The opinion of the court was delivered by: John Gleeson, United States District Judge.
Plaintiffs Jacqueline Grosso ("Grosso") and Ralph Grosso bring this action, claiming that Dr. Philip Buccigrossi committed dental malpractice in his treatment of Grosso. Buccigrossi now moves for partial summary judgment, contending that some of the allegations of negligence in the complaint are barred by the statute of limitations. For the reasons set forth below, the motion for partial summary judgment is denied.
Grosso was Buccigrossi's patient for more than nine years. The treatment records reveal that she visited him approximately sixty-five times between July 1, 1998 and August of 2007. When Grosso first went to see Buccigrossi, she expressed dissatisfaction with her prior orthodontic treatment and with the general appearance of her teeth. Grosso suffered from poor dental health throughout the treatment period. She attributes that poor health to malocclusion -- the misalignment of her upper and lower teeth. Grosso alleges that Buccigrossi should have treated her malocclusion by referring her to an orthodontist to realign her teeth. Instead, Buccigrossi made ineffectual attempts to treat various problems -- broken teeth, recurring fractured fillings, systemic deterioration of her teeth, and severe gum problems -- that Grosso contends were just symptoms of the larger problem.
Dr. Richard Bash, plaintiff's expert witness and her current treating dentist, states in his report that Buccigrossi's treatment departed from the standard of care in the following ways, which he divides into ten sections:
(1) On July 1, 1998, Buccigrossi conducted an initial cleaning without the necessary x-rays to permit proper diagnosis of malocclusion.
(2) In 1998, Buccigrossi deviated from the appropriate and reasonable standard of dental care in his treatment of tooth numbers 13, 18, 23, and 31.*fn1 All these teeth subsequently failed, and Bash attributes their failure to Buccigrossi's inadequate treatment and failure to diagnose Grosso's posterior bite collapse, related to her malocclusion.
(3) Buccigrossi caused the loss of tooth numbers 18 and 30 in 1998 due to a "total disregard of the periodontium and the restoration of Grosso's teeth," failed to take a vitality test on tooth number 9 in May 2001, and performed a root canal on tooth number 23, which he later removed.
(4) In 2001 and 2002, Buccigrossi created a partial denture replacing tooth numbers 23, 29, and 30, but failed to provide for proper occlusion.
(5) Buccigrossi "fail[ed] to create an adequate treatment plan during the years he treated Mrs. Grosso from 1998 to 2007 in failing to identify the etiology, diagnosis, treatment and prognosis for Mrs. Grosso's oral health which included, most significantly, a complete systematic failure to provide for proper occlusion throughout Mrs. Grosso's mouth."
(6) In 2007, Buccigrossi failed to take timely corrective action to save tooth number 6.
(7) In 2007, Buccigrossi did not have a proper treatment plan for tooth numbers 7, 8, 9, and 10, and did not provide for proper occlusion of the teeth. The teeth were filled and retreated on multiple occasions, then failed, resulting in the need for crowns on those teeth.
(8) The temporary crowns Buccigrossi created for tooth numbers 7, 8, 9, and 10 in 2007 failed to provide for proper occlusion, preventing Grosso from closing her mouth. Buccigrossi also broke teeth numbers 7 and 9, and permitted acrylic to set and harden in Grosso's mouth for an inordinate period of time. When he tried to remove the acrylic, he did so using a crown remover, causing Grosso unnecessary pain.
(9) Also in 2007, Buccigrossi failed to provide embrasure space between tooth numbers 7, 8, 9, and 10 and failed to provide plaintiff with ...