PETE STILIANESSIS v. DR. PAUL DIONNE

NOT FOR PUBLICATION WITHOUT THE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-3827-16T1

PETE STILIANESSIS,

          Plaintiff-Appellant,

v.

DR. PAUL DIONNE,

     Defendant-Respondent.
_______________________________

                    Argued October 23, 2018 – Decided November 14, 2018

                    Before Judges Fisher and Hoffman.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Docket No. L-4510-14.

                    Alan S. Pralgever argued the cause for appellant
                    (Greenbaum, Rowe, Smith & Davis LLP, attorneys;
                    Alan S. Pralgever, of counsel and on the brief; Gary L.
                    Koenigsberg, on the brief).

                    Jeffrey A. Krompier argued the cause for respondent
                    (Krompier & Tamn, LLC, attorneys; Jeffrey A.
                    Krompier, of counsel and on the brief; Valerie N.
                    Smaldone, on the brief).

PER CURIAM
        In this civil action, plaintiff Pete Stilianessis claims he suffered permanent

neurological damage resulting from negligent procedures utilized by his former

dentist, defendant Paul Dionne. After discovery, the trial judge barred plaintiff's

dental and neurological experts from testifying because, in the judge's view, they

offered only net opinions. With the same stroke of the pen, the trial judge

granted summary judgment dismissing the complaint. And, later, the judge

denied plaintiff's reconsideration motion. Plaintiff contends all these rulings

were erroneous. We agree and reverse.

        Because summary judgment was granted, we consider the facts in the light

most favorable to plaintiff, the motion's opponent. Brill v. Guardian Life Ins.

Co. of Am.,  142 N.J. 520, 540 (1995). Plaintiff claims his injuries resulted from

a dental procedure that included three injections. Defendant acknowledged at

his deposition that he did in fact inject plaintiff twice with Mepivacaine and

once with Septocaine. 1 Plaintiff's treating dentist and liability expert, Dominick


1
    At his deposition, defendant testified that he

              was testing the surface to see before I started drilling,
              which I always do. He wasn't – he was still feeling
              sensitivity on the root surface. So I gave him [one]
              carpule, waited a while, gave him another carpule of
              Mepivacaine and then waited a while, scratched the
              surface and still needed – still was feeling the


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A. Lembo, D.M.D., stated in his report that defendant deviated from the standard

of care by using Septocaine for a mandibular block or posterior superior alveolar

(PSA).2 To support his assumption that "a mandibular block was done here,"

Dr. Lembo testified at his deposition that he reached this conclusion from the

available evidence:

            A. I can only, from the notes, make the conclusion on
            my end, a posterior superior alveolar. I can't make a
            clear – I have to admit, I can't make a clear mandibular
            block, but from the patient's description.

            Q. Did the patient use the words or the term mandibular
            block, or did you understand what he meant, and then
            you used the dental terms?

            A. I would say he described the physical action of the
            injection, which was definitely commensurate with a
            mandibular block.

            Q. Okay. So although you saw no reference [in the
            defendant's notes] by name or initials or shorthand, or
            however you want to describe it, to a mandibular block,
            the way the plaintiff explained this to you, you thought
            a mandibular block was performed?

            A. Exactly.


            sensitivity on the root surface so I gave him the
            Septocaine.
2
  At times, the parties and the witnesses seem to use "mandibular block" and
"PSA" interchangeably. Whether they represent the same essential thing, or not,
the result that we reach here must be the same.
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             Q. With the use of Septocaine?

             A. I would say so, yes.

             Q. But you saw no reference to it in any of the
             documents?

             A. I have to say that that's the truth, right.

Despite Dr. Lembo's testimony that the facts warranted a conclusion that

defendant performed a mandibular block or PSA, the defense argued – and the

trial judge agreed – that Dr. Lembo provided only a net opinion because

defendant's office notes did not definitively confirm that defendant performed a

mandibular block or PSA; the notes referred to a "PA," which defendant claims

is an x-ray. The judge accepted this argument and, while focusing solely on the

content of the doctor's notes, he disregarded the other evidence that supported

the contention that defendant performed an unwarranted mandibular block or

PSA.

       Defendant, of course, may argue that his notes do not provide support for

or actually undermine the grounds upon which Dr. Lembo's opinions rest. But

the point is that there are facts in the record – not only coming from plaintiff's

testimony but defendant's as well – that support Dr. Lembo's assertion that a

mandibular block or PSA was performed and that that treatment deviated from

proper care. In ruling on defendant's motion to bar Dr. Lembo from testifying

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as an expert, the trial judge was not free to find more persuasive defendant's

version of the facts; defendant's notes – however they might be interpreted – do

not trump all the other evidence. The judge was obligated to view all the

evidence in the light most favorable to plaintiff and to determine whether there

was evidence – disputed or not – that provided support for the expert's opinions.

Application of these standards required denial of defendant's dispositive motion.

      The judge also failed to account for the fact that Dr. Lembo's opinion was

not entirely dependent on a PSA or mandibular block being performed. Dr.

Lembo provided the following testimony at his deposition:

            Two carpules of Mepivacaine and then one of
            Septo[caine], even if it was an infiltration, that's a
            pretty massive amount of vasoconstrictor in one single
            area, that might, in my opinion, create the same kind of
            injury, without being a PSA, because of the massive
            amount of epinephrine in those three injections.

            [Emphasis added.]

He explained that "Mepivacaine is pretty powerful stuff" and, when "added with

Septo[caine], I think without it being a PSA, you could still have some

problems" (emphasis added). And while Dr. Lembo capped that last comment

with "I'm making a reach there," he emphasized that this "reach" was "educated."

      A net opinion consists of nothing more than "bare conclusions,

unsupported by factual evidence." Buckelew v. Grossbard,  87 N.J. 512, 524

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(1981); see also Townsend v. Pierre,  221 N.J. 36, 50 (2015). Dr. Lembo's

opinions have factual support: the deposition testimony of both plaintiff and

defendant. He was entitled to interpret the parties' descriptions of the dental

procedure to support his conclusion that, contrary to accepted dental practices,

defendant performed a mandibular block or PSA. Far from recognizing this, the

judge relied solely on defendant's office notes, which arguably suggest a PSA

was not performed.3 That contention may ultimately win the day, but that is for

the jury to decide, not the judge by way of a procedural motion. Defendant may

continue to contend that the PA in the office notes does not reference a PSA but

an x-ray; that, however, remains to be seen. Notwithstanding the dispute about

the meaning of the notes, everything plaintiff said about the treatment and,

indeed, Dr. Lembo's own understanding of defendant's clear testimony as to

what was injected and how often, provides factual support for Dr. Lembo's

opinion that a PSA was performed and that it constituted a deviation from the


3
   The judge's opinion was handwritten at the bottom of his order. He there
described his determination that Dr. Lembo provided a net opinion by
concluding only that the report was based on what he characterized as Dr.
Lembo's "misinterpretation of the office notes of defendant" that Dr. Lembo
also, in the judge's words, failed "to resurrect . . . through his deposition
testimony." The judge did not explain further his ruling. As we have
demonstrated, defendant's office notes are not the alpha and omega here; there
were other sources of factual information upon which Dr. Lembo could rely,
including the deposition testimony of defendant himself.
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standard of care. The judge erred by exalting the importance of the doctor's note

over all else, particularly when ruling on either the application to bar Dr.

Lembo's testimony or in awarding summary judgment. What defendant actually

did in treating plaintiff is ultimately for a jury to decide.

      In concluding that plaintiff's neurological expert could not testify, the

judge again misapplied the net-opinion standard. Dr. Nabil M. Yazgi provided

a report which asserted that plaintiff's neurological problems were directly

related to the dental treatment described in the depositions. And, although at

his deposition he did not provide the precise means of the damage – testifying

at his deposition that the injury was caused by "mechanical," "chemical," or

"ischemic" means – he explained that the needle itself or the drug itself could

have caused the injury and that the facts did not yet permit a clear conclusion

about which means actually generated plaintiff's injuries. Defendant argued,

and again the judge agreed, that this was fatal. This, however, is no different

than the example of an expert permissibly testifying about a fatal gunshot that

perforated multiple organs. In that circumstance, the expert might not be able

to definitively conclude whether the victim died from the bullet's perforation of

the heart or the liver, but our evidence rules impose no such obligation. See

generally Creanga v. Jardal,  185 N.J. 345, 355-58 (2005). Dr. Yazgi's opinion


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in these circumstances – prefaced with his conclusion that the three potential

means of injury were all based, in reasonable probability, on the dental

procedure – was enough to bar the judge from labeling it a net opinion.

      Because we conclude that the judge erred in barring both Dr. Lembo and

Dr. Yazgi from providing to the jury their expert opinions, it follows like day

follows night that summary judgment was also precluded. 4

      The orders under review are reversed and the matter is remanded for trial.

We do not retain jurisdiction. 5




4
   The judge provided no separate basis for summary judgment; he merely
assumed that, without these experts, plaintiff no longer had a viable claim.
5
  Our disposition makes unnecessary any consideration of plaintiff's arguments
that defendant's summary judgment motion was filed too close in time to the
scheduled trial date to be heard, or that the trial judge erred in ruling on the
summary judgment motion without hearing oral argument.
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