Mehlman v. Mobil Oil Corp.

• Decision Date: 26 March 1998
• Parties: , 13 IER Cases 1441 Dr. Myron A. MEHLMAN, Plaintiff-Respondent, v. MOBIL OIL CORPORATION, a New York Corporation, Defendant and Third-Party Plaintiff-Appellant, and F.M. Cunningham, C.R. Mackerer, Iris Kaplan, Norman Morgan and K.A. Tortoriello, Defendants-Appellants, v. PRINCETON SCIENTIFIC PUBLISHING CO., INC., Third-Party Defendant.
• Court: New Jersey Supreme Court

Page 163

153 N.J. 163

707 A.2d 1000, 13 IER Cases 1441

Dr. Myron A. MEHLMAN, Plaintiff-Respondent, v. MOBIL OIL CORPORATION, a New York Corporation, Defendant and Third-Party Plaintiff-Appellant, and F.M. Cunningham, C.R. Mackerer, Iris Kaplan, Norman Morgan and K.A. Tortoriello, Defendants-Appellants, v. PRINCETON SCIENTIFIC PUBLISHING CO., INC., Third-Party Defendant.

Supreme Court of New Jersey.

Argued Sept. 9, 1997.

Decided March 26, 1998.

William J. Brennan, III, Princeton, for appellants (Smith, Stratton, Wise, Heher & Brennan, attorneys).

Neil M. Mullin, West Orange, for plaintiff-respondent (Smith Mullin, attorneys).

The opinion of the Court was delivered by

STEIN, J.

The primary question presented by this appeal is whether the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (CEPA), protects an employee from retaliatory action taken against him in New Jersey by his New Jersey employer because the employee objected to a practice that he reasonably believed was incompatible with a clear mandate of public policy designed to protect the public health and safety of citizens of another country. A threshold issue is whether the evidence adduced at trial was sufficient to satisfy plaintiff's burden of proving the existence of a clear mandate of public policy. Collaterally, we also address whether in CEPA litigation the existence of a clear mandate of public policy is a fact question for the jury or a legal issue for the court and, if the latter, whether this trial court's failure to instruct the jury on whether the evidence at trial established the existence of a clear mandate of public policy constitutes error mandating reversal of the jury verdict and award of damages on the CEPA claim.

Those and other issues raised by Mobil Oil Corporation (Mobil) in its petition for certification and appeal as of right, see Rule 2:2-1(a), relate to the claim of respondent, Dr. Myron A. Mehlman (Mehlman), formerly Mobil's Director of Toxicology and Manager of its Environmental Health and Science Laboratory, that Mobil had discharged him in November 1989, in retaliation for his objection to the sale by Mobil Sekiyu Kabushiki Kaisha (MSKK), Mobil's Japanese subsidiary, of gasoline containing levels of benzene in excess of five percent. Mehlman sued Mobil alleging, among other claims, that Mobil fired him in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. After a ten-day trial, a jury returned a verdict for Mehlman on his CEPA claim and awarded him $3,440,300 in compensatory damages and $3,500,000 in punitive damages. The trial court granted Mobil's motion for judgment notwithstanding the verdict pursuant to Rule 4:40-2(b), concluding that Mehlman had not proved the existence of a clear mandate of public policy that he reasonably believed Mobil had violated, as required by CEPA. See N.J.S.A. 34:19-3c(3). Although the trial court vacated the compensatory damages award, on Mehlman's motion the court amended the complaint to conform to evidence supporting a prima facie tort claim, entering judgment for Mehlman on that claim and on that basis sustaining only Mehlman's punitive damages award.

In a published opinion, the Appellate Division vacated the judgment on the prima facie tort claim on the ground that it was precluded by CEPA's waiver-of-claim provision, N.J.S.A. 34:19-8. 291 N.J.Super. 98, 137-38, 676 A.2d 1143 (1996). The court reinstated the jury verdict and the compensatory as well as punitive damages awards on the CEPA claim, concluding that the proofs "amply demonstrate that Mehlman identified a clear mandate of public policy which he reasonably believed that Mobil had violated when he objected in September 1989 to the distribution in Japan of gasoline with an excessive benzene content by Mobil subsidiary MSKK." Id. at 130, 144, 676 A.2d 1143. The court also reversed the pre-trial dismissal of Mehlman's defamation claim and remanded that claim for trial, concluding that that claim was not barred by CEPA's waiver provision because it was based on proofs different from those required to establish the CEPA claim. Id. at 142, 144, 676 A.2d 1143.

We granted Mobil's petition for certification, 147 N.J. 264, 686 A.2d 764 (1996), and in resolving the issues presented by that petition we also address the questions that Mobil asserts as the basis for its appeal as of right.

I

A

Respondent Mehlman is a renowned toxicologist with impressive academic credentials and substantial working experience in toxicology on behalf of both governmental and commercial employers. After completing his Ph.D. degree at the Massachusetts Institute of Technology and a post-doctoral fellowship at the University of Wisconsin, he held faculty positions in biochemistry at Rutgers University and the University of Nebraska. Before joining Mobil he served as Chief of Biochemical Toxicology for the Bureau of Foods, United States Food and Drug Administration, and held other responsible toxicological positions in the United States Department of Health, Education and Welfare and in the Office of the Director of the National Institute of Health.

Mehlman joined Mobil's Medical Department in 1976 as Director of Environmental Health and Toxicology. In 1978 he became Mobil's Director of Toxicology, and in the early 1980s became manager of its Environmental Health and Science Laboratory, which had full responsibility for Mobil's toxicology testing. A 1988 job description indicated that Mehlman's position required an "established international reputation in toxicology and environmental science," and characterized his primary function as "represent[ing] Mobil on toxicology matters, and provid[ing] toxicologic and regulatory advice for prudent business decisions." Mehlman's major responsibilities included the representation of Mobil's interests before regulatory agencies, trade and scientific associations, and academic institutions; approval of protocols for and monitoring quality of toxicity testing; and informing Mobil of pending developments in toxicology regulations that could affect Mobil's worldwide business. The record clearly demonstrated that Mehlman's responsibilities as Mobil's Director of Toxicology were broad and of international scope.

Mehlman's expertise in toxicology and biomedical science is also reflected by his authorship of approximately 200 articles and books on those subjects. His publications include several articles on the subject of benzene toxicity, and he chaired several symposia focusing on the harmful effects of gasoline vapors. He also served as President of the American College of Toxicology.

Prior to his discharge in November 1989, Mehlman's job evaluations were uniformly positive. He received annual merit raises and stock option awards. In May 1989, Mobil's Vice President for Research nominated Mehlman for membership in the National Academy of Sciences, describing him as "an international expert in toxicology [who] is often consulted on issues involving the toxicity of chemicals in relation to environmental health."

The event that allegedly provoked Mehlman's discharge occurred in September 1989, during a trip to Japan. Mehlman traveled to Japan to represent Mobil at an international symposium on "Industrialization and Emerging Environmental Health Issues: Risk Assessment and Risk Management." Because he was attending the symposium, Mehlman was also invited to address a group of managers at MSKK, Mobil's Japanese subsidiary, on current toxicology and environmental health issues.

Mehlman's presentation to the MSKK managers took place at Mobil headquarters in Tokyo on September 27, 1989. His topic, selected by MSKK's management, concerned the health hazards of human exposure to gasoline. Mehlman's presentation included the use of slides. During his presentation he displayed a slide that showed the volume concentration of benzene, a dangerous and toxic chemical used as an additive in gasoline, as a percentage of regular and premium gasoline content in the United States, Japan, and Europe. MSKK Technical Manager Takashi Tsunemori interrupted Mehlman and asked to see that slide again. When the slide was displayed, showing a range of benzene concentration of 2.5 to 3.5 percent in gasoline sold in Japan for regular gasoline and 2.5 to 4.6 percent for premium gasoline, Tsunemori allegedly informed Mehlman that the slide was incorrect because the benzene content in MSKK's regular gasoline was 5.7 or 5.8 percent.

Mehlman responded that "we, in [the] United States and at Mobil[,] consider benzene as a very poisonous chemical--dangerous and toxic. And [these] concentrations are too high. [T]hey have to be reduced." In response to Mehlman's inquiry, Tsunemori stated that MSKK was not required to inform Japanese regulatory officials of their gasoline's benzene content. When Mehlman insisted that the benzene level "is much too dangerous and you must reduce it," Tsunemori's response, according to Mehlman, was that "[w]e have old equipment and we cannot do that because it will cost us several hundred million dollars to change that single refinery to produce a product with low levels of benzene." Mehlman replied: "You reduce it or do not sell it," and he described the reaction of the other MSKK managers as "stunned, shocked and surprised."

Tsunemori testified at trial as a witness for Mobil and denied that he had informed Mehlman during his September 1989 presentation to Mobil managers that the benzene content of MSKK's gasoline was 5.7 or 5.8 percent. He testified that he recalled no "meaningful" discussion during Mehlman'spresentation, took no notes, and made no report to his superior. Tsunemori also testified that in the summer of 1989 the benzene content in regular gasoline from the three Japanese refineries that supplied MSKK was 2.1 percent, 2.9 percent, and 4.5 percent. On cross-examination Tsunemori acknowledged that the average benzene level in MSKK gasoline in...