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Construing New Jersey’s “substantially certain” rule, as applied to intentional tort claims filed against employers and co-employees, a state appellate court held that a former employee of a pharmaceutical company could not move forward against the employer based on allegations that the employer forced him to use a nasal spray that the firm was developing, but which had not received clearance from the Food and Drug Administration. The plaintiff contended he developed permanent endocrine failure and a colon tumor as a result of taking the medication, but the court held he failed to show that the employer or its CEO knew their actions were substantially certain to result in death or injury to the plaintiff. The court pointed out that the plaintiff had used the nasal spray both at work and at home and had completed reports indicating the spray was effective. The court also said the plaintiff failed to offer any evidence showing a causal relationship between the spray and his medical issues.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).
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See Bove v. AkPharma Inc., 2019 N.J. Super. LEXIS 110 (July 11, 2019)
See generally Larson’s Workers’ Compensation Law, § 103.04.
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law
For a more detailed discussion of the case, see