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Pierce v. Ortho Pharmaceutical Corp.

Decided: March 6, 1979.

GRACE PIERCE, PLAINTIFF-APPELLANT,
v.
ORTHO PHARMACEUTICAL CORPORATION, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Somerset County.

Kole and Milmed. The opinion of the court was delivered by Kole, J.A.D.

Kole

[166 NJSuper Page 336] Plaintiff, a physician employed in research by defendant pharmaceutical company, filed a complaint seeking damages resulting from the termination of her employment with defendant, even though such employment was pursuant to an "at-will" relationship. The trial judge granted defendant's motion for summary judgment on the ground that even if plaintiff were constructively discharged and

did not actually resign from her employment, by reason of the fact that this was an employment at will, defendant nevertheless had the right to terminate it for any reason whatsoever. This appeal followed.

Since the matter involves a summary judgment motion, the facts set forth below are such as are gleaned from the proofs before the court on that motion, giving plaintiff the benefit of all of such evidence, and the reasonable inferences therefrom, in her favor.

Plaintiff commenced employment with defendant in May 1971 as Associate Director of Medical Research. The terms of her employment were not fixed by contract. In March 1973 she became Director of Medical Research/Therapeutics, a section that studied nonreproductive drugs.

One of the projects pursued by plaintiff was development of loperamide, a liquid treatment for acute and chronic diarrhea to be used by infants, children, older persons and those unable to take a solid form of medication. The formulation contained a high concentration of saccharin, apparently 44 times higher than that which is permitted by the Food and Drug Administration in 12 ounces of an artificially sweetened soft drink. It does not appear, however, that there are any promulgated standards for use of saccharin in drugs. At least one of the experts, a Ph.D., employed by defendant indicated that he did not know of any preparation whose saccharin level was as high as that contained in the loperamide formula and that it was "not desirable" to use such an excessively high level for a pediatric formulation.

Plaintiff worked in conjunction with a project team on the loperamide development. At a meeting of the team on March 6, 1975 it was unanimously agreed that the existing loperamide formula, which had apparently been marketed in Europe, was unsuitable for use in the United States due to the unusually high saccharin content. At the time it was felt that an alternate formulation would require at least three months of development.

The team apparently began to receive pressure to proceed with clinical or human testing of the existing formula, and in late March 1975 it finally acceded to the demands of management in this regard. Plaintiff, however, given her status as the only medical person on the team and her responsibility for recommending the drug for clinical use, maintained her opposition to the high saccharin formula, especially in light of indications that an alternative formula would soon be available. She refused to submit a drug containing such a high level of saccharin for clinical testing, as she could not in good conscience give the formula to old people and children in light of saccharin's potential carcinogenic attributes. She felt that such refusal was required by the Hippocratic Oath.

After indicating that she was unable to pursue clinical testing for the foregoing reasons, plaintiff was relieved of this project and informed by her supervisor, also a physician, that she was being demoted. He advised her that notice of this demotion would be posted. She was also told that she was considered nonpromotable, irresponsible and lacking in judgment and that she had exhibited unacceptable productivity, inability to work with marketing people and failure to behave as a Director. She had not received such criticism from her supervisor before.

Plaintiff thereafter resigned, feeling that she was being punished for refusing to perform a task which she considered to be unethical. The resignation was accepted.

This action followed. Plaintiff sought to recover damages resulting from the termination of her employment. Essentially, the complaint alleged that because of defendant's actions she sustained damage to her professional reputation, interruption of her career, forfeiture of interesting and remunerative employment, monetary loss, deprivation of retirement benefits, loss of four years' seniority, physical and mental distress, and pain and suffering, and other damage was ...


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