September 5, 2019
In the published decision of Bove v. AkPharma Inc., a/k/a Prerelief Inc., et al., 2019 N.J. Super. LEXIS 110 (App. Div. of N.J., Decided July 11, 2019), the court considered plaintiff, Charles Bove’s, appeal of a trial court decision dismissing his claim on summary judgment, and the award of attorneys’ fees as sanctions on Bove’s attorney. The court affirmed the summary judgment dismissal, but reversed the imposition of sanctions.
Bove had been employed by AkPharma, Inc., as a Director of Clinical Studies. One of Akpharma’s products, a nasal spray product called NasoCell, was suggested to be used by AkPharma’s employees. Bove used the produce and documented his use from 2007 until late 2010. His use was unsupervised, except on one instance when the AkPharma CEO witnessed him use the product. Mr. Bove did not claim that he was pressured into using the product.
In 2013, Bove was diagnosed with permanent endocrine failure, and a colon tumor. After performing his own research into NasoCell’s ingredients, Bove concluded that it was the cause of his diagnosis. He then filed a workers’ compensation claim, and in August of 2014 filed a companion civil suit against his employer, alleging injuries arising from his use of the NasoCell product.
After discovery was permitted on the issue of whether New Jersey’s “exclusive remedy” provision of the Workers’ Compensation Act (“WCA”) should bar the liability action against AkPharma, the court held a five-day evidentiary hearing based on that discovery to determine whether Bove could proceed with his civil suit, or whether he was barred from doing so. The evidence presented revealed that Bove was not pressured to utilize the product, and that no employees of AkPharma were disciplined for refusing to use it.
In determining if Plaintiff’s suit was barred by the WCA, the Appellate Division relied on the standard set forth in Millison v. E.I. DuPont DeNemours & Co., 101 N.J. 161 (1985). In Millison, the court adopted a two prong test to determine when an employer’s conduct constitutes an “intentional wrong”: (1) the employer knowingly exposed the employee to a substantial certainty of injury; and (2) the resulting injury must not be a fact of life of industrial employment and must be plainly beyond anything the legislature intended the Act to immunize. This test was supplemented by the N.J. Supreme Court in Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449, 474 (2012), which established that an “intentional wrong” must amount to a virtual certainty that bodily injury or death will result.
The trial court granted summary judgment, finding that Bove failed to prove that AkPharma and its CEO, Alan Klingerman knew its actions were substantially certain to result in injury to death to the plaintiff. In fact, Kligerman’s testimony that he and his family members continued to use NasoCell as of 2017, despite an FDA hold letter being issued in 2010, revealed to the court that Kligerman was not certain that use of the product would result in injury or death. Moreover, the court ruled that the resulting injury was not more than a “fact of life of industrial employment,” determining that Bove’s involvement in the early stages of new products, including NasoCell, was a part of his duties.
The Appellate Division noted that there was no evidence that Kligerman, AkPharma’s CEO, physically touched Bove or used his authority and power to force Bove to use NasoCell. Instead, Bove admitted to using NasoCell at work and at home, and conceded on cross-examination that no one “forced” him to use it, although he contended that he felt pressure. However, Bove’s job was never expressly threatened for refusing to use NasoCell, and there was no evidence of any repercussions for other employees who declined to use the product, or for Bove when he stopped using the product while still an employee. For this reason, the court affirmed the grant of summary judgment.
For more information on this topic, please contact MKC&I’s Jonathan Lee at jlee@mcgivneyandkluger.com or at (973) 822-1110.