DeVries v. McNeil Consumer Products Co.

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: D'ANNUNZIO
• Citation: DeVries v. McNeil Consumer Products Co., 593 A.2d 819, 250 N.J.Super. 159 (N.J. Super. App. Div. 1991)
• Decision Date: 25 July 1991
• Parties: , 126 Lab.Cas. P 57,497, 6 IER Cases 1588 Nancy L. DeVRIES, Plaintiff-Appellant, v. McNEIL CONSUMER PRODUCTS CO. Defendant-Respondent, and Johnson & Johnson, Inc., Defendant.

Page 159

250 N.J.Super. 159

593 A.2d 819, 126 Lab.Cas. P 57,497,

6 IER Cases 1588

Nancy L. DeVRIES, Plaintiff-Appellant, v. McNEIL CONSUMER PRODUCTS CO. Defendant-Respondent and Johnson & Johnson, Inc., Defendant.

Superior Court of New Jersey Appellate Division.

Argued April 23, 1991.

Decided July 25, 1991.

Julian R. Birnbaum, admitted pro hac vice, for plaintiff-appellant (Karen Honeycutt, attorney), New York City.

Francis X. Dee, for defendant-respondent (Carpenter, Bennett & Morrissey, attorneys), Newark.

Before Judges MICHELS, GRUCCIO and D'ANNUNZIO.

The opinion of the court was delivered by

D'ANNUNZIO, J.A.D.

Plaintiff, Nancy L. DeVries, commenced this action against her former employer, McNeil Consumer Products Co. (McNeil), and its parent, Johnson & Johnson, Inc. In her complaint she asserted a cause of action for wrongful discharge under the principles announced in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980). DeVries alleged that McNeil had discharged her "in violation of the public policy supporting the doctrine of equitable estoppel." The complaint also alleged, in the third count, that defendants "did falsely and maliciously accuse and criticize DeVries in her professional capacity and caused it to be believed that she was not competently discharging her duties and that she was engaging in unprofessional and unethical practices," and that this constituted defamation per se.

Plaintiff now appeals from summary judgments entered on all counts of the complaint in favor of defendant, McNeil. ¹

DeVries was employed by McNeil as a sales representative, sometimes referred to in the industry as a detail person. In that capacity she called on physicians to acquaint them with McNeil's products and to establish and promote good will on behalf of her employer. The ultimate objective of this exercise was to motivate physicians to prescribe or recommend McNeil products. One of those products was Extra Strength Tylenol caplets. Plaintiff worked for McNeil from 1983 until her discharge in 1986.

Plaintiff's discharge arose out of a confrontation with one of her assigned physicians, a Dr. LaPoff. The controversy arose when DeVries left samples of Extra Strength Tylenol caplets with Dr. LaPoff's office. Those samples contained expiration dates. At the time DeVries left those samples at LaPoff's office the dates either had expired or were close to expiring. DeVries contends that the short-dated samples were left at physicians' offices at McNeil's instructions. Pursuant to those instructions, she informed the doctors' staffs that they were not to be given to patients because they were short dated, but that they were being left for the personal use of the doctors and their staffs. According to

DeVries, she also explained to the staffs that caplets used beyond the expiration date were safe and that they merely began to lose effectiveness due to age.

To provide the full flavor of DeVries' version of her instructions from McNeil, we quote from a handwritten activities report prepared by plaintiff on September 9, 1986, approximately five months after she left the caplets at LaPoff's office:

During the last week in March the company (McNeill) sent representatives a huge case of EST caplet (8's) expiring in April 1986 with the instruction to be given to office staff with explicit instructions to tell the staff it was for them only and perfectly safe. This I did in every office I went to.

In the beginning of May I dropped off said samples with instructions for staff on safety and for staff usage only. During the first week in June a Dr. Steven LaPoff at the Immediacenter, 1358 Broad Street in Clifton, screaming hysterically over the telephone--irate that I left "out of date medication to his staff."

In her deposition testimony, DeVries stated:

The letter that I got at the end of March said in a few weeks you would receive a huge shipment of extra strength Tylenol samples that will be outdated at the end of April. I received that shipment probably the middle of April.

Unfortunately, no one has been able to find a copy of the written instructions or letter referred to by plaintiff.

Apparently Dr. LaPoff's office gave some of the outdated Tylenol to patients who, noticing the expired dates, complained to Dr. LaPoff. One of LaPoff's reactions was to call DeVries and berate her in somewhat intemperate language. Several months later, DeVries was in the office of Dr. Basista, one of Dr. LaPoff's associates in practice, when LaPoff again confronted and criticized her. It is uncontroverted that as plaintiff left his office, with LaPoff continuing to berate her, plaintiff told LaPoff to "grow up."

The office confrontation resulted in a letter from LaPoff to McNeil dated September 14, 1986:

I would like to bring to your attention the unprofessional and unethical practices of your representative Nancy

DeVries.

Several months ago, Ms. DeVries knowingly distributed expired samples of Tylenol. When confronted, Ms. DeVries justified this action as appropriate. She stated that the samples were meant to be given to our staff. Unaware that these samples had past expiration dates, several had been given to patients unknowingly. We were placed in a very uncomfortable situation having to explain this action when patients called us concerning the expired product. I subsequently spoke to Ms. DeVries and asked her never to return to this office.

Last week, Ms. DeVries returned to Immedicenter to detail us. She offered no apology and had no insight on the levity of her past actions. I once again asked her to leave. Her retort, within earshot of patients and staff was that I "should grow up" and that I was "immature."

Needless to say, my partners and I were appalled over this action by a McNeil representative. Knowingly and willingly giving expired samples of Tylenol is a travesty, especially in light of the past problems McNeil (and parent company Johnson & Johnson) have experienced. In addition, berating a physician with verbal abuse within full view of his patients and staff is disrespectful and downright intolerable.

Immedicenter is an ambulatory care center and it sees approximately 30,000 patients a year. There is great potential to recommend a full line of McNeil products. However, my partners and I will be actively prescribing alternatives to these products unless a satisfactory remedy to this situation is reached. We recommend that Ms. DeVries be dismissed from her position as her actions discredit all the integrity that McNeil has tried to attain. We certainly would never allow her in this office or any future satellite offices. In addition, we will not see any McNeil representative should this situation just be allowed to rest.

Val Brunell, McNeil's national professional sales manager, responded by letter dated September 25, 1986. Brunell apologized to Dr. LaPoff and informed him that the district manager, Mr. Carmen Simone, would contact LaPoff "so that we have a full understanding of the problem and can take appropriate corrective action." Simone called Dr. LaPoff. We find it necessary to quote extensively from Simone's deposition regarding his conversation with Dr. LaPoff. Simone testified that LaPoff

said, does your company have a policy of giving out expired samples, and I said, no, sir, we do not.

Q. So you told LaPoff, no, that was not a company policy. Is that right?

A. Yes, sir, I did.

Q. What else did he ask you?

A. He said, well, if it is, then it must be Mrs. DeVries' fault. He proceeded to tell me what she was doing. She had come in their office, gave--I think it was vials of Extra Strength as samples for his--he either said nurses to use or I think he said nurses to use or staff, because he said he had a large staff, and somehow those samples got to the patients and the patients--I don't know how many he said, if it was one or more--said they came back in the office and called him up and threatened to sue him because they said Dr. LaPoff, how dare you give this stuff out, it expired and it's no good, and Dr. LaPoff was very very angry. I mean that--I was trying to calm him down on the phone, and I was doing a good job, because he says, it's about time I get someone that knows how to handle the situation.

IHe said, well, if it wasn't the company's fault, it's Nancy's fault. Let me tell you other things that she's done, this happened awhile ago, and she had the audacity to come back in my office. She said we sat her down and I was telling her off and Nancy got up, walked out on me and turned around in front of my patients in the waiting room and shouted at me. He might have said what--he might have told me what she said, but I don't recall that or what did she shout. He says I was completely embarrassed that--to have that done in front of my patients, and he was--he said I want her--he says, unless you fire her, we will convert all our Tylenol usage to your competitor, and I believe he mentioned Advil, to be exact. He said I will stop using Tylenol and Extra Strength altogether and we will convert and I will recommend only your competition if you don't terminate her. I believe this woman should be terminated, and if someone does not get back to me with that--with the facts that she has been terminated, I will do that and.... [Emphasis added].

Simone informed Brunnell of his conversation with LaPoff, and Brunnell ordered Simone to fire DeVries. According to Simone, Brunnell told him to attribute her firing to poor human relations skills and poor attitude. Those reasons were placed on DeVries' termination report as the official reasons for her termination. However, according to Simone, Brunnell, upon ordering Simone to fire DeVries, instructed Simone to "tell Dr. LaPoff that we complied with his wishes." Simone also testified that Brunnell said, "I guess the moral of the story and the lesson to be learned is we shouldn't send out samples like this again."

Simone carried out...