*1 suрra 48-49, the mobile character of an insured automo- puts bile the parties on notice that more than one might state come to applying have an interest in its law to the question of coverage. regulated status of the automobile insurance industry is widely known—particularly to those regulated. Plaintiff’s corporation status as a licensed to do business in many states belies the notion that it relied on the applicability of Alabama law issuing its policy Hays. Hays’ Since insur- policy ance was renewed while his operated automobile was garaged in Jersey, New whatever reliance the insurer could placed have protection on the of Alabama law was completely unjustified. majority’s application assertion that of Ala- protect bama law “will expectations reasonable par- * * ties as to their insured risks ante at support lacks the of close scrutiny factual that contemporary conflicts requires. doctrine
Conclusion reasons, For the foregoing I would apply Jersey’s New initial permission rule and hold that Simmons operating was Hays vehicle permission with night on the question. I would therefore reverse the of the Appellate Division.
For SULLIVAN, CLIFFORD, affirmance—Justices HAN- DLER and POLLOCK—4.
For reversal—Justice AN—1. PASHM PIERCE, PLAINTIFF-RESPONDENT, GRACE v. ORTHO PHARMA- CORPORATION, CEUTICAL DEFENDANT-APPELLANT.
Argued 13, 1979 November July Decided 1980. *3 (Porzio appellant & Bromberg argued the cause J. Myron Myron J. Brom- Meyer Patricia A. Bromberg, attorneys; brief). berg on respondent. Gray argued the cause
Ruth Russell of the Court was delivered opinion POLLOCK, J. will employee an question whether presents
This case damages employer to recover against her has a cause of action following her refusal employment for the termination Resolu- medically unethical. she viewed as project continue of the common law involves an examination question of this tion whether we should to determine employment will of at doctrine to dis- allowing employer the rule exception to adopt an without cause. charge an at will Pierce, damages after termina- Plaintiff, sued for Dr. Grace defendant, Pharmaceutical Ortho employment with tion of her motion for defendant’s judge granted The trial Corporation. reversed and re- Division Appellate summary judgment. (1979). granted We NJ.Super. for a full trial. manded We 81 N.J. certification. petition for defendant’s summary reinstate the Division Appellate reverse the now *4 Division.- granted by the Law I judgment, summary for a motion the matter involves Since affidavits, deposi- and pleadings, facts from glean wе benefit motion, plaintiff the giving court on tions before the jB. in her favor. may be drawn inferences of all reasonable 4:46-2. manufacture development in the and specializes
Ortho Pierce is a medical therapeutic reproductive drugs. and Dr. in 1971 as an Associate employed by who was first Ortho doctor signed except no contract of Medical Research. Director She was not for a fixed agreement, employment and her secrecy 1973, she became the employee at will. In term. She was an Research/Therapeutics, major one of three of Medical Director Department. primary Her sections of the Medical Research development therapeutic responsibilities were to oversee testing for procedures those drugs drugs and to establish for effectiveness, super- Her immediate marketability. safety, and Dr. Medical Director. Pasquale, visor was Samuel Executive only Dr. Pierce was the medical doctor spring In the loperamide, liquid drug project developing on a team infants, children, elderly persons. treatment of diarrhea in Although contained saccharin. proposed formulation loperamide with the formula for concentration was consistent agreed team that the formula Europe, project marketed in use in the An alternative was unsuitable for United States. containing might less saccharin have been- devel- formulation oped approximately within three months. team, 28, however, project except March Dr.
By Pierce, development loperamide. decided to continue with apparently response That to a decision was made directive the Marketing from Division of Ortho. This decision meant that drug (IND) investigational application Ortho would file an new Drug (FDA), Administration with the Federal Food and continu- begin ing laboratory loperamide, and work on a studies on required drug formulation. FDA is before new approval is §'355; 21 clinically tested on humans. 21 U.S.C. C.F.R. 310.3 §§ Therefore, patients would be seq. loperamide only et tested on formulation. approved if the FDA the saccharin would have to be filed with Dr. Pierce knew that the IND begin. approved testing the FDA before clinical could None- theless, oppose being loper- she continued to the work done on 21, 1975, April amide at Ortho. On she sent a memorandum project expressing disagreement team with its decision *5 drug. proceed development opiniоn, In her with the justification seéking permission FDA to use the there was no drug in light controversy safety of medical over the of saccharin. on Pasquale May.
Dr. Pierce met with Dr. 9 and informed him disagreed that she with the decision to file an IND with the FDA. by continuing loperamide She felt that to work on she interpretation would violate her of the Hippocratic oath. She might concluded that the risk that saccharin be harmful should preclude elderly persons, formula on children testing the .or especially might when an alternative formulation soon be availa- ble. . recognized joined
Dr. Pierce that she was in a difference of “viewpoints” Pasquale with others at Ortho “opinion” Dr. In her concerning containing the use of a formula saccharin. opinion, loperamide pediatric drops of saccharin safety acknowledged Pasquale medically was debatable. that Dr. She opinion proceed was entitled to his with the IND. On depositions, concerning she testified the reason for her differ- opinion safety using loperam- ence of about the saccharin in pediatric drops: ide thing That was because in medical that was an unsafe to do. Is Q your opinion so?
that A No. I didn’t know. The of saccharin was onе of harm. question potential though rulings It was controversial. Even look even less favorable presently for saccharin it is still a issue. controversial Pasquale After their Dr. informed Dr. meeting May longer assigned loperamide be to the Pierce that she would no asked Dr. Pierce to choose project. May Pasquale On Dr. projects. from vacation in other After Dr. Pierce returned Finland, Pasquale with Dr. to discuss other she met on June 16 meeting. project at that She projects, but she did not choose demoted, being though salary she even would not felt was impression be Dr. Pierce summarized her of that decreased. Pasquale Dr. meeting resignation in her letter of submitted to letter, following day. In that she stated: meeting learning in our June Believe I have not ‘acted as 16,1975, Upon you have as to Director’, my competence, responsibility, displayed inadequacies Marketing to relate to the Personnel, you, productivity, inability *6 be George Verne Willaman consider me to Braun and Mr. Dr. reportedly it will be I find demoted, now or soon impossible and that I am non-promotable at to continue Ortho. my employment opinion of her difference specific made no mention The letter loperamide. on continuing the work Pasquale over with Dr. Pierce,- Dr. favorably to Nonetheless, viewing the matter most employ- her termination of for the assume the sole reason we Pasquale loperamide project. Dr. dispute was the over the ment resignation. accepted her of tort and principles based on complaint, was
In her which damages for the law, claimed termination Dr. Pierce contract alleged: complaint Her employment. her agents, demanded servants employees requested its Defendant, which was for of action and behavior impossible Plaintiff follow a course oath she had because of taken, because of the Plaintiff to follow Hippocratic governed and because of the she was as ethical standards which physician, regulatory and case for the law, and state, statutory both federal schemes, well-being, which and human in the field of health of the protection public should honor. schemes Plaintiff believed she testing any However, specify that would violate she did not Similarly, she did not statutory regulation. state or federal principles violate the would continuing state that the research never contend- Association. She of the American Medical ethics to a claim exppse in the research would participation ed her malpractice. for on two theories. summary judgment
Ortho moved for wrongful discharge was action for first was that Dr. Pierce’s judge denied the motion resigned. The trial barred because she question there was a fact he found ground on that because However, resignation. induced Dr. Pierce’s whether Ortho ground the alternative granted motion trial court Ortho’s will, at could employee Ortho Pierce was an that because Dr. reversing In the trial any reason. employment end her plenary hearing that a was court, ruled Appellate Division adopt exception an to the deciding whether necessary before at employer to fire an permitting rule common law 1023. at 399 A.2d N.J.Super. reason. will II is a means for the summary judgment A motion for there is no disposition efficient of a cause of action where moving party entitled genuine issue of material fact and is. course, courts as a matter of law. R. 4:46-2. Of deciding involving issues appropriate should exercise caution in Hospital, Muhlenberg 53 N.J. policy considerations. Jackson v. However, 138, 142 caution would undercut the (1969). excessive provides a summary judgment, which of a motion for purposes pleadings determine piercing allegations means for disposition trial. Judson requiring whether are issues there Westfield, 17 N.J. 73-75 Peoples Bank & Trust Co. movant, If, against inferences of drawing after all doubt *7 fact, of material it genuine court finds that there is no issue summary judgment. Applying Id. at 75. those should enter Ortho, discharged by principles, we hold that even if she were action for alleged support Dr: Pierce has not facts that would an damages employment. for the termination of her noted, question a fact whether Ortho
As
there was
previously
Consequently,
judge
the trial
resign.
induced Dr. Pierce to
ground
on the alternative
properly
summary judgment
denied
is
action. That determination
resignation
that her
barred this
Therefore,
not reach the
we do
challenged
appeal.
not
on this
wrongful dis
question
resignation
whether
bars an action for
Co.,
See,
N.J.Super.
75
Fruit
charge.
g., Donnelly
e.
v. United
(1963).
1962),
Ill law, employment of an in the absence the common Under contract, been free to terminate employees 'have employers
66 relationship v. with or without cause. Schlenk employment 131, 135 (railroad employee Co., (1948) 1 Lehigh Valley R.R. N.J. English College v. of Medi discharged fighting). See also 20, (1977) (morgue 73 N.J. 23 Dentistry Jersey, cine and of New records); keep to supervisor discharged failure accurate Co., 541, (1958) Jorgensen 25 N.J. 554 Pennsylvania v. R.R. theft). (railroad discharged for employee in magnitude The rule constitutional temporarily attained 280, 175, 277, 52 States, 161, 208 28 Adair v. United U.S. S.Ct. 436, Supreme Court (1907), L.Ed. 442 where the United States illegal it for an making held unconstitutional federal statute employer prohibit joining an from a union. See Kansas, 13-14, 240, 243, 1, 236 35 59 Coppage also U.S. S.Ct. 441, statutes). (1914) (applying L.Ed. 446 Adair to similar state legislation, As a administrative corollary development decisions, rule lost its regulation, judicial has since Laughlin v. Jones protection. constitutional See NLRB & Steel 1, (1937). Corp., 57 L.Ed. 893 S.Ct. U.S. laissez- developed In the law century, last common encouraged growth approved faire industrial climate business, including right employer his own control right employee at will. See to fire without cause an Comment, Hastings L.J. The twentieth century significant changes in val- has witnessed socioeconomic the common law ues that rule. have led reassessment evolved from small and size firms to Businesses have medium gigantic ownership separate is from man- corporations which between agement. Formerly there a clear delineation was *8 businesses, employers, frequently owners of their own who were replaced sense has been employees. employer The in the old an superior hierarchy who is himself by corporate in the in the employees. employee. are a Growth We nation recog- accompanied by increasing number employees has been stability nition of in labor relations. the need for tradi- questioned compatibility of the Commentators have with of modern economics tional will doctrine the realities See, Blades, Employment at practices. e.g., and employment
67 Limiting Will vs. Individual Freedom: On the Abusive Exercise Employer Power, 67 Colum. L. Rev. (1967) 1404 [hereinafter cited as by common law rule has been modified Blades]. See, enactment of labor legislation. e.g, relations NLRB v. Laughlin Jones & Corp., supra. Steel The National Labor Relations Act and other legislation labor govern- illustrate the policy mental of preventing employers using right from discharge Blades, as a oppression. means of supra at 1418. Consistent policy, many with this recognized states have protect need to employees who parties are not to a collective bargaining agreement or other contract from practices abusive employer.
Recently recognized those states have a common law cause of employees action for at will who were discharged for reasons that were in way “wrongful”. some juris- courts in those dictions have taken varied approaches, some recognizing the tort, action in Comment, some in contract. See 93 Harv. L. Rev. 1818-1824 Nearly jurisdictions all link the success wrongful of the discharged employee’s proof action to that the discharge public violated policy.
In Geary
Corp.,
United States
456
Steel
Pa.
319 A.2d
(1974),
employed
discharged
salesman
at will was
after he
expressed to the management
opinion
product
his
that a new
was defective
dangerous.
The court sustained the dismissal
complaint
because it
only
revealеd
that “there was a
dispute over
product,”
the merits of the new
and because no
public policy
company discharges
is violated when a
who
qualified
is not
to make
judgments
making,
technical
“a
nuisance of
However,
himself.”
68 (E.D. 1979) (employee made unauthorized
F.Supp. 485 Pa. who action); no Wehr v. calls had cause of long telephone distance 1977) (cause (E.D. of Burroughs Corp., F.Supp. 1052 Pa. 438 remedy age recognized, employee had alternative for but action discrimination). 130, Co., 316 Monge v. A.2d 549
In
Beebe Rubber
114 N.H.
sue for
employee
the court
an at will
to
breach
(1974),
allowed
when
after she refused
date the
contract
she was dismissed
maintaining
Balancing
employee’s
interest
in
foreman.
business,
running
interest
a
employer’s
employment,
interest,
held that termination motivated
public
the court
public
faith or
is not in the
interest and constitutes a
bad
malice
contract.
A.2d at 551.
employment
breach of the
316
Co.,
(Mass.
Register
In a recent case the Court of California reversed complaint of an judgment sustaining employ- a demurrer alleged discharged of his refusal to ee who had been because he prices. The court participate illegal in an scheme fix retail declared, employee “when an violates employer’s discharge discharged principles public policy, fundamental *10 damages may traditionally maintain a tort action and recover Co., Tameny in such actions.” v. Atlantic Richfield 27 available 167, 170, 1330, 1331, 164 839, P.2d Cal.Rptr. 610 Cal.3d 840 decision, The court in an earlier Petermann v. Tameny relied on Teamsters, Cal.App.2d International Brotherhood of 174 344 (Ct. 1959), App. employee P.2d 25 which allowed an who was discharged give legislative for his refusal to false answers to a public policy against committee to sue because of the the solici perjury. tation of Co.,
In Perks
supra,
employee
v. Firestone Tire & Rubber
discharged
refusing
was
after
submit
lie
to
to a
detector test.
Pennsylvania
prohibiting conditioning
Because
had a statute
tests,
taking
discharge
on the
of such
the'
was
employment
against public policy.
employee
discharged
An
who was
employer
to
his
to
trying
comply
convince
with
consumer
prevailed
a clear
credit
laws
because the laws demonstrated
public policy
protecting
of
consumers. Harless v. First National
Fairmont,
(W.Va. 1978).
Bank in
In
claims for
courts have been
employer’s right
careful not to
with the
to make
interfere
personnel
job.
the best
business decisions and to choose
Center,
(Colo.
Lampe
Presbyterian
In
70
F.Supp.
400
Corp.,
v. General Motors
in Percival
(8th
1976), was
(E.D.
1975),
Several states have declined to
See,
Tapley,
v.
(1980); Collopy v. Newark Ear Eye Infirmary, N.J. 43-44 employees, interests of employers, and the public lead to conclusion common law of New Jersey the right employer should limit employee fire an at will.
IV recognizing provide In a cause of action a remedy for discharged, employees who are we wrongfully must balance employer, employee, interests of the and the Em- public. ployees knowing they discharged have an interest will not be legal rights. their exercising Employers interest have an knowing run they can their businesses as they see long fit as as their public рolicy. conduct is consistent with public has an interest in employment and in stability discouraging frivolous lawsuits employees. dissatisfied
Although exception contours important of an are to all will, employees special this case focuses considerations arising the right out of who is fire an at will a member One recognized profession. of a writer has described predicament may employed by confront large corporation: plight engineer will Consider, of an who is told that he lose his example,
job conclusions, unless he falsifies his data or or unless he a product approves which does not conform to or meet minimum Consider standards. specifications also the dilemma of a who is context of an told, the corporate attorney say investigation, impending or tax audit antitrust to draft backdated corporate concerning records events which never or took to other documents place falsify legal so that adverse be avoided consequences may by corporation; accountant of an who is told to his predicament and loss falsify employer’s profit statement in order to enable the to obtain credit. employer [Blades, suprа (footnotes omitted)] 1408-1409 Employees professionals special duty who are owe a to law, by abide not federal only by recog and state but also nized codes of of professions. may oblige ethics their That duty them perform required to to employers. decline acts their
72 right not his
However, employee prevent should have to an employ- its because the employer pursuing from business or a business decision violates perceives particular ee that recog- morals, distinguished as from employee’s personal Comment, employee’s profession. nized code of ethics of (1975). 28 L. Rev. Vand. a cause action for employee hold that an has of
We a clear discharge contrary is to wrongful discharge when the public policy. public policy include mandate sources of decisions; rules, or regulations legislation; administrative instances, a code of judicial decisions. In certain However, public policy. expression ethics an not may contain public For express policy. a clear mandate of all such sources designed only serve the interests of example, a code of ethics to with profession regulation an cоncerned a or administrative probably would not be sufficient. Absent technical matters legislation, judiciary must define the cause of action in right discharge An case-by-case employer’s determinations. discharge duty a not to employee an at will carries correlative require perform who declines to an act would employee an However, public policy. a a clear mandate of unless violation of specific expression public an at will identifies employee with without policy, may discharged he be cause. employee wrongfully discharged may An who is main tain a in contract or or both. An action in cause action tort predicated on the breach of an may implied provision contract be discharge refusing employer employee that an will not an perform public policy. a clear mandate of an act violates Services, Inc., Vasquez v. N.J. 86 Cf. Glassboro duty employer may An in tort be based an not action perform who refused to an act that discharge is public action, policy. a violation of a clear mandate of In a tort punitive damages improper court to deter can award conduct Pessel, in an DiGiovanni v. N.J. appropriate case. Prosser, (1970); (1971); Rev., 190-191 Torts at 9 28 Vand. L. § supra remedy That is not at 836. available under the law of *13 See, Corbin, Contracts at 367 g., § contracts. e. from preclude employees
Our
not
holding should
be construed to
agree-
alleging
employment
breach of the
terms of an
express
a
suggestion to
Despite
ment.
the dissent’s unaccountable
specific
contrary,
any
Dr. Pierce did not assert
the breach of
provision
post
contractual
as a basis for relief. See
at 85-86.
Employees will be secure in knowing
jobs
that their
are
safe if they exercise
rights
their
in accordance
a clear
with
public
mandate of
policy.
hand,
On the other
employers will
know that
they
unless
contrary
act
public
policy, they may
discharge employees at
any
will for
reason. Finally,
holding
our
protects the interest of
public
stability
of employment and
in the elimination of frivolous lawsuits. Courts allowing at will
employees to sue for wrongful discharge
expressed
have
concern
that employees
groundless
See,
will file
g., Geary
suits.
e.
Co.,
United States Steel
V now Dr. dis- question We turn to the whether Pierce was charged contrary public policy. for reasons to a clear mandate of stated, summary As motion for previously granting Ortho’s juncture only is appropriate is at this if there no genuine as to fact. issue material In opposing material facts are uncontroverted. judgment, motion Dr. did not summary Pierce contend that harmful, saccharin was but that it was controversial. Because controversy, she she continue her work on said could not loperamide. supervisor, Pasquale, disagreed Her Dr. thought research should continue. *14 humans, could be tested on above, loperamide
As stated before approval to FDA to obtain to submitted an IND had be complete must contain 355. The IND testing. such 21 U.S.G. § (test- pre-clinical studies manufacturing details of specifications, drug, animals) safe use of the and demonstrate the ing on which The FDA then has 30 proposed of clinical studies. description Since testing. 21 312.1. approval § of C.F.R. days to withhold here, Pierce the giving Dr. filed and even no IND had been it allegations, is clear that regarding her all doubt benefit of was not imminent. humans testing on loperamide clinical of continuing perform to research on by that argues Dr. Pierce professional been violate have forced to loperamide she would cites oath. expressed Hippocratic medical ethics in She regimen for the prescribe “I part the oath that reads: will of according my to and good my patients ability my language anyone.” Clearly, general to and never do harm that does not prohibit specifically the oath does not research and that cannot lead to such tests involve tests on humans governmental approval. without allege any We rely note that Dr. not on violation Pierce did standards, ethics” including other “codes Similarly, she by at 77-82. advanced the dissent. Post allege continuing her research would constitute an did not that statute, including malpractice or violate act medical 45:9-16(h). post N.J.S.A. See 82. case, Dr. has that saccharin
In this Pierce never contended anyone. alleged that the necessarily would cause harm She investigation controversy made continued an unneces- current sary stopped loperamide, However when she work on risk. participation is not that in point there was no risk. Our here employee may unethical conduct must be imminent before post at 84. The to work. more relevant refuse allege preparation Dr. not consideration is that Pierce does filing of IND Further Dr. Pierce does was unethical. proceeded with human suggest not that Ortho would have be different testing approval. FDA The case would far without it, IND, disapproved had the FDA had if Ortho filed on testing drug Ortho insisted humans. actual facts are Dr. Pierce have anyone continuing could not harmed to work on loperamide.
Viewing favorably Pierce, matter Dr. most the contro- versy at Ortho involved a in opinions. difference medical Dr. acknowledged Pierce that Dr. Pasquale was to his entitled opinion that the oath did forbid loperamide. not work on None- theless, position implicit Dr. Pierce’s is the contention that Dr. Pasquale and Ortho obliged accept were opinion. Dr. contends, effect, Pierce that Ortho should stopped have *15 research on of her loperamide opinion because about the contro- of drug. versial nature espouses
Dr. Pierce a doctrine that would lead to in disorder drug Under theory, research. her employee could propriety project redetermine the of a if research even research involve a public did not violation of a clear mandate of policy. Chaos would if a single engaged result doctor in re- determine, according search were allowed to to his conscience, individual project whether a should continue. Cf. Report of the Principles Ad Hoc Committee on the of Medical Ethics, employee American Medical Association 3 An right does not have a employment to continued when he or she simply refuses to it conduct research because would contravene personal his or her employee morals. An will at who refuses to employer work for an of answer to a call conscience should recognize other employees employer might that and their heed a However, nothing opinion different call. in this should be right construed to restrict the of an at will to refuse to sum, work on a she project that he or believes is unethical. In employer may an an discharge employee who refuses to work public unless the refusal is based on a clear of policy. mandate above, complaint As of Dr. Pierce’s is stated the thrust not dangerous, that that saccharin is but it is controversial. At oral argument, attorney Dr. Pierce’s conceded that she did not intend question safety jury. to submit the of the of saccharin to the is, plaintiff That did not intend to adduce expert testimony dangers demonstrating loperamide formulation v. containing proposed level of saccharin. Cf. Jackson N.J. at 142—143.As a Muhlenberg supra, 53 matter Hospital, law, public policy against conducting research on there is no controversial, to potentially but beneficial drugs may be mankind, the research is particularly continuation of where Consequently, although we subject to the FDA. approval wrongful an action for recognize employee may maintain to be no of material fact discharge, we hold there are issues Detroit, R. Toledo& Ironton resolved at See Trombetta v. trial. Co., supra. circumstances, Hippocratic we conclude that the
Under these public policy does contain a clear mandate oath not loperam- continuing her research prevеnted Dr. Pierce from ability seriously impair To would ide. hold otherwise according develop drugs to their drug new manufacturers Corp., judgment. supra, Percival General Motors best 1130; supra, Geary Corp., F.2d v. United States Steel A.2d at 179-180. drug legislative regulatory pertaining framework involving policy that
development public reflects a research may public FDA testing proceed approval. on humans with subject development drugs, to the has an interest FDA, management protect and the approval responsible of a drugs on new promote the health of mankind. Research *16 preempt not questions safety, but courts should may involve of questions in- of debatable unless the research determination public policy. volves a violation of a clear mandate of Where pharmaceutical research does not contravene a clear mandate of of research is public policy, regulation the extent controlled FDA, tort, corporate through liability responsibility. in the Appellate of Divi- Accordingly, we reverse the the entry the trial for of sion and remand cause the court defendant. judgment for J.,
PASHMAN, dissenting. professional a agree ruling employ- I with the that majority’s a discharged refusing clearly for to violate may ee not be recognized or ethical legal obligation imposed on of members his However, profession. majority’s application principle of this logical explanation disregards defies judicial established summary judgment. doctrine on propriety majority of The by assuming agree- further errs that absence of a written signifies beyond plaintiff’s ment dispute that was employment strictly at will of drug manufacturer. I therefore respectfully dissent. majority’s analysis
The recognizes goals of ethical By conduct are of inestimable social value. main- taining conduct, informed standards of professions licensed bring to the problems public responsibilities of their the same expertise that marks their calling. integrity codes of professional conduct that regulation result from this deserves judicial protection from pressure. undue Employers economic potential are a pressure, source of this for' they provide can today, whim—job withhold—until at security their and the enhancing professional’s Thus, means of a reputation. I com- pletely agree ruling with the majority’s that “an has a cause of for wrongful discharge discharge action when the is contrаry policy” to a clear mandate of as in public expressed “professional code of ethics.” Ante 72. pronounces today.
The Court this rule for first time One would plaintiff opportu- think that it would afford therefore nity to seek within newly relief the confines this announced cause of By action. ordering grant summary judgment defendant, however, majority apparently believes that such an opportunity would I fail futility. be an exercise majority see how the reaches this conclusion. There are a detailed, number of recognized, codes of medical ethics that proscribe participation experimentation clinical when doctor perceives Any an unreasonable human one of threat health. provide these public policy” codes could the “clear mandate of requires. the majority “Declaration Helsinki” the World Medical Associa- conducting tion guidelines experimenta- established medical tion on adopted humans. The declaration was in 1962 and *17 Helsinki, Fin- Assembly Medical at by 18th World
revised 1978). (Reich ed. land, of Bioethics 1769 Encyclopedia in 1964. 4 Association Delegates of the American Medical The House of of this declaration at principles official endorsement gаve 1773. The 1964 Id. at declaration annual convention in 1966. its as provides part follows: recognized the field a fundamental distinction must be
In of clinical research for a the aim is therapeutic between clinical research in which essentially object is scientific and the clinical essential which research, purely patient, subjected research. to the to the without value person therapeutic 1. Basic Principles legitimately cannot be carried out unless the importance 3. Clinical research objective subject. the inherent risk to the is in proportion Combined with II. Clinical Research Professional Care objective care, combine clinical research with 2. The doctor can being knowledge, extent that clinical of new medical only acquisition justified its research is value for the patient. by therapeutic Research III. Clinical Non-Therapeutie In the of clinical research carried out on a 1. scientific application purely being, human it is the of the doctor to remain the life and duty protector being out. of that clinical research is carried health whom person * * * investigator investigating team should discontinue the 4b. judgment, if their it if be harmful to thе continued, research in his or may, individual. 1770-1771] [Id. revised in 1975 the 29th Declaration Helsinki was Tokyo, Japan. id. at 1769. As Assembly in World Medical amended, following provi- includes the additional the declaration sions: Basic
I. Principles (FDA) Drug has 1The United States Food and Administration expressly guidelines these as minimum standards for clinical studies conducted adopted drug consider of a new outside the United States which the FDA will as part 312.20(b)(l)(iv) § 21 C.F.R. application. *18 projects involving engaging in research human 7. Doctors should abstain from subjects unless are satisfied that the hazards involved are believed to be they investigation cease if the hazards are found to Doctors should predictable. any outweigh the benefits. potential (Clinical Research) II. Medical with Research Combined Professional Care 2. The hazards and of a method benefits, new should be potential discomfort weighed against advantages diagnostic of the best current and therapeutic methods. patient—including group, 3. those a control if In medical of every any study, diagnostic be assured of the best and method. any—should proven therapeutic (Non-clin- Involving Subjects III. Biomedical Research Human Non-therapeutic n Research) r ical Biomedical 1. In the scientifiс research carried out on of medical application purely * * * being, subjects human should be volunteers—either [t]he healthy design for whom the is not related to the experimental persons patients illness. at patient’s [Id 1772-1773] Medical Association has also drafted adopt- The American and guidelines investigations. ed its own ethical for clinical See Council, Association, Opinions Judicial American Medical (1979); Encyclopedia Reports of the 24-26 Judicial Council Bioethics, supra, guidelines part: at 1773. These state
(2) investigator conducting investigation, In clinical should demonstrate the same concern and caution for the and comfort of the welfare, safety, person furnishing as is of a who is medical care to a required physician patient involved investigation. clinical independent (3) investigation In clinical for treatment— primarily recognize A. The must that the exists physician physician-patient relationship and that he is to exercise his and skill in the expected best interest the patient. (4) investigation for the accumulation of scientific knowl- In clinical primarily edge— safeguards must be for the and comfort welfare, A. provided safety Adequate subject. subjects if: be used as only Minоrs or incompetent persons may C. mentally investigation adults is such competent i. The nature of mentally subjects.2 be suitable would not (emphasis Council, of the Judicial 24-25 supra, [Opinion Reports original; added)] footnote is now called the guidelines ethical is what A final source of Code,” principles included in the a statement “Nuremberg decision in United Karl Nuremberg Military Tribunal’s States Bioethics, supra, at 1764. The Encyclopedia Brandt. adopt- Medical Association has of the American Judicial Council *19 as one Nuremberg expression principles of ethical ed the Code experimentation. governing Opinions Reports human Council, supra, part; of the at Judicial 33. The code states in where there 5. No should be conducted is an a reason to priori experiment disabling injury will in those occur; believe that death or except, perhaps, subjects. where the also serve as experimental physicians experiments degree 6. The of risk to be taken should never exceed that determined the by of the to be the humanitarian solved experiment. importance problem 7. should be made and facilities Proper preparations adequate provided subject against injury, remote even protect possibilities experimental or death. disability, charge During the scientist in must be 10. the course of experiment stage, if he has cause to to terminate the at probable prepared experiment good judgment skill and careful faith, in exercise believe, superior is of him a continuation of the result experiment likely required subject. injury, or death to the disability, experimental Medical 2 Trials of War Criminals before the [“Permissible Experiments,” Nuremberg Nuremberg under Law 10: Tribunals Control Council No. Military (n. d.) (quoted 1949 at 181-182 in 4 October of Bioeth- 1946-Aprii Encyclopedia 1764-1765)] ics, supra, Each of these four “codes of ethics” establish participation experimen- standards for the of doctors in clinical and the content of each set tation on humans. Both the source guidelines provide persuasive evidence that each is a “clear public policy.” provides mandate of Each also the basis for Plaintiff should denying summary judgment. defendant receive discharged for her opportunity prove at trial that she was these ethical standards. or more of refusal to violate one might relevant at trial. The record is present 2This have been provision objected young unсlear as to whether to the use of specifically plaintiff testing program. children clinical proposed summary judgment, majority motion for On defendant’s that “the allegations plaintiff’s the truth of properly assumes carcinogenic potential of controversy [regarding current unnecessary risk.” investigation made continued saccharin] present in the enough evidence certainly There is Ante at 74. fact,” R. as to material “genuine issue record to create [this] formulation safer alternative notes that a majority 4:46-2. The investigation “might have been devel- drug under of the new Ante at 62. months.” oped three approximately within of the likelihood that the contains no clear indication record developed. on a motion formula would have been Since safer doubt are drawn inferences of summary “[a]ll motion,” opponent of the against the movant in favor of the 67, Westfield, 17 N.J. & Trust Co. of Peoples Judson v. Bank see, Equip. v. Aetna Life & Cas. (1954); g., e. United Rental Co. Sirotta, Beadling 39 N.J. Co., (1977); Ins. 74 N.J. present time that the successful (1962),we must assume at the was imminent. The risks of the safer alternative development more evident. by defendant are attending proposed the formula proposed notes, developing team majority project As the was unsuitable use in “agreed that the formula drug formula States,” agreement apparently ante at 62. Their the United *20 to have present appears until made what at persisted defendant “corporate responsi- in exercise purely profit-motivated been a notwith- development with proceed 76: to see ante at bility,” risk,” at 74. “unnecessary ante standing the medical ethics would described codes of previously of the Each experimentation conducting clinical plaintiff from prohibit their profit risks have economic as unnecessary medical where pro- original Declaration of Helsinki The only justification. unless professional with care combined experimentation scribes supra at patient,” for the therapeutic its value justified by it “is if, the be conducted Non-therapeutic may research not 78. the be “harmful to investigator, of the it would judgment 1975revision of the declara- subject].” Id. The individual [test where conducting experiments from prohibits also doctors tion predictable, hazards are possible not satisfied that the they are Supra or they outweigh potential where at 79. benefits. program therapeutic purpоse, Where the research has weighs where may experiments only doctor conduct he proposal against other courses of treatment and concludes it is * * * Id. proven therapeutic “the best method.” guidelines partic- American Medical Association’s own also make ipation experimentation contingent clinical upon the doctor’s welfare, professional regarding safety, “the and com- subject],” patient.” fort of and the “best interest of the [test Supra at Finally, similarly 79. condi- Nuremberg Code faith, participation “good superior tions a doctor’s on his skill Supra judgment” experiment careful is safe. 80. stage litigation—when disputed
At this all factual against issues must be resolved defendant—plaintiff is entitled to protection recognized claim the of one or more of these codes professional ethics. I plaintiff therefore conclude that should prove have an opportunity may to those facts which entitle her majority’s newly promulgated to relief under the cause of action. prove
This opportunity discharge public in violation of policy solely recognized is not based codes of ethics. There legislative prohibition is also a of conduct physicians endangers regulate pro- life or health. To doctors, Legislature fessional behavior of empowered has grant, suspend Board of Medical State Examiners or revoke medicine within the State. See N.J.S.A. practice licenses to 45:9-6, -16. The enumerating powers pro- statute the Board’s part: vides in * * * grant refuse to or or revoke a license [B]oard may may suspend * * * * * * gross gross medicine or practice upon proof malpractice neglect endangered in the of medicine which has the health or life of practice * * *. person 45:9-16{h)] [N.J.S.A. statutory prohibition “gross malpractice gross
This ne- glect” public another “clear mandate of policy” establishes *21 plaintiff Assuming which should be allowed to invoke. without deciding medical unnecessary that the infliction of risks—the perform—might to specific plaintiff conduct refused have con- “gross malpractice,” attempt by I find- not even stituted prove defendant to refute If could plaintiff such a claim. refusing engage “gross in discharged defendant malpractice,” defendant would be liable for its violation of a plaintiff “clear public policy.” permit mandate of I would discharge response demonstrate at trial that her was a to her policy refusal to violate as well as several codes of statutory medical ethics.
The majority plaintiff opportunity. denies this I do not why. Nothing stating understand is more unfair than a novel principle appeal, denying of law for the first time on an but relief plaintiff sought who under some new standard oppor- tunity proof specific requirements to conform his to the actually adopted. Yet appears majority precisely it has done that. Although plaintiff might prevailed have trial under the rule I majority’s by invoking one or more of the standards have described, majority acknowledge does not this possibility. It rejects plaintiff’s principle claim under its new of law without showing any sensitivity parties’ to the earlier unawareness new rule. rejection majority’s The ostensible reason for the is that violation of other plaintiff rely allege “did not on or besides the Hippocratic Yet, standards” Oath. Ante at 74. this statement majority’s opinion conclusively own shows notes, majority plaintiff be inaccurate. As the asserted in her complaint proposed drug program participation that her have “ethical standards” other than would been in violation of Hippocratic or her Oath. ante at- 63- the broad mandate Thus, majority’s upholding stated reason for summa- 64. plaintiff’s claims. description its own ry judgment contradicts these claims because majority be dismisses may It But this rationale specifically. them plaintiff allege did not a formal defect claim for reject possibly valid would See, long e.g., have eschewed. pleading—a result our courts (1968); Bellizio, N.J. 27-28 Muniz v. United Saia *22 84 N.J.Super. (App. 79
Hospitals Presbyterian Hosp., Med. 153 Cen. Co., 1977); Corp., Inc. Alad Novelty Realty Div. Swisscraft 1971). N.J.Super. 416, The result becomes (App.Div. 113 425 the of justify recognizes when one source even more difficult to pleadings law to new rule of application the defect: the of a complete ignorance that discovery drafted and conducted effectively for at bottom it unacceptable, rule. is Such result meaningful day in court. plaintiff a denies discussion, require points majority other made the Three to they majority’s for reflect failure follow the well-estab- the opposing judg- party summary lished rule that the claims of a treated,” Judson, “indulgently supra, to be 17 N.J. at ment are majority’s the 75. The first is the characterization of effect plaintiff’s that position. appears ethical It believe Dr. Pierce proposed power whether defendant’s de- had to determine program velopment would continue all. See ante at 75. case, right claiming nor is to halt plaintiff This is not “indulgently,” developmental Interpreted efforts. defendant’s only right profession- to her realistically, claims yet plaintiff discharged be may not autonomy. al contends she She is or for program unethical expressing view that clinical project. has refusing participation She continue her nothing development impede done else to continued defend- moreover, undisputed it that defendant was proposal; ant’s is Thus, program by reassigning personnel. able to continue its majority’s granting right doctors a to be from view free complete one of them discharges abusive would confer 75, power development, veto is drug over desirable ante at ill-conceived. point governmental approval
The second
concerns the role
apparent
ignorance
proposed experimental program.
In
regulation
safeguard against
past
failures of official
horrors,3
majority implies
necessity
that the
pharmaceutical
e.g.,
163
Laboratories,
588,
924,
607 P.2d
Abbott
Cal.3d
3See,
Sindell v.
(Sup.Ct. 1980);
540,
Co.,
Mahr v. G. D. Searle &
Ill.Apр.3d
Cal.Rptr.
1979);
(App.Ct.
v. Premo Pharmaceu-
Lyons
390 N.E.2d
Plaintiff asserts a contract claim sounding majority in tort. ante dismisses at 64. plaintiff claim was an by presuming contract *24 61, ante Although will. See at 62 71-72. & stated as an fact, undisputed proposition the is an inference based agreement. English contrary of a the absence of evidence 20, Jersey, of 73 N.J. College Dentistry v. of New Medicine Co., 541, 25 554 (1977); Jorgensen 23 R.R. N.J. Pennsylvania v. Co., 131, 135 (1948); (1958); Lehigh R.R. 1 N.J. Valley Schlenk v. Jur.2d, 43 53 and Servant at generally § see Am. Master 117-118 p. (1948). (1970); 56 Master and 31 at 412—413 § C.J.S. Servant nothing presence says about majority’s Yet discussion genuine dispute contrary of a to the of a absence as existence may agreement. dispute only exists. Not presently Such a public principles majority principles policy—the very of agreement as a implied part employment as of an espouses—be Assoc., Inc., law, 83 Vasquez matter of see v. Glassboro Service 86, 90, Jersey Water (1980); 98 Nicoletta v. North Dist. N.J. J., 145, (1978) (Pashman, con Comm’n, N.J. Supply 77 179-180 arising relationship curring), unexpressed but terms from the
87 agreement may parties purposes or the of also between the see, contract, part particular e.g., Jersey be a of New impliedly a Palladino, 33, (1978); Properties, 46 Palisades Bank v. 77 N.J. Grosner, Brunetti, 117, 130 (1965); Tessmar Inc. v. N.J. claim, 193, (1957). asserting plaintiff By N.J. a contractual doctor, relationship a trained and alleges that between compa professional, pharmaceutical and the ethically motivated implied her Accord ny employs that creates contractual terms. terms, shall not fire the ing drug company doctor those her on matters good for the faith exercise of informed implied of ethics. Plaintiff’s claim of a contract directly challenged by fact or evеn defend has not been refuted majority. ant or the
The
was
unexplained
plaintiff
conclusion
will,
61,
see ante at
cannot substitute for
detailed examina-
plaintiff’s cause of action for breach
tion of the factual basis for
passing observation that
majority’s
of contract. Nor does the
specific
any
not
the breach of
contractual
plaintiff “did
assert
provision,”
73,
scrutiny.
careful
ante at
amount
such
The
agreement makes the absence of
employment
lack of a written
genuine
The
specific
provision”
contractual
unremarkable.
“any
plaintiff enjoyed
majority whether
issue not discussed
is
despite the
ethical views
privilege
express
a contractual
her
writing.
resolution of this issue
any pertinent
absence
Corbin,
lie
term. See 3A A.
may
any
outside
formal contractual
However,
majority
Contracts
demands
at 224
§
none
the terms
guarantee
job
where
security
a written
reduced to
secrecy agreement, was
employment,
save a
ante at
writing.
requirement,
see
This “unaccountable”
doubt as to
exist-
any
“to
reasonable
cannot serve
exclude
issue,” Judson,
respect-
supra, 17 N.J. at
genuine
ence
denial of
I
affirm the
would
ing plaintiff’s contract clаim.
as
to this claim
well.
as
summary judgment
for defendant
resolve dis-
it should not
majority
generally
states
policy on a motion
far-reaching
public
issues of
putes involving
*25
Glaser,
65; see Salorio
at
judgment. Ante
summary
docketed, 49
3005
U.S.L.W.
482,
(1980), app.
82 N.J.
Muhlenberg
23,
(No. 79-2026); Jackson v.
(U.S.
1980)
June
138,
Hospital,
(1969);
53 N.J.
Lusardi v. Curtis
Prop.
Point
Ass’n,
44,
Owners
138 N.J.Super.
1975);
51 (App.Div.
Bennett v.
Co.,
T & F Distributing
N.J.Super.
(App.Div.
445—446
1971),
den.,
certif.
For reversal and WILENTZ, remandment —Chief Justice SULLIVAN, CLIFFORD, Justices SCHREIBER, HANDLER and POLLOCK—6.
For affirmance —Justice PASHMAN—1. PORTEE, RENEE INDIVIDUALLY AND AS GENERAL ADMINIS TRATRIX AND ADMINISTRATRIX AD OF PROSEQUENDUM PORTEE, DECEASED, THE ESTATE OF GUY PLAINTIFF-AP PELLANT, JAFFEE, JAFFEE, v. EDITH NATHAN WATSON ELEVATOR COMPANY AND ATLANTIC ELEVATOR COMPA NY, DEFENDANTS-RESPONDENTS.
Argued 5, 1980 May July Decided 1980.