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Trial Tips - The TMJ Defense

November 16, 2015
By: Frank Scahill

The Temporomandibular joint (TMJ) is the articulation of the mandibular condyle with the glenoid fossa of the temporal bone. We often see claims of TMJ syndrome from blunt force trauma cases to the jaw and face. The plaintiff can be a driver or passenger in the vehicle (often unbelted) with claims of trauma to the face from striking the steering wheel, dashboard or windshield, or the center divider in a taxicab. TMJ claims are also found in slip and fall cases with trauma to the jaw or assault and battery claims. The TMJ is subject to all of the forms of arthritis that affect other joints in the body. Surgical intervention with the use of alloplastic disc replacement, is rare, as conservative treatment, in a bona fide case, usually provides relief.

Dr. Evan Moonshine has been practicing for 40 years. He is the frequent beneficiary of attorney referrals and admitted under oath that he has testified 10 to 12 times per year for over 35 years. I have attached copy of the direct and cross examination of Dr. Moonshine from a Kings County case I tried in June of this year. The plaintiff was a rear seat passenger in a taxi cab, striking the center partition, fracturing a tooth, suffering facial lacerations with scarring and continuing complaints of TMJ pain. The fractured tooth, which required extensive treatment, will qualify the plaintiff under the serious injury threshold of Insurance law § 5102(d). Kennedy v. Anthony, 195 A.D.2d 942 (1993). Defense counsel are cautioned to prepare and defend the TMJ case as a jury can accept and sympathize with painful dental injuries and prolonged treatment. This issue must be dealt with in jury selection as the last person you want on your case with a TMJ claim, is a juror with years of painful dental treatments.

How can you effectively blunt Dr. Moonshine's testimony that "a tooth is the hardest substance in the body" and the fracture would require tremendous force displacing the TMJ? For one, the Doctor's chart is a treasure trove for cross examination. Before you begin to cross any Doctor, you should ask the Court for a break to examine his chart. Here, Dr. Moonshine clearly notes on his intake sheet the attorney referral, which often contradicts the plaintiff's testimony that he was referred by a "friend". Secondly, the Doctor's financial interest in the case can be explored at length based on the form assignment he has every patient sign, requiring the Doctor to be paid out of the proceeds of the case. Within five minutes of cross you can drag the Doctor off the pedestal he climbed on direct, down into the seedy and suspicious muck of personal injury cases, where attorneys refer clients and money is the object. From there you can attack the medicine. It worked in this case as the jury reported after the trial, they hated this guy.

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