Joel S. Lippman, M.D. v. Ethicon, Inc. (073324), 119 A.3d 215

Background

Joel S. Lippman, M.D., was Ethicon’s worldwide VP of medical affairs and chief medical officer; he participated on internal review boards (including a quality board) that evaluated product safety and corrective actions.
Over several years Lippman repeatedly objected, internally, that certain Ethicon products were medically unsafe and urged recalls or further research; Ethicon sometimes followed his recommendations.
In April–May 2006 Ethicon recalled a product Lippman had urged be removed; Ethicon terminated Lippman on May 15, 2006, allegedly for an inappropriate relationship with a subordinate.
Lippman sued under CEPA (N.J.S.A. 34:19-1 to -14), alleging retaliation for whistleblowing; defendants moved for summary judgment arguing his objections were part of his job duties and thus not CEPA-protected.
The trial court granted summary judgment for defendants citing Massarano; the Appellate Division reversed, holding watchdog employees can be protected and adding an exhaustion-or-refusal-to-participate requirement for such employees.
The Supreme Court granted certification and held: watchdog employees performing ordinary job duties may invoke CEPA protections; but the Appellate Division erred in imposing an exhaustion requirement unique to watchdog employees.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether CEPA protects ‘‘watchdog’’ employees when they act within their ordinary job duties	Lippman: CEPA’s text and remedial purpose cover any employee who objects to or refuses to participate in activity believed unlawful or against public policy, regardless of job duties	Ethicon: CEPA’s “objects to” language implies protection only for activity outside an employee’s regular duties; job-duties objections are not true whistleblowing	Held: CEPA protects watchdog employees acting within their regular duties; no implicit job-duties exception in §34:19-3(c).
Whether the verb “objects to” in N.J.S.A. 34:19-3(c) requires acting beyond job responsibilities	Lippman: ordinary meaning of “object” includes opposing something even if within job scope; statute is silent on any job‑duties limitation	Ethicon: ‘‘object’’ should be read to require opposition to employer activity, not performance of prescribed duties	Held: ‘‘object’’ has its ordinary meaning and does not imply a requirement that the employee act outside job duties; reading one in would conflict with CEPA’s structure and remedial purpose.
Whether watchdog employees must exhaust all internal remedies before CEPA protection attaches	Lippman: CEPA contains no such exhaustion requirement; Dzwonar and Fleming reject imposing pre-suit exhaustion beyond statutory text	Ethicon: Appellate Division’s added exhaustion requirement reasonably tailored proof for watchdog claims and preserves employer management authority	Held: Court rejects imposing an exhaustion requirement unique to watchdog employees; statute does not require exhaustion under §34:19-3(c); Appellate Division’s added element is vacated.

Key Cases Cited

Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div.) (case relied on by trial court; Court rejects extrapolation of a job‑duties exception from it)
Dzwonar v. McDevitt, 177 N.J. 451 (2003) (articulates prima facie elements for CEPA claim)
Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1998) (CEPA protection for employee with compliance responsibilities; supports coverage of watchdog roles)
Estate of Roach v. TRW, Inc., 164 N.J. 598 (2000) (upheld CEPA verdict for employee involved in corporate ethics/compliance program)
Donelson v. DuPont Chambers Works, 206 N.J. 243 (2011) (rejects importing a job‑duties exception into CEPA)
Fleming v. Correctional Healthcare Solutions, Inc., 164 N.J. 90 (2000) (rejects mandatory exhaustion of internal complaint procedures as prerequisite to CEPA protection)
D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110 (2007) (broad, inclusive approach to defining who is an employee under CEPA)
Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405 (1994) (recognizes CEPA as remedial legislation entitled to liberal construction)
Winters v. N. Hudson Reg’l Fire & Rescue, 212 N.J. 67 (2012) (applies Dzwonar prima facie framework to CEPA claims)