CHARLES L. BOVE, Plaintiff-Appellant,
AKPHARMA INC., a/k/a PRELIEF INC. and ALAN E. KLIGERMAN, Defendants-Respondents.
May 21, 2019
appeal from the Superior Court of New Jersey, Law Division,
Atlantic County, Docket No. L-0982-15.
M. Mullin argued the cause for appellant (Smith Mullin, PC,
and Niedweske Barber LLC, attorneys; Neil M. Mullin and Kevin
Edward Barber, of counsel; Nancy E. Smith, on the brief).
Roberto A. Rivera-Soto argued the cause for respondents
(Ballard Spahr LLP, attorneys; Roberto A. Rivera-Soto and
Casey Gene Watkins, of counsel and on the brief).
Deborah Lynn Mains argued the cause for amicus curiae New
Jersey Association for Justice (Costello & Mains, LLC,
attorneys; Deborah Lynn Mains, on the brief).
Judges Fisher, Suter and Enright.
Charles L. Bove, appeals from an order granting summary
judgment to defendants, AkPharma Inc. and its CEO, Alan
Kligerman, and denying his motion to strike defendants'
affirmative defense under the Workers' Compensation Act
(WCA), N.J.S.A. 34:15-1 to -146. Bove also appeals from an
order entering judgments for sanctions against his attorneys
under Rule 1:4-8. We affirm the two rulings granting
summary judgment and denying Bove's motion to strike, but
reverse the order imposing sanctions.
November 2013, Bove filed a workers' compensation claim
and then in August 2014, he filed a companion civil suit
against AkPharma Inc. and Kligerman. Both actions involved
claims arising from Bove's use of a nasal spray product
called "NasoCell." Bove's civil complaint was
dismissed without prejudice so the parties could explore
alternative dispute resolution, but when attempts at
settlement failed, Bove refiled his civil complaint in April
2015. In his complaint, Bove alleged defendants were liable
for fraudulent concealment, battery, and prima facie tort,
based on Bove's use of NasoCell. In response to the
refiled complaint, on May 5, 2015, defendants' counsel
sent Bove's counsel a "safe harbor" letter, per
Rule 1:4-8(b)(1). That letter made no mention of
Bove's separate workers' compensation petition nor
the exclusivity bar under the WCA. Instead, the letter
generally indicated Bove's factual allegations about his
use of NasoCell were contrary to the evidence and that there
was no scientific evidence linking his alleged injuries to
NasoCell. The "safe harbor" letter also contended
Bove's legal claims were contrary to New Jersey law and
were "governed exclusively by the New Jersey Product
Liability Act" (PLA), N.J.S.A. 2A:58C-1 to -11. In
response to this letter, Bove's counsel filed an amended
complaint, outlining five causes of action, namely,
fraudulent concealment, battery, prima facie tort, strict
products liability/design defect, and strict
liability/failure to warn.
2015, defendants moved to dismiss the amended complaint or,
alternatively, for summary judgment based on the WCA bar. On
April 19, 2016, the court dismissed the prima facie tort
action, denied dismissal as to the other counts and denied,
without prejudice, defendants' motion for summary
judgment. Shortly thereafter, the trial court ordered
discovery limited to the application of the WCA litigation
bar. In October 2016 and March 2017, supplemental orders were
entered to extend discovery and to allow Bove's counsel
time to engage a scientific expert.
2017, Bove filed a motion to strike defendants'
affirmative defense of the WCA's litigation bar.
Defendants opposed this motion and renewed their request for
summary judgment. The trial court then conducted a five-day
evidentiary hearing in July 2017, to determine whether Bove
could proceed with his civil suit or was barred from doing so
under the WCA. The trial court heard testimony from Bove,
Kligerman, and their respective experts during this hearing.
August 4, 2017, the trial court denied Bove's motion to
strike defendants' affirmative defense of the WCA's
litigation bar and granted defendants' motion for summary
judgment. Defendants then timely moved for a frivolous
litigation award, seeking reimbursement in the sum of $702,
819.87 for counsel fees, costs and expert fees. On December
13, 2017, the trial court partially granted defendants'
request for sanctions and entered judgments against
Bove's attorneys amounting to $205, 147.82. Each firm
representing Bove was directed to pay half of this award.
appeals from the August 4, 2017 and December 13, 2017 orders.
The New Jersey Association for Justice (NJAJ) joins in his
appeal, as amicus curiae.
opinions accompanying the orders at issue reflect extensive
fact- findings, which we need not repeat here. Instead, we
highlight only those facts salient to our analysis and note
the trial court accurately captured the testimony of the
parties and their experts, including the error committed by
Bove's expert in misreading the content and meaning of a
Food & Drug Administration (FDA) public notice about
"Nasal Moisturizer Drug Products."
to the testimony from the evidentiary hearing, Bove was hired
by Kligerman in 2003 on a part-time basis. Soon, he became a
full-time employee and the Director of Clinical Studies at
AkPharma. By 2007, he was engaged in discussions with
Kligerman about NasoCell, the nasal spray product Kligerman
had developed. NasoCell was comprised of calcium
glycerophosphate (CGP) and distilled water. Kligerman used
this product personally and decided to put the mixture into a
spray bottle. He claimed NasoCell helped him with his asthma
and that several of his family members also used NasoCell.
testimony from the evidentiary hearing confirms Kligerman
suggested Bove and other AkPharma employees use NasoCell
spray. It is uncontroverted that some employees declined to
use NasoCell but Bove agreed to try it. He used NasoCell from
2007 to as late as 2010, documented the effects he observed
while using this product, and submitted his observations to
Kligerman. The record reflects Bove often used NasoCell
outside the workplace and in his home, and he provided many
positive reviews about his use of NasoCell.
NasoCell's ingredients were modified and the product
became known as "NasoCell-S," Bove continued to use
this modified product. The record shows Bove's use of
NasoCell-S was unsupervised, except on one occasion when Bove
testified he felt pressured to use the product because
Kligerman followed him into a bathroom at work to watch him
use it. However, on cross-examination, Bove conceded
"nobody had a gun to (his) head" to use the product
and he "did it for Alan (Kligerman)." The record
also reflects that in January 2008, Bove completed a survey
at work, advising he wanted to continue to be a panelist to
study NasoCell and to receive another bottle of the spray.
Bove was unsure when he stopped using NasoCell, but did not
believe he used it after defendants received a "full
clinical hold letter" from the FDA in 2010, testifying,
"I pretty much washed my hands of it after that."
part, Kligerman denied pressuring Bove at any time to use
NasoCell and testified Bove was enthusiastic about the
product. Kligerman also testified he personally used NasoCell
several times a week, starting in 2007, and as of the time of
the evidentiary hearing, he and his family members continued
to use NasoCell on a regular basis with no negative effects.
Kligerman was unwavering in his testimony that NasoCell was
safe and that Bove voluntarily used the product. Further,
there was no evidence presented at the hearing of any adverse
action taken against Bove or other employees at AkPharma who
declined to use NasoCell or started but then stopped using
August 2010, AkPharma received a full clinical hold letter
from the FDA, essentially placing a hold on any further
clinical study of NasoCell as a drug until certain stated
deficiencies were cured. There is no dispute Bove knew
NasoCell did not have FDA approval before he used the
product. Concerned about incurring additional expenses,
AkPharma discontinued development of NasoCell as a drug and
explored its development as a cosmetic. However, NasoCell
never got past the early planning and development stage, it
was not marketed to the public, and ultimately, it was
abandoned by defendants altogether.
2011, AkPharma terminated Bove and other employees as part of
a workforce reduction. Then, in 2013, Bove was diagnosed with
permanent endocrine failure and a colon tumor. Following
these diagnoses, Bove researched the ingredients that had
been used in NasoCell, such as CGP and parabens, and
concluded his use of NasoCell had caused his health problems.
He also asserted a number of medical professionals had
connected his use of NasoCell to his ailments, but did not
present any reports to support this contention.
on these facts, the trial court granted defendants summary
judgment in August 2017, finding Bove did not
"vault" the exclusivity provision of the WCA. It
explained Bove's proofs did not show that: (1) Kligerman
knew his actions were substantially certain to result in
injury or death to plaintiff; or (2) Bove's injuries and
the circumstances of their infliction were more than a fact
of life of industrial employment and beyond what the
Legislature intended the WCA to immunize. The trial judge
also stated that as AkPharma's Clinical Studies Manager,
Bove's "involvement in the early stages of new
products was apparently part of his duties." The trial
judge found Bove: used NasoCell at work and at home; he made
positive findings regarding its effectiveness; and then
ceased using it, years prior to his initial workers'
compensation petition. Moreover, the trial court noted that
several years after Bove stopped using NasoCell, he had no
medical evidence to support his claim that NasoCell caused
his health problems.
other hand, the trial court found Kligerman "was, and
remains, very confident of the safety of the conduct he asked
plaintiff to engage in. Not only has [Kligerman] used
NasoCell regularly for the past several years, he has
encouraged his family members to do so." Based on these
and other observations, the trial judge concluded that
"[s]uch are not the circumstances to support a civil
claim for personal injuries by an employee against an
employer" and there is no basis to waive the "cloak
of immunity afforded an employer under the WCA."
Additionally, the trial court determined "there are no
facts in dispute that might support a finding by a reasonable
jury that AkPharma knew with virtual certainty that Mr. Bove
had been required to engage in conduct that would be harmful
to him," adding, "the evidence is so one-sided that
it is inconceivable that a jury would find that [d]efendant
was substantially certain that [p]laintiff would suffer harm
from his use of NasoCell." Thus, the trial court granted
summary judgment in defendants' favor.
review the trial court's decision granting summary
judgment de novo, using the identical standard that governs
the trial court. Townsend v. Pierre, 221 N.J. 36, 59
(2015). We owe no deference to the motion judge's
conclusions on issues of law. Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Additionally, we review the record "based on our
consideration of the evidence in the light most favorable to
the parties opposing summary judgment." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
4:46-2(c) provides that a court should grant summary judgment
when "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law."
Thus, a summary judgment motion should be denied if the
non-moving party comes forward with evidence that reflects a
"genuine issue as to any material fact challenged."
Brill, 142 N.J. at 529.
summary judgment motion is not defeated simply by pointing to
any fact in dispute. Ibid. Also, self-serving
assertions unsupported by evidence are "insufficient to
create a genuine issue of material fact." Miller v.
Bank of Am. Home Loan Servicing, L.P., 439 N.J.Super.
540, 551 (App. Div. 2015) (quoting Heyert v.
Taddese, 431 N.J. Super 388, 414 (App. Div. 2013)).
"Competent opposition requires 'competent evidential
material' beyond mere 'speculation' and
'fanciful arguments.'" Hoffman v.
Asseenontv.Com, Inc., 404 N.J.Super. 415, ...