Phillips, S. v. Gilbert, B.

J-A06026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STACY PHILLIPS : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

BENJAMIN GILBERT AND GILBERT :

DENTAL CENTER :

:

Appellees : No. 39 EDA 2019

Appeal from the Judgment Entered December 10, 2018

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): July Term, 2016 02819

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.: FILED APRIL 14, 2020

Appellant, Stacy Phillips, appeals from the judgment entered in the

Philadelphia County Court of Common Pleas, following the denial of her post-

trial motions to remove a compulsory nonsuit in favor of Appellees, Benjamin

Gilbert and Gilbert Dental Center. We affirm.

In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

Appellant now raises three issues for our review:

WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION

AND/OR ERRED AS A MATTER OF LAW IN DENYING

[APPELLANT’S] POST-TRIAL MOTION TO REMOVE THE

NONSUIT WHERE [APPELLANT] PRESENTED TWO EXPERTS,

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-A06026-20

BOTH OF WHOM OFFERED OPINIONS WITHIN A

REASONABLE DEGREE OF PROFESSIONAL CERTAINTY

REGARDING THE STANDARD OF CARE FOR THE PROPER

PLACEMENT OF A RESTORATIVE IMPLANT AND A PATIENT’S

CANDIDACY FOR THE PLACEMENT OF RESTORATIVE

IMPLANT.

WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION

AND/OR ERRED AS A MATTER OF LAW IN DENYING

[APPELLANT’S] POST-TRIAL MOTION RELATIVE TO

[APPELLEE’S] MOTION TO QUASH [APPELLANT’S]

EXPERT’S, DR. PLISKIN’S, TESTIMONY WHERE DR. PLISKIN

HAS 48 YEARS OF EXPERIENCE AS A LICENSED GENERAL

AND RESTORATIVE DENTIST IN THIS COMMONWEALTH

AND WHERE HIS EXPERIENCE, SKILL, AND KNOWLEDGE

INCLUDE ASSESSING AND EVALUATING RESTORATIVE

IMPLANTS FOR PROPER POSITIONING AND WHERE THE

ISSUE IN THIS CASE IS WHETHER [APPELLEE] VIOLATED

THE STANDARD OF CARE BY PLACING THE RESTORATIVE

IMPLANT IN [APPELLANT’S] MOUTH IN THE POSITION HE

DID.

WHETHER THE [TRIAL] COURT ABSUED ITS DISCRETION

AND/OR ERRED AS A MATTER OF LAW IN DENYING

[APPELLANT’S] POST-TRIAL MOTION TO OVERRULE

[APPELLEE’S] OBJECTION TO [APPELLANT’S] EXPERT’S, DR.

PLISKIN’S, TESTIMONY REGARDING [APPELLANT’S]

CANDIDACY FOR THE PROCEDURE WHERE DR. PLISKIN’S

OPINION THAT [APPELLANT] HAD BONE LOSS THAT

REQUIRED GRAFTING PRIOR TO THE PLACEMENT OF A

PROPER IMPLANT IS WELL WITHIN THE FAIR SCOPE OF THE

FOUR CORNERS OF HIS REPORTS, AND WHERE [APPELLEE]

WAS NOT MISLEAD OR PREVENTED FROM PROVIDING A

RESPONSE TO THIS OPINION AND, IN FACT, DID PROVIDE

A RESPONSE TO THIS OPINION THROUGH A DEFENSE

EXPERT, DR. RAYMOND J. FONSECA.

(Appellant’s Brief at 10-11).

After a thorough review of the record, Appellant’s brief, the applicable

law, and the well-reasoned opinion of the Honorable Marlene Lachman, we

conclude Appellant’s issues merit no relief. The trial court opinion

-2-

J-A06026-20

comprehensively discusses and properly disposes of the questions presented.

(See Trial Court Opinion, filed June 19, 2019, at 5-19) (finding: (1) Dr. Pliskin

did not offer opinion as to standard of care for implant placement, or that Dr.

Gilbert had breached standard of care; Dr. Pliskin did testify that Appellant’s

implant was not in restorable position, but such testimony did not constitute

expert opinion as to standard of care for implant placement; during his

deposition, which was entered into evidence, Dr. Rothman explained he was

not offering any expert opinion as to standard of care for implant placement;

(2) Dr. Pliskin testified he is oral and maxillofacial pathologist, and not oral

and maxillofacial surgeon; Dr. Pliskin agreed that instant case does not involve

oral pathology; Dr. Pliskin never placed implant during his entire career in

dentistry; although Dr. Pliskin evaluated patients for implant-related issues,

he lacked training, experience, and knowledge necessary to opine on standard

of care for implantation procedure at issue; and (3) Dr. Pliskin’s reports did

not opine that Appellant was bad candidate for implantation; reports opined

that placement of implant was negligent, but they did not state that procedure

should not have been done due to insufficient amount of bone; reports

mention bone deficit only in conjunction with post-implant-removal

restoration surgery, and not in conjunction with Appellant’s pre-implantation

condition). The record supports the trial court’s decision. Accordingly, we

affirm based on the trial court opinion.

Judgment affirmed.

-3-

J-A06026-20

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/20

-4-

Circulated 04/02/2020 03:55 PM

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CIVIL TRIAL DIVISION

STACY PHILLIPS JULY TERM, 2016

( ...

vs No. 02819

BENJAMIN GILBERT, and Superior Court Docket

GILBERT DENTAL CENTER No. 39 EDA 2019

OPINION

11.

;

Lachman, J. June 2019

I. Factual and Procedural Background

This dental malpractice case involves a failed dental implant. A compulsory

nonsuit was entered because the Plaintiff was able to prove only that a bad result

occurred, and was unable to prove negligence.

Plaintiff Stacy Phillips was 49 years old when she decided to replace her "flipper"

with a dental implant in the front of her upper jaw. A flipper is a lightweight removable

partial denture. She lost the original tooth approximately 30 years earlier in a childhood

accident.

On November 2, 2015, Defendant Dr. Benjamin Gilbert, D.D.S., placed a dental

implant in the area of tooth number 8 (the upper right central incisor) in the front of the

Plaintiff's mouth. He also prepared teeth in the upper right and lower left back of Plaintiffs

mouth for crowns. Two days later Plaintiff went to another dentist, Dr. Marc Rothman,

D.M.D., primarily complaining about pain in the teeth in the back of her mouth which had

been prepared for crowns. His examination revealed a serious problem involving tooth

number 2. He recommended that she see an endodontist to save the tooth, which she

i1liil1Ii, iiii1l1iffliiiii1I

1

16070281900130

did. Dr. Rothman also recommended that she have the implant removed because it was

not placed properly.

Plaintiff returned to Defendant Gilbert on November 9, 2015. Dr. Gilbert offered to

remove the implant, but Plaintiff declined. Instead, Plaintiff on December 2nd, returned to

Dr. Rothman and he removed the implant. There was a resultant bony defect or hole in

her jaw which Dr. Rothman treated with a bone graft to reconstruct the defect.

Plaintiff filed this action in 2016, alleging that Defendants Gilbert and Gilbert Dental

Center, negligently placed the dental implant in the area of tooth number 8 and perforated

the labial plate. The trial of this case began with jury selection on August 17, 2018, and

ended with the entry of a compulsory nonsuit on August 2P1.

At trial, Plaintiff presented the testimony of her treating dentist, Dr. Rothman, and

the expert testimony of Dr. Michael Pliskin, DDS, Ph.D. Neither witness testified to the

standard of care for dental implantation and its breach. In his September 29, 2016 expert

report, Dr. Pliskin stated "[i]n my opinion to a reasonable degree of dental certainty, Dr.

Ben Gilbert negligently placed the implant into the number 8 area on November 2, 2015."

"As a result of the negligent placement of the implant into the number 8 area by Dr. Gilbert

... " Plaintiff suffered damages.1

After voir dire, the Court barred Dr. Pliskin from testifying as to the standard of

care. He is an oral and maxiliofacial pathologist and not an oral and maxiliofacial surgeon,

and has no training, experience, or knowledge of how to correctly place an implant. Later,

the Court sustained a defense objection and barred Dr. Pliskin from testifying as to

whether Plaintiff was a proper candidate for the implant, because that issue was outside

1 Dr. Pliskin, produced four reports, dated 9/29/16, 2/28/17, 5/9/17 and 8/27/17.

2

the fair scope of Dr. Pliskin's expert reports. Those rulings resulted in the Plaintiff failing

to establish a prima facie case and the entry of the nonsuit under appeal.

Defendants moved for a compulsory nonsuit as the close of the Plaintiff's case-in-

chief. The argument on the motion is at NT 8/22/18 (PM) pp. 43-75. The Plaintiff's

evidence merely proved a bad result from the implant procedure and not negligence.

THE COURT: Granted that Dr. Pliskin and Dr. Rothman both were

able to testify that in their opinion this outcome would not sustain a cap or

tooth or prosthetic being added to the abutment, that's a bad result, clearly

a bad result. ... But the bottom line is, even if it is a bad result, that does not

establish negligence.

Id. p. 61.

At the conclusion of the arguments, the Court granted Defendants' nonsuit motion

because the Plaintiff failed to present expert testimony on the standard of care.

THE COURT: You may be seated.

There is no doubt in the Court's mind that in this case we are

talking about issues that are beyond the ken of the average

layperson and that expert testimony as to the appropriate way of

performing the procedure was necessary.

Standard of care for an operative procedure, whether it be a

medical operation or a dental operation, cannot be inferred. Neither

Dr. Pliskin or -- let me restate that.

Dr. Pliskin was barred from testifying as to standard of care

for the procedure because he had no experience with the procedure,

having never been trained in it and having never performed it, and I

don't believe he ever witnessed it either.

A bad result -- and there's no doubt that the testimony of Dr.

Pliskin and Dr. Rothman is that there was a bad result -- but a bad

result alone does not establish negligence.

There was no evidence as to the standard of care or how it

was breached. And although Dr. Rothman indicated that he would

not -- he could not do an implant without doing a graft, having already

3

filled in the hole from the mini implant that was removed by him, that's

one person's opinion and it doesn't rise to the standard of care.

Under the circumstances in this case, absent the appropriate

testimony on standard of care and breach thereof, the plaintiff has

failed to establish negligence which is a necessary prong -- or breach

of the standard of care which is a necessary prong in order to prevail

in front of the jury. And accordingly, the Court grants the motion for

nonsuit.

NT 8/22/18 (PM) pp. 73-75.

II. Post-Trial and Appeal

Plaintiff timely filed three separate post-trial motions instead of including all of her

issues in one motion:

• Plaintiff's Post-Trial Motion for Reconsideration of Defendant's Motion to

Quash/Objection to Plaintiff's Expert, Dr. Michael Pliskin, Relative to the Standard

of Care Regarding the Placement of Restorative Implants. Control No. 18083081.

• Plaintiff's Post-Trial Motion for Reconsideration of Defendant's Objection to

Testimony by Plaintiff's Expert, Dr. Michael Pliskin, Relative to Plaintiff's

Candidacy for the Restorative Implant Procedure by Defendant Gilbert. Control

No. 18083083.

• Plaintiff's Post-Trial Motion for Reconsideration of the Entry of Nonsuit. Control

No. 18083505.

The Defendants filed one response discussing all three motions.

The Court denied all three motions and Plaintiff filed a timely appeal. Plaintiff

raised the following issues in her timely-filed Pa.RAP. 1925(b) statement:

1. Whether the Trial Court abused its discretion in denying

Appellant's Post-Trial Motion for Reconsideration of its Order precluding

Appellant's Expert, Dr. Michael Pliskin, from testifying relative to Appellant's

candidacy for restorative implant procedure given her pre-existing bone loss

in the area of tooth no. 8.

4

2. Whether the Trial Court abused its discretion in denying

Appellant's Post-Trial Motion for Reconsideration of its Order precluding

Appellant's Expert, Dr. Michael Pliskin, from testifying relative to the

standard of care for the proper placement of restorative implants.

3. Whether the Trial Court abused its discretion in denying

Appellant's Post-Trial Motion for Reconsideration of its Order entering Non-

Suit where Appellant presented two experts who offered opinions within a

reasonable degree of certainty regarding the standard of care for the proper

placement of a restorative implant, and Appellee's breach of same.

4. Whether the Trial Court abused its discretion in denying

Appellant's Post-Trial Motion for Reconsideration of the Entry of Nonsuit

given that Appellant presented two experts at Trial who offered opinions

within a reasonable degree of certainty regarding Appellant's candidacy, or

lack thereof, for the proper placement of a restorative implant by Appellee

Gilbert.

None of these issues has merit. The second issue will be discussed first because the

first issue grows out of it.

Ill. Discussion

A. Legal Principles Governing This Case

The purpose of a motion for compulsory nonsuit is to allow the

defendant to test the sufficiency of the plaintiff's evidence. An order denying

a motion to remove a compulsory nonsuit will be reversed on appeal only

for an abuse of discretion or error of law. A trial court's entry of compulsory

nonsuit is proper where the plaintiff has not introduced sufficient evidence

to establish the necessary elements to maintain a cause of action, and it is

the duty of the trial court to make a determination prior to submission of the

case to a jury.

In the context of actions for medical malpractice, the plaintiff

must establish that (1) the physician owed a duty to the

patient; (2) the physician breached that duty; (3) the breach of

the duty was the proximate cause of, or a substantial factor in

bringing about the harm suffered by the patient, and (4) the

damages suffered by the patient were a direct result of that

harm.

5

In determining whether to grant a compulsory nonsuit, the trial court must

give the plaintiff the benefit of every fact and all reasonable inferences

arising from the evidence and all conflicts in evidence must be resolved in

plaintiff's favor.

Dietzel v. Gurman, 806 A.2d 1264, 1268 (Pa. Super. 2002) (quotes and citations

omitted). Accord, Keffer v. Bob Nolan's Auto Serv., Inc., 59 A.3d 621, 631 (Pa. Super.

2012) ("a non-suit is properly entered if the plaintiff has not introduced sufficient evidence

to establish the necessary elements to maintain a cause of action").

"Because the negligence of a physician encompasses matters not within the

ordinary knowledge and experience of laypersons[,] a medical malpractice plaintiff must

present expert testimony to establish the applicable standard of care, the deviation from

that standard, causation and the extent of the injury." Grossman v. Barke, 868 A.2d

561, 566 (Pa. Super. 2005) (citation omitted). Expert testimony is required because a

jury usually lacks the knowledge required to determine factual issues of medical

causation, the degree of skill, knowledge and experience required of a physician, and

a breach of a standard of care. Grossman, 868 A.2d at 566-567. Without expert

testimony, "the jury could have no basis other than conjecture, surmise or speculation

upon which to" decide the case. Id. at 567.2

2 See also, Lambert v. Soltis, 221 A.2d 173 (1966) (nonsuit affirmed because

patient failed to present expert testimony to establish dentist's alleged negligence in

injecting an anesthetic into the patient's gum with a needle); Bierstein v. Whitman, 62

A.2d 843 (1949) (nonsuit affirmed because patient failed to offer an expert witness to

establish the measure of professional skill required of a dentist who, in extracting a tooth,

fractured the patient's jaw).

Dentists are not included in the provisions of the MCARE Act. The requirements

for dental and medical malpractice cases are otherwise identical. See e.g., Dieroff v.

Slade, 581 649 (Pa. Super. 1990).

6

When a witness is offered as an expert, the first question the trial

court should ask is whether the subject on which the witness will express

an opinion is so distinctively related to some science, profession, business

or occupation as to be beyond the ken of the average layman.

If the subject is of this sort, the next question the court should ask is

whether the witness has sufficient skill, knowledge, or experience in that

field or calling as to make it appear that his opinion or inference will probably

aid the trier in his search for truth. [See,] Erschen v. Pennsylvania

Independent Oil Co., 259 Pa.Super. 474, 393 A.2d 924 (1978) (witness who

had no formal instruction or on-the-job-training in origin of gas explosions

not qualified as expert, notwithstanding qualification as fire marshal).

Dambacher by Dambacher v. Mallis, 485 A.2d 408, 415 (Pa. Super. 1984) (break

added, quotes and some citations omitted). An "expert witness must show special

knowledge of [the] very question upon which he promises to express [an] opinion." Id.,

citing In Re Involuntary Termination of Parental Rights, 449 Pa. 543, 297 A.2d 117

(1973).3

A "physician is not expected to guarantee a good result from the course of

treatment he recommends or administers. . .. A course of treatment which culminates in

a bad result is not evidence of negligence in a malpractice case." Ragan v. Steen, 331

A.2d 724, 727 & 728 (Pa. Super, 1974).

As a matter of proof in malpractice cases, there is no presumption or

inference of negligence merely because a medical procedure terminated in

an unfortunate result which might have occurred despite the exercise of

reasonable care. This is especially so where the treatment and injury

involved are such that common knowledge or experience of laymen is not

sufficient to form the basis for passing an intelligent judgment. In such

3 Dambacher was abrogated in part on other grounds in Moroney v. General

Motors Corp., 850 A.2d 629, 634-635 (Pa. Super. 2004) (in products liability actions,

proof of negligence may be possible without a finding of strict liability).

7

cases, expert testimony in support of the plaintiff's claim is an indispensable

requirement to establish a right of action.

Collins v. Hand, 246 Pa. 398, 401 (1968).

B. The Court correctly held that Dr. Pliskin lacked the

training, experience, and knowledge necessary

to testify concerning the standard of care for the

procedure at issue.

Plaintiff first tendered Dr. Pliskin as "an expert in the field of dentistry," and later as

an expert in "general restorative dentistry, not oral maxillofacial surgery." NT 8/21/19 (AM)

pp. 29, 51.4

On voir dire, Dr. Pliskin testified that he is an oral and maxillofacial pathologist, and

not an oral and maxillofacial surgeon. NT 8/21/18 (AM) pp. 25, 48. He is not board

certified in oral and maxillofacial pathology or in any other specialty. Id. p. 40.

Oral and maxillofacial surgeons and pathologists undergo completely different

training and the procedures performed by the surgeons are entirely different from the

procedures performed by oral and maxillofacial pathologists. NT 8/21/18 (AM) pp. 31-32.

Oral and maxillofacial pathologists identify and manage diseases affecting the oral and

maxillofacial regions and investigate the causes, processes, and effects of those

diseases, like herpes and oral cancer, to name a few. Id. p. 32. Dr. Pliskin agreed that

this case is not about any disease process in Plaintiff's oral cavity and does not involve

oral pathology. Id.

"Maxillofacial" means relating to, treating, or affecting the upper jaw and the face.

4

Merriam-Webster's Medical Dictionary p. 433 (2006).

8

Dr. Pliskin has never placed an implant in his entire 48-year career as a dentist.

That includes both standard and the mini implant involved in this case. When he was in

private practice, he did very few crowns and bridges. NT 8/21/18 (AM) p. 34.

He is on the faculty of the Temple University School of Dentistry and evaluates

potential patients in its Clinic. His primary duties are to teach students general medicine,

emergency dentistry, radiology, and the diagnostic evaluation of patients with oral disease

such as herpes, ulcers, and cancer. NT 8/21/18 (AM) p. 37.

• Dr. Pliskin does not teach, and has never taught, students how to place or restore

implants. Id. pp. 38, 39.

• Dr. Pliskin has never restored an implant. Id. p. 39.

• Dr. Pliskin does not lecture in the area of implant placement. Id. 38.

• Dr. Pliskin does not teach students how to do crown and bridge work. Id. p. 38.

• Dr. Pliskin does not teach, and has never taught, students how to do bone grafting

or reconstruction. Id. p. 39.

• Dr. Pliskin does not teach, and has never taught, students how to make, remove,

or insert removable prosthetics. Id. p. 39.

• Dr. Pliskin has done no research related to implants, bone grafting, or restoration

of implants. Id. pp. 45-46.

• Dr. Pliskin has not made any presentations related to implants, bone grafting, or

restoration of implants. Id. p. 46.

• Dr. Pliskin has no publications related to implants, bone grafting, or restoration of

implants. Id. p. 46.

Although Dr. Pliskin evaluates patients at Temple's dental clinic for implant-related

issues, he does not perform any work on patients or implants himself; he merely refers

9

patients to the appropriate specialist within the dental school. The actual decision as to

the appropriate treatment is left to those specialists, not to Dr. Pliskin. He has no over-

sight of any of those specialists. NT 8/21/18 (AM) pp. 39-40, 53. He described his work

at Temple's dental clinic as follows:

At Temple, I examine every person that walks in that dental school

Monday through Friday for elective admissions. Many of those patients are

coming to us with implants that were placed at other dentists, and because

we're cheaper, we do the restoration. And I was involved - I am involved

with assessing the implant quality and determining whether or not that's a

successful implant or not a successful implant and whether it can be

restored and then referring it out to the appropriate specialty based on what

I see as an evaluation.

So if the implant was failing, I would send, most likely, to our school

to periodontics which would manage the implant failure. If the implant was

succeeding, I would refer the patient to prosthodontics or restorative

dentistry where they would do the crowns. So I'm kind of like a traffic cop.

But my experience with implants, yes, I've not placed them; yes, I

have not restored them; but I have a lot of experience and - up to this day

with evaluating patients who were coming in either needing implants, [or]

looking at bone levels.

NT 8/21/18 (AM) p. 50 (emphasis added).

The Court asked Plaintiff's counsel for a proffer as to what Dr. Pliskin would testify

to if he were able to testify.

MS. AYRES: Your Honor, Dr. Pliskin will testify that the purpose of

-- that the implant placed by Dr. Gilbert was placed in such a manner that

when it perforated the labial plate and extended to the area of Tooth No. 7,

it was in a non-restorable position and a breach of the standard of care.

The implant -- the purpose of the implant is restorability. The purpose

of the implant is to be placed into -- within the content of the bone and not

perforating it as it did and that because of the placement of it -- that he would

go on to say that because of that placement and that breach which made it

non-restorable, it needed to be removed. And Dr. Rothman did in fact

remove it.

10

NT 8/21/18 (PM) p. 5. The Court then precluded Dr. Pliskin from testifying as to the

standard of care for performing dental implant procedures.

THE COURT: All right. Given the proffer, given the evidence elicited

on voir dire that Dr. Pliskin has neither been trained in nor had experience

performing implant procedures, he will not be permitted to testify as to the

standard of care.

Given his experience evaluating patients for their -- for referrals to

other specialists, he can testify within that realm as to the appropriateness

of a candidate for the procedure. And he can testify as to -- based on his

testimony that he has treated patients post-implant, he can testify as to post-

implant treatment. But there's nothing in his resume or testimony to indicate

that he has any basis for opining as to the standard of care for a dental

implant.

NT 8/21/18 (PM) pp. 6-7.

Although Dr. Pliskin could look into a patient's mouth and determine whether an

implant was successful or unsuccessful, he lacked the training, experience, and

knowledge necessary to opine as to the standard of care for the implantation procedure

at issue in the present case. An expert witness is not qualified to testify if he does not

possess either experience or education in the subject matter under investigation.

Dambacher by Dambacher v. Mallis, 485 A.2d at 415 & 418.

Generally, "[i]n the area of medicine, specialties sometimes overlap

and a practitioner may be knowledgeable in more than one field. Different

doctors will have different qualifications, some doctors being more qualified

than others to testify about certain medical practices." Where the expert is

qualified to testify, the weight of that testimony is for the jury to determine.

On the other hand, medical experts may be unqualified to testify

about the standards of care applicable in certain other medical fields. In

other words, "it may appear that the scope of the witness's experience

and education may embrace the subject in question in a general way,

but the subject may be so specialized that even so, the witness will

not be qualified to testify." Dambacher v. Mallis, 336 Pa.Super. 22, 485

A.2d 408, 419 (1984), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985);

11

see also, Kovalev, 2003 PA Super 432, ,i 10, 839 A.2d 359 (doctor with

general medical training was unqualified to testify about his orthopedic

injuries); Yacoub, 805 A.2d at 592 (plaintiff failed to demonstrate that

neurosurgeon was qualified to render expert opinion about standard of care

appropriate to internal medicine or special unit care nursing); Dierolf v.

Slade, 399 Pa.Super. 9, 581 A.2d 649, 651 (1990) (orthodontist lacked

training and experience necessary to present expert testimony regarding

oral surgery); McDaniel v. Merck, Sharp, & Dohme, 367 Pa.Super. 600, 533

A.2d 436, 441-442 (1987) (expert in anesthetic drugs lacked training and

experience to testify about whether continued use of an antibiotic drug

caused death).

Wexler v. Hecht, 847 A.2d 95, 99-100 (2004) (emphasis added, some citations omitted;

podiatrist who was expert in general field of foot surgery lacked the training and

experience necessary to opine about standard of care relevant to orthopedic surgeon

who performed bunion-removal surgery}, affirmed, 593 Pa. 118, 928 A.2d 973 (2007).

Dierolf v. Slade, 581 A.2d 649 (Pa. Super. 1990), was a medical malpractice

action against an oral surgeon for failing to properly identify and treat compression of the

patient's peroneal nerve in her leg during oral surgery. An orthodontist was not qualified

to give expert testimony regarding the patient's dropped foot condition because the

orthodontist did not perform oral surgery, and had not demonstrated expertise in nerve

injuries to the leg or surgical procedures that was necessary to express an opinion about

body positioning and padding during surgery. The facts as to what the orthodontist's job

entailed mirror those of what Dr. Pliskin does.

The trial court had an additional ground for excluding Dr. Cook's

testimony: he was not qualified as an expert. Dr. Cook is an orthodontist

who does not perform oral surgery. Appellant points out that Dr. Cook

discusses surgery with the oral surgeons, has observed oral surgeries

in the past, and has testified as an expert for the defense in several medical

malpractice cases. However, Dr. Cook never performed surgery, never

observed a peroneal nerve injury, is not a neurologist, is not board

12

certified, and is rarely present in the operating room. As the trial court

noted, Dr. Cook

had not demonstrated sufficient expertise in nerve injuries to

the leg or surgical procedures to be able to express an opinion

about body positioning and padding during surgery .... Dr.

Cook had neither recent clinical experience in operating

room procedures nor training in an area of medicine that

would satisfy the requirements for qualification.

As stated in Dambacher v. Mallis, 336 Pa.Super. 22, 42-3,

485 A.2d 408, 418-9 (1984), if a witness possess [sic] neither

experience nor education in the subject matter under

investigation, he should be found not qualified.

We agree with the trial court's discussion and disposition of this issue and

find no merit to appellant's argument.

Dierolf v. Slade, 581 A.2d at 651 (some citations omitted, emphasis added).

Dr. Pliskin merely evaluates patients seeking dental implants and then refers them

to specialists who do the actual implantation, although he may see some of them after

the surgery. Dr. Pliskin had no education or training on the type of implant at issue. While

the scope of his experience embraced the general subject of assessing patients as

candidates for implants, it did not embrace the specialized subject of the correct

placement of implants. Nothing in his experience, training, or education qualified him to

opine on the correct procedure for placing the Plaintiff's implant or the need to add bone

material before her implant. Compare, Dambacher v. Mallis, 485 A.2d at 420.

The Court correctly barred Dr. Pliskin from testifying as to the standard of care.

13

C. The Court correctly ruled that whether the Plaintiff

was a proper candidate for implants was not within

the fair scope of Dr. Pliskin's reports.

At the conclusion of the voir dire on Dr. Pliskin's qualifications, the Court barred

Dr. Pliskin from testifying concerning the standard of care. The Court also ruled that his

experience made him qualified to testify concerning whether Plaintiff was a proper

candidate for implants:

Given his experience evaluating patients for their -- for referrals to

other specialists, he can testify within that realm as to the

appropriateness of a candidate for the procedure. And he can testify

as to -- based on his testimony that he has treated patients post-

implant, he can testify as to post-implant treatment. But there's

nothing in his resume or testimony to indicate that he has any basis

for opining as to the standard of care for a dental implant.

NT 8/21/18 (PM) p. 7.

During Plaintiff's direct examination of Dr. Pliskin, the defense objected to Dr.

Pliskin discussing the Plaintiff's candidacy for dental implants because Dr. Pliskin's expert

reports never mentioned that issue.

Q. Okay. So, Dr. Pliskin, let's talk a little bit about your review

of the records. And before we do that in particular, I want to ask you

some questions generally about dental patients who are missing

teeth, have had tooth removal, have a flipper, and they decide to

pursue an implant procedure.

When a dental patient is being considered for an implant

procedure, what considerations does a general dentist take into

account in deciding whether that person is a candidate for that

procedure?

MR. BATES: Objection, Your Honor; beyond the fair scope.

THE COURT: Ms. Ayres, can you direct me?

MS. AYRES: Your Honor, may we request a sidebar?

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THE COURT: Quickly.

NT 8/21/18 (PM) pp. 12-13. At the conclusion of the sidebar, the Court sustained the

objection. Id. p. 23.

The crux of the issue was whether Dr. Pliskin's various reports opined that Plaintiff

was a bad candidate for implantation. They did not; that subject is never mentioned in

the reports. Dr. Pliskin's reports are collected in Defendants' Post-Trial Exhibit C.

The court asked Plaintiff's counsel, "Is there anything in his report that deals with

the fact that she was not a candidate for the procedure?" NT 8/21/18 (PM) p. 16. After

searching the report, Plaintiff's counsel stated:

MR. HILL. In this he talk about the fact that the implant must be

placed so that it is confined to the bone. And I think that gives us the corner

wherein he --

THE COURT: That's standard of care, Counselor. And I said that

he is not to testify on standard of care for the procedure.

MS. AYRES: Your Honor, I honestly believe that if he is saying that

the implant must be confined to the bone, and I know that this is now

excluded, but within the content of his report, and he says it was negligently

placed because it perforated the bone. And Your Honor's limiting him to

talking about the candidacy of her. His opinion in that regard --

THE COURT: His testimony was that he evaluates people and refers

then to the appropriate specialist if he thinks they're a candidate for the

implant or whatever the procedure is. So I said that he could testify in that

area.

MS. AYRES: And that's what I'm asking.

THE COURT: Based on his expertise, not based on the report.

MS. AYRES: But I'm asking him his expertise when counsel

objected. That's why we're here.

MR. BATES [defense counsel]: Because -

MS. AYRES: I limited my question.

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MR. BATES: Because there's nothing in his report about that. I

mean, he can testify to that based on his expertise, but it still has to

be in his report.

THE COURT: Exactly.

MR. BATES: And it's not.

NT 8/21/18 (PM) pp. 17-18 (emphasis added).

Plaintiff also argued that Dr. Pliskin impliedly said Plaintiff was a bad candidate

because he said she had the same hard and soft tissue defect before the implantation,

as she had after the failed implantation was removed by Dr. Rothman. NT 8/21/18 (PM)

pp. 18-22. See Sept. 29, 2016 report p. 1. His report mentions the bone deficit only in

conjunction with post-implant-removal restoration surgery, and not in conjunction with her

pre-implantation condition.

Dr. Pliskin's reports consistently opine that the placement of the implant was

negligent, but never state that the procedure should not have been done because there

was insufficient bone to support an implant. The May 17, 2017 report is based on 40

digital x-ray images from Dr. Gilbert. Dr. Pliskin says some of them show that the implant

was incorrectly placed too close to the root of an adjacent tooth. Presumably, the same

x-rays should have shown the insufficient bone mass, and been commented upon in Dr.

Pliskin's reports if he were of the opinion that the lack of bone mass made her a bad

candidate for implantation. His reports are silent on the candidacy issue and the Court

properly prevented him from testifying beyond the fair scope of his reports.

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D. Plaintiff did not present any witness who testified regarding

the standard of care for the proper placement of an implant.

Dr. Pliskin testified regarding the evaluation and referral of patients. He did not

offer any opinion as to the standard of care for implant placement, or that Defendant

Gilbert had breached that standard of care. Dr. Pliskin did testify that the implant placed

by Dr. Gilbert was not in a restorable position, meaning that it was not positioned so that

the restorative dentist could place a cap or denture on it. NT 8/21/18 (PM) pp. 26-27, 55.

That testimony did not constitute expert opinion as to the standard of care for implant

placement, or that Defendant Gilbert had breached that standard of care. It merely opined

that a bad result had occurred and was silent about it being the result of negligence.

Plaintiff incorrectly asserts that Plaintiff's treating dentist - Mark G. Rothman,

D.M.D. - gave expert testimony on the standard of care.5 Dr. Rothman testified as

Plaintiff's treating dentist and not as an expert. In his trial deposition, he testified that, as

a treating dentist, the ethical rules of the American Association of Oral and Maxiliofacial

Surgeons barred him from giving expert testimony. Dep. p. 65 (Defendants' Ex F). He

stated that his opinions "pertaining to my treatment and why I chose to treat the way I

did," was not affected by the ethics code. Id. p. 66 (emphasis added). However, his

treatment is his personal opinion and not the standard of care for dental implants

generally. Dr. Rothman testified that he was not offering any expert opinions with regard

to the standard of care for the placement of implants, and that he was not offering any

5 Dr. Rothman appeared at trial and testified live. NT 8/21/18 (PM) pp. 65-89. His

testimony was curtailed in the midst of the Plaintiff's direct examination by the lateness of

the hour. He could not return the next morning, so the parties took his trial deposition

instead and played it to the jury the next afternoon. NT 8/22/18 (PM) p. 20. The

deposition is Defendants' Exhibit F.

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opinions, expert or otherwise, regarding whether Dr. Gilbert breached the standard of

care. Id. pp. 68-69.

Plaintiffs incorrectly assert that Dr. Rothman in fact, offered an opinion on the

standard of care relative to the location of restorative implants. He testified that Plaintiff's

implant was not in a restorable position and had to be removed. Rothman Dep. pp. 12,

27-29. However, Dr. Rothman did not testify that an implant which is in a non-restorable

position is a breach of the standard of care. Like Dr. Pliskin's similar testimony, this was

only evidence of a bad result, not negligence.

E. Plaintiff did not present any witness who testified regarding

plaintiff's candidacy, or lack thereof, for an implant.

The discussion above in part Ill B demonstrates that Dr. Pliskin did not testify that

Plaintiff was not a good candidate for the placement of an implant.

Plaintiff incorrectly asserts that Dr. Rothman testified that Plaintiff was a bad

candidate for implantation because she had insufficient bone material. That assertion is

based on a misreading of his testimony. Dr. Rothman testified that he believed the

implant as placed was non-restorable and that Plaintiff had bone loss after the implant

was removed that would need to be repaired via bone graft before another implant was

placed. See, e.g., NT 8/21/18 (PM) pp. 88-89.

Dr. Rothman consistently testified that as a result of the removal of the failed

implant, there was insufficient bone to support a new implant. Plaintiff twists that

testimony and says Dr. Rothman said the lack of bone made her a bad candidate for the

original implant. Rothman Dep. pp. 12, 18-20, 23-25, 34-40.

There was no evidence that Plaintiff was a bad candidate for a dental implant.

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IV. Conclusion

The Superior Court should affirm the entry of the judgment of nonsuit in favor of

the Defendants Benjamin Gilbert and Gilbert Dental Center, and against the Plaintiff Stacy

Phillips.

BY THE COURT:

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