Appeals panel: Judge let suburban dentist fend off malpractice claims using skulls improperly at trial

By Scott Holland | May 3, 2017

A state appeals panel has determined a Will County judge ruled improperly in a dental malpractice suit, saying the judge was wrong, in part, for allowing an expert witness presented by the defendant dental practice to use skulls as more than just visual aids.

In an opinion issued April 20, Third District Appellate justices William E. Holdridge, Robert L. Carter and Tom M. Lytton overturned a case from the Will County courtroom of Judge Barbara Petrungaro, a dispute in which patient Nancy Yanello sued Park Family Dental, of Willowbrook, and Dr. Jae S. Roh.

Holdridge authored the opinion.

According to case documents, Roh extracted eight of Yanello’s upper jaw teeth in 2009 and 2010, then inserted four dental implants and gave her a denture that snapped on to the implants. On March 16, 2011, she returned, saying two implants were loose and painful. An examination led to Roh determining three implants failed and noting significant bone loss throughout the jaw, which he hadn’t noticed during the initial procedures.

Ultimately, after pain persisted, University of Iowa dental specialists removed all the implants. The pain did not fully abate, and the university determined Roh improperly placed one of the implants resulting in permanent nerve damage.

Yanello sued Roh and his practice, but after a jury trial, judgment was entered in favor of the defendants. Yanello sought a new trial via appeal, arguing Petrungaro was wrong to allow a defense expert to present an actual human skull and a model skull as real, rather than demonstrative, evidence in trying to establish that Roh did not violate a standard of care - and doing so after failing to disclose the skulls to the Yanello’s lawyers prior to trial.

She also said the judge improperly allowed speculative testimony about her health record and contended the defense improperly suggested one of her expert witnesses was violating professional ethics by testifying. Yanello further said the judge denied her motion to impose sanctions against defense attorneys “for repeatedly raising baseless objections during the evidence deposition of Dr. Robert Schneider, Yanello’s treating prosthodonist.”

The appellate justices determined the skulls were improperly used to undermine Yanello’s case theory and X-ray evidence, directly implying “the anatomy depicted in the skulls was identical or similar to Yanello’s,” an implication reinforced during closing arguments. Using the skulls as real evidence — rather than simply as a visual guide for explaining professional terms that might confuse jurors — without advance disclosure was improper, Holdridge wrote, “and the trial court abused its discretion by allowing it.”

The skull issues alone convinced the appellate panel to order a new trial, but the justices addressed the remaining issues to prevent errors from re-occuring on retrial. They noted another expert, Dr. Nicholas Panomitros, was allowed “to testify that the failure of Yanello’s dental implants was caused by a ‘synergism’ of medical conditions, including rheumatoid arthritis and osteopenia. However, there was no evidence suggesting that Yanello had been diagnosed with rheumatoid arthritis at the time she was being treated by Dr. Roh.” As Panomitros “failed to present a sufficient foundation establishing the reliability of his opinion,” that portion of his testimony should have been excluded.

Further, the justices agreed it was improper to allow defense lawyers to cross-examine Yanello’s expert, Dr. Richard Burton, with the American Association of Oral and Maxillofacial Surgeons’ (Association) Code of Professional Conduct. The line of questioning, Holdridge wrote, “was both irrelevant and in violation of public policy.”

Finally, the justices said Petrungaro did not abuse discretion “by refusing refusal to award sanctions against defense counsel,” saying the lawyers did not obviously violate a statutory discovery rule, but “merely raised several objections during an evidence deposition that were later overruled by the trial court.”

According to Will County court records, Yanello was represented by attorney John Spesia, of the firm of Spesia Ayers Ardaugh, of Joliet, and Park Family Dental was defended by attorney Robert Hoban, of the firm of Judge James Kujawa, of Park Ridge.

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