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Yanello v. Park Family Dental

Court of Appeals of Illinois, Third District

April 20, 2017

NANCY YANELLO, Plaintiff-Appellant,
PARK FAMILY DENTAL and JAE S. ROH, Individually and As Agent and Servant of PARK FAMILY DENTAL, Defendants-Appellees.

         Appeal 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.



         ¶ 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 prosthodontist.

         ¶ 2 FACTS

         ¶ 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 thereafter.

         ¶ 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 functional deficits.

         ¶ 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 sinus.

         ¶ 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 Association.

         ¶ 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[1] 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 bone."

         ¶ 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 ...

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