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    New Jersey Supreme Court Rules That Watchdog Employees Are Protected By CEPA

    On July 15, 2015, the New Jersey Supreme Court issued its long-anticipated decision in the landmark case of Lippman v. Ethicon, Inc. and Johnson & Johnson, Inc., in which the Court held that “watchdog” employees are protected by New Jersey’s whistleblower statute, the Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1, et. seq. The plaintiff, Dr. Joel Lippman, was represented by McMoran, O’Connor, Bramley & Burns, P.C. Bruce P. McMoran, Esq., successfully argued the case on behalf of Mr. Lippman before the New Jersey Supreme Court.
    Dr. Lippman was employed as the Chief Medical Officer by defendant Ethicon, Inc., a wholly owned subsidiary of defendant Johnson & Johnson, Inc. Ethicon manufactures medical devices. On numerous occasions during his employment with Ethicon, Dr. Lippman objected to the launch, marketing and/or continued sale of certain medical products that he believed were medically unsafe. After lodging his objections, Dr. Lippman received pushback from executives at Ethicon, who, for business reasons, wanted to continuing selling these unsafe medical products. Within weeks after Dr. Lippman demanded the immediate recall of a faulty life-sustaining device used in open-heart surgeries, Ethicon terminated his employment.
    Dr. Lippman subsequently retained McMoran, O’Connor, Bramley & Burns, P.C. to pursue a wrongful discharge claim against Ethicon and Johnson & Johnson for unlawful retaliatory termination in violation of CEPA. Relying upon a New Jersey Appellate Division decision from 2008, the trial court dismissed Dr. Lippman’s lawsuit, concluding that since it was within Dr. Lippman’s job duties as Chief Medical Officer to lodge objections to unsafe medical devices, he was not protected by CEPA. At that time, a number of other New Jersey trial and appellate courts had dismissed lawsuits on similar grounds, concluding that if it was within the plaintiff-employee’s job duties to make objections, the plaintiff was not protected by CEPA. Under this troubling precedent, a nuclear power plant safety inspector would not be protected by CEPA if he lodged objections to the safety of the plant’s reactors, nor would an accountant who objected to her employer’s accounting fraud (e.g. Bernie Madoff). However, if a janitor objected on these same issues, he would be protected.
    Dr. Lippman appealed the dismissal of his lawsuit to the New Jersey Appellate Division. Mr. McMoran argued the case on behalf of Dr. Lippman before the Appellate Division. In a published opinion, the Appellate Division reversed the trial court’s dismissal, holding that employees like Dr. Lippman – who the court called “watchdog” employees – are indeed protected by CEPA.
    Ethicon and Johnson & Johnson appealed the Appellate Division’s decision to the New Jersey Supreme Court, which agreed to hear the appeal. The appeal immediately garnered state-wide attention. The New Jersey Business & Industry Association, the New Jersey Civil Justice Institute, the Employers Association of New Jersey, the New Jersey Defense Association and the New Jersey Management Attorneys, Inc., all submitted amici curiae briefs to the Supreme Court on behalf of the defendants. The New Jersey Work Environment Council, the New Jersey State Industrial Union Council and the New Jersey Association for Justice submitted amici curiae briefs to the Supreme Court on behalf of Dr. Lippman. Mr. McMoran argued the appeal before the Supreme Court on behalf of Dr. Lippman on January 20, 2015.
    On July 15, 2015, in a unanimous decision, the New Jersey Supreme Court held that CEPA’s broad, remedial protections extend to an employee’s performance of his or her regular job duties. Thus, “watchdog” employees like Dr. Lippman are protected by CEPA from unlawful retaliation. The Court also held that “watchdog” employees are not subject to any additional burdens or requirements in order to seek protection under CEPA. The Court remanded Dr. Lippman’s case back to the trial court, where he will finally have his day in court.
    The New Jersey Supreme Court’s decision was a victory for all citizens of New Jersey in general, not just employees. “Watchdog” employees like Dr. Lippman are the employees who, by virtue of their job duties, are in the best position to protect the public and environment from employer wrongdoing. The conduct Dr. Lippman engaged in, which prevented countless patients from being exposed to unreasonable health risks, was exactly the type of protected activity the New Jersey Legislature intended to encourage when it enacted CEPA.
    If you believe that you have been the victim of retaliation in the workplace, you should immediately contact the attorneys at McMoran, O’Connor, Bramley & Burns, P.C. for a consultation. We have over 50 years of combined experience in employment law and have successfully negotiated and/or litigated countless retaliation claims.

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