                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0175-17T3

MICHAEL BUTTACAVOLI,

          Plaintiff-Appellant,

v.

UNIVERSAL DENTISTRY, PA,
DR. ROBERT DENMARK, and
DR. TRELLA DUTTON,

          Defendants-Respondents,

and

SCHAEFLEN MANAGEMENT,
LLC, and JOHN SCHAEFER,

     Defendants.
______________________________

                    Submitted April 4, 2019 – Decided May 21, 2019

                    Before Judges Simonelli and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Gloucester County, Docket No. L-0049-17.

                    Michael Buttacavoli, appellant pro se.
            Lewis Brisbois Bisgaard & Smith LLP, attorneys for
            respondent University Dentistry, PA (Walter H.
            Swayze, III and John M. Borelli, of counsel and on the
            brief).

            Law Offices of Steven J. Tegrar, attorneys for
            respondent Trella Dutton, DDS (Michael L. Lazarus, of
            counsel and on the brief).

            Stahl & De Laurentis, PC, attorneys for respondent
            Robert Denmark, DMD (Michael C. Pacholski, on the
            brief).

PER CURIAM

      In this dental malpractice matter, plaintiff Michael Buttacavoli appeals

from the July 27, 2017 and June 22, 2018 Law Division orders dismissing his

complaint and amended complaint with prejudice against the defendants, a

dentist and a periodontist, for failing to comply with the Affidavit of Merit

(AOM) statute, N.J.S.A. 2A:53A-27. Because we agree with the trial court that

the common knowledge exception was inapplicable, and an AOM was required

as to each defendant, we affirm.

                                      I.

      On January 18, 2010, plaintiff underwent a dental examination at

defendant Universal Dentistry, P.A., ("Universal") and expressed an interest in

having a dental implant for tooth number fourteen.      Defendant, Dr. Trella

Dutton, recommended plaintiff undergo a consultation with defendant, Dr.

                                                                       A-0175-17T3
                                      2
Robert Denmark, a periodontist, to consider other options, such as a bridge

placement or a removable partial denture.

      On July 12, 2011, Denmark evaluated plaintiff in Dutton's presence.

Denmark advised plaintiff that if a dental implant was inserted for tooth number

fourteen, as well as teeth numbers three and four, lateral wall sinus lifts 1 and

guided bone regeneration 2 would be required since there was insufficient bone

for osteotome sinus lifting.     Denmark further advised plaintiff that these

procedures would need to be performed by an oral surgeon, an option which

plaintiff declined. Instead, he elected to proceed with a fixed bridge. 3


1
   Lateral wall sinus lifts are procedures used when "[l]ack of sufficient bone
height along maxillary sinus poses significant difficulty for placement of
implants in edentulous maxillary jaw." The procedure is minimally invasive. S.
M. Balaji, Direct v/s Indirect Sinus Lift in Maxillary Dental Implants, US
National    Library of Medicine            National  Institutes of      Health,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3814663/ (last visited Apr. 24,
2019).
2
  Guided bone regeneration is a surgical procedure that uses barrier membranes
with or without particulate bone grafts or/and bone substitutes to help regenerate
bone. Jie Liu and David G. Kerns, Mechanism of Guided Bone Regeneration:
A Review, US National Library of Medicine National Institutes of Health,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4040931/ (last visited Apr. 23,
2019).
3
  "Fixed [i]mplant [b]ridges utilize dental implants placed in the jawbo ne (the
foundation) and tooth-like porcelain restorations to replace missing teeth (fixed
bridge). In addition to preserving the jawbone and surrounding teeth, bridges


                                                                            A-0175-17T3
                                        3
      Dutton prepared an upper round maxillary bridge for plaintiff, and at his

August 10, 2011 visit, informed him "the most common risk with the type of

treatment I rendered [is] the necessity for a root canal and decay at the margins."

Plaintiff alleges that Dutton omitted the fact that "after this treatment, you

commit to bridges [for] the rest of your life," and also alleges Dutton did "not

reveal risks and complications of the treatment, such as infection from

microleakage." Plaintiff had a follow-up visit on August 16, 2012, to have his

upper round house bridge tapped off and re-cemented. During that visit, Dutton

learned that the bridge was loosened at another dental office that plaintiff went

to for a cleaning.    In an effort to address this problem, Dutton discussed

placement of a lower bridge with plaintiff.

      Following another evaluation with Dutton on February 21, 2013, plaintiff

consented to having a fixed lower bridge constructed for teeth numbers twenty-

one through twenty-seven. The bridge was completed and inserted at that visit.

Plaintiff contends the bridge led to his developing dental infections.




can help maintain the shape of [the] smile and prevent future dental
complications." The Dental Implant Center, Fixed Implant Bridges (non-
removable),            https://www.dentalimplantcenter.com/fixed-bridges-non-
removable/ (last visited Apr. 24, 2019).


                                                                           A-0175-17T3
                                        4
      Plaintiff alleges that on December 5, 2016, he became aware of

"complications that caused severe misery and financial loss," because of his

inability to make an "optimum choice regarding treatment[,] and if offered

complete and truthful information[, he] would have rejected defendants[']

remedy." Plaintiff filed suit on January 11, 2017, naming Dutton and Universal

as defendants. In his initial complaint, he requested "dental service fees" in the

amount of $18,651, plus $3,000 for "misery," and "pending dental service fees"

in the amount of $49,969, plus $9,000 for "sickness and ill health."

      The complaint and amended complaint allege defendants were negligent

for failing to provide plaintiff with informed consent about the "increased

probability of infection with dental bridges" and that they misrepresented the

"high-risk" nature of the implant procedure. He claims Dutton never advised

him of the risk of potential root canals and infections that may emanate from

dental implants, and Denmark failed to disclose accurate information relative to

the success rate of implants. Had this information been disclosed, plaintiff

asserts he would have declined dental implants.        Plaintiff claims a dental

assistant employed by Universal "offered a fixed bridge in lieu of implants," that

would give him a "perfect smile" and lessen the risk of infection associated with

dental implants. Being "ultra health-conscious," he chose the bridge over the


                                                                          A-0175-17T3
                                        5
implants. Universal defaulted, and plaintiff obtained a default judgment against

it on March 27, 2017, which was vacated by an order dated January 5, 2018. 4

      Dutton denied plaintiff's allegations, and contended there are signed

informed consent forms in his chart initialed by plaintiff, evidencing plaintiff

was advised of the risks of the proposed treatment plan. The first consent form

is dated July 5, 2011, and another consent form was signed for plaintiff's lower

bridge on February 21, 2013. In Dutton's answer to the complaint filed on March

16, 2017, an AOM was demanded. Instead of providing an AOM, plaintiff

served a letter dated April 20, 2017 from Dr. Bob Harris, a doctor of dental

surgery, licensed in North Carolina to practice dentistry, who is plaintiff's

current treating dentist. The letter does not comport with the AOM statute since

it is not attested to or notarized, does not state that Dutton's professional services

fell below recognized standards of care, and simply comments that "the entire

proposition is based on informed consent[.]" Dr. Harris stated he "was not

present for any of that and cannot speak for this."




4
  The January 5, 2018 order also dismissed John Schaefer (improperly referred
to as James Schaefer) and Schaeflen Management, LLC with prejudice, by
consent.


                                                                              A-0175-17T3
                                          6
      Dutton moved for summary judgment based upon plaintiff's failure to

serve an AOM, arguing Dr. Harris's letter is conjecture and does not satisfy the

delineated requirements of the AOM statute. Judge David W. Morgan granted

Dutton's motion on July 27, 2017, noting "plaintiff contends [Dutton] presented

egregious misrepresentations . . . . But nowhere, either in his complaint or in

his opposition, does he state what those misrepresentations are. He doesn't

provide anything as to what the informed consent information would have been

that would have fit into the common knowledge." The judge aptly found:

            [P]laintiff has more of an obligation than just to use the
            word common knowledge to demonstrate that this
            might be considered a common knowledge case . . . .
            he's basically saying, look, the doctor told me this or
            omitted something, he doesn't say what, and I basically
            went on with the course of treatment only to find out
            later that something else was true, he doesn't tell us
            what that is; and then said, had I known that, I would
            have rejected the treatment as provided.

            And so that all requires an expert to tell us what the
            details were that should have been provided, what the
            standard was as to what should have been provided,
            what was provided[,] and how that would constitute a
            deviation from the standard of care.

      Thereafter, plaintiff filed an amended complaint on January 16, 2018,

naming Universal and Denmark as defendants. Judge Timothy W. Chell held a




                                                                         A-0175-17T3
                                        7
Ferreira5 conference on May 4, 2018, and advised plaintiff of his obligation to

serve an appropriate AOM and offered him a sixty-day extension to do so, but

plaintiff declined, stating, "I waive my right to submit an AOM" and "[i]f you

are waiting for an AOM, you will be wandering in the desert." The judge entered

an order memorializing what transpired at the conference and indicated that

plaintiff had to serve an AOM as to Denmark by May 21, 2018. On May 22,

2018, Denmark filed a motion to dismiss the amended complaint with prejudice

because plaintiff failed to serve an AOM. In opposition, plaintiff argued that an

AOM was unnecessary because his claim was based on informed consent.

Following oral argument on June 22, 2018, Judge Chell granted Denmark's

motion finding "informed consent cases require expert testimony absent an

admission by defendant[,]" citing Darwin v. Gooberman, 339 N.J. Super. 467,

476 (App. Div. 2001), abrogated by Couri v. Gardner, 173 N.J. 328 (2002). The

judge further held:

             Darwin and other New Jersey case law on this issue
             make it clear that informed consent, generally, is
             viewed as a breach of professional responsibility.
             Informed consent is a negligence concept predicated on
             the duty of a physician to disclose to a patient
             information that will . . . enable the patient to evaluate
             knowledgeably the options available and the risks


5
    Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151 (2003).
                                                                          A-0175-17T3
                                         8
            attendant upon each before subjecting that patient to a
            course of treatment.

            Here, plaintiff's case goes directly to . . . Denmark's
            assessment of a potential dental implant procedure.
            Plaintiff alleges misrepresentations of the risks of that
            procedure. The question of whether . . . Denmark
            correctly informed plaintiff of the risks of a dental
            implant procedure is a question that . . . requires a
            determination if the information provided deviated
            from a standard of care or sound medical judgment.

            This [c]ourt finds that plaintiff is, essentially, asserting
            a negligence or malpractice claim. It is not clear from
            . . . plaintiff's submissions if plaintiff is asserting that
            this is a common knowledge or res ipsa loquitur
            exception to the [AOM] requirement. Assuming
            arguendo, the plaintiff is making these claims, the
            [c]ourt is, also, forced to reject those claims.

            A jury could infer a defendant's negligence where, A,
            the occurrence, itself . . . ordinarily bespeaks
            negligence; B, the instrumentality was within
            defendant's exclusive control; and, C, there is no
            indication in the circumstances that the injury was the
            result of plaintiff's own voluntary act or negligence.

            The [c]ourt finds that plaintiff's claim fails on the first
            prong of this . . . . [And] require[s] proof of a deviation
            from a professional standard of care . . . . [And]
            plaintiff has failed to provide an [AOM] despite being
            . . . given every reasonable opportunity to do so.

      On appeal, plaintiff maintains that the two judges erred in concluding

AOM's were required because "the common knowledge of the jury can render

justice," because "[t]he issue is not about the practical aspects of standard of

                                                                           A-0175-17T3
                                         9
care . . . [it] is about negligent communication," and "extraordinary

circumstances" make it impossible to satisfy the AOM statute. Defendants

counter, as they did in the trial court, that plaintiff's contentions "are beyond the

common knowledge of a layperson," and Denmark's opinion that plaintiff

required "lateral wall sinus lifts and bone grafts," "strike at the heart of

professional judgment" requiring an AOM. We agree.

                                         II.

      The AOM statute requires a plaintiff filing suit against a licensed

professional to have the case evaluated by an appropriately licensed person who

will then attest under oath, "that there exists a reasonable probability that the

care, skill or knowledge exercised or exhibited in the treatment, practice or work

that is the subject of the complaint, fell outside acceptable professional or

occupational standards or treatment practices." N.J.S.A. 2A:53A-27. "The

stated purpose of the AOM statute is laudatory—to weed out frivolous claims

against licensed professionals early in the litigation process."         Meehan v.

Antonellis, 226 N.J. 216, 228 (2016) (citation omitted). The other primary

concern, which together constitutes the AOM statute's "dual purpose," is

permitting "meritorious claims to proceed efficiently through the litigation

process . . . ." Id. at 229; Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 395


                                                                             A-0175-17T3
                                        10
(2001), superseded by Affidavit of Merit Statutory Amendment L. 2001, c. 372,

§ 1, N.J.S.A. 2A:53A-26 to -29, as recognized in Meehan, 226 N.J. at 228.6

Therefore, the AOM's objective is to "require plaintiffs in malpractice cases to

make a threshold showing that their claim is meritorious," Shamrock Lacrosse,

Inc. v. Klehr, Harrison, Harvey, Branzburg Ellers, LLP, 416 N.J. Super. 1, 14

(App. Div. 2010), not to prove, at this stage, the allegations in the complaint.

The statute is not concerned with whether a plaintiff can actually prove the

allegations of the complaint, but only whether a threshold showing of merit ca n

objectively be made. Hubbard, 168 N.J. at 394.

      Our Supreme Court has recognized an exception to the affidavit

requirement in professional negligence cases in which it is not necessary for

plaintiff to present an expert to establish the standard of care or a deviation from

that standard: the common knowledge exception. Id. at 390. In common

knowledge cases, the alleged negligence is unrelated to technical matters

peculiarly within the knowledge of practitioners within the defendant's field.

Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961). Common knowledge cases are

thus treated as ordinary negligence actions in which the jury can supply the


6
  Although the statutory amendment was enacted after the Hubbard case, the
amendment aligns with, and indeed reflects, the Legislature's intent, and the
Hubbard Court's interpretation of the AOM statute as a whole.
                                                                            A-0175-17T3
                                        11
applicable standard of care "from its fund of common knowledge" and assess

"the feasibility of possible precautions which the defendant might have taken to

avoid injury to the plaintiff." Id. at 142. The common knowledge exception

allows meritorious claims to go forward without forcing a plaintiff to incur the

expense of hiring an expert to submit an affidavit when no expert is needed at

trial. See Hubbard, 168 N.J. at 395.

      The Court has cautioned, however, that the exception must be construed

"narrowly in order to avoid non-compliance with the statute."           Id. at 397.

Accordingly, the doctrine has been applied only

            in circumstances involving obvious errors: a dentist's
            extraction of the wrong tooth, Hubbard, [168 N.J. at
            396]; the erroneous hookup of equipment that resulted
            in the pumping of gas, rather than the fluid that ought
            to have been used, into the patient's uterus, [Estate of
            Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 460,
            471 (1999)]; and the use of caustic solution, rather than
            the soothing medication intended to treat a patient's
            nose after surgery, Becker v. Eisenstodt, [60 N.J. Super.
            240, 242-46] (App. Div. 1960).

            [Bender v. Walgreen E. Co., 399 N.J. Super. 584, 590
            (App. Div. 2008) (holding common knowledge
            exception applies to pharmacist filling prescription
            with a drug other than the one prescribed).]

      Determining whether a matter alleges professional negligence, thus

requiring an AOM, or ordinary negligence fitting within the common knowledge


                                                                           A-0175-17T3
                                       12
exception, demands scrutiny of the legal claims alleged. Couri, 173 N.J. at 340-

41 ("It is not the label placed on the action that is pivotal but the nature of the

legal inquiry."). "If jurors, using ordinary understanding and experience and

without the assistance of an expert, can determine whether a defendant has been

negligent, the threshold of merit should be readily apparent from a reading of

the plaintiff's complaint." Hubbard, 168 N.J. at 395. Accordingly, a judge must

consider "whether a claim's underlying factual allegations require proof of a

deviation from a professional standard of care," or ordinary negligence, as only

the former claims are subject to the statutory requirements. Couri, 173 N.J. at

341.

       The exercise of the mandated close scrutiny of claims to determine the

applicability of the common knowledge exception was exhibited by this court in

Bender. There, we held that an AOM was not required as to the pharmacist's

alleged filling of a prescription with a drug other than the one prescribed, as that

error of substitution was a clear and obvious deviation evincing ordinary

negligence. Bender, 399, N.J. Super. at 591. In contrast, we held that the

plaintiff's failure to provide an AOM was fatal as to his claims based on the

pharmacy-defendant's "failure to recognize the impropriety of the dosage" of the

substituted drug "and failure to provide adequate information or warnings." Id.


                                                                            A-0175-17T3
                                        13
at 592. We held that an AOM was required because those claims needed to be

established by way of the testimony of an expert, to speak to whether the care,

skill, and knowledge of the defendant "fell outside acceptable professional or

occupational standards or treatment practices." Ibid. (quoting Hubbard, 168

N.J. at 390). As has been stated, "common knowledge cases involve obvious or

extreme error." Cowley v. Virtua Health Sys., 456 N.J. Super. 278, 290 (App.

Div. 2018).

      In an effort to avoid unnecessary delay and resolve disputes between the

parties regarding the need to provide an AOM, and to avoid dismissal of

meritorious claims brought in good faith, our Court has "developed a

prophylactic measure to encourage the timely filing of affidavits[:]" Ferreira

conferences. Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415,

423 (2010) (citing Ferreira, 178 N.J. at 154-55). A Ferreira conference is "an

accelerated case management conference [to] be held within ninety days of the

service of an answer" in all professional negligence cases to "ensure that

discovery related issues, such as compliance with the [AOM] statute, do not

become sideshows to the primary purpose of the civil justice system—to

shepherd legitimate claims expeditiously to trial[.]"   Ibid.   (first and third

alterations in original) (quoting Ferreira, 178 N.J. at 154). In this way, any


                                                                        A-0175-17T3
                                     14
factual question regarding a defendant's status as related to the allegations of

negligence in a plaintiff's complaint can be resolved. Murphy v. New Road

Constr., 378 N.J. Super. 238, 241-42 (App. Div. 2005).

      "By not producing an [AOM], [a] plaintiff may be seen to have placed all

his eggs in the ordinary negligence basket without alleging professional

negligence as well." Murphy, 378 N.J. Super. at 243. Although a plaintiff aware

of the AOM requirements is free to conclude an AOM is not necessary, if that

conclusion is incorrect and the requisite time period for filing has passed, the

complaint must be dismissed. Paragon, 202 N.J. at 423 (stating "an attorney's

inadvertence in failing to timely file an affidavit will generally result in

dismissal with prejudice"); Triarsi v. BSC Grp. Servs., LLC, 422 N.J. Super.

104, 121 (App. Div. 2011). Here, a Ferreira conference was conducted and

plaintiff was placed on notice of his need to file timely, appropriate AOM's.

      We do not view the informed consent component of plaintiff's dental

malpractice claim any differently. As our Supreme Court held:

            [T]o sustain a claim based on lack of informed consent,
            the patient must prove that the doctor [or dentist]
            withheld pertinent medical information concerning the
            risks of the procedure or treatment, the alternatives, or
            the potential results if the procedure or treatment were
            not undertaken. The information a doctor must disclose
            depends on what a reasonably prudent patient would


                                                                         A-0175-17T3
                                      15
           deem significant in determining whether to proceed
           with the proposed procedure.

           A plaintiff seeking to recover under a theory of lack of
           informed consent also must prove causation, thereby
           requiring a plaintiff to prove that a reasonably prudent
           patient in the plaintiff's position would have declined to
           undergo the treatment if informed of the risks that the
           defendant failed to disclose. If the plaintiff would have
           consented to the proposed treatment even with full
           disclosure, the burden of proving causation is not met.
           Accordingly,

                 [t]o establish a prima facie case for medical
                 negligence premised on a theory of liability
                 for lack of informed consent, a plaintiff
                 must show "(1) the physician failed to
                 comply with the [reasonably-prudent-
                 patient] standard for disclosure; (2) the
                 undisclosed risk occurred and harmed the
                 plaintiff; (3) a reasonable person under the
                 circumstances would not have consented
                 and submitted to the operation or surgical
                 procedure had he or she been so informed;
                 and (4) the operation or surgical procedure
                 was a proximate cause of the plaintiff's
                 injuries."

           [Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J.
           537, 548-49 (2002) (third and fourth alterations in
           original) (citations omitted) (quoting Teilhaber v.
           Greene, 320 N.J. Super. 453, 465 (App. Div. 1999)).]

     The AOM requirement applies equally to cases where the claims at issue

are based on a theory of lack of informed consent. Risko v. Ciocca, 356 N.J.

Super. 406, 412 n.1 (App. Div. 2003). Relatedly, "[a] plaintiff alleging lack

                                                                        A-0175-17T3
                                      16
of informed consent has the burden of producing expert testimony[.]" Tyndall

v. Zaboski, 306 N.J. Super. 423, 426 (1997); see also Chamberlain v. Giampapa,

210 F.3d 154, 161-62 (3d Cir. 2000). Plaintiff argues that it is a "logical

impossibility to produce an [AOM] where the misrepresentation occurred

between plaintiff and defendants void of witnesses," to substantiate his claim of

lack of informed consent. We disagree.

      Whether plaintiff's complaint is exempt from the AOM requirement based

on the common knowledge doctrine is a legal issue subject to our de novo

review. Triarsi, 422 N.J. Super. at 113. "A trial court's interpretation of the law

and the legal consequences that flow from established facts are not established

to any special deference." Manalapan Realty, LP v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995). We review issues of law de novo and accord no

deference to the judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463,

478 (2013).

      Case law dictates that the threshold for any exception to the AOM statute

is a high bar. See Ferreira 178 N.J. at 151 (2003) ("[T]wo equitable remedies

. . . temper the draconian results of an inflexible application of the statute. A

complaint will not be dismissed if the plaintiff can show . . . he has substantially

complied with the statute. Moreover, a complaint will be dismissed without


                                                                            A-0175-17T3
                                        17
prejudice if there are extraordinary circumstances to explain noncomplianc e.")

(citations omitted).

      We find no exceptions or extraordinary circumstances here, and an

appropriate AOM was required as to each defendant.             We likewise reject

plaintiff's claim that the judges failed to determine his constitutional rights were

violated under the equal protection clause because of "bait-and-switch"

marketing by defendants at his expense. The common knowledge doctrine is

inapplicable here because the allegations address deviations from accepted

standards of care. As our Court has stated, if "proof of a deviation from the

professional standard of care for [the] specific profession. . . . is required, an

[AOM] shall be mandatory for that claim, unless either the statutory, or common

knowledge exceptions apply." Couri, 173 N.J. at 341 (citation omitted).

      Affirmed.




                                                                            A-0175-17T3
                                        18
