THOMAS PAGUREK VS. BETH J. DORFMAN, D.D.S. (L-8065-18, MIDDLESEX COUNTY AND STATEWIDE)

T
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                                                        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."
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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


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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?

            A. Yes.

            Q. on the upper left side--

            A. Yes.

            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.

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                                          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 . . . .




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      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.




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      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


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                                       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).


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                                        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.




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