On May 4, 2010, plaintiff Jacqueline Shirley, 57, an assisted living salesperson, presented to Thomas Varin, D.D.S. for a dental cleaning. Varin performed a deep cleaning/root planning on Shirley using a Piezo ultrasonic scaling unit when Shirley’s right, lower lip was burned. Shirley claimed that this burn caused additional problems, including numbness and speech problems. Shirley sued Varin, alleging dental malpractice. Plaintiff’s counsel contended that Varin used Septocaine, a local anesthetic, instead of the widely used local anesthetic, Lidocaine. Counsel noted that there were prior studies showing that the use of Septocaine resulted in a higher incidence of paresthesia, or a “pins and needles” sensation, when used in block anesthesia. Plaintiff’s counsel argued that since Shirley’s tongue was numb post-operatively, Varin likely used a more toxic Septocaine block injection, rather than using Lidocaine for local anesthesia infiltration, contrary to Varin’s records and testimony. Thus, counsel contended that it was below the standard of care for Varin to use Septocaine on Shirley due to the controversy noted in the studies. Plaintiff’s counsel further contended that Varin was negligent in the use of the ultrasonic scaling unit, believing that it either had no water to cool the tip or that Varin failed to use enough coolant water. In addition, counsel contended that Varin should have set the scaler at the manufacturer’s lower setting for scaling, rather than the higher setting he did have it set at, to prevent a burn. Plaintiff’s counsel also would have introduced testimony that Varin had previously burned a patient’s lip at the same location as Shirley with the same Piezo scaler device, thereby placing Varin on notice to take precautions. However, defense counsel was granted a motion in limine, precluding the testimony about the alleged prior burn. Thus, the plaintiff’s expert periodontist testified that the matter constituted a res ipsa case because the owner manual of the scaler did not warn of any burn potential and there was no prior reported case of a lip burn from a Piezo scaler. The defense’s oral surgery expert testified that the prior studies linking Septocaine to paresthesia had been statistically inadequate. In addition, Varin claimed that he gave only infiltration anesthesia, and not block anesthesia, to Shirley, but that the shank of the ultrasonic scaling unit, where the water is cooled, inadvertently touched Shirley’s lip corner. Defense counsel contended that only Shirley’s lower lip was burned and that none of her gums were injured, so the tip of the scaling unit could not have overheated. The defense’s oral surgery expert also testified that lip retraction, in most cases, prevents a lip burn, but that Shirley’s burn was an accident. However, plaintiff’s counsel responded that the defense’s oral surgery expert had never used Varin’s device to scale teeth, but only used it for surgery. Plaintiff’s counsel also noted that the defense’s endodontic expert testified that he had used Varin’s device for root canal therapy to remove root canal posts, but not ever to scale teeth. However, plaintiff’s counsel noted that the court instructed the jury to disregard the defense’s endodontic expert’s testimony regarding the injury being an accident, finding that the opinion was cumulative., Shirley sustained a burn to her right, lower lip. She claimed the burn caused numbness on all of the right side of her mouth and that as a result, she suffers from drooling, an inability to eat on the right side of her mouth, speech problems, problems swallowing, and a lack of taste on the right side of her tongue. On May 6, 2010, two days after she saw Varin, Shirley took a cell phone photo of the burn. On May 9, she went to her treating physician, a non-retained expert internist, for treatment of the burn. She was subsequently given antibiotics and a topical cream. On May 26, at her counsel’s request, Shirley was seen by a consulting periodontist for evaluation. He noted that Shirley had diminished sensation in her lower lip and chin, below the area of the burn. As a result, the periodontist referred her to her treating oral surgeon, who Shirley presented to the following day with complaints of numbness in her lower lip, right gum, right cheek, right floor of her mouth, and right anterior two-thirds of her tongue. The treating oral surgeon subsequently diagnosed Shirley with to two of the three branches of the trigeminal nerve, the fifth cranial nerve responsible for sensation in the face during biting and chewing. The oral surgeon opined that the burn of Shirley’s peripheral nerves, rather than main lip and tongue nerve, caused her persistent numbness. The physician then scheduled a follow-up for Shirley in six weeks. In the interim, Shirley was seen at Kaiser Permanente. In April 2012, Shirley complained to her treating internist at Kaiser that she had problems with choking, swallowing and excessive saliva. As a result, Shirley was referred to an otolaryngologist, who performed a modified barium swallow test, which is a medical imaging procedure used to examine the upper gastrointestinal tract. As a result, the otolaryngologist opined that Shirley had mild oropharyngeal dysphagia and mild pharyngeal dysphagia, with retained food bolus on the affected side. Around the same time, Shirley complained of voice-related problems, choking and drooling. As a result, she was consulted by the plaintiff’s expert in speech pathology, who found that Shirley had mild speech problems. In November 2012, Shirley was seen by her treating prosthodontist, who determined that the only neurosensory problem was numbness on the left, lateral border of Shirley’s tongue. Shirley, who was not working because she was finishing treatment for breast cancer, claimed that prior to the incident, her life was improving, despite the fact that she had breast cancer. She testified that she was out of work and that she had side effects from the cancer treatment, including losing her hair, but that it regrew. Shirley added that she was under severe financial stress because the family moved from Petaluma to San Rafael due to losing their house from medical expenses and not working. However, she claimed that despite all of this, she was optimistic and looking forward to returning to work, but that the subject dental incident was ‘the straw that broke the camel’s back’ and ruined her life. Defense counsel noted that on May 24, 2010, Shirley retained counsel and, on May 25, 2010, she was seen by a psychologist at Kaiser Permanente, as she is a Kaiser member. Counsel also noted that Shirley went back to Varin’s office on May 26, only for copies of her records, but made no complaints to Varin, who was treating another patient at that time. Thus, defense counsel argued that only Shirley’s lower lip was burned, and not her gums. Counsel also argued that Shirley’s burn was only a second-degree burn and, thus, should not have caused persistent numbness. During trial, defense counsel subpoenaed the plaintiff’s expert in speech pathology to assert his findings. Defense counsel also subpoenaed Shirley’s husband, though plaintiff’s counsel chose to have him testify on behalf of Shirley’s case. However, defense counsel argued that the husband’s trial testimony contradicted his earlier deposition testimony, during which he claimed he did not know everything about what was going on with his wife. Counsel also noted that Shirley’s husband claimed during his deposition that he saw that his wife was burned on the outside and inside of her mouth, but from the time of the burn until Shirley retained counsel, he did not recall anything unusual. The defense’s expert neurologist examined Shirley and opined that there was no medical basis for many of Shirley’s complaints. The defense’s oral surgery and neurology experts also testified that Shirley’s burn would heal normally in a few weeks, and that Shirley’s persistent lip and tongue numbness were not related to the accident.