Summary
determining that Delaware precedent and other jurisdictional case law support the finding that Article 2 of the UCC does not apply to a buyer-service provider relationship
Summary of this case from Spaeder v. Univ. of DelawareOpinion
C.A. No. 01C-03-031 (JTV).
Submitted: December 21, 2004.
Decided: March 30, 2005.
Upon Consideration of Defendants' Motion For Summary Judgment GRANTED.
Gabriel G. Atamian, MD, MSEE, JD, Dover, Delaware. Pro Se.
John A. Elzufon, Esq., and Joseph F. Gula, III, Esq., Elzufon, Austin, Reardon, Tarlov Mondel, Wilmington, Delaware. Attorneys for Defendants Bahar and Collins Dental Association.
James W. Owen, Esq., Wilmington, Delaware. Attorney for P R Dental Laboratory.
OPINION
I. Facts and Contention of the Parties
Dr. Atamian ("the plaintiff") filed a complaint against Dr. Arezoo A. Bahar ("Dr. Bahar"), Collins Dental Association ("Collins Dental"), and PR Dental Laboratory, Inc. ("P R") alleging causes of action for assault and battery, misrepresentation and deceit, common law conspiracy, intentional infliction of emotional distress, and product liability in connection with dental treatment he received. All allegations arise out of dental treatment administered at Collins Dental by his treating dentist, Dr. Bahar. PR was responsible for making the bridge used in the plaintiff's treatment.
The defendants have filed a summary judgment motion pursuant to Superior Court Civil Rule 56(b) alleging that there is no genuine issue as to any material fact and that the defendants are entitled to judgment as a matter of law as to each of the plaintiff's causes of action. The defendants also argue that, despite the fact that the plaintiff fails to include a negligence count in his complaint, all of the alleged actions are predicated on a negligence claim. Lastly, the defendants argue that this is a dental malpractice action and the plaintiff has not provided them with the name of an expert witness who will testify on the plaintiff's behalf.
The plaintiff responds by stating that the complaint does not include a count for negligence and that this is not a medical negligence action. He also argues that he has provided sufficient evidence for each count in the complaint to survive a summary judgment action. Finally, the plaintiff maintains that the Court ordered the defendant, Dr. Bahar, to be his expert witness. To the extent that the defendants are arguing that an expert is required, the plaintiff responds that Dr. Bahar will serve as that expert.
II. Standard of Review
Summary judgment should be rendered if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the nonmoving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Superior Court Civil Rule 56(c).
Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del.Super.Ct. 1995); Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del.Super.Ct. 1994).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Wooten v. Kiger, 226 A.2d 238 (Del. 1967).
III. Discussion
Count I — Assault and BatteryA prima facie case for assault requires a showing that a defendant's conduct placed the plaintiff in apprehension of imminent harmful or offensive physical contact. The requisite elements for battery are the intentional and unpermitted contact upon the person of another that is harmful or offensive. To prevail on a battery claim, a plaintiff must not have consented to the battery. The Delaware Supreme Court has recognized that a patient may have a cause of action against a dentist for the tort of battery but that claim is limited to those circumstances in which the dentist performed a procedure to which the patient has not consented. A battery claim may also be viable if the procedure administered is of a substantially different nature and character than that to which the patient consented.
Atamian v. Gorkin, 1999 Del. Super. LEXIS 666, at *4.
Brzoska v. Olsen, 668 A. 2d 1355, 1366 (Del. 1995).
Id.
Id.
Preliminary, any claim for assault and battery against P R can not survive summary judgment. The plaintiff has not submitted any evidence to establish that he had personal contact with any employee of P R. Furthermore, P R has submitted the affidavit of Anopet Phimmasone, the president of P R, in which Mr. Phimmasone states that no employee of P R had any personal contact with the plaintiff.
Turning to the assault claim against defendants Dr. Bahar and Collins Dental, the plaintiff submits no evidence to substantiate his allegation that the defendants placed him in "apprehension of imminent dental harm." To the contrary, the plaintiff stated in his deposition that he did not discover the problems with his dental treatment until after he left the office. The fear of harm could not have been imminent because it did not arise until after the treatment was completed. The count for assault, therefore, must fail.
There is also insufficient evidence in the record to support the plaintiff's battery claim. The plaintiff, in his complaint, repeatedly makes statements referring to what he believes the defendants did that was improper or inadequate in his treatment. The plaintiff does not allege he consented to procedures substantially different from those administered. Nor does he provide any evidence that the procedures performed by Dr. Bahar were without his permission. In his response to the defendants' motion for summary judgment, the plaintiff, for the first time, addresses the issue of consent and alleges there was no informed consent. A cause of action for lack of informed consent, however, is one in tort for negligence, as opposed to battery or assault. In support of his battery claim, the plaintiff also alleges that the defendants did not execute a treatment plan before performing certain procedures. The failure to execute a treatment plan would not be sufficient grounds for a battery claim as there is no allegation of unpermitted contact.
Brzoska, 668 A.2d at 1366 n. 14 (citing Faya v. Almaraz, 620 A.2d 327, 334 n. 6 (Md.Ct.App. 1993)).
Summary judgment in favor of the defendants is granted as to the plaintiff's claim for assault and battery.
Count II — Misrepresentation and Deceit
"Common law deceit or fraudulent misrepresentation consists of a representation material to the transaction, made falsely, with knowledge of its falsity or recklessness as to whether it is true or false, with the intent to mislead another who justifiably relies on the misrepresentation and sustains damages."
Atamian v. The Nemours Health Clinic, 2001 Del. Super. LEXIS 438, at *3.
The plaintiff does not allege that any representations were made to him by P R. No employees of P R had any personal contact with the plaintiff and worked directly only with Dr. Bahar and Collins Dental. P R could not have made any representations to the plaintiff. Summary judgment as to P R on Count II is granted.
With respect to the claim against Dr. Bahar and Collins Dental, in his complaint, the plaintiff avers "Dr. Bahar has made material misrepresentation" and that he was administered "make-believe and deceitful dental care". The record, however, contains no facts sufficient to infer that any material misrepresentations were made with knowledge of their falsity or recklessness as to whether the representations were true or false. There are also insufficient facts in the record to support any inference that Dr. Bahar or Collins Dental intended to mislead or deceive the plaintiff or that the plaintiff detrimentally relied on statements made by the defendants.
The record does not contain facts sufficient to establish a claim for misrepresentation and deceit. Summary judgment in favor of Dr. Bahar and Collins Dental is granted as to Count II of the complaint.
Count III — Common Law Conspiracy
To prevail on a claim for civil conspiracy, a plaintiff must allege "(1) a confederation or combination of two or more persons; (2) an unlawful act done in furtherance of the conspiracy; and (3) actual damage." The complaint states that the defendants "havemade an agreement with `PR', that `PR' will fabricate plaintiff's bridge . . . and crown . . . to be grotesque, big, imperfect, strange, bizarre and with open margins." The plaintiff, however, does not provide facts sufficient to support a finding that there was any agreement amongst the defendants to commit an unlawful act or that an unlawful act was done.
Manley v. Assocs. in Obstetrics Gynecology, P.A., 2001 Del. Super. LEXIS 314, at *28.
A civil conspiracy claim did not arise simply because the defendants worked together on the plaintiff's bridge. The plaintiff's complaint does not allege facts sufficient to meet the requirements for a civil conspiracy claim and summary judgment in favor of the defendants is granted as to Count III of the complaint.
Count IV — Intentional Infliction of Emotional Distress
On a claim for intentional infliction of emotional distress, "[r]ecovery is permitted where the defendant's extreme and outrageous conduct has intentionally or recklessly caused severe emotional distress to another." For this claim to succeed, the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."
Thomas v. Hartford Mutual Ins. Co., 2003 Del. Super. LEXIS 268, at *7.
Turner v. PNC Bank, 2003 U.S. Dist. LEXIS 19741, at *18 (D. Del.); Mattern v. Hudson, 532 A.2d 85, 86 (Del.Super.Ct. 1987).
In support of his claim, the plaintiff alleges that his time spent traveling to the dental office and sitting in the dental chair was extreme and outrageous. This conduct can hardly be called atrocious or intolerable as almost every person who has a dental visit must submit to the same routine. The plaintiff also argues that he was subjected to "3 hours of unnecessary invasive surgical procedure," but he consented to the procedure. He does not aver any facts which could lead a trier of fact to infer that this conduct was extreme or outrageous.
The record does not contain any evidence of conduct that meets the stringent standard for intentional infliction of emotional distress. Summary judgment in favor of the defendants is granted as to Count IV of the complaint.
Count V — Product Liability (Implied Warranty of Fitness and Merchantability)
The next theory the plaintiff advances suggests that the defendants are liable under theories of implied warranty of fitness and merchantability for use of a "strange, unacceptable, faulty, defective and dangerous bridge." As to defendants, Dr. Bahar and Collins Dental, this claim raises the issue of whether they, in their capacity as a dentist and a dental office respectively, can be liable under a Uniform Commercial Code product liability claim. This was recently addressed in Flowers v. Huang and the Court held that Article 2 was not applicable where the relationship of the defendant to the plaintiff was one of service rather than seller/buyer. The Court further found that "the primary purpose of a medical center was to provide service, not goods." This rationale follows Delaware precedent and the precedent of other jurisdictions. In this case, the primary purpose of the dental office and the dentist was to provide dental services. Dr. Bahar and Collins Dental were not in the business of selling goods and there can be no viable claim against them for breach of the implied warranty of merchantability or implied warranty of fitness.
1997 Del. Super. LEXIS 387.
Lamb v. Newark Emergency Room, Inc., 1983 Del. Super. LEXIS 753 (The prescribing and ordering of contact lenses by an ophthalmologist did not constitute a "sale" within the meaning of the UCC).
Carroll v. Grabavoy, 396 N.E.2d 836 (Ill.App.Ct. 1979); Preston v. Thompson, 280 S.E.2d 780 (N.C.Ct.App. 1981).
A different standard must be applied for the defendant, P R, because they were in fact in the business of manufacturing dental prostheses. To survive summary judgment for breach of the implied warranty of merchantability, the plaintiff must have expert testimony to prove defect and causation and he has no expert who will testify on his behalf.
Reybold v. Chemprobe Technologies, 721 A.2d 1267 (Del.Super.Ct. 1998).
The court in Reybold v. Chemprobe Technologies acknowledged that there may be breach of warranty claims that do not require expert testimony where the issues are within a lay person's scope of knowledge. The fabrication of a dental prostheses is not, however, a matter commonly within the knowledge of a layperson and the plaintiff must have an expert to testify as to the defect in the prostheses and that the defect proximately caused his injury.
Id.
Id. at 1270.
The plaintiff repeatedly maintains that the Court on January 17, 2003 and January 24, 2003 ordered the defendant, Dr. Bahar, to serve as his expert witness. The plaintiff has misinterpreted the Court's ruling. The Court determined that Dr. Bahar will serve as her own expert witness. The Court at no time, however, stated that Dr. Bahar would be required to serve as an expert for the plaintiff. The Delaware courts will not force individuals to serve as expert witnesses. Indeed, it has been stated that to do so would amount to a form of "involuntary servitude" with experts "being made to serve without remuneration and without [their] consent."
Kern v. Alfred I. Dupont Inst. of the Nemours Found., 2004 Del. Super. LEXIS 274, *at 14 (citing Montecinos v. Dickinson Medical Group, P.A., 1996 Del. Super., LEXIS 350).
To prevail on a claim for breach of the implied warranty of fitness, the plaintiff must show: (1) he had a special purpose for the goods; (2) P R knew or had reason to know of that purpose; (3) P R knew or had reason to know that the buyer was relying on the seller's superior skill to select goods that fulfilled that purpose; and (4) the plaintiff in fact relied on P R's superior skill. "However, an action for breach of this warranty is unavailable where a product is used for its ordinary purpose." The Uniform Commercial Code section 2-315 note two, defines ordinary purposes as "those envisaged in the concept of merchantability and go to the uses which are customarily made of the goods in question."
McDermott v. Matrix Essentials, Inc., 1991 Del. Super. LEXIS 438 (citing Neilson Bus. Equip. Center, Inc. v. Monteleone, 524 A.2d 1172 (Del. 1987)).
DiIenno v. Libbey Glass Div., 668 F. Supp. 373, 376 (D. Del. 1987) (citing Cohen v. Hathaway, 595 F. Supp. 579, 583 (Mass. Dist. Ct. 1984)).
This portion of the UCC has been codified by the Delaware Legislature at 6 Del. C. § 2-315.
McDermott, 1991 Del. Super. LEXIS 438, *at 3.
The plaintiff does not establish facts sufficient to meet any of the elements of a claim for breach of an implied warranty of fitness. The plaintiff does not allege that he had a particular purpose for the dental prostheses that was somehow different than the ordinary purposes of a dental prostheses. He also does not allege that P R was told or knew of any particular purposes. The bridge was fabricated to be used for its ordinary purposes or those purposes for which a bridge is customarily made. Summary judgment on Count V for product liability in favor of P R is granted.
IV. Conclusion
The gist of the plaintiff's action is dental negligence, although he has not alleged such and refuses to characterize any defendants' conduct as such. Even if he did, the record is insufficient to support a finding of negligence against any defendant.
It is noted that the expert witness requirements of the medical negligence statute do not apply to dental negligence actions. 18 Del. C. §§ 6801 (4)-(5), 6853.
Framing the claims as intentional tort, conspiracy, and product liability, as the plaintiff had done, yields no basis in law or fact for any of the counts. The bulk of the plaintiff's record consists of unsupported conclusory allegations. After a careful analysis of each count in the complaint, the Court finds that summary judgment on behalf of the defendants is appropriate on all counts. The motion for summary judgment is granted.