Mehlman v. Mobil Oil Corp.

• Decision Date: 13 June 1996
• Citation: 291 N.J.Super. 98,676 A.2d 1143
• Parties: Dr. Myron A. MEHLMAN, Plaintiff-Respondent-Cross-Appellant, v. MOBIL OIL CORPORATION, a New York Corporation, Defendant-Appellant-Cross-Respondent, and F.M. Cunningham, C.R. Mackerer, Iris Kaplan, Norman Morgan and K.A. Tortoriello, Defendants. MOBIL OIL CORPORATION, Defendant-Third-Party-Plaintiff, v. PRINCETON SCIENTIFIC PUBLISHING CO., INC., Third-Party-Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 98

291 N.J.Super. 98

676 A.2d 1143

Dr. Myron A. MEHLMAN, Plaintiff-Respondent-Cross-Appellant, v. MOBIL OIL CORPORATION, a New York Corporation,

Defendant-Appellant-Cross-Respondent,

and

F.M. Cunningham, C.R. Mackerer, Iris Kaplan, Norman Morgan

and K.A. Tortoriello, Defendants.

MOBIL OIL CORPORATION, Defendant-Third-Party-Plaintiff, v. PRINCETON SCIENTIFIC PUBLISHING CO., INC., Third-Party-Defendant.

Superior Court of New Jersey,

Appellate Division.

Argued April 22, 1996.

Decided June 13, 1996.

Michael E. Tigar of the District of Columbia Bar, admitted pro hac vice, Washington, DC, for appellant-cross-respondent (Smith Stratton, Wise, Heher & Brennan, Princeton, attorneys; William J. Brennan, III, of counsel and on the brief; Penny A. Bennett, also on the brief).

Neil N. Mullin, West Orange, for respondent-cross-appellant (Smith Mullin, P.C., attorneys; Mr. Mullin, of counsel and on the brief). Before Judges PETRELLA, P.G. LEVY, and EICHEN.

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

Plaintiff, Dr. Myron A. Mehlman, and the individual defendants were employees of defendant Mobil Oil Corporation (Mobil). Mehlman claimed that Mobil had discharged him in retaliation for his objecting to excessive levels (over 5%) of benzene, a toxic substance, in gasoline produced and sold by Mobil's subsidiary in Japan. Mehlman brought suit under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. A jury returned a verdict in his favor and awarded him $3,440,300 in compensatory damages and $3,500,000 in punitive damages.

The trial judge granted Mobil's motion for judgment notwithstanding the verdict on the ground that Mehlman had failed to identify a clear mandate of public policy which he reasonably believed Mobil had violated, as required by CEPA. See N.J.S.A. 34:19-3c(3). The judge was reluctant to give CEPA extraterritorial effect. Nevertheless, because the judge considered Mobil's conduct outrageous, he amended the complaint to conform to the evidence supporting a prima facie tort claim and entered judgment for Mehlman on that claim. As a result, the judge granted Mehlman only the amount of punitive damages that the jury had awarded. On this appeal, Mobil challenges the prima facie tort award and defends the dismissal of the CEPA claim as mandated by the Commerce Clause. Mehlman cross-appeals, seeking reinstatement of his CEPA award and reversal of the pretrial dismissal of his defamation claim.

Mehlman's complaint alleged, among other things, that (1) Mobil had violated CEPA and wrongfully terminated his employment in violation of Mobil's regulations and the parties' employment contract, and (2) Mobil and the individual defendants had defamed him. His complaint asserted that while conferring with Mobil employees in Japan in the fall of 1989, Mehlman had warned them that they should reduce benzene levels in Mobil gasoline because the chemical "posed a serious threat to the public health and environment...." Mehlman's employment was terminated immediately upon his return from Japan.

Mobil denied the material allegations of Mehlman's claims, asserting that it had terminated him for just cause, and counterclaimed that he had misappropriated Mobil's assets and funds. It also filed a third-party complaint against Princeton Scientific Publishing Co., Inc., a company owned by Mehlman's wife. ¹

In March 1992, Mobil successfully moved to dismiss certain of Mehlman's non-CEPA claims against the individual defendants on the ground that they were barred by N.J.S.A. 34:19-8, which provides that a CEPA action waives other rights and remedies. As to the remaining claims, the judge denied Mobil's subsequent motion for summary judgment, which was based upon Mehlman's failure to cite any law, regulation or clear mandate of public policy that Mobil had violated. See N.J.S.A. 34:19-3. The case proceeded to trial.

We conclude that the trial judge erred in vacating the jury award on the CEPA claim. Although we reject Mobil's due process objections to the post-trial amendment of the complaint, we agree that the prima facie tort claim is barred by the CEPA waiver provision because it was based upon the same retaliatory discharge as the CEPA claim. On the other hand, since Mehlman's defamation claim was independent of his CEPA claim, the judge erred in dismissing it. Hence, for the reasons hereinafter stated, we affirm in part, reverse in part, and reinstate the jury verdict and damage awards.

I.

A proper understanding of the case necessitates a somewhat lengthy discussion. Mehlman earned his Ph.D. at the Massachusetts Institute of Technology in 1964. He served as a post-doctoral fellow at the University of Wisconsin's Institute for Enzyme Research and thereafter as an associate professor of biochemistry at Rutgers University and a professor of biochemistry at the University of Nebraska. In succession, Mehlman worked as Chief of Biochemical Toxicology for the Bureau of Foods in the U.S. Food and Drug Administration; as Special Assistant for Toxicology, Nutrition and Environmental Affairs in the Office of the Assistant Secretary for Health in the U.S. Department of Health, Education and Welfare; and, as Special Assistant and Liaison Officer for the Office of the Director of the National Institutes of Health.

In 1976, Mobil recruited Mehlman as Director of Environmental Health and Toxicology in its Medical Department. He was promoted in 1978 to Director of Toxicology and Manager of the Environmental Health and Science Laboratory in Mobil's Princeton-based Department of Environmental Affairs and Toxicology. Shortly after he became Mobil's toxicology director and laboratory manager, Mehlman reported to John McCullough, General Manager of the Mobil Toxicology Division's Environmental Affairs and Toxicology Department and Vice President of the Mobil Research and Development Corporation (MRDC). ² In his new capacity, Mehlman established a laboratory, which began operating around 1980 or 1981 with a staff of over 100 people. Between 1981 and 1985, Mehlman's level of responsibility had increased so as to give him full authority in all of his job tasks except assisting other departments. Mehlman's duties included representing Mobil on toxicology matters and providing "toxicologic[al] and regulatory advice for prudent business decisions."

Mehlman's curriculum vitae includes some 200 books and articles written and published in the fields of toxicology and biomedical science. He authored various articles on benzene and chaired several symposia on the harmful effects of gasoline vapors. In addition, Mehlman helped to found the American College of Toxicology, of which he served as president, and the Collegium Ramazzini, of which he served as an officer and a director. He has belonged to many professional societies, enjoying numerous editorial appointments, professional committee assignments, and symposia chairmanships.

According to Mehlman's 1988 job description, the laboratory that he managed "ha[d] full responsibility for toxicology testing for Mobil Corporation...." As the only one performing toxicological testing for Mobil's affiliates, Mehlman's laboratory received praise from Mobil's senior managers as well as outside scientists. The key speaker at a 1986 Clean Air Conference described it as "magnificent." In April 1987, D'Ambrisi thanked Mehlman for the "positive overtones" of a magazine article written about the laboratory. The record reflects that Mehlman's job performance appraisals were excellent, including one given just five months before he was terminated. Based upon his performance, Mehlman received annual merit raises and stock options from Mobil. ³ In addition, Mobil's vice president of research nominated him to the National Academy of Sciences in May 1989. The nomination described Mehlman as "an international expert in toxicology [who] is often consulted on issues involving the toxicity of chemicals in relation to environmental health."

The genesis of the present controversy was Mehlman's participation in the organization of the First Pacific Cooperative Symposium, "Industrialization and Emerging Environmental Health Issues--Risk Assessment and Risk Management," held in 1989 at the University of Japan. Mehlman explained that the symposium could have impacted upon company business in Japan, which Mobil transacted through its wholly-owned affiliate, Mobil Sekiyu Kabushiki Kaisha (MSKK), because Japanese regulatory people were expected to attend and speak. When Silvestri approved Mehlman's attendance, Mobil's International Administration arranged for him to discuss toxicology and environmental health issues at MSKK during his visit to Japan.

On September 27, 1989, Mehlman met with MSKK management at Mobil headquarters in Tokyo and gave a slide presentation on the health effects of gasoline. One slide showed the concentration of benzene in gasoline in the United States, Japan, and Europe. When Mehlman finished his presentation, MSKK Technical Manager Takashi Tsunemori asked to see this slide again. Tsunemori informed Mehlman that he had inaccurately reported Japanese benzene levels at 2.5% to 3.5% for regular gasoline and 2.5% to 4.6% for premium gasoline. According to Mehlman, Tsunemori informed him that the benzene level in Japanese gasoline was 5.7% or 5.8%.

Mehlman testified that he told Tsunemori that benzene was "a very poisonous chemical--dangerous and toxic. And [these] concentrations are too high. [T]hey have to be reduced." Mehlman asked Tsunemori whether the Japanese regulatory agency was aware of these benzene levels. Tsunemori allegedly responded, "We do not have to tell them." Mehlman contends that he reiterated that "this is much too dangerous and you must reduce it" and that Tsunemori answered that the levels could not be reduced because of old equipment that would cost "several hundred million dollars to change [a] single refinery to produce a product with...