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Nevins v. Muldoon

August 5, 2008

SUSAN E. NEVINS, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
PHILIP N. MULDOON, JR., THE LAW OFFICES OF PHILIP N. MULDOON, JR., ESQUIRE, P.C., DEFENDANTS, AND MARESSA, GOLDSTEIN, BIRSNER, PATTERSON, DRINKWATER & ODDO, P.C., DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND MARMERO & MAMMANO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, L-3763-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 30, 2008

Before Judges Axelrad, Payne and Messano.

In this legal malpractice case, plaintiff Susan Nevins asserts negligence on the part of defendant Philip N. Muldoon, Jr. in failing to competently pursue and exhaust internal appeals with her employer, New Jersey Bell, from a denial of her claim for short-term disability benefits and in failing to file an ERISA*fn1 appeal in federal district court from Bell's interim denial of such benefits. At the time of the acts at issue, Muldoon was employed by the defendant law firm of Maressa, Goldstein, Birsner, Patterson, Drinkwater & Oddo, P.C. (Maressa Goldstein) as an associate. Following a period of solo practice as The Law Offices of Philip N. Muldoon, Jr., Esquire, P.C., Muldoon took a position as an associate with defendant law firm, Marmero & Mammano, P.C. A stipulation of dismissal of claims against Muldoon has been filed as the result of his declaration of bankruptcy, and claims against his firm, which has no assets, have likewise been dismissed. Summary judgment against plaintiff was granted on her remaining claims against the two law firms. The decision granting summary judgment to Maressa Goldstein was based upon lack of expert evidence on the issue of proximate causation; the decision granting summary judgment to Marmero & Mammano was based upon a lack of successor corporation liability. Plaintiff has appealed from these summary judgment orders. Additionally, defendant Maressa Goldstein cross-appeals from an advisory determination by the judge that, if trial of plaintiff's claims were held, whether plaintiff would have prevailed on her ERISA claim was an issue of fact to be determined by a jury.

I.

Plaintiff was a long-term employee of New Jersey Bell who, in 1985, commenced having physical difficulties that included chronic pain of unknown origin. As the result of her condition, Bell granted plaintiff three separate periods of temporary disability extending from November 24, 1986 to June 11, 1987, from April 14, 1989 to April 6, 1990, and from November 16, 1992 to September 1, 1993. In 1993, plaintiff was diagnosed with chronic fatigue syndrome, multiple chemical sensitivity, reactive depression and other illnesses allegedly due to toxic chemical exposures to pesticides at her prior home. Plaintiff claimed that her symptoms were exacerbated by workplace exposures to various substances, including perfumes. From September 1993 until November 1993, plaintiff was authorized to telecommute from her home on a limited basis, but then was either required to or voluntarily returned to her job.

In March 1995, plaintiff's condition allegedly worsened and, in September 1995, after a further opportunity to telecommute was denied, she ceased work and applied for short-term sickness and accident disability benefits pursuant to Bell's ERISA plan. Her application was denied by letter dated September 29, 1995.

Thereafter, plaintiff appealed to Bell's Benefit Claims Committee. Supporting medical documentation was submitted by plaintiff in November 1995, consisting of letters from internist Steven C. Halbert, M.D. stating that plaintiff's symptoms were consistent with chronic fatigue and immune dysfunction syndrome and requesting a period of temporary disability benefits; psychiatrist Bernardo A. Merizalde, M.D., disputing the finding of a Bell expert that plaintiff's condition was purely psychological and urging that she be permitted to telecommute; and osteopathic physician Marc P. Hurowitz, reciting plaintiff's history of treatment for fibromyalgia, Raynauds phenomena, a vasomotor instability, peripheral neuropathy of unknown etiology, plantar facitis, chronic fatigue immune deficiency syndrome, and multiple chemical sensitivity and requesting a period of disability of at least nine months.*fn2

In March 1996, plaintiff retained the firm of Maressa Goldstein to file a suit against Bell pursuant to the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49. Philip Muldoon, an associate, was assigned to her case.

On April 8, 1996, prior to a determination by the Benefit Claims Committee, Bell's associate medical director, Barton Margoshes, M.D., requested that plaintiff provide updated medical information to Bell's Health Management Center within two weeks. On April 15, 1996, plaintiff's appeal was denied by the Benefit Claims Committee, primarily on the basis of the reports of Bell's two independent medical examiners, David A. Allan, M.D., a rheumatologist, and Gladys S. Fenichel, M.D., a psychiatrist, who concluded that plaintiff was not totally disabled as required by the plan as a condition for receipt of temporary disability benefits. Dr. Allan stated:

My assessment is that Ms. Nevins has several trigger points and a history of pain which is consistent with a partial fibromyalgia syndrome, but she does not fulfill the standard criteria for fibromyalgia syndrome. She has signs and symptoms suggesting a continued mild vasospastic disorder which in my examination did not appear to be disabling. There is no evidence of underlying autoimmune disease, specifically a connective tissue disease such a lupus, Sjogren's, or rheumatoid arthritis. Ms. Nevins seems to have tachyarrhythmias of undetermined etiology.

The doctor recommended a return to full-time sedentary employment, thyroid and cardiac evaluations, and a psychological evaluation as the result of what appeared to him to be a significant psychological disability. However, Dr. Fenichel was of the opinion "from a psychiatric perspective at the time of [her] evaluation that Ms. Nevins [was] not disabled from a return to sedentary work." She opined that "any disability experienced by Ms. Nevins should be viewed as related to her underlying medical conditions and not to a psychiatric diagnosis."

The letter from the Benefit Claims Committee denying benefits stated in relevant part:

The Committee considered the following in evaluating Ms. Nevins's claim:

Ms. Nevins's claim letter and the documentation that accompanied it; your [Nevins's interim attorney's] letter; and, information from the Health & Safety Management Center (HSMC).

Ms. Nevins's benefits were suspended on September 12, 1995, her eighth calendar day of absence, based on the September 8, 1995 progress notes from Ms. Nevins's personal physician, Dr. Hurowitz, which indicated medical conditions that did not ...


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