SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3563-96T2
ANGELA M. ROPER and
CRAIG R. ROPER,
Plaintiffs-Appellants,
v.
RICHARD C. BLUMENFELD, D.D.S.,
Defendant-Respondent.
______________________________________________________
Argued February 18, 1998 - Decided March 9, 1998
Before Judges Pressler, Conley and Carchman.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County.
Adrian I. Karp argued the cause for appellants.
Stephen H. Schechner argued the cause for
respondent (Schechner & Decker, attorneys; Mr.
Schechner, of counsel and on the brief; Virginia
T. Shea, on the brief).
The opinion of the court was delivered by
CONLEY, J.A.D.
Plaintiffs appeal a dismissal of their dental malpractice
complaint based on a jury finding that they did not demonstrate
that defendant deviated from the accepted standard of care when
he attempted to extract tooth #31 from plaintiff Angela M. Roper
(hereinafter plaintiff). As a result of this finding, the jury
did not reach the issues of proximate cause or damages. We
reverse.
Plaintiff claims damage to her right inferior alveolar
nerve, the symptom of which is permanent numbness. The nerve
lies just underneath the roots of the molar teeth. Here is what
occurred. On December 7, 1991, while biting down on a Goober's
chocolate candy, plaintiff broke off a portion of her lower
second right molar (tooth #31). On either Monday or Tuesday,
she made an appointment with defendant for early Thursday
evening, December 12, 1991. She experienced "slight tingling,"
some sensitivity to hot and cold, but no pain or numbness.
Defendant practices general dentistry. After examining
plaintiff's tooth and taking x-rays, defendant diagnosed
irreversible pulpitis, an inflammation of a dying nerve within
the tooth, but not affecting the inferior alveolar nerve. He
advised plaintiff that she had two options, either a root canal
or extraction of the tooth. Plaintiff agreed to the extraction.
She claims, however, that defendant failed to discuss with her
any of the risks inherent in tooth extraction, particularly
temporary or permanent numbness. Defendant, on the other hand,
insisted that he warned plaintiff of several possible risks
associated with extractions including swelling, infection,
numbness and a broken jaw.
In any event, and after plaintiff signed a consent form, the
procedure commenced. The procedure was obviously difficult; five
injections of anesthesia were required and the procedure lasted
one and one-half hours. According to plaintiff, she heard "a lot
of really horrible crunching noises" and experienced pain.
During the extraction, defendant placed a dental elevatorSee footnote 1
between teeth #30 and #31 and "luxated" tooth #31, producing some
very slight movement. When defendant attempted this, plaintiff
felt pain; that was when he gave her the fifth injection. Then
he placed forceps on the crown of the tooth as far down as
possible. Applying pressure, the bone should expand to allow the
tooth out. At this point, the top of the crown of plaintiff's
tooth fractured and defendant suctioned the area, removing tooth
fragments with the dental elevator. When the crown and part of
the tooth fractured horizontally below the gum, it left the
residual root of the tooth "deeply embedded in bone." After
taking an x-ray to confirm this and recognizing that retrieval of
the root tip required cutting through the side of the gum, a
procedure beyond his expertise, defendant called Dr. Michael
Erlichman, an oral surgeon, and arranged for him to remove the
root the following morning.
Numbness is a sign of injury to the inferior alveolar nerve.
There was much dispute over when plaintiff began to experience
such numbness. It was critical whether she experienced numbness
shortly after defendant's procedure, for if she had done so that
would indicate an injury to the nerve. The evidence as to this
is as follows.
After the procedure, plaintiff left defendant's office and
drove to her mother's house to spend the night. Arriving at the
house, while "very upset," plaintiff was not in pain, but the
inside of her lip and chin were numb. She spoke with her husband
who testified that he did not recall whether she had complained
of any numbness to him at that time. Mrs. Russo, plaintiff's
mother, however, testified that when her daughter arrived at her
house, her face was swollen and she was very upset, telling her
that her lip, chin and jaw were numb. When plaintiff awoke in
the morning, her right lower lip and jaw were still numb and her
face was swollen. Upon attempting to drink some coffee with her
mother, she noticed that she was drooling and could not sense
that the temperature was hot.
Plaintiff was driven to Dr. Erlichman's office by her
friend, Terry Ross. Terry Ross testified that during the drive
to Dr. Erlichman's office, the right side of plaintiff's face was
very swollen. She testified that plaintiff told her that her
face was numb, but she did not complain of any pain. Defense
counsel's objection, however, to her testimony concerning
plaintiff's complaints of numbness, was sustained.
Although, therefore, plaintiff maintained that she had
complaints of numbness prior to her appointment with Dr.
Erlichman, it seems that she did not inform Dr. Erlichman about
this. Dr. Erlichman's office records reflect only that plaintiff
was anxious and complaining of pain in the temporal area, but
contain no complaints of numbness. The record does not reflect,
however, whether plaintiff was asked by anyone in Dr. Erlichman's
office if she had numbness. In any event, she signed a consent
form which provided in part:
Dr. Erlichman has explained to me that there
are certain inherent and potential risks in any
treatment plan or procedure, and that in this
specific instance such operative risks include,
but are not limited to:
. . .
Injury to the nerve underlying the teeth
resulting in numbness or tingling of the
lips, chin, gums, cheek, teeth and/or tongue
on the operated side; this may persist for
several weeks, months, or in remote
instances, permanently.
Dr. Erlichman testified that he removed the root tip by
making "a tiny incision in the gum," removing a piece of bone,
and then teasing the root from its socket. The surgery took
thirty-five minutes. He denied injuring plaintiff during the
procedure and claimed not to have seen any damage to the nerve.
He testified that a patient can sustain an altered sensation from
an extraction of a tooth in several ways including post-operative
swelling, such as that observed in plaintiff directly adjacent to
the extraction site. On cross-examination he testified that he
did not see any damage to the nerve when he looked in the nerve
canal.See footnote 2
On December 15, 1991, plaintiff telephoned Dr. Erlichman's
office and complained of numbness in her right chin and lower
lip. When Dr Erlichman asked if she had experienced this problem
before his surgery, she stated that she was not sure. Dr.
Erlichman testified that the only condition of numbness that he
had discussed with her was after the extraction. He insisted a
patient's complaint of numbness would be denoted in his records.
Plaintiff's expert, Dr. Alan Schwimmer, D.D.S., a board
certified oral and maxillofacial surgeon at Beth Israel Hospital
in New York, examined plaintiff on April 8, 1993. He confirmed
that plaintiff suffers from hypesthesia (numbness) of the lip and
chin on the right side of her face. In his opinion, and premised
upon plaintiff's immediate and continuing complaints of numbness
following defendant's treatment, defendant deviated from the
accepted standard of care because the extraction of tooth #31
"ought not to cause permanent injury to the inferior alveolar
nerve. It is not an expected anticipated or reasonable
complication of the extraction." He found a deviation based,
further, upon the length of defendant's procedure, the fact that
plaintiff experienced pain during it and the use of the elevator.
He was convinced that defendant must have used "[e]xcessive
force, extensive manipulation of the tooth" or allowed the
elevator to slip. But he conceded that he had no factual support
for his theory as to how the dental elevator was used and how the
injury had occurred. Dr. Schwimmer insisted that because he
believed that plaintiff was injured prior to seeing Dr.
Erlichman, as reflected by her complaints of numbness, Dr.
Erlichman's surgery could not have caused her injury.
Defendant's expert, Dr. Marvin J. Ladov, D.D.S., a board
certified oral and maxillofacial surgeon reviewed defendant's
treatment and also examined plaintiff. In his opinion, defendant
did not deviate from the standard of care. He had no criticism
regarding the number of injections given to plaintiff or the
manner of defendant's extraction. He did not believe that
defendant's treatment caused plaintiff's numbness, noting that
examination of plaintiff's pre-operative and post-operative x-rays indicated that the root of the tooth appeared to be in the
same position. Dr. Schwimmer agreed that there was no visual
evidence from the pre-operative and post-operative x-rays that
plaintiff's root tip was invading or affecting the inferior
alveolar canal when she left defendant's office. He admitted,
however, that x-rays will not depict nerve damage. It was his
opinion that the damage to plaintiff's nerve resulted from Dr.
Erlichman's surgery because he was "surgically operating in the
vicinity of that nerve, very close to that nerve" and a "known
risk . . . of root removal . . . near a nerve . . . [is]
numbness." Further, he testified that plaintiff's tooth "had
long roots and it had a conical root. That's unusual for tooth
31." Due to the intertwined nature of plaintiff's conical root,
there "was really no way" the tooth could have been "moved
downward" by defendant so as to impinge upon the alveolar nerve.
He also disputed Dr. Schwimmer's opinion that the presence of
numbness depicts negligence. He was adamant that numbness can
occur in the absence of someone's negligence. It was his opinion
that plaintiff's paresthesia was an inherent risk of the
extraction of her tooth. A critical issue for the jury to
resolve then, was the difference of opinion as to whether injury
to the inferior alveolar nerve was an inherent risk of the
procedures performed by defendant or an indication of negligence.
On appeal, plaintiff raises the following issues:
POINT I. THE TRIAL JUDGE'S REFUSAL TO CHARGE
THE DOCTRINE OF RES IPSA LOQUITUR
AS SPECIFIED IN THE STANDARD CIVIL
JURY CHARGE 5.13 [INCLUDING WHERE
"EXCLUSIVE CONTROL" IS IN ISSUE]
CONSTITUTES REVERSIBLE ERROR.
POINT II. THE PREJUDICIAL EFFECT OF THE TRIAL
JUDGE'S ERRONEOUS CHARGE OF AN
EXERCISE OF JUDGMENT WAS NOT AND
COULD NOT BE CURED BY HER
SUBSEQUENT BRIEF COMMENT AND
UNRELATED RECHARGE OF THE JURY AND
CONSTITUTES REVERSIBLE ERROR.
POINT III. THE TRIAL JUDGE ERRED IN REFUSING
TO ALLOW NICOLINA RUSSO AND TERRY
ROSS TO OFFER TESTIMONY AS AN
EXCEPTION TO THE HEARSAY RULE
PURSUANT TO N.J.R.E. 803(c)(3)
SINCE THIS WOULD HAVE CORROBORATED
PLAINTIFF'S TESTIMONY ON THE
CENTRAL ISSUE OF WHEN PLAINTIFF
FIRST EXPERIENCED NUMBNESS OF THE
LOWER JAW.
POINT IV. THE TRIAL JUDGE ERRED IN DENYING
THE ADMISSIBILITY OF THE POST-OPERATIVE INSTRUCTIONS WHILE
ADMITTING THE INFORMED CONSENT FORM
AND IN LIMITING COMMENTS DURING THE
SUMMATION OF PLAINTIFF'S COUNSEL.
POINT V. THE TRIAL JUDGE ERRED IN HER
RULINGS ON THE USE OF A DENTAL
ARTICLE WHICH WAS PUBLISHED
SUBSEQUENT TO DEFENDANT'S NEGLIGENT
TREATMENT WHICH INFLICTED INJURY
UPON PLAINTIFF.
POINT VI. PLAINTIFF SHOULD BE GRANTED A NEW
TRIAL BECAUSE THE JURY'S VERDICT
WAS AGAINST THE WEIGHT OF THE
EVIDENCE.
We have considered these issues in light of the entire record and applicable law. We are convinced that points I and III require a reversal and new trial. We need not address plaintiff's other contentions. Since there will be a new trial,
however, we comment on point V only to note that plaintiff did not object to the use of the 1992 Parameters of Care for Oral and Maxillofacial Surgery: A Guide of Practice, Monitoring and Evaluation in connection with the cross-examination of her expert and the examination of defendant's expert on the basis that it did not satisfy the learned treatise exception to the hearsay rule. See Jacober v. St. Peter's Med. Ctr., 128 N.J. 475, 491 (1992), modified in part on other grounds, 130 N.J. 586 (1992); N.J.R.E. 803(c) (18). Her contention was that since the article was not published until 1992, it could not reflect the standard of care in 1991 at the time of the alleged malpractice and thus was irrelevant. See Kimmel v. Dayrit, 301 N.J. Super. 334, 356 n.11 (App. Div.), certif. granted, 151 N.J. 465 (1997). But the article was not used to establish a standard of care. It was used to impeach Dr. Schwimmer's assertion that damage to the inferior alveolar nerve when extracting tooth #31, and thus permanent numbness, was not an expected injury of such extraction. This, of course, was critical to plaintiff's theory of liability for, although Dr. Schwimmer attempted to explain how the injury occurred with the use of the elevator device, it is evident that the basic premise of his opinion was his assertion that plaintiff was injured by defendant. That injury was evidenced by her immediate and continuing numbness. Thus, the essence of the doctor's opinion was that because plaintiff sustained an injury during defendant's failed attempt at extraction, defendant must have deviated from the standard of care because such injury is not a medically accepted risk of the
procedures he performed. As to this claim, the article is quite
relevant for it lists as a known risk and complication of
"erupted" teeth "[o]ral-facial neurologic dysfunction."See footnote 3
And this leads us to res ipsa loquitur. Ordinarily, a medical malpractice claim requires that "`the standard of practice to which [the defendant] failed to adhere must be established by expert testimony.'" Kelly v. Berlin, 300 N.J. Super. 256, 264-65 (App. Div. 1997) (quoting Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)). See Sanzari v. Rosenfeld, 34 N.J. 128, 134-35 (1961). A plaintiff may, however, in certain limited circumstances, demonstrate negligence without expert opinion as to a standard of care and deviation if evidence is presented that would allow the jury to reasonably infer that the harm would not have occurred but for the doctor's negligence. Sanzari v. Rosenfeld, supra, 34 N.J. at 140-41. In this respect, res ipsa loquitur creates an allowable inference of defendant's negligence when three elements are shown: (1) the accident which produced a person's injury was one which ordinarily does not happen unless someone was negligent; (2) the instrumentality or agent which caused the accident was within the defendant's exclusive control and (3) there is no indication in the
circumstances that the injury was the result of plaintiff's own
voluntary act or neglect. Buckelew v. Grossbard,
87 N.J. 512,
525 (1981); Luciano v. Port Auth. Trans-Hudson Corp.,
306 N.J.
Super. 310, 313 (App. Div. 1997) (citing Eaton v. Eaton,
119 N.J. 628, 638 (1990)); Maciag v. Strato Med. Corp.,
274 N.J. Super. 447, 460 (App. Div. 1994).
Res ipsa loquitur has been described as a rule of
circumstantial evidence. Myrlak v. Port Auth of New York and New
Jersey,
302 N.J. Super. 1, 12 (App. Div.), certif. granted,
152 N.J. 10 (1997); Tierney v. St. Michael's Med. Ctr.,
214 N.J.
Super. 27, 30 (App. Div. 1986), certif. denied,
107 N.J. 114
(1987). The doctrine is grounded in probabilities as to an
accident's having occurred without negligence on the part of a
defendant. "[D]epending upon the probabilities, the res ipsa
loquitur doctrine can apply in a medical malpractice context."
Buckelew v. Grossbard, supra, 87 N.J. at 526. "Where, for
example, a surgical sponge is left inside a patient after an
operation, it is reasonable to say the probability is that
someone has been negligent." Sanzari v. Rosenfeld, supra, 34
N.J. at 140.
Unlike the related but distinct doctrine of common
knowledge, res ipsa loguitur requires expert testimony "to the
effect that the medical community recognizes that an event does
not ordinarily occur in the absence of negligence." Buckelew v.
Grossbard, supra, 87 N.J. at 527; Smallwood v. Mitchell,
264 N.J.
Super. 295, 297-98 (App. Div.), certif. denied,
134 N.J. 481
(1993). Although we observed in Wagner v. Deborah Heart & Lung
Ctr.,
247 N.J. Super. 72, 77-78 (App. Div. 1991), that "[o]ne
exception to the necessity for an expert witness to establish the
standard of care and deviation is recognized when the doctrine of
res ipsa loquitur is applicable" and that "before res ipsa
loquitur may be utilized to avoid the necessity of an expert,
plaintiff's evidence must demonstrate that occurrence itself
ordinarily bespeaks negligence," we were referring to the
necessity of an expert as to a standard of care and deviation.
(Emphasis added). Where res ipsa loquitur applies, plaintiff
need not establish a medical standard of care and deviation. But
if res ipsa loquitur is to be relied upon, there must be expert
testimony to the effect that the medical community recognizes
that the injury would not have occurred without negligence so as
to establish the first element of res ipsa loquitur.
Frequently, however, a plaintiff's expert, in addition to
offering a res ipsa loquitur opinion, will also attempt to
provide an opinion as to a standard of care and deviation in the
actual procedure, such as did plaintiff's expert here. This, of
course, is done to avoid a "net opinion" problem. Nonetheless,
where there is expert testimony in a medical malpractice case
that the particular event or injury would not have occurred had
the targeted defendant adhered to the appropriate standard of his
profession, and regardless of the strength or weakness of any
other aspect of the expert's opinion, a plaintiff is entitled to
rely upon res ipsa loquitur either to overcome a motion for
involuntary dismissal or as a basis for the jury to draw an
inference of negligence. Buckelew, supra, 87 N.J. at 527.
Moreover, the "plaintiff is not required to eliminate with
certainty all other possible causes or inferences, which would
mean that the plaintiff must prove a civil case beyond a
reasonable doubt. All that is needed is evidence from which
reasonable persons can say that on the whole it is more likely
that there was negligence associated with the cause of the event
than that there was not." W. Page Keeton et al., Prosser and
Keeton on the Law of Torts, § 39, at 248 (5th ed. 1984); Brown v.
Racquet Club of Bricktown,
95 N.J. 280, 292 (1984).
As we have said, plaintiff's evidence here was essentially
that an injury of the type she sustained does not occur without a
deviation. To be sure, defendant hotly disputed both the factual
assertion that her numbness, and thus nerve damage, had its onset
immediately after his treatment and prior to Dr. Erlichman's
treatment and also that such injury is not an expected risk of a
tooth extraction of the type performed here. But we have held
that "[[i]f the evidence presents a factual issue as to how an
accident occurred, and the res ipsa loquitur doctrine would be
applicable under only one version of the accident, the court
should give a `conditional' res ipsa loquitur instruction, under
which the jury is directed first to decide how the accident
happened and to consider res ipsa loquitur only if it finds that
the accident occurred in a manner which fits the doctrine."
Allendorf v. Kaiserman Enters.,
266 N.J. Super. 662, 669 (App.
Div. 1993). Here, if the jury accepted plaintiff's evidence, res
ipsa loquitur would apply. According to Dr. Schwimmer, nerve
injury in the course of an attempted tooth extraction such as
performed by defendant is medically unacceptable and is an
occurrence which bespeaks negligence. Although the broken part
of the tooth was later extracted by Dr. Erlichman, Dr. Schwimmer
adamantly ruled out his treatment as a cause of the injury since,
according to plaintiff, her numbness commenced with defendant's
treatment. And certainly it was never asserted that plaintiff
did anything to cause the nerve damage. Plaintiff's evidence,
then, established all three prongs of the res ipsa loquitur
doctrine.
The trial judge, however, denied plaintiff's request to
charge res ipsa loquitur for the following reasons:
With regard to the res ipsa case and the
request to charge on that basis. If, in
fact, Dr. Erlichman was a party to this case
and was a defendant in this case, res ipsa
would, in fact, be the appropriate charge,
because based upon the testimony of the
medical experts and the two dentists
themselves, that would raise a question of
control, who was in a position to know what
happened or what did not happen, and take
this . . . out of the area of plaintiff's
burden of proof and provide that inference to
the plaintiff. But, in fact, . . . that is
not the case. Plaintiff's own expert and
factual witnesses take completely divergent
position[s]. And the fact questions that
have been presented, the expert opinions that
have been presented, clearly say to this
Court that this is not a res ipsa case.
[Emphasis added.]
The fact that Dr. Erlichman was not also sued, however, does not preclude application of the doctrine. Plaintiff's burden is to exclude the possibility of another cause of the injury. The only other cause here was Dr. Erlichman. He need not be named as a defendant to be excluded as a cause; Dr. Schwimmer's evidence, if
accepted by the jury, excluded him. Contrast Posta v. Chung-Loy,
306 N.J. Super. 182, 200 (App. Div. 1997); Smallwood v. Mitchell,
supra, 264 N.J. Super. at 298. Simply put, if believed by the
jury, plaintiff's expert evidence would have allowed an inference
that more likely than not defendant was negligent and caused
plaintiff's injury.
It has been said that error in failing to charge res ipsa
loquitur where the doctrine is applicable cannot be considered
harmless. Vespe v. DiMarco,
43 N.J. 430, 435-36, 439 (1964);
Terrell v. Lincoln Motel, Inc.,
183 N.J. Super. 55, 59-61 (App.
Div. 1982). We are convinced the error became particularly
significant in the context of the medical malpractice charge
given the jury. After being instructed that plaintiff must
demonstrate a deviation through expert evidence, the jury was
told:
In examining the conduct of a defendant
dentist to determine whether there is a deviation
from a standard of care, that is whether he was
negligent, you should understand that the law
recognizes that the practice of medicine and
dentistry is not an exact science. Therefore, the
law recognizes that the practice of medicine and
dentistry, according to accepted medical
standards, will not prevent a poor or
unanticipated result. If a dentist has applied
the required knowledge, skill and care in the
diagnosis and/or treatment of a patient he is not
negligent simply because a bad result has
occurred. If you find that the defendant has
complied with that standard of medical care, then
he is not liable to plaintiff regardless of the
results.See footnote 4
This language tells the jury that injuries and bad results can
occur even where the doctor has not deviated from the accepted
standard of care and that, thus, the fact of an injury or bad
result does not establish negligence. The language essentially
removed consideration of Dr. Schwimmer's opinion since it was, in
its essence, an opinion that the injury established the
deviation. This is the very reason why a modified res ipsa
loquitur charge was required. See Terrell v. Lincoln Motel,
Inc., supra, 183 N.J. Super. at 59-60. Plaintiff was entitled to
have the jury told that if it believed that the onset of her
numbness began with defendant's procedures and if it believed
that the risk of damage to the inferior alveolar nerve was not a
normal risk inherent in defendant's procedures on plaintiff's
tooth #31, then it could infer defendant deviated from the
accepted standard of care even though it might reject Schwimmer's
theory that the damage occurred with the use of the elevator
device. Cf. Vespe v. DiMarco, supra, 43 N.J. at 439.
Plaintiff contends that the trial judge erred in sustaining counsel's objection to the testimony from plaintiff's mother and her friend concerning her complaints of numbness to them after defendant's treatment and before she went to Dr. Erlichman. The timing of the onset of the numbness, of course, was crucial to plaintiff's case. We agree that such evidence should have been admitted.
Replacing former Evid. R. 63(12), N.J.R.E. 803(c)(3)
continued that exception to the hearsay rule by providing:
Then existing mental, emotional, or physical
condition. A statement made in good faith of the
declarant's then existing state of mind, emotion,
sensation or physical condition (such as intent,
plan, motive, design, mental feeling, pain or
bodily health), but not including a statement of
memory or belief to prove the fact remembered or
believed unless it relates to the execution,
revocation, identification, or terms of
declarant's will.
"Statements of the declarant's present bodily condition and
symptoms, including pain and other feelings, offered to prove the
truth of the statements have been generally recognized as an
exception to the hearsay rule." McCormick on Evidence § 273, p.
226 (West, 4th ed. 1992). "The general requirement is merely
that the statements shall be the spontaneous and natural
expressions of the pain or suffering." 6 Wigmore on Evidence §
1719, p. 103 (Chadbourne rev. 1976). Therefore, if circumstances
demonstrate a lack of spontaneity, the statement should be
excluded. McCormick, supra, at 227.
As indicated in the text of the rule, the statement offered
must be made in "good faith," or in a "natural manner and under
circumstances dispelling suspicion and involving no suggestion of
sinister or improper motives . . . ." State v. Thornton,
38 N.J. 380, 390 (1962), cert. denied,
374 U.S. 816,
83 S. Ct. 1710,
10 L. Ed.2d 1039 (1963) (applying former Evid. R. 63(12)). One
consideration relevant to good faith is the existence of a time
lag between the onset of the physical condition or sensation and
the actual verbal statement of the condition. State v. Williams,
106 N.J. Super. 170, 172-73 (App. Div.), certif. denied,
55 N.J. 78 (1969), cert. denied,
397 U.S. 1057,
90 S. Ct. 1405,
25 L. Ed.2d 675 (1970) (in deciding whether a statement is admissible
under former Evid. R. 63(12) to show the declarant's previous
state of mind, "the court is invested with a discretion to refuse
to admit such evidence where because of the circumstances and the
interval between the time of the declaration and the previous
time referred to, it concludes that there is no reasonable basis
for finding that a continuity of that state of mind exists.").
In Fagan v. City of Newark,
78 N.J. Super. 294, 304 (App.
Div. 1963), the court determined that a man's statement that he
felt ill and dizzy prior to suffering a fatal heart attack was
"admissible under the rule that a declaration as to the
declarant's present bodily condition and symptoms, made naturally
and without apparent premeditation, is an exception to the
hearsay rule." (citing McCormick on Evidence, supra, § 272). The
declaration does not necessarily need to be made to a physician
to qualify. Ibid. (citing De Palma v. Economy Auto Supply Co.,
3 N.J. Misc. 827 (Sup. Ct. 1925), aff'd,
102 N.J.L. 714 (E. & A.
1926)). In De Palma, supra, a father and twelve-year old girl
were awarded damages for personal injuries they suffered in a car
accident. The trial court permitted the girl's mother to testify
that following the accident, "[a]t night [her daughter] cried"
and told her mother "her arm hurts her." Id. at 828. The court
found the testimony admissible, stating "[a] nonexpert witness
may testify to such exclamations and complaints as indicate
present existing pain and suffering."
In the present case, on direct examination plaintiff's
counsel asked Mrs. Russo, plaintiff's mother, if she had made any
observations of the way her daughter drank her coffee. When Mrs.
Russo began to testify as to what plaintiff told her, defense
counsel objected. The trial judge sustained the objection
stating:
I tend to agree with counsel that there
has been testimony by the plaintiff as to
what she said to her mother as to what the
condition was. The mother's purpose here is
testifying as to her observations and I have
no problem with her testifying as to what she
observed. And I'm not certain as to whether
the DePalma case may have, in fact, dealt
with a minor child, someone who could not
provide that testimony on their own. I think
under the circumstances I'm going to sustain
the objection.
The thrust of this ruling seems to be the availability of
plaintiff to tell the jury what she had told her mother. The
judge apparently thought that the mother should testify only as
to her own observations. But the very purpose of the exceptions
to the hearsay rule, where applicable, are to permit a witness to
testify as to what someone else said.
The other disputed hearsay testimony came from Ms. Ross,
plaintiff's friend and tenant, who drove plaintiff to and from
her appointment with Dr. Erlichman. After plaintiff's counsel
asked whether plaintiff had complained of any pain during the car
ride, Ms. Ross testified "[n]o, she complained that she was
numb." The trial judge sustained defense counsel's objection to
this testimony also.
These hearsay statements were expressions of plaintiff's
then present sensations, or lack thereof. They were expressed
shortly after defendant's treatment, and under circumstances that
do not suggest anything other than good faith complaining to
people one naturally would voice concerns to. There is nothing
to suggest plaintiff's statements to her mother and her friend
were premeditated or spoken in bad faith.
The verdict of no cause of action is reversed. The matter is remanded for a new trial consistent with this opinion.
Footnote: 1 A dental elevator is a device which is wedged between two teeth to loosen one tooth in order to extract it with forceps. Footnote: 2 Plaintiff's expert, Dr. Alan Schwimmer, D.D.S., insisted that this is a medically unreasonable statement because the nerve has to be dissected out in order for injury to it to be observed. Footnote: 3 Dr. Schwimmer disputed the efficacy of the article, asserting that it was a "defensive" publication. He also asserted that other articles which include nerve damage or permanent numbness as a known risk of extraction relate to tooth #32, not tooth #31. He contended tooth #32 is in much closer proximity to the alveolar nerve. These criticisms of the articles, including the "parameters," were, of course, for the jury to consider. Footnote: 4 We note, too, the judge's initial "professional judgment" charge, which she subsequently cured. See Morlino v. Medical Ctr. of Ocean County, 295 N.J. Super. 113, 127-28 (App. Div. 1996), certif. granted, 149 N.J. 34 (1997), aff'd as modified,
____ A.2d ____ (1998).