NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3077-19
THOMAS PAGUREK and IRENA PAGUREK,
Plaintiffs-Appellants,
v.
BETH J. DORFMAN, D.D.S., RALPH S. REILLY, D.M.D., and ADVANCED DENTISTRY,
Defendants-Respondents. ____________________________
Argued April 13, 2021 – Decided May 5, 2021
Before Judges Yannotti and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8065-18.
Christian R. Mastondrea argued the cause for appellants (Shebell & Shebell, LLC, attorneys; Christian R. Mastondrea, on the brief).
Michael R. Ricciardulli argued the cause for respondents (Ruprecht, Hart, Ricciardulli & Sherman, LLP, attorneys; Michael R. Ricciardulli, of counsel and on the brief; Brion D. McGlinn, on the brief).
PER CURIAM
Plaintiffs Thomas Pagurek and Irene Pagurek appeal from an order entered
by the Law Division on February 14, 2020, which granted a motion by
defendants Beth J. Dorfman, D.D.S., and Ralph S. Reilly, D.M.D., for summary
judgment.1 Plaintiffs also appeal from an order dated March 27, 2020, which
denied their motion for reconsideration. We affirm.
I.
On December 4, 2018, plaintiffs filed a complaint in Middlesex County
against Dr. Dorfman and Dr. Reilly, who practice dentistry as employees,
agents, or principals of Advanced Dentistry, a dental practice group licensed to
do business in New Jersey. Plaintiffs alleged that Thomas came under
defendants' care, and they recommended extensive dental reconstruction, which
included the placement of dental implants.
Plaintiffs claimed that in January 2017, Thomas learned that one of the
implants perforated his sinus cavity, resulting in damage to his facial nerves.
Plaintiffs alleged defendants negligently, carelessly, and recklessly failed to
1 Because plaintiffs have the same surname, we refer to Thomas Pagurek as "Thomas" and Irene Pagurek as "Irene." A-3077-19 2 obtain diagnostic tests; failed to provide proper informed consent; and
negligently, carelessly, and recklessly performed the treatment or procedure in
violation of the accepted standard of care, which included the failure to place
Thomas's implant properly. Irene asserted a per quod claim, alleging that as a
result of defendant's negligence, she suffered the loss of Thomas's services,
society, and consortium.
On January 23, 2019, defendants filed an answer in which they denied
liability and asserted various affirmative defenses. After the completion of
discovery, defendants filed a motion for summary judgment. They argued that
plaintiffs' claims were barred by the applicable statute of limitations. Plaintiffs
opposed the motion and sought a Lopez2 hearing to determine when the cause
of action accrued.
The record before the court on defendants' motion revealed the following.
In December 2014, Thomas sought treatment at Advance Dentistry and
defendants recommend the placement of dental implants in his lower and upper
jaw. Defendants recommended, however, that plaintiff should see an oral
maxillofacial surgeon to evaluate his upper arch because he "had a significant
2 Lopez v. Swyer, 62 N.J. 267, 272 (1973). A-3077-19 3 number of voids," and he would likely need bone grafts prior to the placement
of any implants in the upper arch.
In March 2015, Dr. James McMenamin performed a bone graft procedure
on Thomas's upper arch. Dr. Dorfman placed implants on Thomas's bottom arch
on May 28, 2015, and she placed implants in Thomas's upper arch on January
25, 2016. Thomas had a follow-up appointment with Dr. Dorfman on April 25,
2016. He was experiencing pain in three of the implants. Plaintiff was told that
three of the implants had failed and would have to be removed.
On that same day, defendants removed two of the implants. They referred
Thomas to Dr. McMenamin to remove the third implant. At his deposition,
Thomas testified Dr. Dorfman told him she was concerned because the third
implant was near his sinus and she did not feel comfortable removing it.
Thomas saw Dr. McMenamin the next day and he removed the third
implant. Shortly thereafter, Thomas noticed that when he brushed his teeth or
had something to drink, liquids would come out of his nose. Dr. Dorfman told
Thomas to see Dr. McMenamin, who said he should wait a month to see if the
problem would heal on its own.
Because the complications continued, Dr. McMenamin attempted to close
the perforation in Thomas's sinus cavity by performing a "flapectomy." After
A-3077-19 4 Dr. McMenamin performed the procedure, liquids continued to leak into
Thomas's nasal cavity, and he developed a sinus infection. On January 19, 2017,
Dr. McMenamin performed another procedure at Jersey City Medical Center to
close the perforation in Thomas's sinus cavity.
At his deposition, Thomas was asked how he first became aware there was
a hole in his sinus cavity. He testified that he became aware of the hole in June
or September 2016, when Dr. McMenamin told him they were going to perform
a "flapectomy" to close the hole.
Q. And did he explain it was to close a hole?
A. Yes.
Q. Okay. And you knew where the surgery was taking place, correct?
Q. on the upper left side--
Q. --of your mouth. Okay. And did you ask him why there was a hole there?
A. He said there's a perforation of the sinus.
Q. And did he tell you what caused the perforation of the sinus?
A. No that was pretty obvious.
A-3077-19 5 Q. And why was it obvious?
A. Well, let's see. The only thing that was there that could have penetrated my sinus cavity was an implant, so it was removed, now there's a hole.
Thomas also was asked about a timeline he had prepared detailing his
procedures and medical expenses that he had provided with his certification and
answers to interrogatories. He testified that he prepared the timeline when he
began to suspect his care could lead to litigation. He testified as follows:
Q. You started the timeline in May of 2016--
A. Correct. Yes.
Q. --when you first noticed liquid coming out of your nose?
A. Liquid out of my nose. Let's see what was being done.
Q. Okay. What was the purpose of creating this timeline?
A. Just in case something like this might come about.
Q. In case there was a lawsuit and you had to sit for a deposition?
A. Right. Just in case I wanted to have a clear, concise review of all the events taking place and remember the dates . . . .
A-3077-19 6 Counsel for defendants asked Thomas when he created the timeline. He
stated that he "started working on it right after [he] had the. . . was scheduled
for the flapectomy." He could not recall when the procedure was performed.
He stated, however, that he may have prepared the timeline in September 2016,
when Dr. McMenamin first attempted to close the perforation. He testified as
follows:
Q. So, to the best of your recollection, before you underwent the first flapectomy procedure with Dr. McMenamin, you started this timeline, correct?
A. Correct. Because I said this--you don't just have a hole in your head.
Q. Okay. And according to this timeline, it looks like September 2016 you say Dr. McMenamin scheduled/performed a procedure to attempt closure, in-office procedure.
A. Where was this? Which one? What date?
Q. September[?]
A. September 2016.
Q. Right. I don’t see June, 2016.
A. Maybe that was it. Maybe it was September. Okay. So September--Yup.
A-3077-19 7 In his certification of January 13, 2020, Thomas asserted that while he
was told in April 2016 that the implants had failed, defendants said his history
of smoking caused the implant failure. He stated that during the surgery in
January 2017, he had been shown a picture of the hole in his sinus. Thomas said
this was the first time he "realized" the size of the hole looked like the size of
the implant. He stated that he then realized Dr. Dorfman had probably placed
the implant into his sinus.
Thomas also discussed the timeline he created about his treatment. He
noted that at his deposition he had testified that he made the timeline for the
purposes of "possible litigation," but this was an "oversimplification" on his
part. He said defendants told him the sinus hole would heal without further
complications. He asserted that, at the time, he trusted and believed defendants.
He claimed that in May 2017, he still did not know the implant was the cause of
the perforation.
Thomas further stated that he believed that keeping a complete list of his
treatment would be a chronicle of his future treatment and help him "figure out
what had occurred." He said the timeline has helped him answer questions
during the litigation, but it was not "initially intended" to be presented to an
A-3077-19 8 attorney because he "had not understood that malpractice had occurred." He
claimed defendants were still assuring him "nothing untoward had occurred."
On February 14, 2020, Judge Jamie D. Happas heard oral argument on the
motion and thereafter entered an order granting summary judgment in favor of
the defendants for reasons stated in an attached written statement. The judge
found that plaintiffs were alleging that defendants negligently placed the implant
on January 25, 2016.
The judge noted that the applicable statute of limitations for such a claim
is N.J.S.A. 2A:14-2, which required plaintiffs to file their complaint within two
years after the cause of action accrued. Thus, plaintiffs were required to file
their complaint by January 25, 2018.
Judge Happas then considered whether the discovery rule tolled the
running of the statute of limitations. The judge found Thomas knew there was
a basis for his claim against defendants in September 2016, when he prepared
the timeline of his treatment. The judge noted that at least by that time, Thomas
was aware of the hole in his sinus cavity, and he testified it was "pretty obvious"
the perforation had been caused by the implant, not his history of smoking.
The judge also found a Lopez hearing was unnecessary because there was
no genuine issue of material fact regarding the discovery date. The judge
A-3077-19 9 concluded that plaintiffs' claims were barred by the statute of limitations, and
defendants were entitled to summary judgment.
Plaintiffs filed a motion for reconsideration. In support of the motion,
plaintiffs submitted a certification by Thomas dated March 1, 2020, in which he
noted that during his deposition, he had been questioned about the timeline he
prepared concerning his treatment. He stated that he "now" realized that during
his deposition, he "was confused" about the date when he prepared the timeline.
Thomas asserted that he had testified that he began to prepare the timeline
sometime after Dr. McMenamin performed a surgical procedure in April 2016,
but he was "apparently confused and mistaken." He said that after the judge's
decision on summary judgment, he searched his computer and found that he had
created the timeline on February 1, 2017. He attached a copy of a screen shot
showing "the file creation date."
Thomas also claimed he had "confused" the April 2016 surgery with the
January 2017 surgery "under the pressure of the deposition." He said that
throughout his treatment by defendants, he had been "assured nothing untoward
had occurred." He stated that he continued to treat with defendants until
September 2018, and they never suggested "anything was wrong with the way
the implant was placed."
A-3077-19 10 On March 27, 2020, Judge Happas heard oral argument and filed an order
denying the motion for reasons set forth in a statement attached to the order.
The judge noted that plaintiff's arguments were, for the most part, the same
arguments previously presented. The judge also noted that the facts Thomas
presented in his second certification should have been presented earlier.
Judge Happas found that, even if the court considered the new evidence,
reconsideration of the earlier decision was not warranted. The judge stated that
the accrual date for the statute of limitations "does not depend on when the
[p]laintiff created the timeline, but rather when plaintiff had enough knowledge
to form the basis of a cause of action."
The judge observed that Thomas had admitted in his deposition testimony
that in 2016, it was "pretty obvious" the implant was the cause of the sinus
perforation. The judge stated that Thomas's claim that he did not know the cause
of the perforation until he saw Dr. McMenamin's pictures in January 2017 was
"untenable."
The judge again determined that plaintiffs' claims accrued when Thomas
had sufficient knowledge to form the basis of a cause of action against
defendants, which was in 2016. The judge reaffirmed her earlier decision that
plaintiffs did not file their complaint within the time required by the statute of
A-3077-19 11 limitations and defendants were entitled to summary judgment. This appeal
followed.
II.
Plaintiffs argue that the trial court erred by granting summary judgment
in favor of defendants without conducting a Lopez hearing. They contend there
was a genuine issue of material fact as to the date upon which the cause of action
accrued, which required a hearing. We disagree.
We review the trial court's order granting summary judgment by applying
the standard in Rule 4:46-2(c). Invs. Bank v. Torres, 243 N.J. 25, 47 (2020)
(citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)).
Therefore, we must determine "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of law." R. 4:46-
2(c).
"The statute of limitations governing actions for personal injuries requires
a plaintiff to commence an action within two years after the cause of action shall
have accrued." Baird v. Am. Med. Optics, 155 N.J. 54, 65 (1998) (citing
N.J.S.A. 2A:14-2). In medical and dental malpractice actions, the accrual date
A-3077-19 12 is generally the date on which the negligent act or omission occurred. See
Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005)
(citing Martinez v. Cooper Hosp., 163 N.J. 45, 52 (2000)). Here, plaintiffs
allege that defendants negligently placed an implant and, in doing so, perforated
Thomas's sinus cavity. The alleged negligent act occurred on January 25, 2016.
Plaintiffs filed their complaint on December 4, 2018.
Plaintiffs claimed, however, that the discovery rule tolled the running of
the statute of limitations. The discovery rule "provides that in an appropriate
case a cause of action will be held not to accrue until the injured party discovers,
or by an exercise of reasonable diligence and intelligence should have
discovered that he [or she] may have a basis for an actionable claim." Ibid.
(quoting Lopez, 62 N.J. at 272).
The court must "identify the equitable claims of each party and evaluate
and weigh those claims in determining whether it is appropriate to apply the
discovery rule." Ibid. The critical inquiry is "whether the facts presented would
alert a reasonable person exercising ordinary diligence that he or she was injured
due to the fault of another. The standard is basically an objective one --whether
plaintiff 'knew or should have known' of sufficient facts to start the statute of
limitations running." Ibid. (quoting Martinez, 163 N.J. at 52).
A-3077-19 13 In applying the discovery rule, courts generally make their determination
of the accrual date "by way of a pretrial inquiry on either affidavits,
depositions[,] or a so-called evidential Lopez hearing . . . ." Dimitrakopoulos v.
Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 117 (2019)
(citing Pressler & Verniero, Current N.J. Court Rules, cmt. 36.2.2 on R. 4:5-4
(2019)). However, every plaintiff that invokes the discovery rule is not entitled
to a hearing. J.P. v. Smith, 444 N.J. Super. 507, 528 (App. Div. 2016).
"A Lopez hearing is only required when the facts concerning the date of
the discovery are in dispute." Ibid. (quoting Henry v. N.J. Dep't of Hum. Servs.,
204 N.J. 320 (2010)). Therefore, if competent evidence shows there is no
genuine dispute as to material facts "controlling the discovery determination, a
Lopez hearing is not required." Dimitrakopoulos, 237 N.J. at 117.
Here, the judge did not err by denying plaintiffs' request for a Lopez
hearing because there was no genuine issue of material fact as to when Thomas
was aware, or should have been aware, that he had a basis for an actionable
malpractice claim against defendants. As the judge noted, the alleged negligent
act occurred on January 25, 2016, when defendants performed the implant
procedure.
A-3077-19 14 Thomas may not have been immediately aware that he had a cause of
action against defendants. However, the record shows that at least by September
2016, a reasonable person, exercising ordinary diligence, would have been
aware of sufficient facts indicating he "may have a basis for an actionable
claim." Lopez, 62 N.J. at 272.
As noted previously, in April 2016, defendants informed Thomas three of
the previously placed implants had failed. Defendants removed two of the
implants and referred Thomas to Dr. McMenamin for the removal of the other
implant because it was too close to the sinus.
On April 26, 2016, Dr. McMenamin removed the third implant and in May
2016, Thomas began to experience complications. He testified that when he
brushed his teeth or drank liquids, fluids would come out of his nose. Thomas
returned to Dr. McMenamin. He was told to wait a month to see if the
complications continued.
Thomas learned that there was a hole in the sinus cavity where the third
implant had been placed. In September 2016, Dr. McMenamin attempted to
close the hole in the sinus cavity by performing a flapectomy. Thomas testified
that it was "pretty obvious" the implant had been the cause of the hole in his
sinus cavity.
A-3077-19 15 Based on this evidence, the motion judge correctly found that at least by
September 2016, Thomas knew or should have known he had a cause of action
against defendants based on the alleged negligent placement of the implant.
Irena's claim also was based on defendants' negligent placement of the implant.
Therefore, Irena's claim accrued at the same time.
Plaintiffs assert, however, that Thomas was not aware that he had a cause
of action against defendants until sometime later. At his deposition, Thomas
testified that beginning in September 2016, or before that date, he began to
prepare a written timeline concerning his treatment for the purpose of future
litigation.
However, in the certification submitted to the trial court in support of the
motion for reconsideration, Thomas asserted that during his deposition, he had
been "confused and mistaken." He claimed he began to prepare the timeline in
February 2017, after Dr. McMenamin performed the second procedure to close
the hole in his sinus cavity.
The motion judge correctly found that the date on which plaintiff began
to prepare his timeline was not material. The record supports the judge's
determination that, at least by September 2016, Thomas knew or should have
known that he had a cause of action against defendants based on the alleged
A-3077-19 16 negligent placement of the implant. At least by September 2016, Thomas was
aware his sinus cavity had been perforated, and he testified at his deposition that
it was "pretty obvious" the implant caused the perforation.
Plaintiffs also claimed that Thomas was not aware he had a cause of action
against defendants until January 2017, when Thomas was shown pictures of the
hole in his sinus cavity. The motion judge found that this claim was inconsistent
with Thomas's testimony that he knew about the hole in his sinus cavity at least
by September 2016, when Dr. McMenamin performed the first procedure to
close the hole.
Plaintiffs also contend that while Thomas may have known he had been
injured, he did not know the injury was due to any fault or negligence by
defendants. Thomas claims defendants led him to believe that the injury was
not due to any negligence on their part. According to Thomas, defendants told
him his smoking caused the implants to fail, and this caused the perforation in
his sinus cavity.
However, application of the discovery rule does not require proof that a
person has a probable claim, or even that the person knew of facts suggesting
the probability of a cause of action. Savage v. Old Bridge-Sayreville Med. Grp.,
134 N.J. 241, 248 (1993). All that is required is that the plaintiff had knowledge
A-3077-19 17 of some facts which "would alert a reasonable person exercising ordinary
diligence that he or she was injured due to the fault of another." Szczuvelek,
182 N.J. at 281. Here, the record shows that at least by September 2016, Thomas
knew he had been injured and the implant procedure was the possible cause of
the injury.
Thus, Judge Happas correctly determined that a Lopez hearing was not
required because there were no genuine issues of material facts as to when
plaintiffs' claims accrued. Further, the record supports the judge's determination
that plaintiffs did not assert their claims based on the alleged negligent
placement of the implant within the time required by N.J.S.A. 2A:14-2.
III.
Plaintiffs also argue that the trial court erred by denying their motion for
reconsideration. Plaintiffs contend the judge failed to give sufficient weight to
certain newly discovered evidence, which they claim shows Thomas had
mistakenly identified the date upon which he began to prepare the timeline of
his treatment.
It is well established that reconsideration of a prior decision is "a matter
within the sound discretion of the [c]ourt, to be exercised in the interest of justice
. . . ." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting
A-3077-19 18 D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). We will not
reverse the trial court's denial of a motion for reconsideration unless shown to
be a mistaken exercise of discretion. Cummings v. Bahr, 295 N.J. Super. 374,
389 (App. Div. 1996).
Rule 4:49-2 provides that reconsideration is warranted when "(1) the
[c]ourt has expressed its decision based upon a palpably incorrect or irrational
basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to
appreciate the significance of probative, competent evidence." Fusco v. Bd. of
Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria,
242 N.J. Super. at 401). The movant has the burden of showing the court "acted
in an arbitrary, capricious, or unreasonable manner, before the [c]ourt should
engage in the actual reconsideration process." D'Atria, 242 N.J. Super. at 401.
Here, Judge Happas did not err by denying plaintiffs' motion for
reconsideration. As the judge found, the facts set forth in Thomas's March 1,
2020 certification did not warrant reconsideration of her earlier decision. As the
judge noted, the date on which plaintiffs' claims accrued did not turn on the date
when Thomas began to prepare his timeline. The record supports the judge's
conclusion that at least by September 2016, Thomas knew, or had reason to
A-3077-19 19 know, he had the basis for a cause of action against defendants based on the
alleged negligent placement of the implant.
Affirmed.
A-3077-19 20