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The Mercadien Group v. David C. Maffei and Leona Maffei

November 28, 2012

THE MERCADIEN GROUP, PLAINTIFF-RESPONDENT,
v.
DAVID C. MAFFEI AND LEONA MAFFEI, DEFENDANTS-APPELLANTS, AND DAVID C. MAFFEI AND LEONA MAFFEI, THIRD-PARTY PLAINTIFFS-APPELLANTS,
v.
THE MERCADIEN GROUP, ESMOND S. DRUKER AND MERCADIEN, P.C., THIRD-PARTY DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1916-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 11, 2012 -

Before Judges Messano, Lihotz and Ostrer.

Defendants Dr. David C. Maffei and his wife Leona Maffei, appeal from an order granting summary judgment and dismissing their counterclaim, which alleged professional negligence by their accountant, third-party defendants Esmond S. Druker, C.P.A., and the accounting firm employing Druker, plaintiff the Mercadien Group (Mercadien).*fn1 We affirm.

Dr. Maffei, a New Jersey licensed chiropractor, owned and operated two businesses: a chiropractic practice, formed as a professional corporation, and another entity known as Leige Corporation. Druker was Dr. Maffei's friend and the managing director of Mercadien; he performed accounting services for Dr. Maffei individually and for his businesses. From 1998 to 2004, Leona Maffei completed worksheets provided by Druker, gathered the necessary documentation, and transmitted it to Mercadien, along with payment of approximately $27,500 for the preparation of personal and business, state and federal income tax returns. However, from 1999 to 2004, no income tax returns were completed. Consequently, no returns were filed for defendants individually, for Dr. Maffei's chiropractic office, or for Leige Corporation. At some point, defendants contacted Druker and their personal tax returns were completed in September 2006.

Defendants' professional negligence claims relate to damages allegedly suffered by Dr. Maffei caused by the late filing of his tax returns. Specifically, Dr. Maffei maintains his inability to produce timely filed tax returns caused him to voluntarily dismiss separate litigation seeking disability benefits. Additional facts are necessary to understand the context of this assertion.

From 1993 through 1996, Dr. Maffei's chiropractic practice flourished. He reported working 55-65 hours and treating as many as 320 patients per week. The practice was comprised of as many as seven employees, including one other doctor, massage therapists, and a billing clerk.

When performing adjustments, Dr. Maffei employed the Applied Kinesiology Technique (AKT), which requires utilization of pressure to various parts of the back to reduce stresses, relax the muscles, and adjust the vertebrae. In addition to performing chiropractic adjustments, Dr. Maffei "screened and adjusted all massage patients"; "performed modalities" such as "ultrasound, heat, electric stimulation, G5 massage"; "took all x-rays"; "created and actively participated in several health fairs"; and performed "house calls" as necessary for patients.

In the late 1990s, Dr. Maffei began experiencing pain and swelling in his hands and arms. His ability to treat patients began to diminish because he "was only able to treat and adjust massage patients four hours, three days a week." He also stated he ceased making house calls, no longer participated in health fairs, and allowed his wife to perform all modalities.

By 2001, Dr. Maffei experienced great difficulty implementing AKT because his hands "began to swell daily . . . especially during the evening appointments. [His] upper body discomfort became more pronounced and [he] was unable to sleep [except] for only a few hours at a time." He continued to work and treat patients, explaining he was working in "consistent" "pain and discomfort" until 2002. From January 2002 through August 2002, Dr. Maffei stopped working because of his "inability to maintain finger contact" and need to "give [his hands] time to rest and heal." He hired another chiropractor, Steve Horowitz, to treat patients.

In February 2002, Dr. Maffei sought treatment by Brian J. Sennett, M.D. An EMG revealed "bilateral median nerve and ulnar nerve neuropathies[,]" resulting in Dr. Sennett's diagnosis that Dr. Maffei suffered from "[b]ilateral cubital tunnel syndrome, with ulnar nerve entrapment" and "[a]symptomatic carpal tunnel syndrome, bilateral hands." Dr. Sennett recommended Dr. Maffei avoid flexion and compression positions and continue his use of anti-inflammatory medications.

In April 2002, Dr. Maffei filed a total disability claim under the provisions of a Lincoln National Life Insurance Company (Lincoln National) disability insurance policy (the policy). In his claim, Dr. Maffei listed his occupational duties to include twenty-five to thirty hours of patient treatment along with twenty hours of paperwork each week. He described his disabling condition this way: "[a]rms, hands, and fingers have muscle fatigue, weak, painful, spasms, tingling sensation and atrophy of the forearms, numbness in fingers, fingers lock and wakes me up at night. Occasional swelling of the joints and hands, wrists, and arms[.]" Further, he stated pain in his hands occurred when he was treating patients, which caused him to reduce the number of patients he treated each hour.

The terms of the policy stated:

"Total Disability" means that because of Injury or Sickness:

a. You cannot do the main duties of Your Occupation; and

b. You are under a Physician's Care; and

c. You are not engaged in any other ...


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