21 Trial Lawyer • Fall 2023 tion in combination with the amount of force Dr. Binder applied caused the jaw to break, in violation of the standard of care. Simple enough Because Oregon has no expert discovery, it was only as the defense case began did we start to see why we had received no serious offer. Panoramic x-rays are an outdated tool, claimed the defense. Dr. Binder, in addition to taking a panoramic, had also used a new device, a Cone Beam Computed Topography (CBCT) imager, a CT scan of the jaw, to produce three dimensional images. The CBCT, unlike the x-ray panoramic, showed there was a gap between teeth 31 and 32, that there was no obstruction of tooth 32, and that it was perfectly appropriate to elevate it. So said the defense. The first defense expert, Dr. Vaughn Tidwell, an experienced dentist who had practiced in both Oregon and Idaho, described the CBCT as a “game changer,” an “essential tool” for dentists, and below the standard of care not to use one before removing wisdom teeth. He prepared an exhibit showing that Tianna’s tooth 32 was out of plane with tooth 31, a “dog leg” he called it, showing the bend with a blue line. He called the resulting gap between 31 and 32 “I-5,”a reference to the interstate that runs north and south through Oregon. See CBCT image to the right. Of course, we had not seen this exhibit before. On cross-examination we made some headway with him. He claimed that it is “impossible” to break a jaw by excessive force during wisdom tooth removal. We confronted him with published professional articles stating the opposite. We got him to agree that Tianna’s jaw was perfectly healthy. It had no disease, no sign of any weakness and no other reason why it should have broken. Dr. Tidwell had thrown out a red herring on direct, claiming that sectioning the tooth could be dangerous in itself because the dentist could cut through a piece of bone called the buccal plate and damage an underlying nerve. We got him to agree that sectioning teeth is a common procedure, that dentists are trained to not cut through the buccal plate, and that it would be malpractice if they did. But on the main point, the difference between the x-ray panoramic and the CBCT, we did not lay a glove on him. It was only over the weekend that we realized the silly, fundamental mistake he had made. Then we used it to blow up the defense case. Dr. Tidwell’s mistake was that the CBCT, like any other imaging, reverses left and right. All of Dr. Tidwell’s testimony about a dog leg and a gap and “I-5” had been about the wrong side of the mouth — tooth 17, the lower left wisdom tooth instead of tooth 32, the lower right one. In all of the busy-ness in the exhibit you can actually see the “L” and “R” symbols. We ordered an expedited transcript and realized we had gotten Dr. Tidwell to say on cross-examination that the CBCT showed that tooth 17, which was in reality tooth 32, the tooth at issue in the case, was obstructed and had no path to removal. Dr. Binder testified first when trial resumed Tuesday morning. But other than walking him painstakingly through the procedures he had used, we decided not to spring our newfound realization on him. He was not the most credible witness, and we had got what we needed to make him look less than careful. But the defense had another expert coming and we wanted to wait before blasting Dr. Tidwell’s exhibit. Cross-examination joy The final defense witness was the defense’s last witness for a reason. Dr. Brett Ueeck has every credential there is. An oral surgeon, past professor, multiple award winner, overseas missionary See Missed Direction 22 The blue arrow (added by the authors) helps to demonstrate how tooth 32 (to the left of the arrow) is wedged under tooth 31. The defense said tooth 32 was out of plane with tooth 31 and created a “dog leg.” The authors’ purple arrow points to the “dog leg.”
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