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TRIPODI v. JOHNSON & JOHNSON

January 24, 1995

DANIEL TRIPODI, Ph.D., Plaintiff,
v.
JOHNSON & JOHNSON and THERAKOS, INC., Defendants.



The opinion of the court was delivered by: DICKINSON R. DEBEVOISE

 DEBEVOISE, Senior District Judge

 Plaintiff, Dr. Daniel Tripodi, brought this suit for wrongful discharge arising out of his employment at defendant, Therakos, Inc. ("Therakos") from January 1, 1988 to July 24, 1989. In his First Amended Complaint, plaintiff advanced many causes of action, but all except a "Woolley " claim were dismissed prior to trial on a summary judgment motion. The Woolley claim was tried before a jury which returned a verdict in favor of plaintiff, awarding him damages in the amount of $ 434,000. *fn1" Therakos now moves for judgment notwithstanding the verdict, or, alternatively, a new trial. For the reasons set forth below, the motion for judgment n.o.v. will be granted.

 Background

 The evidence established that plaintiff was employed by Therakos' parent, defendant Johnson & Johnson, at its corporate headquarters in the Office of Science and Technology from 1983 until December 1987. On January 1, 1988, plaintiff left Johnson & Johnson and became a full-time employee of Therakos, assuming the position of Vice President of Research and Development. Therakos contends that it hired plaintiff for a term of two years. Plaintiff contends that as events unfolded, Therakos' commitment extended beyond two years.

 Therakos had developed a photopheresis device ("UVAR"). UVAR was an instrument used to perform photopheresis, a therapeutic procedure that treats white blood cells extracorporeally. At the time plaintiff joined Therakos, Therakos had submitted an application to the Food and Drug Administration ("FDA") for permission to use its UVAR device known as photoceptor to treat Cutaneous T-Cell Lymphoma ("CTCL"). Therakos received FDA approval of photoceptor in March 1988 and began marketing it.

 In January 1988, Therakos was seeking to develop an improved UVAR device, which it called Centrinet. It was also seeking to extend the use of photopheresis to the treatment of Scieroderma. Plaintiff was given major responsibility for this project. After plaintiff's arrival at Therakos, differences developed between him and Therakos' president, John MacLean. MacLean became increasingly dissatisfied with plaintiff's performance. Plaintiff, on the other hand, was highly critical of the manner in which Therakos was conducting efficacy testing of the new Centrinet.

 According to plaintiff, he repeatedly raised with MacLean his concerns about these and other areas in which Therakos had not performed and was not Planning to perform research, and his concerns that what Therakos planned to do was in violation of FDA regulations. Plaintiff sought to establish that he was correct in his views and that his July 24, 1989 employment termination was because of his justifiable criticisms of the Centrinet approval plans. This, plaintiff contended, violated an agreement which Therakos had made with its employees in its Credo. The Credo is a widely-disseminated document applicable to Johnson & Johnson and all its affiliated companies, including Therakos. It sets forth these companies' general obligations to (i) doctors, nurses patients, customers, suppliers and distributors, (ii) employees, (iii) the communities in which the companies operate, and (iv) stockholders.

 The Credo provisions relating to employees read as follows:

 
We are responsible to our employees, the men and women who work with us throughout the world. Everyone must be considered as an individual. We must respect their dignity and recognize their merit. They must have a sense of security in their jobs. Compensation must be fair and adequate, and working conditions clean, orderly and safe. Employees must feel free to make suggestions and complaints. There must be equal opportunity for employment, development and advancement for those qualified. We must provide competent management, and their actions must be just and ethical.

 In particular, plaintiff relied on the Credo provisions that "[employees] must have a sense of security in their jobs," "employees must feel free to make suggestions and complaints," and " [management's] actions must be just and ethical."

 It was Therakos' position that MacLean and others listened to plaintiff's criticisms of the Centrinet testing procedures and proposed FDA submissions and concluded on the basis of opinions of highly qualified people on its own staff and the expert advice of scientists at Yale University that plaintiff was wrong in his opinions and that Therakos could properly rely on the tests which formed the basis for FDA approval of the photoceptor, supplemented by the additional tests which it had proposed.

 Therakos contended that it terminated plaintiff's employment for a number of reasons, none of which had anything to do with the testing procedures and the FDA applications. Therakos contended that its reasons included plaintiff's failure to establish a time chart for completion of the engineering of the Centrinet, his failure to meet the goals for completing the various stages of the Centrinet project inappropriate comments about Therakos' top management, and his failure to guide the research effort at Yale University.

 During the trial, each party presented extensive evidence directed to all the factual issues implicated in the parties' contentions.

 I presented plaintiff's Woolley claim to the jury. I instructed the jury that it first had to determine whether plaintiff and Therakos had agreed to a two-year term of employment or for an indefinite term, informing the jury that plaintiff would have no claim if his employment were for a fixed two-year period.

 If the jury found that plaintiff's employment was for an indefinite term, the principles set forth in Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, 491 A.2d 1257 (1985) became applicable, and I charged the jury in accordance with those principles. The jury responded to the interrogatories as follows:

  X TWO YEAR TERM INDEFINITE TERM

 
[If your answer to this question is "Two Year Term," you should deliberate no further and should advise the court that you have reached a verdict.)
 
2. Was plaintiff's employment by Therakos, Inc. terminated for just cause?

  YES NO X

 
[If your answer to this question is "YES', you should deliberate no further and advise the court that you have reached a verdict.]
 
3. Did the Credo create a promise by Therakos, Inc. with respect to termination of plaintiff's employment?

  YES X NO

 
[If the answer to this question is "NO", you should deliberate no further and should advise the court that you have reached a verdict.]
 
4. If your answer to question No. 3 is "YES", did Therakos, Inc. breach its promise to plaintiff?

  YES X NO

 
[If the answer to this question is "NO", you should deliberate no further and should advise the court that you have reached a verdict.]
 
5. Did the Credo create a promise by Johnson & Johnson with respect to termination of plaintiff's employment by Therakos, Inc.?

  YES X NO

 
6. If your answer to question No. 5 iS "YES", did Johnson & Johnson breach its promise to plaintiff?

  YES NO X

 
7. If your answer to question 4 or to questions 4 and 6 is "YES", what is the amount of damages, if any, ...

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