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Dinapoli v. Regenstein

Court of Appeals of Connecticut

August 15, 2017

NICOLE DINAPOLI
v.
STEVEN REGENSTEIN ET AL.

          Argued March 16, 2017

         Procedural History

         Action to recover damages for, inter alia, dental malpractice, brought to the Superior Court in the judicial district of Fairfield, where the court, Radcliffe, J., granted the plaintiff's motion to cite in Novsam-Regenstein, P.C., as a party defendant; thereafter, the complaint was withdrawn as to the defendant Discus Dental, LLC, et al.; subsequently, the matter was tried to the jury before Hon. William B. Rush, judge trial referee; verdict and judgment for the named defendant et al., from which the plaintiff appealed to this court. Affirmed.

          G. Oliver Koppell, pro hac vice, with whom was Richard T. Meehan, Jr., for the appellant (plaintiff).

          Beverly Knapp Anderson, with whom was Craig A. Fontaine, for the appellees (named defendant et al.).

          Lavine, Mullins and Pellegrino, Js.

         Syllabus

         The plaintiff sought to recover damages from the defendant dentist, R, and his dental practice for, inter alia, dental malpractice in connection with a teeth whitening procedure that R had performed on the plaintiff. The matter was tried to a jury, which returned a verdict in favor of the defendants. From the judgment rendered thereon, the plaintiff appealed to this court. She claimed, inter alia, that the trial court improperly excluded certain portions of the testimony of her expert witness, M, relating to the standard of care. Held:

         1. The trial court did not abuse its discretion in striking certain portions of M's testimony, as the testimony was either irrelevant or not responsive to the questions posed by counsel; the portions of M's testimony that did not pertain to how he treats patients who want to undergo the same teeth whitening procedure as the plaintiff did here were not relevant because they did not make the defendants' alleged breach of the standard of care in treating the plaintiff more or less probable, and the portions of M's testimony in which he explained the reasoning behind the explanations he gave to his patients were not responsive because the answers went beyond the scope of the specific questions posed by the plaintiff's counsel.

         2. The plaintiff could not prevail on her claim that the trial court improperly precluded her from presenting testimony regarding the facts that formed the basis of the opinion of M, who stated on direct examination that the sources he had reviewed to form his opinion were found on the Internet from people who had issues with and complaints about the same teeth whitening procedure, but was precluded from summarizing those comments and complaints; because the comments and complaints themselves were inadmissible hearsay, testimony summarizing their contents would have been admissible only for the limited purpose of explaining the basis on which M had formed his expert opinion, and the trial court did not abuse its discretion in precluding M from testifying on that point, as the plaintiff failed to show that comments posted on the Internet and complaints made with a federal agency by unknown individuals were the types of sources on which experts in the dental field reasonably rely when rendering expert opinions.

         3. The trial court did not abuse its discretion by precluding the plaintiff from questioning the defendants' expert, K, on cross-examination about certain materials received from a company associated with the teeth whitening product used on the plaintiff that he had reviewed to form his expert opinion, the questions having concerned matters outside the scope of direct examination; moreover, although experts are permitted to testify about the materials on which they rely in forming their opinions, it was not an abuse of discretion for the trial court to sustain the defendants' objection to certain cross-examination of K where the plaintiff's counsel did not ask K to explain the content of the sources on which he relied, but, rather, asked him to state whether he thought those sources were factually accurate.

         4. The plaintiff's claim that the trial court abused its discretion by failing to permit M to answer a hypothetical question posed by her counsel was unavailing; the hypothetical question posed by the plaintiff's counsel failed to present the facts in such a manner as to bear a true relationship to the evidence presented at trial, and, therefore, the defendants' objection to it was properly sustained by the court.

          OPINION

          LAVINE, J.

         The plaintiff, Nicole DiNapoli, appeals from the judgment, rendered after a jury trial, in favor of the defendants, Steven Regenstein, a dentist, and his practice, Novsam-Regenstein, P.C., doing business as Westport Esthetic Dental Group.[1] The plaintiff claims that the trial court abused its discretion by (1) striking four portions of the testimony of her expert witness regarding the standard of care, (2) precluding her from presenting testimony regarding the facts that the experts relied on in forming their opinions, and (3) precluding her expert from giving his opinion in response to a hypothetical question. We affirm the judgment of the trial court.[2]

         The following facts and procedural history are necessary to our resolution of the plaintiff's appeal. On June 2, 2011, the plaintiff, a then thirty-one year old woman, went to Westport Esthetic Dental Group for a full cleaning, X-rays, and a consultation regarding ‘‘Zoom!'' teeth whitening (Zoom). Zoom is a teeth whitening procedure in which a dentist applies a gel to a patient's teeth and puts a bright light in close proximity to the patient's mouth for three fifteen minute periods. When the plaintiff arrived, she filled out an intake form, indicating that she had a history of bleeding gums, acid reflux, anxiety, headaches, and tooth sensitivity. While cleaning the plaintiff's teeth, a dental hygienist and the plaintiff spoke ‘‘at length'' about her history of tooth sensitivity, including that her teeth were ‘‘very sensitive'' to the use of certain whitening strips. Afterward, Regenstein examined the plaintiff's teeth, and they ‘‘went over almost the exact information'' that she and the hygienist spoke about, talking a ‘‘good amount'' about her history of sensitive teeth. The plaintiff did not inform Regenstein that she had a history of ‘‘extreme sensitivity to bleach.'' Either Regenstein or the hygienist suggested to the plaintiff that she use fluoride rinse, Sensodyne toothpaste, and Motrin prior to the Zoom whitening procedure in order to alleviate any sensitivity and pain she may feel during or after the procedure. After the consultation, the plaintiff made an appointment to undergo the procedure on June 22, 2011, but she did not receive or sign a consent form explaining the known risks associated with Zoom whitening.

         On June 22, 2011, the plaintiff returned to Westport Esthetic Dental Group to undergo the Zoom whitening procedure. During the second exposure to the bright light, she began to experience aching in her mouth, and during the third exposure, she experienced ‘‘extreme pain.'' Later that day, the plaintiff called the Westport Esthetic Dental Group because she wasin ‘‘excruciating pain'' and was told that she could take Motrin, use relief gel, and rinse with fluoride to relieve the pain. Her pain did not subside, and she as well as members of her family continued to call Westport Esthetic Dental

         Group. On June 29, 2011, the plaintiff spoke with Regenstein, and he prescribed her fluoride gel and fluoride toothpaste. As recommended, the plaintiff brushed with the fluoride toothpaste, rinsed with fluoride rinse, wore fluoride molds, used relief gel, and gargled with warm water and baking soda for the next couple of months. She continued to experience pain and tooth sensitivity in her mouth for four years, however, and, during that time, she suffered from hair loss for six months.

         On March 11, 2015, the plaintiff filed an amended complaint, alleging (1) dental malpractice arising from the defendants' breach of the standard of care prior to, during, and after administering the Zoom whitening treatment, and (2) lack of informed consent and failure to warn arising from the defendants' failure to warn her of the known risks associated with Zoom whitening[3]or the defendants' failure to recommend alternative treatment options. She alleged that, as a direct and proximate result of the defendants' actions, she suffered from and will continue to suffer from increased tooth sensitivity, incurred expenses for medical treatment, hair loss, ongoing physical pain, and anxiety.

         A number of witnesses testified during the plaintiff's case-in-chief, including the plaintiff and Regenstein. She also called Andrew Mogelof, a dentist at Mogelof Dental Group, as an expert witness. The defendants, in turn, presented the testimony of Peter Katz, a dentist in private practice, as an expert witness. On direct examination, the plaintiff's counsel asked Mogelof a number of questions pertainingto the standard of care that dentists should follow when treating new patients for Zoom whitening. The defendants' counsel objected to four lines of questioning, and the court sustained the objections. The plaintiff's counsel then asked Mogelof a hypothetical question regarding breach of the standard of care. In addition, the plaintiff's counsel questioned Mogelof and Katz about the facts on which they relied in forming their opinions. The defendants' counsel objected to both lines of questioning, and the court sustained the objections.

         Mogelof did testify as to the standard of care in 2011 for consulting and treating patients for Zoom whitening. He also testified that, in his expert opinion, the defendants breached the standard of care prior to and after treating the plaintiff and that they failed to inform her of the known risks associated with Zoom whitening before obtaining her consent. Notably, Mogelof never testified, in any way, that the Zoom whitening or any subsequent treatment caused the plaintiff's injuries. See footnote 14 of this opinion.

         On October 6, 2015, the jury found that the defendants had not breached the standard of care in treating the plaintiff, but found that they had failed to obtain the plaintiff's informed consent. It rendered a verdict in favor of the defendants, however, because it found that their failure to obtain her informed consent was not the proximate cause of her injuries. This appeal followed. Additional facts will be set forth as needed.

         As a threshold matter, we set forth the standard of review for all of the plaintiff's claims, which all concern the court's evidentiary rulings. ‘‘The decision to preclude a party from introducing expert testimony is within the discretion of the trial court.'' (Internal quotation marks omitted.) Amsden v. Fischer, 62 Conn.App. 323, 325-26, 771 A.2d 233 (2001). ‘‘We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have ...


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