Lippman v. Ethicon, Inc.

• Decision Date: 15 July 2015
• Citation: 222 N.J. 362,119 A.3d 215
• Parties: Joel S. LIPPMAN, M.D., Plaintiff–Respondent and Cross–Appellant, v. ETHICON, INC. and Johnson & Johnson, Inc., Defendants–Appellants and Cross–Respondents.
• Court: New Jersey Supreme Court

222 N.J. 362

119 A.3d 215

Joel S. LIPPMAN, M.D., Plaintiff–Respondent and Cross–Appellant

v.ETHICON, INC. and Johnson & Johnson, Inc., Defendants–Appellants and Cross–Respondents.

Supreme Court of New Jersey.

Argued Jan. 20, 2015.

Decided July 15, 2015.

Francis X. Dee argued the cause for appellants and cross-plaintiffs (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Dee and Stephen F. Payerle, Newark, on the briefs).

Bruce P. McMoran argued the cause for plaintiff and cross-appellant (McMoran, O'Connor & Bramley, attorneys; Mr. McMoran and Michael F. O'Connor, Wall Township, on the briefs).

Adam N. Saravay argued the cause for amici curiae New Jersey Business & Industry Association, New Jersey Civil Justice Institute, Employers Association of New Jersey, New Jersey Defense Association and New Jersey Management Attorneys, Inc. (McCarter & English, Proskauer Rose, Gibbons, and Drinker Biddle & Reath, attorneys; Mr. Saravay, David R. Kott, Christopher S. Mayer, Mark A. Saloman, Daniel L. Saperstein, Allana M. Grinshteyn, Nicholas M. Tamburri, Joseph J. Sarno, Natalie H. Mantell, Michelle M. Bufano, Newark, Michelle G. Haas, John A. Ridley, and Lawrence J. Del Rossi, Florham Park, of counsel and on the briefs).

Andrew W. Dwyer argued the cause for amici curiae The New Jersey Work Environment Council, The New Jersey State Industrial Union Council, and 25 other environmental, labor, consumer and community organizations, and The New Jersey Association for Justice (The Dwyer Law Firm, Newark, Law Office of Bennett D. Zurofsky, and Schiffman, Abraham, Kaufman & Ritter, attorneys; Evan L. Goldman, of counsel; Mr. Dwyer, Mr. Zurofsky, Mr. Goldman, and Kristen Welsh Ragon, Hackensack, on the briefs).

Opinion

Justice LaVECCHIA delivered the opinion of the Court.

Cross-petitions for certification were granted in this matter to address issues related to the application of the Conscientious Employee Protection Act (CEPA or Act), N.J.S.A. 34:19–1 to –14, to so-called “watchdog” employees. More specifically, both petitions concern whether an employee, whose job duties entail knowing or securing compliance with a relevant standard of care and knowing when an employer's actions or proposed actions deviate from that standard of care, may invoke the whistleblower protections afforded under N.J.S.A. 34:19–3 of CEPA.

Plaintiff's normal job duties included providing his medical opinion about the safety of defendant pharmaceutical company's products. After he was terminated from his high-level position with the corporation, he filed this CEPA action claiming that his employer retaliated against him. The trial court granted defendants' motion for summary judgment on the ground that plaintiff's performance of his regular job duties could not constitute CEPA-protected conduct. The Appellate Division reversed, concluding that watchdog employees are among those most in need of CEPA's protection, and that the plain language of the statute does not exempt from protection conduct that constitutes a job duty. Lippman v. Ethicon, Inc., 432 N.J.Super. 378, 406–08, 75 A. 3d 432 (App.Div.2013). In so holding, the panel also articulated a tailored standard for evaluating CEPA claims asserted by watchdog employees. Id. at 410, 75 A. 3d 432.

According to plaintiff, the Appellate Division's standard, in effect, raised the bar for the proof that such employees must present in order to establish a prima facie CEPA claim because it requires demonstration that the employee either refused to participate in the objectionable conduct or pursued and exhausted all internal means of securing compliance. Plaintiff's petition focuses on whether the Appellate Division improperly added an element to his CEPA-authorized cause of action, thereby subjecting watchdog employees to a different and heightened burden compared to other CEPA plaintiffs. Defendants' petition allows this Court to review the Appellate Division's published decision holding that performance of job duties by a watchdog employee may constitute CEPA-protected activity.

For the reasons that follow, we affirm the Appellate Division's judgment that CEPA's protections extend to the performance of regular job duties¹ by watchdog employees. In so holding, we disapprove of the standard that the panel articulated for assessing claims by such employees. The panel's attempt to add clarity to the assessment of claims by such plaintiffs impermissibly results in adding to the burden for this subset of CEPA plaintiffs. By its very terms, the statutory cause of action created by CEPA applies equally to all employees. There is no evidence of legislative intent to have the Act operate any other way. Accordingly, we hold that there can be no additional burden imposed on watchdog employees seeking CEPA protection, unless and until the Legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protection.

I.

A.

This matter arose upon the filing of plaintiff's complaint in the Law Division against Ethicon, Inc. (Ethicon) and Johnson & Johnson, Inc. (J & J) (collectively defendants), alleging CEPA violations under N.J.S.A. 34:19–3(a) and (c). Plaintiff Joel S. Lippman, M.D.,² alleged in his complaint, among other claims, that his employment was terminated due to his whistleblowing activities, which plaintiff identified as his actions in reporting a number of products as dangerous and in violation of the federal Food, Drug and Cosmetic Act, 21 U.S.C.A. §§ 301 –399f, and advising that defendants either recall the products or perform further research.³ This appeal comes to us on a summary judgment record; accordingly, we review the facts in the light most favorable to plaintiff, the non-moving party in this matter. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 540, 666 A. 2d 146 (1995). The facts are set forth below as presented by the parties and as described by the Appellate Division, Lippman, supra, 432 N.J.Super. at 382–405, 75 A. 3d 432.

Plaintiff was employed at Ethicon, a manufacturer of medical devices used for surgical procedures, from July 2000 until his termination. Prior to his work at Ethicon, he worked from 1990 to 2000 at Ortho–McNeil Pharmaceutical (OMP), as director of medical services and then vice president of clinical trials. Both Ethicon and OMP are subsidiaries of J & J.

Initially plaintiff served at Ethicon as vice president of medical affairs. In 2002, he was promoted to worldwide vice president of medical affairs and chief medical officer of Ethicon. His direct superior and the person to whom he reported at Ethicon was Dennis Longstreet, the company group chairperson. Longstreet reported to Michael J. Dormer, J & J's chairperson for the medical devices and diagnostic group. In 2005, Sherilyn S. McCoy replaced Longstreet as Ethicon's company group chairperson.

As vice president of medical affairs, “plaintiff was ‘responsible for safety, ensuring that safe medical practices occurred in clinical trials of [Ethicon's] products; ... medical reviews, information from a medical standpoint; [and] medical writing.’ ” Lippman, supra, 432 N.J.Super. at 388, 75 A. 3d 432 (alterations in original). Consistent with those responsibilities, plaintiff served on multiple internal review boards for Ethicon. Generally stated, those boards addressed strategic product activities and evaluated the health and safety risks of products. As a member of those boards, plaintiff's function was to provide medical and clinical expertise and opinions. Id. at 388–90, 75 A. 3d 432. In short, Lippman was part of Ethicon's high-level policy decision making.

Of particular relevance in this matter, plaintiff was a member of a quality board that “was created to assess the health risks posed by Ethicon's products and to provide ‘medical input’ in determining whether the company needed to take corrective measures with respect to their products in the field.”

Id. at 389, 75 A. 3d 432. At times, recall of a product would become “necessary to conform to the requirements of the particular regulatory agency with jurisdiction, internal policy directives, and/or to protect the health and safety of the patient[s].” Ibid. The quality board could also take other types of actions, such as “correcting a product in the field.” As structured within Ethicon's organization, the quality board was to be accorded “ ‘the final say’ ” in deciding whether to take corrective action regarding a product, “even in the absence of a directive from a governmental agency.” Ibid. The quality board's membership included the head of research and development, the chief financial officer, the head of operations, and the vice president of quality and regulatory affairs. Members of the quality board were “expected to express their view points from their” area of knowledge or expertise. Ibid.

Plaintiff claims numerous instances in which he, in his role on the internal review boards generally, and specifically the quality board, objected to the proposed or continued sale and distribution of certain Ethicon medical products. The Appellate Division opinion recounts many in detail. See id. at 390–403, 75 A. 3d 432. Those instances, as summarized, reflect that plaintiff's objections were based on his opinion that the products were medically unsafe and that their sale violated various federal and state laws and regulations. Thus, plaintiff voiced concerns about the safety of various products and his opinion, in some instances, that the particular product under discussion should not go to market, that it should be recalled, or that further research was necessary. Plaintiff claims, and the record contains support, that plaintiff received “push back” from other members of these boards and executives whose interest and expertise aligned with the business priorities of Ethicon. Needless to say, the committees were comprised of professionals with their own judgments and opinions on the subjects under discussion. Certainly, in this record,...