The opinion of the Court was delivered by POLLOCK, J.
This case presents the question whether an employee at will has a cause of action against her employer to recover damages for the termination of her employment following her refusal to continue a project she viewed as medically unethical. Resolution of this question involves an examination of the common law doctrine of at will employment to determine whether we should adopt an exception to the rule allowing an employer to discharge an at will employee without cause.
Plaintiff, Dr. Grace Pierce, sued for damages after termination of her employment with defendant, Ortho Pharmaceutical Corporation. The trial judge granted defendant's motion for summary judgment. The Appellate Division reversed and remanded for a full trial. 166 N.J.Super. 335 (1979). We granted defendant's petition for certification. 81 N.J. 266 (1979). We now reverse the Appellate Division and reinstate the summary judgment granted by the Law Division.
Since the matter involves a motion for summary judgment, we glean the facts from the pleadings, affidavits, and depositions before the court on the motion, giving plaintiff the benefit of all reasonable inferences that may be drawn in her favor. R. 4:46-2.
In the spring of 1975, Dr. Pierce was the only medical doctor on a project team developing loperamide, a liquid drug for treatment of diarrhea in infants, children, and elderly persons. The proposed formulation contained saccharin. Although the concentration was consistent with the formula for loperamide marketed in Europe, the project team agreed that the formula was unsuitable for use in the United States. An alternative formulation containing less saccharin might have been developed within approximately three months.
By March 28, however, the project team, except for Dr. Pierce, decided to continue with the development of loperamide. That decision was made apparently in response to a directive from the Marketing Division of Ortho. This decision meant that Ortho would file an investigational new drug application (IND) with the Federal Food and Drug Administration (FDA), continuing laboratory studies on loperamide, and begin work on a formulation. FDA approval is required before any new drug is tested clinically on humans. 21 U.S.C. § 355; 21 C.F.R. §§ 310.3 et seq. Therefore, loperamide would be tested on patients only if the FDA approved the saccharin formulation.
Dr. Pierce knew that the IND would have to be filed with and approved by the FDA before clinical testing could begin. Nonetheless, she continued to oppose the work being done on loperamide at Ortho. On April 21, 1975, she sent a memorandum to the project team expressing her disagreement with its decision
Dr. Pierce met with Dr. Pasquale on May 9 and informed him that she disagreed with the decision to file an IND with the FDA. She felt that by continuing to work on loperamide she would violate her interpretation of the Hippocratic oath. She concluded that the risk that saccharin might be harmful should preclude testing the formula on children or elderly persons, especially when an alternative formulation might soon be available.
Dr. Pierce recognized that she was joined in a difference of "viewpoints" or "opinion" with Dr. Pasquale and others at Ortho concerning the use of a formula containing saccharin. In her opinion, the safety of saccharin in loperamide pediatric drops was medically debatable. She acknowledged that Dr. Pasquale was entitled to his opinion to proceed with the IND. On depositions, she testified concerning the reason for her difference of opinion about the safety of using saccharin in loperamide pediatric drops:
After their meeting on May 9, Dr. Pasquale informed Dr. Pierce that she would no longer be assigned to the loperamide project. On May 14, Dr. Pasquale asked Dr. Pierce to choose other projects. After Dr. Pierce returned from vacation in Finland, she met on June 16 with Dr. Pasquale to discuss other projects, but she did not choose a project at that meeting. She felt she was being demoted, even though her salary would not be decreased. Dr. Pierce summarized her impression of that meeting in her letter of resignation submitted to Dr. Pasquale the following day. In that letter, she stated:
The letter made no specific mention of her difference of opinion with Dr. Pasquale over continuing the work on loperamide. Nonetheless, viewing the matter most favorably to Dr. Pierce, we assume the sole reason for the termination of her employment was the dispute over the loperamide project. Dr. Pasquale accepted her resignation.
In her complaint, which was based on principles of tort and contract law, Dr. Pierce claimed damages for the termination of her employment. Her complaint alleged:
However, she did not specify that testing would violate any state or federal statutory regulation. Similarly, she did not state that continuing the research would violate the principles of ethics of the American Medical Association. She never contended her participation in the research would expose her to a claim for malpractice.
Ortho moved for summary judgment on two theories. The first was that Dr. Pierce's action for wrongful discharge was barred because she resigned. The trial judge denied the motion on that ground because he found that there was a fact question whether Ortho induced Dr. Pierce's resignation. However, the trial court granted Ortho's motion on the alternative ground that because Dr. Pierce was an employee at will, Ortho could end her employment for any reason. In reversing the trial court, the Appellate Division ruled that a plenary hearing was necessary before deciding whether to adopt an exception to the common law rule permitting an employer to fire an employee at will for any reason. 166 N.J. Super. at 342, 399 A.2d 1023.
A motion for summary judgment is a means for the efficient disposition of a cause of action where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2. Of course, courts should exercise appropriate caution in deciding issues involving policy considerations. Jackson v. Muhlenberg Hospital, 53 N.J. 138, 142 (1969). However, excessive caution would undercut the purposes of a motion for summary judgment, which provides a means for piercing the allegations of the pleadings to determine whether there are issues requiring disposition at trial. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-75 (1954). If, after drawing all inferences of doubt against the movant, a court finds that there is no genuine issue of material fact, it should enter summary judgment. Id. at 75. Applying those principles, we hold that even if she were discharged by Ortho, Dr. Pierce has not alleged facts that would support an action for damages for the termination of her employment.
As previously noted, there was a fact question whether Ortho induced Dr. Pierce to resign. Consequently, the trial judge properly denied summary judgment on the alternative ground that her resignation barred this action. That determination is not challenged on this appeal. Therefore, we do not reach the question whether resignation bars an action for wrongful discharge. See, e.g., Donnelly v. United Fruit Co., 75 N.J.Super. 383 (App. Div. 1962), aff'd 40 N.J. 61 (1963).
As discussed below, our careful examination of Dr. Pierce's allegations and the record reveals no genuine issue of material fact requiring disposition at trial. Although this case raises important policy considerations, all the relevant facts are before us, and there is no reason to defer a decision. Accordingly, we reverse the Appellate Division and reinstate the summary judgment in favor of defendant.
Under the common law, in the absence of an employment contract, employers or employees have been free to terminate
The rule temporarily attained constitutional magnitude in Adair v. United States, 208 U.S. 161, 175, 28 S.Ct. 277, 280, 52 L.Ed. 436, 442 (1907), where the United States Supreme Court held unconstitutional a federal statute making it illegal for an employer to prohibit an employee from joining a union. See also Coppage v. Kansas, 236 U.S. 1, 13-14, 35 S.Ct. 240, 243, 59 L.Ed. 441, 446 (1914) (applying Adair to similar state statutes). As a corollary of the development of legislation, administrative regulation, and judicial decisions, the rule has since lost its constitutional protection. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937).
In the last century, the common law developed in a laissez-faire climate that encouraged industrial growth and approved the right of an employer to control his own business, including the right to fire without cause an employee at will. See Comment, 26 Hastings L.J. 1434, 1441 (1975). The twentieth century has witnessed significant changes in socioeconomic values that have led to reassessment of the common law rule. Businesses have evolved from small and medium size firms to gigantic corporations in which ownership is separate from management. Formerly there was a clear delineation between employers, who frequently were owners of their own businesses, and employees. The employer in the old sense has been replaced by a superior in the corporate hierarchy who is himself an employee. We are a nation of employees. Growth in the number of employees has been accompanied by increasing recognition of the need for stability in labor relations.
Commentators have questioned the compatibility of the traditional at will doctrine with the realities of modern economics and employment practices. See, e.g., Blades, Employment at
Recently those states have recognized a common law cause of action for employees at will who were discharged for reasons that were in some way "wrongful". The courts in those jurisdictions have taken varied approaches, some recognizing the action in tort, some in contract. See Comment, 93 Harv. L. Rev. 1816, 1818-1824 (1980). Nearly all jurisdictions link the success of the wrongful discharged employee's action to proof that the discharge violated public policy.
In Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974), a salesman employed at will was discharged after he expressed to the management his opinion that a new product was defective and dangerous. The court sustained the dismissal of the complaint because it revealed only that "there was a dispute over the merits of the new product," and because no public policy is violated when a company discharges an employee who is not qualified to make technical judgments for making "a nuisance of himself." 319 A.2d at 178-179. However, the court suggested that an action in tort might exist if a "clear mandate of public policy is violated." Id. at 180. See Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (Super. Ct. 1978) (employee who was fired for taking time off for jury duty has cause of action for wrongful discharge); see also Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3d Cir.1979) (employee fired for refusal to take polygraph test has cause of action); Lekich v. International Business Machines Corp., 469 F.Supp. 485
In Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974), the court allowed an at will employee to sue for breach of contract when she was dismissed after she refused to date the foreman. Balancing the employee's interest in maintaining employment, the employer's interest in running a business, and the public interest, the court held that termination motivated by bad faith or malice is not in the public interest and constitutes a breach of the employment contract. 316 A.2d at 551. See Fortune v. National Cash Register Co., 364 N.E.2d 1251 (Mass. 1977) (employment contract, even at will, includes an implied covenant of good faith; employee has a cause of action when employer dismissed him to avoid paying a bonus); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975) (discharge of an employee for a "socially undesirable motive" held to be compensable; employee fired for serving on a jury).
Employees have recovered damages for wrongful discharge in a variety of contexts. It is well established that an employee has a cause of action where he is discharged in retaliation for filing a worker's compensation claim, even if the worker's compensation statute does not provide such a remedy. See, e.g., Lally v. Copygraphics, 173 N.J.Super. 162 (App. Div. 1980) appeal pending; Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1979); Brown v. Transcom Lines, 284 Or. 597, 588 P.2d 1087 (1978); Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (Ct. App. 1976); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973).
In a recent case the Supreme Court of California reversed a judgment sustaining a demurrer to the complaint of an employee who alleged he had been discharged because of his refusal to participate in an illegal scheme to fix retail prices. The court declared, "when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee
In Perks v. Firestone Tire & Rubber Co., supra, the employee was discharged after refusing to submit to a lie detector test. Because Pennsylvania had a statute prohibiting conditioning employment on the taking of such tests, the discharge was against public policy. An employee who was discharged for trying to convince his employer to comply with the consumer credit laws prevailed because the laws demonstrated a clear public policy of protecting consumers. Harless v. First National Bank in Fairmont, 246 S.E.2d 270 (W. Va. 1978).
One New Jersey court has recognized an action for wrongful discharge. In O'Sullivan v. Mallon, 160 N.J.Super. 416 (Law Div. 1978), an x-ray technician alleged she was discharged after refusing to perform catheterizations. The court noted that it would have been illegal for an x-ray technician to perform those procedures and denied defendant's motion to dismiss the complaint for failure to state a cause of action.
In evaluating claims for wrongful discharge, courts have been careful not to interfere with the employer's right to make business decisions and to choose the best personnel for the job. In Lampe v. Presbyterian Medical Center, 590 P.2d 513 (Colo. App. 1979), a nurse was discharged after refusing to reduce her staff's overtime as requested. She felt that the reduction would jeopardize the health of the patients. In dismissing the complaint, the court recognized that the employer must be free to hire someone who was able to manage the staff without endangering patients. The court held that a statute containing general principles pertaining to the licensing of nurses did not create a cause of action. Id. at 515-517.
Several states have declined to adopt a public policy exception to the at will doctrine. See, e.g., Martin v. Tapley, 360 So.2d 708 (Ala. 1978) (employee alleged discharge in retaliation for filing worker's compensation claim); Hinrichs v. Tranquilaire Hosp., 352 So.2d 1130 (Ala. 1977) (employee alleged she was fired for refusing to falsify medical records); Segal v. Arrow Industrial Corp., 364 So.2d 89 (Fla. Ct. App. 1978) (employee alleged discharge in retaliation for filing worker's compensation claim).
In recognizing a cause of action to provide a remedy for employees who are wrongfully discharged, we must balance the interests of the employee, the employer, and the public. Employees have an interest in knowing they will not be discharged for exercising their legal rights. Employers have an interest in knowing they can run their businesses as they see fit as long as their conduct is consistent with public policy. The public has an interest in employment stability and in discouraging frivolous lawsuits by dissatisfied employees.
Although the contours of an exception are important to all employees at will, this case focuses on the special considerations arising out of the right to fire an employee at will who is a member of a recognized profession. One writer has described the predicament that may confront a professional employed by a large corporation:
Employees who are professionals owe a special duty to abide not only by federal and state law, but also by the recognized codes of ethics of their professions. That duty may oblige them to decline to perform acts required by their employers.
We hold that an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy. The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy. However, not all such sources express a clear mandate of public policy. For example, a code of ethics designed to serve only the interests of a profession or an administrative regulation concerned with technical matters probably would not be sufficient. Absent legislation, the judiciary must define the cause of action in case-by-case determinations. An employer's right to discharge an employee at will carries a correlative duty not to discharge an employee who declines to perform an act that would require a violation of a clear mandate of public policy. However, unless an employee at will identifies a specific expression of public policy, he may be discharged with or without cause.
An employee who is wrongfully discharged may maintain a cause of action in contract or tort or both. An action in contract may be predicated on the breach of an implied provision that an employer will not discharge an employee for refusing to perform an act that violates a clear mandate of public policy. Cf. Vasquez v. Glassboro Services, Inc., 83 N.J. 86 (1980).
An action in tort may be based on the duty of an employer not to discharge an employee who refused to perform an act that is a violation of a clear mandate of public policy. In a tort action, a court can award punitive damages to deter improper conduct in an appropriate case. DiGiovanni v. Pessel, 55 N.J. 188, 190-191 (1970); Prosser, Torts § 2 at 9 (1971); 28 Vand. L. Rev., supra at 836. That remedy is not available under the law of
Employees will be secure in knowing that their jobs are safe if they exercise their rights in accordance with a clear mandate of public policy. On the other hand, employers will know that unless they act contrary to public policy, they may discharge employees at will for any reason. Finally, our holding protects the interest of the public in stability of employment and in the elimination of frivolous lawsuits. Courts allowing at will employees to sue for wrongful discharge have expressed concern that employees will file groundless suits. See, e.g., Geary v. United States Steel Co., 319 A.2d at 179. Commentators have also noted that disgruntled employees may be encouraged to bring vexatious suits. See, e.g., Blades, supra at 1428. However, the standard enunciated above provides a workable means to screen cases on motions to dismiss for failure to state a cause of action or for summary judgment. If an employee does not point to a clear expression of public policy, the court can grant a motion to dismiss or for summary judgment.
We now turn to the question whether Dr. Pierce was discharged for reasons contrary to a clear mandate of public policy. As previously stated, granting Ortho's motion for summary judgment is appropriate at this juncture only if there is no genuine issue as to any material fact.
The material facts are uncontroverted. In opposing the motion for summary judgment, Dr. Pierce did not contend that saccharin was harmful, but that it was controversial. Because of the controversy, she said she could not continue her work on loperamide. Her supervisor, Dr. Pasquale, disagreed and thought that research should continue.
Dr. Pierce argues that by continuing to perform research on loperamide she would have been forced to violate professional medical ethics expressed in the Hippocratic oath. She cites the part of the oath that reads: "I will prescribe regimen for the good of my patients according to my ability and my judgment and never do harm to anyone." Clearly, the general language of the oath does not prohibit specifically research that does not involve tests on humans and that cannot lead to such tests without governmental approval.
We note that Dr. Pierce did not rely on or allege violation of any other standards, including the "codes of professional ethics" advanced by the dissent. Post at 77-82. Similarly, she did not allege that continuing her research would constitute an act of medical malpractice or violate any statute, including N.J.S.A. 45:9-16(h). See post at 82.
In this case, Dr. Pierce has never contended that saccharin would necessarily cause harm to anyone. She alleged that the current controversy made continued investigation an unnecessary risk. However when she stopped work on loperamide, there was no risk. Our point here is not that participation in unethical conduct must be imminent before an employee may refuse to work. See post at 84. The more relevant consideration is that Dr. Pierce does not allege that preparation and filing of the IND was unethical. Further Dr. Pierce does not suggest that Ortho would have proceeded with human testing without FDA approval. The case would be far different if Ortho had filed the IND, the FDA had disapproved it, and
Viewing the matter most favorably to Dr. Pierce, the controversy at Ortho involved a difference in medical opinions. Dr. Pierce acknowledged that Dr. Pasquale was entitled to his opinion that the oath did not forbid work on loperamide. Nonetheless, implicit in Dr. Pierce's position is the contention that Dr. Pasquale and Ortho were obliged to accept her opinion. Dr. Pierce contends, in effect, that Ortho should have stopped research on loperamide because of her opinion about the controversial nature of the drug.
Dr. Pierce espouses a doctrine that would lead to disorder in drug research. Under her theory, a professional employee could redetermine the propriety of a research project even if the research did not involve a violation of a clear mandate of public policy. Chaos would result if a single doctor engaged in research were allowed to determine, according to his or her individual conscience, whether a project should continue. Cf. Report of the Ad Hoc Committee on the Principles of Medical Ethics, American Medical Association 3 (1979). An employee does not have a right to continued employment when he or she refuses to conduct research simply because it would contravene his or her personal morals. An employee at will who refuses to work for an employer in answer to a call of conscience should recognize that other employees and their employer might heed a different call. However, nothing in this opinion should be construed to restrict the right of an employee at will to refuse to work on a project that he or she believes is unethical. In sum, an employer may discharge an employee who refuses to work unless the refusal is based on a clear mandate of public policy.
As stated above, the thrust of Dr. Pierce's complaint is not that saccharin is dangerous, but that it is controversial. At oral argument, Dr. Pierce's attorney conceded that she did not intend to submit the question of the safety of saccharin to the jury. That is, plaintiff did not intend to adduce expert testimony demonstrating the dangers of the formulation of loperamide
Under these circumstances, we conclude that the Hippocratic oath does not contain a clear mandate of public policy that prevented Dr. Pierce from continuing her research on loperamide. To hold otherwise would seriously impair the ability of drug manufacturers to develop new drugs according to their best judgment. See Percival v. General Motors Corp., supra, 539 F.2d at 1130; Geary v. United States Steel Corp., supra, 319 A.2d at 179-180.
The legislative and regulatory framework pertaining to drug development reflects a public policy that research involving testing on humans may proceed with FDA approval. The public has an interest in the development of drugs, subject to the approval of a responsible management and the FDA, to protect and promote the health of mankind. Research on new drugs may involve questions of safety, but courts should not preempt determination of debatable questions unless the research involves a violation of a clear mandate of public policy. Where pharmaceutical research does not contravene a clear mandate of public policy, the extent of research is controlled by regulation through the FDA, liability in tort, and corporate responsibility.
Accordingly, we reverse the judgment of the Appellate Division and remand the cause to the trial court for entry of judgment for defendant.
PASHMAN, J., dissenting.
I agree with the majority's ruling that a professional employee may not be discharged for refusing to violate a clearly
The majority's analysis recognizes that the ethical goals of professional conduct are of inestimable social value. By maintaining informed standards of conduct, licensed professions bring to the problems of their public responsibilities the same expertise that marks their calling. The integrity of codes of professional conduct that result from this regulation deserves judicial protection from undue economic pressure. Employers are a potential source of this pressure, for they can provide or withhold — until today, at their whim — job security and the means of enhancing a professional's reputation. Thus, I completely agree with the majority's ruling that "an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy" as expressed in a "professional code of ethics." Ante at 72.
The Court pronounces this rule for the first time today. One would think that it would therefore afford plaintiff an opportunity to seek relief within the confines of this newly announced cause of action. By ordering the grant of summary judgment for defendant, however, the majority apparently believes that such an opportunity would be an exercise in futility. I fail to see how the majority reaches this conclusion. There are a number of detailed, recognized codes of medical ethics that proscribe participation in clinical experimentation when a doctor perceives an unreasonable threat to human health. Any one of these codes could provide the "clear mandate of public policy" that the majority requires.
The "Declaration of Helsinki" of the World Medical Association established guidelines for conducting medical experimentation on humans. The declaration was adopted in 1962 and
The Declaration of Helsinki was revised in 1975 by the 29th World Medical Assembly in Tokyo, Japan. See id. at 1769. As amended, the declaration includes the following additional provisions:
The American Medical Association has also drafted and adopted its own ethical guidelines for clinical investigations. See Judicial Council, American Medical Association, Opinions and Reports of the Judicial Council 24-26 (1979); 4 Encyclopedia of Bioethics, supra, at 1773. These guidelines state in part:
A final source of ethical guidelines is what is now called the "Nuremberg Code," a statement of principles included in the Nuremberg Military Tribunal's decision in United States v. Karl Brandt. See 4 Encyclopedia of Bioethics, supra, at 1764. The Judicial Council of the American Medical Association has adopted the Nuremberg Code as one expression of ethical principles governing human experimentation. See Opinions and Reports of the Judicial Council, supra, at 33. The code states in part:
Each of these four "codes of professional ethics" establish standards for the participation of doctors in clinical experimentation on humans. Both the source and the content of each set of guidelines provide persuasive evidence that each is a "clear mandate of public policy." Each also provides the basis for denying defendant summary judgment. Plaintiff should receive the opportunity to prove at trial that she was discharged for her refusal to violate one or more of these ethical standards.
Each of the previously described codes of medical ethics would prohibit plaintiff from conducting clinical experimentation where unnecessary medical risks have economic profit as their only justification. The original Declaration of Helsinki proscribes experimentation combined with professional care unless it "is justified by its therapeutic value for the patient," supra at 78. Non-therapeutic research may not be conducted if, in the judgment of the investigator, it would be "harmful to the individual [test subject]." Id. The 1975 revision of the declaration also prohibits doctors from conducting experiments where they are not satisfied that the possible hazards are predictable,
At this stage of the litigation — when all disputed factual issues must be resolved against defendant — plaintiff is entitled to claim the protection of one or more of these recognized codes of professional ethics. I therefore conclude that plaintiff should have an opportunity to prove those facts which may entitle her to relief under the majority's newly promulgated cause of action.
This opportunity to prove a discharge in violation of public policy is not based solely on recognized codes of professional ethics. There is also a legislative prohibition of conduct by physicians that endangers life or health. To regulate the professional behavior of doctors, the Legislature has empowered the State Board of Medical Examiners to grant, suspend or revoke licenses to practice medicine within the State. See N.J.S.A. 45:9-6, -16. The statute enumerating the Board's powers provides in part:
This statutory prohibition of "gross malpractice or gross neglect" establishes another "clear mandate of public policy" which plaintiff should be allowed to invoke. Assuming without
The majority denies plaintiff this opportunity. I do not understand why. Nothing is more unfair than stating a novel principle of law for the first time on an appeal, but denying the plaintiff who sought relief under some new standard an opportunity to conform his proof to the specific requirements actually adopted. Yet it appears the majority has done precisely that. Although plaintiff might have prevailed at trial under the majority's rule by invoking one or more of the standards I have described, the majority does not acknowledge this possibility. It rejects plaintiff's claim under its new principle of law without showing any sensitivity to the parties' earlier unawareness of the new rule.
The ostensible reason for the majority's rejection is that plaintiff "did not rely on or allege violation of any other standards" besides the Hippocratic Oath. Ante at 74. Yet, the majority's own opinion conclusively shows this statement to be inaccurate. As the majority notes, plaintiff asserted in her complaint that her participation in the proposed drug program would have been in violation of "ethical standards" other than the broad mandate or her Hippocratic Oath. See ante at 63-64. Thus, the majority's stated reason for upholding summary judgment contradicts its own description of plaintiff's claims. It may be that the majority dismisses these claims because plaintiff did not allege them specifically. But this rationale would reject a possibly valid claim for a formal defect in pleading — a result our courts have long eschewed. See, e.g., Saia v. Bellizio, 53 N.J. 24, 27-28 (1968); Muniz v. United
Three other points made by the majority require discussion, for they reflect the majority's failure to follow the well-established rule that the claims of a party opposing summary judgment are to be "indulgently treated," Judson, supra, 17 N.J. at 75. The first is the majority's characterization of the effect of plaintiff's ethical position. It appears to believe that Dr. Pierce had the power to determine whether defendant's proposed development program would continue at all. See ante at 75. This is not the case, nor is plaintiff claiming the right to halt defendant's developmental efforts. Interpreted "indulgently," yet realistically, plaintiff claims only the right to her professional autonomy. She contends that she may not be discharged for expressing her view that the clinical program is unethical or for refusing to continue her participation in the project. She has done nothing else to impede continued development of defendant's proposal; moreover, it is undisputed that defendant was able to continue its program by reassigning personnel. Thus, the majority's view that granting doctors a right to be free from abusive discharges would confer on any one of them complete veto power over desirable drug development, ante at 75, is ill-conceived.
The second point concerns the role of governmental approval of the proposed experimental program. In apparent ignorance of the past failures of official regulation to safeguard against pharmaceutical horrors,
The final point to which I must respond is the majority's observation that plaintiff expressed her opposition prematurely, before the FDA had approved clinical experimentation. See ante at 73-75. Essentially, the majority holds that a professional employee may not express a refusal to engage in illegal or clearly unethical conduct until his actual participation and the resulting harm is imminent. This principle grants little protection to the ethical autonomy of professionals that the majority proclaims. Would the majority have Dr. Pierce wait until the first infant was placed before her, ready to receive the first dose of a drug containing 44 times the concentration of saccharin permitted in 12 ounces of soda?
Plaintiff asserts a contract claim as well as a cause of action sounding in tort. See ante at 64. The majority dismisses the contract claim by presuming that plaintiff was an employee at will. See ante at 61, 62 & 71-72. Although stated as an undisputed fact, the proposition is an inference based on the absence of evidence of a contrary agreement. See English v. College of Medicine and Dentistry of New Jersey, 73 N.J. 20, 23 (1977); Jorgensen v. Pennsylvania R.R. Co., 25 N.J. 541, 554 (1958); Schlenk v. Lehigh Valley R.R. Co., 1 N.J. 131, 135 (1948); see generally 53 Am.Jur.2d, Master and Servant § 43 at 117-118 (1970); 56 C.J.S. Master and Servant § 31 at p. 412-413 (1948). Yet the majority's discussion says nothing about the presence or absence of a genuine dispute as to the existence of a contrary agreement. Such a dispute presently exists. Not only may principles of public policy — the very principles the majority espouses — be implied as part of an employment agreement as a matter of law, see Vasquez v. Glassboro Service Assoc., Inc., 83 N.J. 86, 90, 98 (1980); Nicoletta v. North Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 179-180 (1978) (Pashman, J., concurring), but unexpressed terms arising from the relationship
The unexplained conclusion that plaintiff was an employee at will, see ante at 61, cannot substitute for a detailed examination of the factual basis for plaintiff's cause of action for breach of contract. Nor does the majority's passing observation that plaintiff "did not assert the breach of any specific contractual provision," ante at 73, amount to such careful scrutiny. The lack of a written employment agreement makes the absence of "any specific contractual provision" unremarkable. The genuine issue not discussed by the majority is whether plaintiff enjoyed a contractual privilege to express her ethical views despite the absence of any pertinent writing. The resolution of this issue may lie outside any formal contractual term. See 3A A. Corbin, Contracts § 684 at 224 (1960). However, the majority demands a written guarantee of job security where none of the terms of her employment, save a secrecy agreement, was reduced to writing. This "unaccountable" requirement, see ante at 73, cannot serve "to exclude any reasonable doubt as to the existence of any genuine issue," Judson, supra, 17 N.J. at 74, respecting plaintiff's contract claim. I would affirm the denial of summary judgment for defendant as to this claim as well.
The majority states that generally it should not resolve disputes involving far-reaching issues of public policy on a motion for summary judgment. Ante at 65; see Salorio v. Glaser, 82 N.J. 482, 517 (1980), app. docketed, 49 U.S.L.W. 3005 (U.S. June 23, 1980) (No. 79-2026); Jackson v. Muhlenberg
For reversal and remandment — Chief Justice WILENTZ, and Justices SULLIVAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK — 6.
For affirmance — Justice PASHMAN — 1.