BRUCE AMPOLSKY VS. IRA J. ZOHN, DMD (L-3963-18, MONMOUTH COUNTY AND STATEWIDE) ( 2020 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-0914-19T1
    BRUCE AMPOLSKY,
    Plaintiff-Appellant,
    v.
    IRA J. ZOHN, DMD, and
    ADVANCED ENDODONIC
    ASSOCIATES, PA,
    Defendants-Respondents.
    __________________________
    Argued October 26, 2020 – Decided November 13, 2020
    Before Judges Fasciale and Mayer.
    On appeal from the Superior Court of New Jersey, Law
    Division, Monmouth County, Docket No. L-3963-18.
    Ara R. Avrigian argued the cause for appellant (Saltz
    Mongeluzzi Barrett & Bendesky, P.C., attorneys;
    Robert J. Mongeluzzi, Ara R. Avrigian, and K. Andrew
    Heinold, on the briefs).
    Andrew Gimigliano argued the cause for respondents
    (O'Toole Scrivo, LLC, attorneys; James DiGiulio and
    Andrew Gimigliano, of counsel and on the brief).
    PER CURIAM
    Plaintiff appeals from two orders entered by different judges who rendered
    oral decisions dismissing his pleadings against an endodontist, Ira J. Zohn, DMD
    (Zohn) and a dental office, Advanced Endodontic Associates (AEA)
    (collectively defendants): a July 10, 2019 order granting defendants' motion to
    dismiss his second-amended complaint without prejudice under Rule 4:6-2(e)
    and the doctrine of judicial estoppel; and a September 16, 2019 order dismissing
    his third-amended complaint under Rule 4:6-2(e) with prejudice. The doctrine
    of judicial estoppel does not apply, and plaintiff pled sufficient facts to survive
    Rule 4:6-2(e). We therefore reverse.
    In November 2018, plaintiff filed his complaint against defendants
    alleging negligence, assault, and battery. The complaint alleges that from 2013
    to 2017, Zohn, while working as an employee of AEA, provided nitrous oxide
    to plaintiff in regular intervals beyond what was medically necessary for any
    dental treatment, or for no medical purpose whatsoever. He then filed his first-
    amended complaint adding employees of AEA as additional parties.
    Defendants responded to plaintiff's first amended complaint by filing a
    motion under Rule 4:6-2(e). A judge granted defendants' motion to dismiss
    A-0914-19T1
    2
    without prejudice. Plaintiff subsequently filed his second-amended complaint,
    and eventually a third-amended complaint.
    In his second-amended complaint, plaintiff made new allegations. Of
    course, on a Rule 4:6-2(e) motion, we must give plaintiff the benefit of all
    reasonable factual inferences when evaluating whether he pleaded sufficient
    facts to state a cause of action. Printing Mart-Morristown v. Sharp Elecs. Corp.,
    
    116 N.J. 739
    , 746 (1989). With that in mind, plaintiff alleged that from 2007 to
    2009 plaintiff received dental care from defendants, and from 2013 to 2017 a
    doctor-patient relationship continued, with plaintiff receiving further treatment
    from defendants. Plaintiff alleged that during his visits to AEA from 2013 to
    2017, Zohn and other AEA employees—essentially deviating from accepted
    standards of care—administered nitrous oxide to him "far in excess of any
    amounts necessary for the dental treatments they provided." Plaintiff allege d
    that defendants' conduct proximately caused his addiction to nitrous oxide, and
    that defendants "knew or should have known that providing and/or
    administering nitrous oxide for purposes other than for assistance in dental
    procedures violated their duties and obligations."      Plaintiff then received
    medical treatment related to his pain and suffering.
    A-0914-19T1
    3
    Defendants responded to plaintiff's second-amended complaint by filing a
    motion to dismiss under Rule 4:6-2(e). The judge granted defendants' motion
    dismissing the second-amended complaint without prejudice, and judicially
    estopped plaintiff from bringing a medical negligence claim against defendants.
    The judge found that no doctor-patient relationship existed, and "just because
    there was a relationship or an alleged [doctor-patient] relationship between 2007
    and 2009, that does not mean that there was a relationship in 2013 to 2017."
    Even if a doctor-patient relationship existed, the judge concluded that "the
    complaint and prior arguments by counsel show that receiving nitrous oxide in
    this case was not for treatment."
    Plaintiff then filed his third-amended complaint, which prompted another
    Rule 4:6-2(e) motion. In granting that motion, the judge noted that while
    plaintiff was judicially estopped from pleading a medical negligence claim, it
    appeared that plaintiff was attempting to "hold [Zohn] to a higher standard of
    care than a reasonably prudent person because of [his] education and/or
    background." He also explained that it would be difficult for "anyone [to] be
    able to determine what interaction, circumstance, or series of events creates a
    foreseeable risk of harm" in this scenario between plaintiff and defendants.
    On appeal, plaintiff raises the following points for this court's
    A-0914-19T1
    4
    consideration:
    POINT I
    THE [JUDGES] IMPROPERLY APPLIED THE
    JUDICIAL ESTOPPEL DOCTRINE AS THE NEW
    JERSEY PLEADING RULES ALLOW A PLAINTIFF
    TO PLEAD INCONSISTENCIES AND IN THE
    INSTANT MATTER . . . PLAINTIFF PLED FACTS
    ESTABLISHING      A       PATIENT-DENTIST
    RELATIONSHIP    SINCE      THE     INITIAL
    COMPLAINT[.]
    POINT II
    PLAINTIFF ALLEGED A VIABLE CLAIM FOR
    MEDICAL NEGLIGENCE AGAINST . . . ZOHN,
    [AEA] AND THEIR EMPLOYEES[.]
    POINT III
    ASSUMING ARGUENDO THAT NO PATIENT-
    DENTIST RELATIONSHIP EXISTS, . . . ZOHN
    STILL HAS A DUTY TO . . . PLAINTIFF AS THOSE
    IN    POSSESSION,      RESPONSIBLE       AND
    ADMINISTERING THE NITROUS OXIDE[.]
    I.
    We begin by addressing plaintiff's first contention that the judges abused
    their discretion by erroneously applying the judicial estoppel doctrine to dismiss
    his medical negligence claim. Plaintiff argues that judicial estoppel does not
    preclude pleading facts in the alternative as it only applies to a party that
    successfully asserted a position in a prior proceeding. We conclude that the
    A-0914-19T1
    5
    judges abused their discretion by applying judicial estoppel.             See In re
    Declaratory Judgment Actions Filed by Various Municipalities, Cty. Of Ocean ,
    
    446 N.J. Super. 259
    , 291 (App. Div. 2016) (stating that we review a trial court's
    decision to invoke judicial estoppel "using an abuse of discretion standard") .
    "The judicial estoppel doctrine is an extraordinary remedy which should
    be invoked only 'when a party's inconsistent behavior will otherwise result in a
    miscarriage of justice.'" Hanisko v. Billy Casper Gold Management, Inc., 
    437 N.J. Super. 349
    , 356 (App. Div. 2014) (internal citation and quotation marks
    omitted) (quoting Kimball Intern. Inc. v. Northfield Metal Prods., 334 N.J.
    Super. 596, 606 (App. Div. 2000)). "When a party successfully asserts a position
    in a prior legal proceeding, that party cannot assert a contrary position in
    subsequent litigation out of the same events." Kress v. La Villa, 
    335 N.J. Super. 400
    , 412 (App. Div. 2000). "[T]o be estopped [a party must] have convinced
    the court to accept its position in the earlier litigation. A party is not bound to a
    position it unsuccessfully maintained[.]" 
    Kimball, 334 N.J. Super. at 606-07
    (quoting In re Cassidy, 
    892 F.2d 637
    , 641 (7th Cir. 1990)).
    Here, there is no prior or subsequent litigation. Rather, it is one case
    involving several dismissals without prejudice, subject to the re-filing of
    pleadings. Because plaintiff did not successfully assert a position in a prior
    A-0914-19T1
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    litigation and proceed to assert a contrary position in a subsequent litigation —
    as is required for the judge to apply judicial estoppel—the doctrine is wholly
    inapplicable.
    II.
    Applying a de novo review, we agree with plaintiff's second contention
    that he sufficiently pled a medical negligence claim against defendants. See
    Wrenden v. Township of Lafayette, 
    436 N.J. Super. 117
    , 124 (App. Div. 2014).
    "The court's review 'is limited to examining the legal sufficiency of the
    facts alleged on the face of the complaint[,]' and, in determining whether
    dismissal under Rule 4:6-2(e) is warranted, the court should not concern itself
    with plaintiff's ability to prove their allegations."
    Id. at 124-25
    (alteration and
    emphasis in original) (quoting Printing 
    Mart-Morristown, 116 N.J. at 746
    ). The
    court "must assume the truthfulness of the allegations contained in plaintiff['s]
    complaint[], giving plaintiff[] the benefit of all reasonable factual inferences
    that those allegations support." Edwards v. Prudential Prop. & Cas. Co., 
    357 N.J. Super. 196
    , 202 (App. Div. 2003). A plaintiff must plead "facts and . . .
    some detail of the cause of action[,]" something more than conclusory
    allegations to support their complaint. Printing 
    Mart-Morristown, 116 N.J. at 768
    .    "The examination of a complaint's allegations of fact required by the
    A-0914-19T1
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    aforestated principles should be one that is at once painstaking and undertaken
    with a generous and hospitable approach."
    Id. at 746.
    A motion to dismiss
    under Rule 4:6-2(e) should be "approach[ed] with great caution" and should only
    be granted in "the rarest of instances."
    Id. at 771-72.
    A negligence cause of action requires that a plaintiff establish four
    elements: "(1) a duty of care, (2) a breach of that duty, (3) actual and proximate
    causation, and (4) damages." Jersey Cent. Power & Light Co. v. Melcar Utility
    Co., 
    212 N.J. 576
    , 594 (2013). A medical negligence cause of action must
    establish "the applicable standard of care owed by a physician to a patient, a
    deviation from that standard of care, and that the deviation proximately caused
    the injuries[.]" Verdicchio v. Ricca, 
    179 N.J. 1
    , 23 (2004) (internal citations
    omitted).   A medical negligence claim must be "based on the improper
    performance of a professional service that deviated from the acceptable standard
    of care." Zuidema v. Pedicano, 
    373 N.J. Super. 135
    , 145 (App. Div. 2004).
    In the present case, defendants rely substantially on Zuidema, where the
    court held that a doctor's sexual assault of his patient did not fall within a
    medical negligence claim because it was "neither related to nor necessary for
    any actual medical services [the defendant] may have rendered."
    Id. at 145.
    The
    defendant's conduct was "independent of any professional services [the
    A-0914-19T1
    8
    defendant] rendered and unnecessary to it."
    Id. at 146.
    The court explained that
    "[a] doctor's duty to refrain from . . . intentional act[s], does not generally give
    rise to a medical malpractice action."
    Ibid. Here, plaintiff alleged
    he received treatment from defendants, and that
    defendants "were charged with the professional responsibility of rendering
    proper medical care and treatment to [p]laintiff[.]"        Plaintiff pleaded that
    defendants breached that care by administering nitrous oxide "far in excess of
    any amounts necessary for the dental treatment they provided." Plaintiff's
    pleading that the defendants "administer[ed] nitrous oxide for purposes other
    than for assistance in dental procedures" does not preclude the possibility that
    defendants administered nitrous oxide both when it was for the purpose of
    assistance in dental procedures and when it was not.          Given these factual
    inferences, Zuidema is inapplicable because the actions here allegedly involved
    medical treatment and were not "independent of any professional services [the
    defendant] rendered and unnecessary to [them]."
    Id. at 146.
    Finally, plaintiff
    pled that he suffered damages as a result of the maladministration of nitrous
    oxide during treatments. These pleadings, when making all factual inferences
    in favor of the plaintiff, establish a claim upon which relief may be granted.
    A-0914-19T1
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    Because we conclude the judges abused their discretion by applying the
    judicial estoppel doctrine and plaintiff sufficiently pleaded a medical negligence
    claim, we need not reach plaintiff's third argument.
    Reversed and remanded. We do not retain jurisdiction.
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