On July 15, 2015, the New Jersey Supreme Court issued a decision in which it held that the protections of the state whistleblower statute, the Conscientious Employee Protection Act (“CEPA”), apply to so-called “watchdog” employees and that such employees need not meet a heightened standard when establishing that they engaged in whistleblowing activity. Confusion as to the applicability of the protections of CEPA to watchdog employees had existed since the Appellate Division (the state’s intermediate appellate court) issued its decision in the matter of Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div. 2008).
Joel S. Lippman, M.D. was employed by Ethicon, Inc., a manufacturer of surgical devices, from July 2000 until May 15, 2006. In 2002 Ethicon promoted Dr. Lippman to the positions of worldwide vice president of medical affairs and chief medical officer. As part of his job duties, Dr. Lippman “was a member of a quality board that was created to assess the health risks posed by Ethicon’s products and to provide medical input in determining whether the company needed to take corrective measures with respect to their products in the field.” Lippman v. Ethicon, Inc., __ N.J. ___ , ___, No. A-65/66 (July 15, 2015) (slip op. at 7).
On numerous occasions, Dr. Lippman objected to the release to the public or continued sale of surgical devices, based on his opinion that the devices at issue were unsafe and that their distribution would violate federal and/or state law. He claimed that his objections often were opposed by quality board members and members of upper management from the business side of Ethicon. Ultimately, however, the quality board acceded to many of Dr. Lippman’s objections.
In April 2006 Dr. Lippman called for the recall of DFK-24, a product he believed to be dangerous. Ethicon recalled the product in late April or Early May 2006. It then terminated Dr. Lippman’s employment on May 15, 2006.
Dr. Lippman filed a lawsuit asserting that Ethicon unlawfully terminated his employment for engaging in whistleblowing activity, in violation of CEPA. Ethicon moved for summary judgment, arguing that Dr. Lippman’s activities were not “whistleblower activities” within the meaning of CEPA because he was just “doing his job”. The trial court granted Ethicon’s motion. Relying on language in Massarano noting that the plaintiff in that case “was merely doing her job”, the trial court held that because Dr. Lippman admitted that his conduct giving rise to his lawsuit was among his job duties, he failed to show that he engaged in whistleblowing activity protected by CEPA. The trial court thereafter denied Dr. Lippman’s motion for reconsideration.
In a published opinion, the Appellate Division reversed the trial court’s grant of Ethicon’s motion for summary judgment. Lippman v. Ethicon, Inc., 432 N.J. Super. 378 (App. Div. 2013). The Appellate Division held the trial court’s holding to be inconsistent with CEPA’s broad remedial purposes and the statute’s definition of the term “employee”. Id. at 381, 406-07, 409-10. To the extent that Massarano called for such a holding as the trial court had rendered, the Appellate Division expressly declined to follow Massarano. Id. at 381, 406-07. Noting that “watchdog” employees like Dr. Lippman are especially vulnerable to retaliation, the Appellate Division further held that “[i]f an individual’s job is to protect the public from exposure to dangerous defective medical products, CEPA does not permit the employer to retaliate against that individual because of his or her performance of duties in good faith and consistent with the job description.” Id. at 410. The Appellate Division held, however, that a watchdog employee like Dr. Lippman engaged in activity protected by CEPA only if “he or she either (a) pursued and exhausted all internal means of securing compliance; or (b) refused to participate in the objectionable conduct.” Ibid.
The New Jersey Supreme Court granted the parties’ cross-petitions for certification. It affirmed the Appellate Division’s holding that the whistleblowing protections of CEPA applied to watchdog employees, holding that “[b]y its very terms, the statutory cause of action created by CEPA applies equally to all employees. There is no evidence of legislative intent to have the Act operate any other way,” Lippman v. Ethicon, Inc., ___ N.J. ___ , ___, No. A-65/66 (July 15, 2015) (slip op. at 4). The Supreme Court noted that it had applied the whistleblowing protections of CEPA to watchdog employees in two of its decisions that it had issued prior to the Appellate Division’s opinion in Massarano. Id. (slip op. at 33-34) (citing Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1998); Id. (slip op. at 34-35) (citing Estate of Roach v. TRW, Inc., 164 N.J. 598 (2000). It agreed with the Appellate Division that the trial court’s holding was inconsistent with CEPA’s broad remedial purposes and the statute’s definition of the term “employee”, Id. (slip op. at 21-27), and held that the Court’s job was “to implement legislative intent.” Id. (slip op. at 26) (citation omitted). The Supreme Court further held that
In Massarano, supra, the motion court had granted summary judgment to the defendants, finding that no law, rule, regulation, or clear mandate of public policy had been violated. 400 N.J. Super. at 486-87. The motion court in that matter further held that there was no whistleblowing activity, determining that the “plaintiff was merely doing her job as the security operations manager by reporting her findings and her opinion to [a supervisor].” Id. at 491. Although the Massarano Appellate Division decision contains language that suggests that a plaintiff who reports conduct as part of his or her job is not entitled to protection under CEPA, the panel’s analysis is premised on the conclusion that the defendants did not retaliate against the plaintiff for reporting the disposal of the documents. Ibid. Defendants’ further argument that Massarano has been relied upon as support for recognition of a job-duties exception to CEPA’s broad protection to employees is similarly unavailing. Any such reliance misperceives the case’s essential finding of no retaliation and results in an overextension of Massarano’s significance. Moreover, we specifically disapprove of any such extrapolation from the Massarano judgment.
Id. (slip op. at 32-33) (footnote omitted).
Turning to the Appellate Division’s holding that a watchdog employee like Dr. Lippman engaged in activity protected by CEPA only if “he or she either (a) pursued and exhausted all internal means of securing compliance; or (b) refused to participate in the objectionable conduct”, Lippman, supra., 432 N.J. Super. at 410, the Supreme Court stated that
Although we do not doubt its intent to be helpful by adding clarity to the proofs required for a watchdog employee’s CEPA cause of action under N.J.S.A. 34:19-3(c), whose verbiage the panel tracked, we are compelled to disapprove of the panel’s formulation. Simply put, the panel has added to the burden required for watchdog employees to secure CEPA protection under subsection (c) by including an obligation nowhere found in the statutory language.
For the same reasons cited earlier, courts should not rewrite plainly worded statutes. It is not our job to engraft requirements to a CEPA cause of action under subsection (c) that the Legislature did not include. It is our role to enforce the legislative intent as expressed through the words used by the Legislature.
Lippman v. Ethicon, Inc., ___ N.J. ___ , ___, No. A-65/66 (July 15, 2015) (slip op. at 36).
In ending seven years of confusion about CEPA’s applicability to watchdog employees and the potential paradox, noted by the Appellate Division, of foreclosing the protections of CEPA from watchdog employees who are among the most vulnerable to employer retaliation, the Supreme Court’s decision is a victory for New Jersey employees for whom whistleblowing activity is an everyday job duty.
We at Swartz Swidler, LLC applaud the New Jersey Supreme Court’s decision in Lippman v. Ethicon, Inc. If you believe that you have been retaliated against for having engaged in whistleblowing activities, please contact one of our employment attorneys today for a detailed legal consultation. The consultation is free.
The New Jersey Supreme Court’s decision in Lippman can be found here.