Pierce v. Ortho Pharmaceutical Corp.

• Decision Date: 06 March 1979
• Parties: Grace PIERCE, Plaintiff-Appellant, v. ORTHO PHARMACEUTICAL CORPORATION, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 335

166 N.J.Super. 335

399 A.2d 1023

Grace PIERCE, Plaintiff-Appellant, v. ORTHO PHARMACEUTICAL CORPORATION, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Dec. 19, 1978.

Decided March 6, 1979.

Ruth Russell Gray, Plainfield, for plaintiff-appellant.

Myron J. Bromberg, Morristown, for defendant-respondent (Porzio & Bromberg, Morristown, attorneys; Patricia A. Meyer, Morristown, on the brief).

Before Judges KOLE and MILMED.

The opinion of the court was delivered by

KOLE, J. A. D.

Plaintiff, a physician employed in research by defendant pharmaceutical company, filed a complaint seeking damages resulting from the termination of her employment with defendant, even though such employment was pursuant to an "at-will" relationship. The trial judge granted defendant's motion for summary judgment on the ground that even if plaintiff were constructively discharged and did not actually resign from her employment, by reason of the fact that this was an employment at will, defendant nevertheless had the right to terminate it for any reason whatsoever. This appeal followed.

Since the matter involves a summary judgment motion, the facts set forth below are such as are gleaned from the proofs before the court on that motion, giving plaintiff the benefit of all of such evidence, and the reasonable inferences therefrom, in her favor.

Plaintiff commenced employment with defendant in May 1971 as Associate Director of Medical Research. The terms of her employment were not fixed by contract. In March 1973 she became Director of Medical Research/Therapeutics, a section that studied nonreproductive drugs.

One of the projects pursued by plaintiff was development of loperamide, a liquid treatment for acute and chronic diarrhea to be used by infants, children, older persons and those unable to take a solid form of medication. The formulation contained a high concentration of saccharin, apparently 44 times higher than that which is permitted by the Food and Drug Administration in 12 ounces of an artificially sweetened soft drink. It does not appear, however, that there are any promulgated standards for use of saccharin in drugs. At least one of the experts, a Ph.D., employed by defendant indicated that he did not know of any preparation whose saccharin level was as high as that contained in the loperamide formula and that it was "not desirable" to use such an excessively high level for a pediatric formulation.

Plaintiff worked in conjunction with a project team on the loperamide development. At a meeting of the team on March 6, 1975 it was unanimously agreed that the existing loperamide formula, which had apparently been marketed in Europe, was unsuitable for use in the United States due to the unusually high saccharin content. At the time it was felt that an alternate formulation would require at least three months of development.

The team apparently began to receive pressure to proceed with clinical or human testing of the existing formula, and in late March 1975 it finally acceded to the demands of management in this regard. Plaintiff, however, given her status as the only medical person on the team and her responsibility for recommending the drug for clinical use, maintained her opposition to the high saccharin formula, especially in light of indications that an alternative formula would soon be available. She refused to submit a drug containing such a high level of saccharin for clinical testing, as she could not in good conscience give the formula to old people and children in light of saccharin's potential carcinogenic attributes. She felt that such refusal was required by the Hippocratic Oath.

After indicating that she was unable to pursue clinical testing for the foregoing reasons, plaintiff was relieved of this project and informed by her supervisor, also a physician, that she was being demoted. He advised her that notice of this demotion would be posted. She was also told that she was considered nonpromotable, irresponsible and lacking in judgment, and that she had exhibited unacceptable productivity, inability to work with marketing people and failure to behave as a Director. She had not received such criticism from her supervisor before.

Plaintiff thereafter resigned, feeling that she was being punished for refusing to perform a task which she considered to be unethical. The resignation was accepted.

This action followed. Plaintiff sought to recover damages resulting from the termination of her employment. Essentially, the complaint alleged that because of defendant's actions she sustained damage to her professional reputation, interruption of her career, forfeiture of interesting and remunerative employment, monetary loss, deprivation of retirement benefits, loss of four years' seniority, physical and mental distress, and pain and suffering, and other damage was sustained by her and the public; that defendant breached its contract in refusing to permit her to use her expertise skills and best medical judgment; that defendant, by its actions, violated plaintiff's property right in the form of her expertise and skill in medical and pharmaceutical research; that defendant interfered with plaintiff's employment contract and relationships, and that defendant violated and interfered with plaintiff's right to object to the appropriate regulatory bodies, presumably with regard to the safety of loperamide, the drug with which plaintiff had previously been working.

The trial judge denied defendant's summary judgment motion to the extent that it was based on plaintiff's written resignation, since there was a fact issue as to whether she was, in fact, induced to resign by defendant's actions. This determination is not assailed on this appeal and was proper. However, the judge did grant the summary judgment predicated on his conclusion that under New Jersey law there was no showing that the rule relating to at-will private employees did not apply namely, that such an employment may be terminated at the will of either employer or employee, with or without justification, in the absence of a contractual or statutory provision to the contrary. See English v. College of Medicine and Dentistry of N. J., 73 N.J. 20, 23-24, 372 A.2d 295 (1977). See also Nicoletta v. North Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 150, 390 A.2d 90 (1978).

The trial judge held that even if the facts could be construed to indicate that plaintiff was constructively discharged that is, she resigned by reason of wrongful acts of defendant employer defendant, nonetheless, had the right to terminate her employment for any reason whatsoever. The judge acknowledged the existence in other jurisdictions of an exception to that rule as to termination of at-will employment when the motivation therefor contravened public policy. He stated that it may be that "public policy will develop to a degree that professionals, even though employees at will, will be permitted to resist what they consider to be a professionally unsound and unethical decision without fear of demotion or discharge." He was of the view that that question had to be decided by the Supreme Court, rather than a trial judge. In any event, he found plaintiff's case to be distinguishable from the out-of-state cases permitting relief on public policy grounds, and that "even if plaintiff's termination (is considered) in the light that it has been presented by the plaintiff, the most that can be said is that she was discharged because of a conflict in a medical viewpoint concerning the advisability of testing the drug loperamide."

We reverse and remand for a trial on all of the issues raised by the pleadings.

This case presents a novel question in this State relating to relief for wrongful discharge of an employee at will where the termination involves a claimed violation of public policy. See O'Sullivan v. Mallon, 160 N.J.Super. 416, 390 A.2d 149 (Law Div.1978). We note in this regard that a growing minority of jurisdictions has created an exception to the traditional employment at-will rule, which...