NJ Supreme Court to Decide Extent of CEPA Whistleblower Protections

The Facts of the Case

The Supreme Court of New Jersey recently agreed to consider Lippman v. Ethicon. The issue before the court is whether a plaintiff who reports conduct as part of his or her job is entitled to the whistle-blowing protections afforded under the Conscientious Employee Protection Act (CEPA).

Plaintiff Joel S. Lippman, M.D. filed a complaint against his former employer, defendant Ethicon, Inc., a subsidiary of Johnson & Johnson, Inc., for CEPA violations. He specifically alleged that he was terminated from his position as the vice president of medical affairs because he consistently advocated positions that favored the recall of products that, in his professional opinion, were dangerous to the public.

In defense of the suit, Ethicon maintained that Lippman was terminated because he had an inappropriate relationship with someone who worked directly for him. It further argued that Lippman’s acts did not constitute whistle-blowing activities under CEPA because they were part of his job-related duties.

The Appellate Division Decision

The Appellate Division overturned the trial court’s dismissal of the whistleblower suit. In so ruling, it rejected the lower court’s ruling that Lippman “failed to show that he performed a whistle-blowing activity” because it was part of his job description.

“In our view, it would be a sad irony indeed if such a ‘watchdog’ employee, like plaintiff, would be deemed by a court to fall outside the wall of protection created by the Legislature to whistleblowers. If 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,” the Appellate Division explained.

The court further noted that so-called “watchdog” employees like Lippman 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 Issues on Appeal

While the appeals court ruled in favor of Lippman, other panels have ruled otherwise. In Massarano v. N.J. Transit, the Appellate Division ruled that a plaintiff was not entitled to whistleblower protection after reporting that key documents were thrown away in a dumpster, finding that she was just “doing her job as the security operations manager by reporting her findings and her opinion…” On the basis of this 2008 precedential decision, New Jersey courts have rejected similar CEPA claims. To resolve the conflict, the state Supreme Court must now decide whether watchdogs can be whistleblowers under CEPA.

If you have any questions about this case or would like to discuss New Jersey’s whistleblower laws, please contact me, Joel Kreizman, or the Scarinci Hollenbeck attorney with whom you work.