks testified Dr. Deehan should have informed plaintiff that "the cement was
changed from temporary cement to permanent cement." Dr. Marks also opined
that Dr. Deehan should not have used "a crown tapper" to remove the bridge
without informing plaintiff of the risk that "the tooth could break," and should
have offered a less traumatic alternative "technique" when the crown tapper
proved unsuccessful.
Further, according to Dr. Marks, Dr. Deehan should have "verbally"
explained to plaintiff and documented the risks and benefits of the alternative
treatment plans. Additionally, Dr. Marks testified that Dr. Deehan should have
taken "baseline x-rays" when plaintiff first visited him, rather than "four years
after" plaintiff's first visit. Dr. Marks also opined that during the four years of
treatment, Dr. Deehan failed to treat plaintiff for teeth decay. Dr. Marks
concluded that given the slight nature of periodontal disease, had plaintiff's teeth
been treated for decay and had the crown tapper not been used as excessively,
plaintiff's teeth could have been saved.
A-3557-17T3
9
In formulating his opinion, unlike Dr. Marks, the defense expert, Dr.
Steven Scrivo, a periodontist, examined plaintiff and reviewed his complete
dental history, both before he treated with Dr. Deehan and after. Based on his
review of plaintiff's dental history, he diagnosed plaintiff with chronic
periodontal disease dating back to 2000. According to Dr. Scrivo, plaintiff's
dental prognosis at that time was aggravated because "he was a smoker[,]" had
poor dental hygiene, and "was a diabetic." Dr. Scrivo also opined that based on
the design of plaintiff's cantilever bridge, which was completed in 2009 and two
of his prior dentists recommended against, plaintiff "was weakening already
we[a]k teeth" whenever "he chewed anything hard[.]"
Dr. Scrivo opined that Dr. Deehan did not deviate from the applicable
standard of care in treating plaintiff because it was "well documented" that
plaintiff "came to him with a hopeless bridge," "after multiple dentists, over
[twenty] years, told him to do things" that "he refused to do." 10 According to
Dr. Scrivo, plaintiff "came to [Dr. Deehan] knowing[] that the teeth were loose,"
and that "the bridge wa[s not] going to last." Moreover, Dr. Scrivo testified that
plaintiff's cantilever bridge was designed as a "[p]ermanent bridge[]" that should
10
Dr. Scrivo specifically referred to plaintiff's treatment by prior dentists who
did not testify at trial, including Drs. Terry, VanVliet, and Zuckerman.
A-3557-17T3
10
have been "permanently cemented on," and remained in place "permanently, all
the time[,]" rather than "com[ing] on and off." Nonetheless, according to Dr.
Scrivo, because the teeth were loose, "[t]he bridge could[ not] have been held in
[place] with any cement," so the type of cement Dr. Deehan used was
"irrelevant."
Following the jury verdict, the judge entered a conforming order and this
appeal followed.
II.
First, plaintiff argues the judge erred in precluding Dr. Marks from
making any reference during his testimony to Dr. Bissell's 2010 x-rays on the
ground that Dr. Marks made no reference to the x-rays in his original report or
his deposition testimony. According to plaintiff, given "the absence of a design
to mislead," the "absence of the element of surprise," and the "absence of
prejudice" to defendants, the judge "should have, at the very least, conducted a
Rule 104 hearing . . . [before] imposing the draconian sanction of exclu[sion]."
We disagree.
"It is well settled that a trial judge has the discretion to preclude expert
testimony on a subject not covered in the written reports furnished in discovery."
Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990)
A-3557-17T3
11
(citations omitted). See R. 4:23-5(b) (permitting the trial court to exclude the
testimony of an expert whose report is not furnished prior to trial); R. 4:17-4(e)
(barring an expert from testifying at trial if the expert's report containing, among
other things, the expert's opinions and the facts and data considered in forming
the opinions, is not furnished in discovery). The sanction of exclusion
is consigned to the sound discretion of the judge,
subject only to the rule that the sanction visited upon
the party must be just and reasonable. The factors
which would "strongly urge" the trial judge, in the
exercise of his discretion, to suspend the imposition of
sanctions, are (1) the absence of a design to mislead,
(2) absence of the element of surprise if the evidence is
admitted, and (3) absence of prejudice which would
result from the admission of the evidence.
[Westphal v. Guarino, 163 N.J. Super. 139, 145-46
(App. Div. 1978) (citations omitted).]
"These concepts are somewhat elusive because they cannot always be
objectively determined." Velazquez ex rel. Velazquez v. Portadin, 321 N.J.
Super. 558, 576 (App. Div. 1999), rev'd on other grounds, 163 N.J. 677 (2002).
See Mauro v. Owens-Corning Fiberglas Corp., 225 N.J. Super. 196, 206 (App.
Div. 1988) (affirming the exclusion of expert testimony regarding statistics
because such statistics "were not contained in [the expert]'s written report or any
other discovery material"); McCalla v. Harnischfeger Corp., 215 N.J. Super.
160, 171 (App. Div. 1987) ("[w]hen an expert's report is furnished, 'the expert's
A-3557-17T3
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testimony at trial may be confined to the matters of opinion reflected in th e
report, . . . '[h]owever, the logical predicates for and conclusions from statements
made in the report are not foreclosed") (quoting Maurio v. Mereck Constr. Co.,
Inc., 162 N.J. Super. 566, 569 (App. Div. 1978)). Cf. Congiusti v. Ingersoll-
Rand Co., Inc., 306 N.J. Super. 126, 131 (App. Div.1997) (holding plaintiffs
could not claim surprise because "[w]hile the experts had not fully disclosed
their theories in their reports, had they been deposed by plaintiffs, their
depositions might have fully revealed the bases for their eventual testimony");
Amaru v. Stratton, 209 N.J. Super. 1, 14 (App. Div. 1985) (affirming trial court
decision permitting the contested testimony because it "posed no danger of
surprise or other prejudice and was based on material obtained . . . during pre -
trial discovery."). Nonetheless, "[t]he trial judge's discretion in excluding
evidence is broad[,]" and "[t]he decision as to exclusion must stand unless so
wide of the mark that a manifest denial of justice resulted." Ratner, 241 N.J.
Super. at 202.
Here, prior to Dr. Marks' testimony, defendants moved to preclude Dr.
Marks from testifying about the 2010 x-rays taken by Dr. Bissell during his
consultation with plaintiff. Defense counsel stated he was "surprise[d]" to learn
"for the first time" that Dr. Marks intended to "interpret[]" the x-rays,
A-3557-17T3
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presumably "to bolster his opinion," because Dr. Marks did not rely on the x-
rays in his "detailed report" or during his "two-hour deposition" taken on
October 16, 2017. According to defense counsel, instead, Dr. Marks had
indicated he "coul[d not] read" the x-rays. Defense counsel explained if he had
received "advance" notice, he "could have asked [his] expert for a supplemental
report" and he "could have asked Dr. Bissell . . . [to] interpret[] his own x-rays"
during his deposition, neither of which occurred. Additionally, he would have
"prepared to question [Dr. Marks] differently."
In response, plaintiff's counsel strenuously objected, stating they had
"been attempting to get readable copies of Dr. Bissell's x-rays from . . .
defendant" for some time, but were consistently stonewalled. Plaintiff's counsel
disputed that there was "surprise" or "prejudice" to the defense because it was
defendants "who brought Dr. Bissell in[to] the case." He protested that it would
be unfair to preclude Dr. Marks' testimony since the defense expert commented
extensively on Dr. Bissell's x-rays in his report and deposition. Plaintiff's
counsel requested "a Rule 104 [h]earing" on the issue.
Preliminarily, the judge noted that because plaintiff was Dr. Bissell's
patient, he could have obtained a copy of the x-rays directly from Dr. Bissell.
The judge then explained that the expert was required "to give the whys and the
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wherefores for [the] opinion" and "outline" what was "reviewed and what [was]
the basis" for the opinion "so the other side is prepared." The judge determined
that because "[Dr.] Bissell's x-rays were not a basis [for] his opinion[,]" plaintiff
"di[d not] follow the discovery rules" and, as a result, Dr. Marks would be
"confined to his report[.]"
We are satisfied that there was no abuse of discretion. While there was
no evidence of a design to mislead, defense counsel was clearly surprised and
would have been prejudiced by Dr. Marks' newfound reliance on Dr. Bissell's x-
rays in formulating his opinion. Furthermore, because the parties were given an
adequate opportunity to be heard, and there was an adequate factual record upon
which to adjudicate the issue, we discern no abuse of discretion in the judge's
failure to conduct a Rule 104 hearing, a decision that is likewise "remitted to the
trial court's discretion[.]" Kemp ex rel. Wright v. State, 174 N.J. 412, 432
(2002).
Next, plaintiff argues that despite the judge granting his in limine motion
"to preclude reference to the opinions and reports" of plaintiff's non-testifying
former dentists, Dr. Scrivo made numerous "misleading" references to those
opinions and reports "to bolster his own opinions" during his testimony.
Plaintiff asserts that by allowing the testimony to stand, the judge "unwittingly
A-3557-17T3
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fostered exactly what the Supreme Court was attempting to avoid in its ruling in
Hayes v. Delamotte, 231 N.J. 373 [(2018)]," the "cumulative impact" of which
"clearly constituted a severe miscarriage of justice[.]" We disagree.
N.J.R.E. 703 provides:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before
the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not
be admissible in evidence.
"[N.J.R.E.] 703 was intended to allow more latitude in the admission of expert
opinion testimony." Agha v. Feiner, 198 N.J. 50, 62 (2009) (citation and internal
quotation marks omitted). "Thus, the testifying expert is generally permitted to
detail for the trier of fact all of the materials, including . . . other experts' reports,
on which he relied in deriving his opinion, so long as they are of a type
reasonably relied upon by experts in his field." Ibid. For that reason, "an expert
may testify as to the [opinion] of a non-testifying expert on which the testifying
expert relied in reaching his or her conclusion." Macaluso v. Pleskin, 329 N.J.
Super. 346, 355 (App. Div. 2000).
Equally pertinent to this issue, however, is N.J.R.E. 808, which limits the
presentation of hearsay expert opinions to a factfinder as follows:
A-3557-17T3
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Expert opinion which is included in an admissible
hearsay statement shall be excluded if the declarant has
not been produced as a witness unless the trial judge
finds that the circumstances involved in rendering the
opinion, including the motive, duty, and interest of the
declarant, whether litigation was contemplated by the
declarant, the complexity of the subject matter, and the
likelihood of accuracy of the opinion, tend to establish
its trustworthiness.
"The import of [N.J.R.E.] 808 . . . is that some expert opinions contained in
business records or other sources are admissible, but others are not." James v.
Ruiz, 440 N.J. Super. 45, 62 (App. Div. 2015). See N.J.R.E. 803(c)(6)
(providing that even if the other elements of the business record exception to the
hearsay rule are satisfied, expert opinions included within an otherwise
admissible business record are also subject to N.J.R.E. 808). However, "[i]f the
requirements of [N.J.R.E.] 808 are met, and a testifying expert has reasonably
relied upon the non-testifying expert's opinions," as permitted under N.J.R.E.
703, "then the testifying expert may be permitted to refer to that absent expert's
opinions in the course of explaining his or her own opinions in court." James,
440 N.J. Super. at 64.
Although N.J.R.E. 703 permits "a testifying expert" to refer to hearsay
statements "by a non-testifying expert . . . for the purpose of apprising the jury
of the basis for his opinion, it does not allow expert testimony to serve as 'a
A-3557-17T3
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vehicle for the wholesale [introduction] of otherwise inadmissible evidence.'"
Agha, 198 N.J. at 63 (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 480-
81 (App. Div. 2002)) (alteration in original). Similarly, "[a]n expert witness
should not be allowed to relate the opinions of a nontestifying expert merely
because those opinions are congruent with the ones he has reached," Krohn v.
N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 486 (App. Div. 1998), or
use "this pathway . . . as a 'subterfuge to allow an expert to bolster the expert
testimony by reference to other opinions of experts not testifying.'" James, 440
N.J. Super. at 64 (quoting Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, cmt. 7 on N.J.R.E. 703 (2014)).
Thus,
the combined impact of [N.J.R.E.] 703 and [N.J.R.E.]
808 is to limit the ability of a testifying expert to convey
to a jury either (1) objective "facts or data" or (2)
subjective "opinions" based upon such facts, which
have been set forth in a hearsay report issued by a non-
testifying expert. In either instance, the testifying
expert may not serve as an improper conduit for
substantive declarations (whether they be objective or
subjective in nature) by a non-testifying expert source.
[Id. at 66.]
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"Said in a different way, the contents of a non-testifying expert's report may not
be used as a 'tie breaker' between competing experts." Hayes, 231 N.J. at 392-
93 (quoting James, 440 N.J. Super. at 72).
"In short, under [N.J.R.E.] 703, an expert may give the reasons for his
opinion and the sources on which he relies, but that testimony does not establish
the substance of the report of a non-testifying physician." Agha, 198 N.J. at 64
(citing Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996)). See also
Vandeweaghe, 351 N.J. Super. at 480 (noting that hearsay statements upon
which an expert relies are "not admissible substantively as establishing the truth
of the statement") (citations omitted). "That is why our court rules provide that
where an expert references the report of a non-testifying expert to explain the
basis of his or her own opinion, it is incumbent upon the trial judge, upon
request, to instruct the jury regarding its limited use." Agha, 198 N.J. at 63.
"Even when admitted, therefore, hearsay statements relied upon by an expert
may be used for the limited purpose of apprising the jury of the basis of the
testifying expert's opinion, but not for the correctness of the non-testifying
expert's conclusion[.]" Hayes, 231 N.J. at 392-93 (citing Agha, 198 N.J. at 63).
Here, prior to jury selection, asserting that Dr. Scrivo's opinion was "based
largely, if not entirely, upon the opinions of previous dentists[] who treated
A-3557-17T3
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[plaintiff,]" plaintiff's counsel moved in limine to preclude Dr. Scrivo from
"rely[ing] upon their testimony or their opinions" if they did not testify. Defense
counsel countered that while defendants intended to refer to the "records" and
"clinical findings" of other treating dentists, particularly Dr. Bissell, "Dr. Scrivo
came to his own conclusion based upon the facts in the case and the x-rays."
Acknowledging the prohibition against "bootstrapping," see James, 440 N.J.
Super. at 69 (disapproving "of improper 'bootstrapping' of a non-testifying
expert's findings on complex and disputed matters"), the judge observed Dr.
Scrivo was "entitled to rely on the record" from "prior treatment" but any
"opinions" or "predictions" contained in those records may be objectionable,
depending upon how the questions were posed to Dr. Scrivo. See Biunno,
Current N.J. Rules of Evidence, cmt. 4 on N.J.R.E. 104 ("As a general rule, a
trial judge should not rule on the admissibility of particular evidence until it is
actually offered at trial.").
In fact, during Dr. Scrivo's testimony, the judge sustained plaintiff's
specific objection to Dr. Scrivo testifying about Dr. Terry's opinion, but
permitted Dr. Scrivo to testify about Dr. Terry's records in formulating his (Dr.
Scrivo's) own opinion. Similarly, the judge restricted Dr. Scrivo's testimony in
relation to Dr. Zuckerman's treatment of plaintiff to Dr. Zuckerman's treatment
A-3557-17T3
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notes. On appeal, plaintiff asserts that although "neither Dr. Van Vliet, Dr.
Zuckerman, nor Dr. Terry ever testified at . . . trial[,]" Dr. Scrivo's testimony
"effectuat[ed] the wholesale introduction of the reports and opinions of [these]
nontestifying experts." Further, plaintiff states Dr. Scrivo "misrepresented the
opinions of Drs. Van Vliet and Zuckerman," to "'bolster' his own opinions, by
showing that [their] opinions agreed with his own." We disagree with plaintiff's
characterization of Dr. Scrivo's testimony. Despite referring to the treatment
records and notes of Drs. Terry, Van Vliet, and Zuckerman, all of whom had
previously treated plaintiff, Dr. Scrivo presented his own opinion based on his
personal examination of plaintiff and his review of plaintiff's complete dental
history, dating back to 2000.
The fact that plaintiff's prior dentists provided similar diagnoses was not
offered as a means of vouching for or reinforcing Dr. Scrivo's opinion, but to
detail the materials upon which he relied in formulating his own independent
opinion, as permitted under N.J.R.E. 703 and 808. Moreover, on cross-
examination, Dr. Scrivo testified that he disagreed with Dr. Terry's opinion
regarding the suitability of plaintiff's cantilever bridge, demonstrating that the
hearsay opinion was not used "substantively as a 'tie breaker,' providing the jury
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with a third opinion on the hotly disputed subject." James, 440 N.J. Super. at
72.
The procedural wrinkle here is that plaintiff failed to request a limiting
instruction, apprising the jury of "the limited purpose" for which the hearsay
statements of the non-testifying doctors were admitted, as contemplated in
Hayes, 231 N.J. at 392-93. See State v. Humanik, 199 N.J. Super. 283, 305
(App. Div. 1985) ("It has long been the law that hearsay statements upon which
an expert relies are admissible, not for establishing the truth of their contents,
but to apprise the jury of the basis of the opinion reached."). Because of
plaintiff's omission, the plain error standard applies. See State v. Townsend,
186 N.J. 473, 498 (2006) (reviewing trial court's lack of limiting instruction on
proper use of expert testimony under plain error because defendant failed to
request one). Under that standard, in order to warrant reversal, the error must
"have been clearly capable of producing an unjust result." R. 2:10-2. In the
circumstances of this case, we are satisfied the omission does not meet the
requisite standard. See State v. Macon, 57 N.J. 325, 336 (1971) (holding that
not just any possibility of an unjust result is sufficient but rather the party must
demonstrate the possibility of "whether the error led the jury to a result it
otherwise might not have reached").
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Finally, plaintiff argues that the judge's "[i]n [l]imine ruling, absolutely
barring [him] from making any reference to [a] Consent Order entered into by
[Dr. Deehan] with the New Jersey State Board of Dentistry, and/or the
disciplinary proceedings leading up to the entry of that Order, . . . constituted an
abuse of discretion," warranting reversal. In a March 5, 2014 Consent Order,
the Board sanctioned Dr. Deehan based on a review of his "dental practice . . .
and in particular the records of ten . . . patients." Among other things, the Board
found that Dr. Deehan "failed to identify and treat obvious signs of decay" and
failed to "comply with Board regulations" related to "recordkeeping." Plaintiff
posits the evidence was admissible as habit evidence under N.J.R.E. 406 because
the Board's findings were based on a review of the records of ten patients. We
disagree.
"While evidence of a character trait generally is inadmissible, evidence
pertaining to a 'habit' is permitted [under N.J.R.E. 406]." Showalter v. Barilari,
Inc., 312 N.J. Super. 494, 512 (App. Div. 1998). Under N.J.R.E. 406,
"[e]vidence, whether corroborated or not, of habit or routine practice is
admissible to prove that on a specific occasion a person . . . acted in conformity
with the habit or routine practice." N.J.R.E. 406(a). "Evidence of specific
instances of conduct is admissible to prove habit or routine practice if evidence
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of a sufficient number of such instances is offered to support a finding of such
habit or routine practice." N.J.R.E. 406(b).
The purpose of habit evidence is to show "the person's regular practice of
responding to a particular kind of situation with a specific type of conduct."
State v. Kately, 270 N.J. Super. 356, 362 (App. Div. 1994) (citation omitted).
Hence, "[b]efore a court may admit evidence of habit, the offering party must
establish the degree of specificity and frequency of uniform response that
ensures more than a mere 'tendency' to act in a given manner, but rather, conduct
that is 'semi-automatic' in nature." Sharpe v. Bestop, Inc., 158 N.J. 329, 331
(1999) (quoting Thompson v. Boggs, 33 F.3d 847, 854 (7th Cir. 1994)). To that
end, "two factors are considered controlling as a rule: adequacy of sampling and
uniformity of response." Id. at 332 (citation omitted). See Jones v. S. Pac. R.R.,
962 F.2d 447, 449 (5th Cir. 1992) (holding that nine diverse safety violations do
not show "habit" of negligence).
Here, at the pre-trial hearing on defendants' in limine motion, the judge
sustained defendants' objection, ruling that the evidence was unduly prejudicial
and therefore inadmissible. After confirming that plaintiff was not one of the
ten patients identified in the order, the judge explained that if he admitted the
evidence, he "would end up trying ten dental negligence cases." Our trial courts
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are vested with broad discretion in determining whether proffered evidence i s
relevant, and if so, whether it should be excluded under N.J.R.E. 403 because
its probative value is substantially outweighed by the risk of undue prejudice,
confusion of issues, misleading the jury, or other considerations. Wymbs ex rel.
Wymbs v. Twp. of Wayne, 163 N.J. 523, 537 (2000).
For that reason, we review such decisions for abuse of discretion, Estate
of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010), which
a party may demonstrate by establishing the trial court's ruling resulted in
"manifest error or injustice," Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (citation
omitted), or by demonstrating "there has been a clear error of judgment." State
v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484
(1997)). Here, plaintiff has demonstrated neither manifest error, injustice, nor
a clear error of judgment.
Moreover, although not specifically addressed by the judge, we are
satisfied that given the small sampling of patients, the offered evidence was
insufficient to establish habit, admissible under N.J.R.E. 406. The applicability
of N.J.R.E. 406 is of no consequence, however, as the judge properly excluded
the evidence under N.J.R.E. 403. See Griffin v. City of E. Orange, 225 N.J. 400,
420 (2016) (demonstrating that while certain evidence may "not [be] subject to
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exclusion under" other evidentiary "rule[s], it nonetheless [can] be barred
pursuant to N.J.R.E. 403"). Likewise, the proffered evidence was excludible
under N.J.R.E. 404(b), barring introduction of "[e]vidence of other . . . wrongs,
or acts . . . to prove the disposition of a person in order to show that such person
acted in conformity therewith[,]" which, in this case, was plaintiff's stated
purpose. See Harris v. Peridot Chem. (N.J.), Inc., 313 N.J. Super. 257, 276-83
(App. Div. 1998) (acknowledging the application of N.J.R.E. 404(b)'s
prohibition in civil cases).
To the extent we have not specifically addressed any of plaintiff's
remaining arguments, we deem them without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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