Bove v. Akpharma Inc.
213 A.3d 948
| N.J. Super. Ct. App. Div. | 2019Background
- Plaintiff Charles Bove worked as Director of Clinical Studies for AkPharma and used an in-house nasal spray (NasoCell/NasoCell-S) from ~2007–2010; use was largely voluntary and sometimes at home.
- AkPharma received an FDA clinical-hold letter in 2010; NasoCell development was abandoned and never marketed.
- Bove filed a workers’ compensation petition (2013) and a companion civil suit alleging battery, fraudulent concealment, and prima facie tort (refiled April 2015).
- Defendants sent a Rule 1:4-8 “safe harbor” letter in May 2015 challenging the factual and legal bases of the claims but did not cite the Workers’ Compensation Act (WCA) exclusivity bar.
- After discovery and a five-day evidentiary hearing, the trial court granted summary judgment for defendants based on the WCA exclusivity/intentional-wrong exception not being met, and later awarded sanctions against plaintiff’s counsel under Rule 1:4-8; the appellate court affirmed summary judgment but reversed sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the WCA exclusivity bar is avoided by an "intentional wrong" (battery/fraud) | Bove: defendants committed battery and fraud (required/pressured him to use NasoCell; misrepresented safety), so WCA exception applies | AkPharma: conduct was voluntary, not coercive, and defendants lacked knowledge of substantial certainty of harm; WCA bars common-law claims | Affirmed for defendants: plaintiff failed to prove employers acted with "substantial certainty" that injury would result; exclusivity stands |
| Whether plaintiff presented sufficient evidence of causation (medical/expert proof) | Bove: court should not have required expert/medical proof pre-hearing given discovery limits | AkPharma: plaintiff had no competent evidence tying injuries to NasoCell; defendants offered expert contrary proof | Held: plaintiff’s lack of medical causation and absence of evidence that defendants knew harm was virtually certain fatally undermined claim; trial court properly considered expert evidence |
| Whether defendants’ conduct met Millison’s two-prong substantial-certainty test (conduct and context) | Bove: repeated exposure and alleged misrepresentations satisfy Millison | AkPharma: no coercion, no deception of the type in Millison/Laidlow; conduct did not create virtual certainty of harm | Held: conduct prong not satisfied; court did not need to reach context prong; summary judgment appropriate |
| Whether Rule 1:4-8 / Frivolous Litigation sanctions against Bove’s counsel were proper | Bove: counsel had objectively reasonable basis and discovery allowed expert development; safe-harbor letter did not identify WCA bar | Defs: claims were meritless and safe-harbor put counsel on notice to withdraw | Held: sanctions reversed—trial court failed to respect temporal limits on recoverable fees and safe-harbor was inadequate; no finding of bad faith |
Key Cases Cited
- Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985) (adopted two-prong "substantial certainty" test for intentional-wrong exception to WCA exclusivity)
- Laidlow v. Hariton Mach. Co., 170 N.J. 602 (2002) (applied substantial-certainty standard in industrial-accident context)
- Van Dunk v. Reckson Assocs. Realty Corp., 210 N.J. 449 (2012) (finding OSHA willful violations do not automatically satisfy intentional-wrong standard)
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995) (summary-judgment standard: view evidence in light most favorable to non-moving party)
- Rendine v. Pantzer, 141 N.J. 292 (1995) (framework for assessing reasonable counsel fee awards)