from the Circuit Court of the 12th Judicial Circuit, Will
County, Illinois, Appeal No. 3-14-0926 Circuit No. 11-L-756
Honorable Barbara Petrungaro, Judge, Presiding.
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the
court, with opinion. Justices Carter and Lytton concurred in
the judgment and opinion.
HOLDRIDGE, PRESIDING JUSTICE
1 The plaintiff, Nancy Yanello (Yanello), sued the
defendants, Dr. Jae S. Roh and Park Family Dental, for
professional negligence after certain dental implants
surgically placed by Dr. Roh failed. Following a jury trial,
judgment was entered in favor of the defendants on all
counts. Yanello appeals the trial court's judgment and
requests a new trial. Yanello contends that the trial court
abused its discretion and committed reversible error by: (1)
allowing a defense expert to present an actual human skull
and a model skull to the jury and to use these skulls as real
evidence (rather than demonstrative evidence) to establish
that Dr. Roh did not violate the standard of care, where the
skulls were not disclosed to the plaintiff prior to trial
pursuant to Illinois Supreme Court rule 213(f) (Ill. S.Ct. R.
213(f) (eff. Jan. 1, 2007)) and the defendant did not lay a
proper foundation for their admission; (2) allowing a defense
expert to testify that a "synergy" of health
conditions, including rheumatoid arthritis and osteopenia in
the maxilla, caused or contributed to Yanello's bone loss
and dental implant failure where there was no competent
evidence that the claimant had either of those conditions and
where the defense expert's causation theory was purely
speculative; (3) allowing the defense to cross-examine Dr.
Richard Burton, one of Yanello's expert witnesses, with
the American Association of Oral and Maxillofacial
Surgeons' (Association) Code of Professional Conduct in
order to improperly suggest that Dr. Burton violated the
Association's ethical rules by testifying. In addition,
Yanello maintains that the trial court abused its discretion
by denying Yanello's motion to impose sanctions against
the defendants' counsel under Illinois Supreme Court Rule
219(c) (Ill. S.Ct. R. 219 (c) (eff. July 1, 2002)) for
repeatedly raising baseless objections during the evidence
deposition of Dr. Robert Schneider, Yanello's treating
3 In 2009 and 2010, Dr. Roh extracted eight teeth from
Yanello's maxilla (i.e., her upper jaw),
inserted four dental implants in her maxilla, and gave her a
maxillary denture which snapped onto the dental implants. Dr.
Roh did not see any significant bone loss in the
defendant's maxilla at the time.
4 On March 16, 2011, Yanello returned to Dr. Roh complaining
that two of the implants were loose and painful. Upon
examination, Dr. Roh determined that three of the implants he
placed had failed. He also noted significant bone loss
everywhere in Yanello's maxilla. He testified that the
bone loss in Yanello's maxilla was a "significant
finding" that could increase the risk that future dental
implants could fail.
5 When Yanello returned to Dr. Roh on April 20, 2011, Dr. Roh
removed the failed implants he had previously inserted and
placed four new implants. At that time, Dr. Roh observed that
there was barely enough depth in the bone to place dental
implants in Yanello's maxilla.
6 On June 16, 2011, Yanello returned to Dr. Roh complaining
of pain shooting up the side of her nose. Dr. Roh told
Yanello that everything "seemed okay" with her
implants at that time. Yanello continued to experience pain
7 Two weeks later, Yanello went to the University of Iowa,
where dental specialists had designed and placed implants in
her lower jaw in 2005. She first saw Dr. Robert Schneider, a
dental specialist and board certified prosthodontist.
Schneider testified that Yanello had "chronic pain"
and pain in her midline up her nose and lip. He referred
Yanello to Dr. Richard Burton, a board certified oral surgeon
and the vice chairman of oral surgery at the University of
Iowa, for treatment of what Dr. Schneider characterized as
"failed implants." Dr. Schneider testified that
this treatment was "complex" because there were
multiple implant failures, the angulation of the implants
that were in place was poor, and Yanello had "lost a lot
of alveolar bone."
8 Yanello saw Dr. Burton on August 29, 2011. Dr. Burton
recommended that the implants placed by Dr. Roh be removed.
On November 18, 2011, resident Dr. Brian Ludwig, acting under
Dr. Burton's supervision, surgically removed all of the
implants placed by Dr. Roh.
9 Thereafter, Yanello continued to experience pain in her
maxilla. Her treaters at the University of Iowa determined
that the pain was the result of permanent damage to the
nasopalatine nerve caused by one of the implants that had
been improperly placed by Dr. Roh. In addition, the maxillary
denture that Dr. Roh had fabricated for Yanello left her with
10 At trial, Yanello relied on the expert testimony of Drs.
Ludwig, Schneider, and Burton and of her family doctor, Dr.
Bhavesh Gandhi. Dr. Ludwig and Dr. Schneider each testified
that Dr. Roh violated the standard of care in his placement
of Yanello's dental implants. Specifically, Dr. Ludwig
and Dr. Schneider each testified that the implants were
improperly angled, which resulted in bone loss and implant
failure. They further testified that one of the implants
placed by Dr. Roh had impinged on Yanello's nasopalatine
nerve and another had perforated Yanello's maxillary
11 Dr. Burton testified that he is a professor and vice
chairman of oral and maxillofacial surgery at the University
of Iowa Hospitals and Clinics and senior director of the
American Board of Oral and Maxillofacial Surgery. He is
licensed to practice dentistry in Illinois and is board
certified in oral and maxillofacial surgery. He placed
implants in Yanello's mandible in 2005. Dr. Burton
testified that, after examining Yanello in August of 2011, he
concluded that she had multiple failing maxillary implants
that needed to be removed. He stated that the midline implant
(located at a location below Yanello's nose) was placed
within the contents of the incisive canal and was compressing
the incisive or nasopalatine nerve, which provides sensation
to the upper and lower jaw and teeth. Dr. Burton opined that
Dr. Roh violated the standard of care when he: (1) placed the
midline implant into the incisive canal; and (2) placed
implants that were not properly angled and positioned.
According to Dr. Burton, the improperly-placed implants led
to the bone loss in Yanello's maxilla. Dr. Burton opined
that, as a result of Dr. Roh's negligence, Yanello has no
remaining alveolar bone, she has neurogenic pain, and she is
unable to function properly with her current denture. Dr.
Burton also opined that Dr. Roh was not qualified to do the
complex procedures that he performed on Yanello.
12 During cross-examination, defense counsel confronted Dr.
Burton with the American Association of Oral and
Maxillofacial Surgeons' Code of Professional Conduct
(Association's Code) in an attempt to suggest that Dr.
Burton was acting unethically by testifying against Dr. Roh.
Yanello's counsel objected that the defendants had not
produced the Association's Code prior to trial as
required by Illinois Supreme Court Rules 213 and 214. He also
objected to the foundation and relevance of the document. The
trial court overruled these objections and allowed defense
counsel to cross-examine Dr. Burton with Part G of the
Association's Code, which is titled "Fairness in
dealing with colleagues." Defense counsel read subpart
G.1.08 to the jury, which provided: "Oral and
maxillofacial surgeons who wish to serve as expert witnesses
must not do so in cases for which they also served as one of
the patient's treating doctors." Dr. Burton agreed
that he was one of Yanello's treating doctors. He
attempted to state that the Code provision at issue did not
apply because he was "not testifying against an oral and
maxillofacial surgeon, " but defense counsel cut off his
answer. Dr. Burton agreed that subpart G.1.02 of the
Association's Code provides that, when a patient seeks a
second opinion on her own for a problem or condition not yet
treated, "before initiating treatment, the oral and
maxillofacial surgeon should inform any health care
practitioner who previously rendered an opinion on the same
condition or problem provided the patient does not object to
doing so." Dr. Burton admitted that he never reached out
to Dr. Roh regarding his treatment of Yanello. On redirect,
Dr. Burton testified that the Code provision did not apply
because Dr. Roh was not a "colleague" of his in the
13 Dr. Gandhi, Yanello's geriatric specialist and family
doctor, also testified on Yanello's behalf. Dr. Gandhi
stated that he was board certified in family medicine and
geriatrics. He focused his practice on treating
osteoarthritis, osteoporosis, and on reconciling medications
taken by geriatric patients. Dr. Gandhi testified that he
treated Yanello's dental pain by prescribing narcotic
pain medication. He opined that Yanello did not have
osteoporosis or rheumatoid arthritis, and that she had never
had rheumatoid arthritis since he began treating her in 2009.
Dr. Gandhi testified that Yanello had
osteopenia in her forearm and lumbar spine. However,
Dr. Gandhi stated that he has never seen or heard of
osteopenia in the maxilla.
14 Dr. Nicholas Panomitros was the defendants' testifying
expert at trial. Dr. Panomitros testified that he was a
lawyer, a professor at Loyola Law School, and a general
dentist who was qualified to do general check-ups, fillings,
root canals, crowns, orthodontics, extractions, and implants.
He had taught classes in oral anatomy, oral pathology, oral
medicine, head and neck anatomy, radiology, and ethics. Dr.
Panomitros opined that the implants placed by Dr. Roh
complied with the standard of care because they were
"placed in bone and *** will provide function." He
also opined that improper angulation did not cause the
implant failures because all implants, like natural teeth,
are angulate. According to Dr. Panomitros, the angulation of
natural teeth is dictated by the "availability of
bone." Similarly, he opined that anterior dental
implants (those placed below the nose) must be angled to
follow the naturally angled dentition due to the "very,
very, very thin" amount of bone available in the
anterior maxilla. He opined that implants are appropriately
placed if they are "integrated" with the natural
teeth and you can "fit them with an abutment angled
right for whatever purpose you are using them for." He
further opined that the implants placed by Dr. Roh were
appropriately angled because they were "placed in the
15 While defense counsel displayed Yanello's
cephalometric (side profile) x-ray, Dr. Panomitros opined
that the implants placed by Dr. Roh "could not have been
placed in a more perpendicular position." Defense
counsel then asked Dr. Panomitros if he had brought something
"with respect to the angulation of the teeth." At
that point, Dr. Panomitros displayed an actual human skull
and a model skull. He testified that he would use the skulls
to establish the thin amount of bone in the anterior maxilla.
16 Yanello's counsel objected to the skulls on the
grounds that: (1) the defense had provided no foundation that
the skulls were a true and accurate representation of
Yanello's anatomy; (2) the skulls were not disclosed
prior to trial under Supreme Court Rule 213; (3) the skulls
were irrelevant and misleading to the jury; and (4) the use
of the skulls was more prejudicial than probative. During a
sidebar, defense counsel initially responded that Dr.
Panomitros would show that the angulation of the skull that
he had presented to the jury was "nearly identical"
to the angulation of Yanello's ...