Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

TILLERY v. LYNN

April 4, 1985

EDWIN GREGG TILLERY, Plaintiff, against JERRY H. LYNN, D.D.S., Defendant


The opinion of the court was delivered by: MOTLEY

MEMORANDUM AND OPINION ORDER

MOTLEY, Ch. J.,

 Plaintiff Edwin Gregg Tillery has commenced this dental malpractice action pursuant to 28 U.S.C. section 1332, alleging causes of action for negligence, fraudulent misrepresentation and breach of warranty. Plaintiff, as part of his relief for the fraud claims, is seeking punitive damages.

 Defendant Dr. Lynn has moved for partial summary judgment dismissing all causes of action grounded in fraud and all claims for punitive damages. In the alternative, defendant moves to stay discovery of his personal assets until such time as the jury determines whether or not plaintiff is entitled to punitive damages. He also seeks to bifurcate the trial, if the jury finds that plaintiff is entitled to punitive damages, as to the amount of such damages which should be awarded. For the following reasons, defendant's motion for partial summary judgment and to stay discovery are denied. Defendant's motion for a bifurcated trial is granted.

 FACTS

 Plaintiff, a resident of North Carolina, sought to have esthetic dental work done and consulted three dentists in North Carolina and Georgia concerning the possibility of having his upper front teeth crowned. Plaintiff was advised by each of these dentists not to have his teeth crowned as there was no dental need for crowning. Plaintiff, in July, 1982, then consulted defendant after reading an article about him in a national magazine. This article also described the difference between crowning and bonding, another dental procedure plaintiff was considering. In addition, plaintiff read a book concerning bonding prior to his consultation with Dr. Lynn.

 Plaintiff asserts that the Defendant dentist convinced him to have his entire mouth crowned for "the most esthetic result." Defendant, however, maintains that he had tried to discourage plaintiff from the crown work and advised him that his teeth did not need to be crowned. Plaintiff also contends that defendant represented to him that the crowns would last at least twenty years but probably a lifetime. Dr. Lynn also stated, according to plaintiff, that he was the most qualified dentist to perform the dental work and that prior information plaintiff had received from the other three dentists was not applicable to the type of crown which he utilized. Plaintiff then executed a letter on Dr. Lynn's letterhead which provided:

 
I, Gregg Tillery, was advised by Dr. Jerry Lynn against having my whole mouth capped. Since this is a very bad psychological problem with me & I insist on having this work done, I feel that Dr. Lynn is the most qualified dentist to do this work.

 /s/Gregg Tillery

 7-12-82.

 Plaintiff further claims that after the completion of the crowning of his upper teeth, he was unhappy with their esthetic appearance and told defendant that he no longer wished to have his lower teeth crowned. According to the plaintiff, Dr. Lynn represented to him that the bottom posterior teeth needed to be crowned to insure that the occlusion or bite of the lower teeth would correspond correctly to that of the upper crowns. Additionally plaintiff asserts that within hours after his treatment was completed, the porcelain began to chip off the surface of his crowns. He subsequently learned that all the crowns would require replacement because they allegedly did not fit or function properly. He also claims periodontial treatment now is required to treat inflamation of his gums caused by the ill-fitting caps.

 DISCUSSION

 When seeking summary judgment, the moving party has the burden of establishing that no genuine issue of material fact remains and that it is entitled to judgment as a matter of law. Fed. R. Civ. Pro., Rule 56; Robertson v. Seidman & Seidman, 609 F.2d 583, 591 (2d Cir. 1979). Defendant has failed to meet this burden.

 Defendant moves for partial summary judgment dismissing the causes of action grounded in fraud, contending that plaintiff, by his own admission at his deposition, had thoroughly investigated the possibility of crown work and bonding and was fully aware of the ramifications even before consulting with defendant about the dental work he wished to have perform. Dr. Lynn maintains that plaintiff had been advised by three dentists and by him not to have the crowns placed. He notes that plaintiff returned home to North Carolina in between the first consultation with him and the beginning of the dental work, but never sought advice from the other three dentists consulted initially. In addition, defendant points out that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.