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.

NOT FOR PUBLICATION WITHOUT THE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.
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A-0175-17T3

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. 
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A-0175-17T3

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 lifts1and 

guided bone regeneration2 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 jawbone (the 

foundation) and tooth-like porcelain restorations to replace missing teeth (fixed 

bridge). In addition to preserving the jawbone and surrounding teeth, bridges 
4

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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 twentyone 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 (nonremovable), https://www.dentalimplantcenter.com/fixed-bridges-nonremovable/ (last visited Apr. 24, 2019). 
5

A-0175-17T3

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 
6

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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.
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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
8

A-0175-17T3

Ferreira5conference 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).
9

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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 
10 A-0175-17T3

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 
11 A-0175-17T3

(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 can 

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.
12 A-0175-17T3

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
13 A-0175-17T3

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.
14 A-0175-17T3

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
15 A-0175-17T3

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 
16 A-0175-17T3

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-prudentpatient] 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
17 A-0175-17T3

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 
18 A-0175-17T3

prejudice if there are extraordinary circumstances to explain noncompliance.")

(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.