Lippman v. Ethicon Inc., A-4318-10T2; Appellate Division; opinion by Fuentes, P.J.A.D.; decided and approved for publication September 4, 2013. Before Judges Fuentes, Harris and Koblitz. On appeal from the Law Division, Middlesex County, L-9025-06. DDS No. 25-2-1221 [51 pp.]

Plaintiff Joel Lippman, M.D., began his association with defendants in 1990 as director of medical services for Ortho-McNeil Pharmaceutical, a subsidiary of Johnson & Johnson Inc. He had direct responsibility over product quality and safety. He received a number of promotions and in 2000, he joined defendant Ethicon Inc., another J&J subsidiary, as vice president of medical affairs. In this position he served on a number of internal review boards, including the quality board, an autonomous, deliberative forum, where professionals could freely and openly discuss how best to address serious questions concerning the safety of pharmaceutical and medical products.

In 2006, plaintiff was terminated. He filed this action alleging a violation of the protections afforded to whistleblowers by the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Relying in part on Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div. 2008), the motion judge concluded that plaintiff admitted "it was his job to bring forth issues regarding the safety of drugs and products" and thus he "failed to show that he performed a whistle-blowing activity." The court dismissed the complaint as a matter of law.

On appeal, plaintiff argues that the judge misread dictum in Massarano to create a class of employees who, as a matter of law, fall outside CEPA's protection because they were hired to monitor and express opinions about the employer's compliance with relevant laws and regulations. Defendants argue that the trial court correctly held that plaintiff did not engage in whistle-blowing under CEPA when, in the course of performing his regular core job functions, he opined about product safety. Alternatively, defendants argue that plaintiff was terminated because he had an inappropriate sexual relationship with a subordinate employee and did not show that this nonretaliatory reason was pretextual.

Held: An employee's job title or employment responsibilities should not be considered outcome-determinative in deciding whether the employee has presented a cognizable cause of action under CEPA. To the extent that a contrary notion was approvingly expressed or implicitly adopted by the panel in Massarano, the panel explicitly declines to endorse it here.

The court reviews a number of products regarding which plaintiff had voiced safety concerns during his tenure with defendants. Plaintiff argues that he was terminated because he consistently advocated positions that favored the recall of products that, in his professional opinion, were dangerous to the public and because his penchant for recalling dangerously defective products was economically unfeasible.

The panel rejects defendants' argument that those acts do not constitute whistle-blowing activities because they fall within the sphere of plaintiff's job-related duties. It notes that under this reasoning, a plaintiff who reports conduct as part of his job is not entitled to the whistle-blowing protections afforded under CEPA. However, "watchdog" employees, like plaintiff, are the most vulnerable to retaliation because they are uniquely positioned to know where the problem areas are and to speak out when corporate profits are put ahead of consumer safety.

The panel notes CEPA defines an "employee" as "any individual who performs services for and under the control and direction of an employer for wages or other remuneration." This definition is not based on the employee's title or the "core functions" he performs.

Rather, in deciding a motion to dismiss a case brought under CEPA, the court's analysis must be guided by the elements established in Dzwonar v. McDevitt, 177 N.J. 451 (2003), i.e., a plaintiff who brings a cause of action under CEPA must show that (1) he reasonably believed that his employer's conduct was violating a law, rule, or regulation or public policy; (2) he performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against him; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action.

Applying Dzwonar, the panel concludes that there is sufficient evidence in the record for a rational jury to find that plaintiff engaged in whistle-blowing when he objected to his employer's tactic of delaying the recall of dangerous defective medical products and insisted that his employer take a patient-centered approach when deciding whether to recall a medical device. A jury can rationally find that plaintiff's superiors considered his opinions to be medically sound and in furtherance of public policy but needlessly conservative and against the company's pecuniary interest and that they worked in concert to circumvent and intentionally delay the decision of the quality board to recall DFK-24, an arterial cannula device to which plaintiff objected, because they were concerned that a recall would negatively affect the corporate bottom line.

The panel says plaintiff presented sufficient evidence to show that he objected to this action because he in good faith believed it was in violation of FDCA regulations, state products liability laws, and public policy.

Because plaintiff would not yield to the pressure or moderate his patient-centric approach, a jury could find that defendants retaliated against him by seizing on a specious claim of impropriety to fire him. Viewed from plaintiff's perspective, the evidence shows that when Ethicon's company group chairwoman learned that one of plaintiff's subordinates believed plaintiff had given him an unfair performance evaluation because plaintiff had an alleged consensual relationship with another subordinate, she seized on this as an opportunity to rid herself and the company of someone she viewed as an uncooperative and fiscally irresponsible employee. These facts establish a prima facie case that defendants' actions violated the protections afforded under CEPA to employees like plaintiff.

For appellant — Bruce P. McMoran (McMoran, O'Connor & Bramley; McMoran and Michael F. O'Connor on the briefs). For respondents — Francis X. Dee (McElroy, Deutsch, Mulvaney & Carpenter and Howard M. Radzely, of the D.C. bar, admitted pro hac vice (Morgan, Lewis & Bockius); Dee, Radzely, Stephen F. Payerle and Elena Chkolnikova on the brief).