Joel S. Lippman, M.D. v. Ethicon, Inc. (073324)
119 A.3d 215, 222 N.J. 362, 40 I.E.R. Cas. (BNA) 650 (2015)
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Rule of Law:
The Conscientious Employee Protection Act (CEPA) protects employees who perform whistleblowing activities as part of their regular job duties, and it does not impose additional burdens, such as an internal exhaustion requirement, on such "watchdog" employees without express legislative intent.
Facts:
- Joel S. Lippman, M.D., was employed by Ethicon, Inc., a medical device manufacturer and subsidiary of Johnson & Johnson, from July 2000 until his termination in May 2006.
- For most of his employment, Dr. Lippman served as worldwide vice president of medical affairs and chief medical officer of Ethicon, responsible for safety, medical reviews, and medical writing.
- Dr. Lippman served on multiple internal review boards, including a quality board tasked with assessing health risks posed by Ethicon’s products and providing medical input on necessary corrective measures.
- On numerous occasions, Dr. Lippman objected to the proposed or continued sale and distribution of certain Ethicon medical products, believing them to be medically unsafe and in violation of various federal and state laws and regulations.
- Dr. Lippman often opined that particular products should not go to market, should be recalled, or required further research, sometimes receiving "push back" from executives whose interests aligned with business priorities, though Ethicon ultimately followed many of his recommendations.
- In April 2006, Dr. Lippman advocated for the recall of a product called DFK-24, which he believed was dangerous, and Ethicon eventually recalled it in late April or early May 2006.
- On May 15, 2006, Ethicon terminated Dr. Lippman’s employment.
- Ethicon claimed Dr. Lippman was terminated due to an inappropriate relationship with a subordinate employee, while Dr. Lippman alleged his termination was due to his whistleblowing activities regarding dangerous products.
Procedural Posture:
- Joel S. Lippman, M.D., filed a complaint in the Law Division against Ethicon, Inc., and Johnson & Johnson, Inc., alleging CEPA violations.
- Defendants moved for summary judgment, which the trial court granted, dismissing Dr. Lippman's CEPA action on the grounds that his job duties precluded whistleblowing protection.
- Dr. Lippman appealed to the Appellate Division, which reversed the trial court's decision, holding that watchdog employees are protected under CEPA even when acting within their job duties, but added a requirement that such employees must first pursue and exhaust all internal means of securing compliance.
- The New Jersey Supreme Court granted defendants' petition for certification and plaintiff's cross-petition for certification to review the Appellate Division's decision.
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Issue:
Does the Conscientious Employee Protection Act (CEPA) protect "watchdog" employees whose alleged whistleblowing activities fall within their regular job duties, and does CEPA require such employees to exhaust internal means of securing compliance?
Opinions:
Majority - LaVecchia, J.
Yes, the Conscientious Employee Protection Act (CEPA) protects "watchdog" employees who perform whistleblowing activities as part of their regular job duties, and no, CEPA does not impose an additional requirement that such employees exhaust all internal means of securing compliance. The Court began by reaffirming CEPA's status as remedial legislation, mandating liberal construction to achieve its purpose of protecting whistleblowers and discouraging employer misconduct. The plain language of N.J.S.A. 34:19-2(b) broadly defines "employee" without any limitation based on job function, and the Court declined to engraft such a restriction onto the statute, consistent with principles of statutory construction. Addressing N.J.S.A. 34:19-3(c)'s protection for employees who "object[] to, or refuse[] to participate in any activity, policy or practice," the Court found that the plain meaning of "object" does not imply a requirement to act outside of normal job duties. The inclusion of "refuse to participate" further suggests conduct within job functions. Additionally, N.J.S.A. 34:19-3(c)(1)'s specific protection for health care professionals objecting to "improper quality of patient care" illustrates that protected conduct can arise directly from core job responsibilities. The Court noted that since other CEPA subsections do not contain a "job duties" exception, it would be inconsistent to imply one for subsection (c). The Court expressly disapproved of any interpretation of Massarano v. New Jersey Transit that suggested a job-duties exception, clarifying that Massarano's essential holding was a lack of retaliation. Prior Supreme Court decisions, such as Mehlman v. Mobil Oil Corp. and Estate of Roach v. TRW, Inc., have consistently applied CEPA protection to employees in compliance-related roles without their job duties being a disqualifying factor. While affirming the Appellate Division's reversal of summary judgment for defendants, the Court modified the Appellate Division's judgment by rejecting the imposed requirement that watchdog employees must "pursued and exhausted all internal means of securing compliance." This additional burden, not found in CEPA's statutory language, contradicts legislative intent, as the Legislature explicitly included exhaustion requirements in other CEPA sections (N.J.S.A. 34:19-4) but not for subsection (c) claims. Imposing such a requirement would also be incompatible with Fleming v. Correctional Healthcare Solutions, Inc..
Analysis:
This landmark decision significantly expands and clarifies whistleblower protections under CEPA, particularly for employees in compliance, safety, or oversight roles. By rejecting a "job duties" exception, the New Jersey Supreme Court ensures that employers cannot shield themselves from CEPA liability by designating the detection and reporting of unlawful or unethical conduct as an employee's core responsibility. This ruling reinforces the broad remedial purpose of CEPA, encouraging employees in critical "watchdog" positions to speak out without fear of retaliation. Furthermore, the rejection of an implicit exhaustion requirement for objection-based claims strengthens CEPA's consistency and predictability, preventing courts from imposing additional burdens not explicitly mandated by the Legislature.
