MARk Law Firm, LLC 403 King George Road Suite 201 Basking Ridge, New Jersey 07920 (908) 626 -1001 (908) 344 -5544 - Facsimile Jamison M. Mark, Esq. (042392000) Attomey for Plaintiff, Joseph Mathew | SUPERIOR COURT OF NEW JERSEY | BERGEN COUNTY: LAW DIVISION JOSEPH MATHEW, Plaintiff, | DOCKET No. BER-L- 244 - 17 vil Action STRYKER CORPORATION d/b/a/ MAKO | SURGICAL CORPORATION.; CHRIS CLARK, individually, JEFF SPALAZZI, : COMPLAINT, JURY DEMAND, CERTIFICATION & DESIGNATION OF TRIAL ATTORNEY individually, ANDREA — LINDWALL, | ~ 8 individually, | MARTHA LINEHAN) So individually, ABC CORP 1-10 Centon | FROR COURT Reape ZS entities not yet known) and JOHN and JANE ' Fil, ED County oF DOES 1-10 (fictitious persons not yet known), : Be: Defendants. LAN zon —__—____—__#., G Plaintiff, Joseph Mathew resides in the Towh@lipl 01330 S: S = x nw m Baie of New York, and (hues by and through his Attorneys the Mark Law Firm, LLC, does by way of Complaint against (Ss Defendants, hereby state: PARTIES A yt 1. Plaintiff Joseph Mathew (hereinafter “Mr. Mathew” or “Plaintiff’) is a resident of the State of New York, and is was at all times relevant an employee of Stryker Corporation d/b/a Mako Surgical Corporation, employed in New Jersey. 2. Defendant Stryker Corporation d/b/a Mako Surgical Corporation, (hereinafter “Stryker") with a principal place of business located at 325 Corporate Drive, Mahwah, New aeJersey had significant and continuous contacts with the State of New Jersey, and was Plaintiff's employer at all times relevant, 3. Defendant Chris Clark is the Vice President of Sales and considered upper ‘management of Defendant Stryker, and was Plaintiff's supervisor at all times relevant. 4, Defendant Jeffery Spalazzi is a Sales Education Training Manager of Defendant Stryker, and was Plaintiff"s supervisor at all times relevant, 5. Defendant Andrea Lindwall is a Robotic Tr ing Manager, and a supervisor at Defendant Stryker at all times relevant. 6. Defendant Martha Linehan is a Key Accounts Program Manager and a supervisor at Defendant Stryker at all times relevant. 7. Defendants Jane & John Doe 1-10, who are presently unknown to Plaintiff but at all times material to this Complaint, individual defendants and were actors involved in the retaliation against Plaintiff. 8. ABC CORP 1-10 are other entities who are presently unknown to Plaintiff but who were responsible for the causes of action pled in this Complaint, including unnamed agents and employees of Defendant Company. VENUE 9. Venue properly lies in Bergen County, Superior Court Law Division pursuant to R. 4:3-2(a), because during all times relevant, Plaintiff was employed in, and the cause of action arose in Bergen County.FACTS RELEVANT TO THE PLAINTIFF’S CLAIMS 10. In or about May of 2015, Plaintiff Joseph Mathew was first hired by Stryker supervisor Chris Clark, as a Makoplasty Specialist. 11. Mr, Mathew has years of experience in human anatomy and physiology, with a specialty in medical devices. 12, Every medical device, however, requires separate and additional training. 13, Asa part of Mr. Mathew’s hire, he was required to attend training regarding Makoplasty’s knee replacement and hip replacement devices and surgeries. His training began on June 1, 2015 in Fort Lauderdale, Florida. 14, Mr. Mathew successfully passed all of his training courses. 15, After Mr. Mathew’s training, he began performing surgeries with the medical device, with a senior representative present as a step towards receiving certification to perform surgeries without supervision. 16. Mr. Mathew performed at least eight (8) solos between June and September of 2018. 17. Through September and October, Mr. Mathew was instructed by his supervisor, Defendant Clark, to perform surgeries without supervision and without certification. 18. In response, Mr. Mathew refused to perform the surgeries without certification due to his concerns regarding public health and safety as well as his concern that performing surgeries violated federal regulations. 19. Specifically, 21 C.F.R, 820.25 requires all medical device manufacturers to ensure that all personnel “are trained to adequately perform theit assigned responsibilities,” and specifies that this training must be properly documented.20. In good faith and based upon a reasonable belief of its requirement, Mr. Mathew Tequested a certificate that documented he was properly trained and certified to perform the surgeries on his own, as required by 21 C. 820.25, and refused to perform the surgeries unsupervised until he received the certification. 21. Mr. Mathew also complained to Defendants Jeff Spalazzi and Andrea Lindwall when he objected to any requirement that he perform surgeries without supervision ot a valid certification, 22. Mr. Mathew had a reasonable belief that Stryker was engaging in illegal activity by failing to provide his certification prior to permitting him to perform surgeries without supervision, as he addressed with his supervisors. 23. Mr. Mathew therefore refused to do surgeries without his certification. 24. Stryker never provided Mr. Mathew with his certification or any documentation that he was certified to perform surgeries without supervision, 25. Following Mr. Mathew’s complaints, Defendant Clark spoke with Defendant Martha Linehan, and the two decided to send Mr. Mathew for "remedial training” in December 2015. 26. The remedial “training” merely consisted of a one-day exam, but was clear and direct retaliation against Mr. Mathew. 27. Mr. Mathew passed the proctored written exam with the score of 94. 28. Defendant Linehan proctored Mr. Mathew’s practical exam. 29. Defendant Linehan presented far more “adverse events” for Mr. Mathew’s test than was standard for the other employees sent for remedial training. In fact, Mr. Mathew wasfaced with seven (7) adverse events, when his colleagues were only presented with three (3) to four (4). 30. Mr. Mathew was presented with an adverse event in which he was required to ‘meet specific measurement parameters regarding the placement of the device as to the bone, 31. Stryker’s training manual specifies that measurements for this parameter are valid if they measure less than 1.5 mm. 32, Mr. Mathew’s measurement was .7 mm, clearly within the appropriate parameters, and as such, he determined the measurements were appropriate to proceed. 33. Defendant Linehan subjectively stated, “I am not satisfied,” and issued Mr. Mathew an “automatic failure” because his parameters were not less than .5 mm. 34. Mr. Mathew was not provided an opportunity to finish the exam. 35. Stryker fabricated reasons for Mr. Mathew’s termination relying on the “adverse event” and issuing an “automatic failure.” 36. Stryker employee Ryan Lundquist who was present during this exam remarked to Mr. Mathew following his exam, “I have never seen anyone be given that many adverse events.” 37. Defendant Clark terminated Mr. Mathew’s employment on January 15, 2016. 38. The “remedial training” and resulting termination was retaliatory for Mr. Mathew’s complaints and refusal to engage in unlawful prak es and medical device regulation violations. CLAIMS FOR RELIEF COUNT ONE (Wrongful Discharge in Violation of Public Policy ~ Pierce v. Ortho Claim) 39. Plaintiff repeats and realleges the foregoing paragraphs as if fully set forth herein.40. Defendants’ discharge of Plaintiff violated the clear mandate of public policy of terminating an employee for objecting to illegal conduct such as reporting and objecting to violations of federal regulations governing medical device personnel training. 41. Plaintiff complained and challenged the illegal conduct directly to his supervisor, Defendant Clark, and was retaliated against, through termination. 42. The illegal conduct, as outlined above, was a clear violation of public mandate, i.e., improper patient care and violation of public safety concerning medical devices. 43, As a result of Plaintiff's complaints, disclosure and objections, he became the target of retaliation and was terminated. 44, The above-described actions of Defendants constitute a wrongful discharge of his employment with the company. COUNT TWO (Conscientious Employee Protection Act, N.J.S.A. 34:19-3(c)) 45. Plaintiff repeats and reasserts the foregoing paragraphs as fully set forth herein. 46. Defendants terminated Plaintiff in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-3(c). 47. Plaintiff complained, disclosed, and objected to the illegal actions committed by Stryker Corporation. 48. Plaintiff complained, disclosed and objected verbally to his Defendants and placing them on notice for the unlawful conduct of the company. 49. Due to his complaints, disclosures, and objections, Defendants retaliated against and ultimately terminated Plaintiff.50. The retaliation would not have occurred but for Plaintiff's complaints, disclosures and objections to Defendants’ illegal activity, 51. Plaintiff reasonably believed that Defendants’ engaged in behavior that violates the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq., and have thereby irveparably injured Plaintiff. 52. Asa result of Defendants’ retaliatory harassment, and constructive discharge of Plaintiff, he has suffered damages, including lost income, and fringe benefits. WHEREFORE, Plaintiff demands judgment against all Defendants, Compensatory Damages for loss of bonuses, health insurance and other benefits, wages and rights, including back pay and front pay, loss of reputation and earning capacity, for the violation of rights, for emotional distress, for pain and suffering; Punitive Damages; Pre and Post Judgment Interest; Reinstatement and Attorney's Fees and Costs; and Other Equitable Relief. N.J.S.A. 34:19-5. RESPECTFULLY SUBMITTHD, MARK \AW FIRM, LLCDESIGNATION OF TRIAL COUNSEL Plaintiff hereby designates Jamison M. Mark, Esq. as Trial Counsel. DEMAND FOR JURY TRIAL Plaintiff hereby demands, pursuant to R. 4:35-1 et seq., trial by jury of all issues triable by jury MARK|LAW FIRM, LLC Attorney for/Plaintiff, Joseph Hfathew Dated: \ ahDEMAND FOR INSURANCE INFORMATION Pursuant to New Jersey Court Rule 4:10-2(b), demand is made that Defendants disclose to Defendants’ attomey whether or not there are any insurance agreements or policies under which any person or firm carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in this action or indemnify or reimburse for payments made to satisfy the judgment and provide Defendants’ attomey with true copies of those insurance agreements or policies, including but not limited to, any and all declaration sheets. This demand shall include and cover not only primary coverage but also any and all EPLI, excess, homeowners, and umbrella policies. DEMAND TO PRESERVE EVIDENCE All defendants are hereby directed and demanded to preserve all physical and electronic information for attorney in any way to plaintiffs employment, to plaintiffs cause of action and/or prayers for relief, to a defense is the same, and pertaining to any party, including, but not limited 1o, electronic data storage, close circuit audio footage, digital images, computer images, cache memory, Searchable data, emails, spreadsheets, employment files, memos, text messages and any and all online social or work related websites, injuries on social networking sites, and any other information and/or data and/or things and/or documents which may be relevant to any claim or defense in this litigation, MARK JAW FIRM, LLC om yaw fvCERTIFICATION PURSUANT TO R. 4:5-1 hereby certify that the matter in controversy is not the subject of any other action pending in any other court or pending arbitration proceeding. I further certify that I have no knowledge of any contemplated action or pending arbitration proceeding regarding the subject matter of this action, and I am not aware of any othey parties who should be joined to this matter .W FIRM, LLC for Plaintiff, Joseph}NOTICE OF DEPOSITIONS Dear Sir/Madam: Rule 4:14-2, PLEASE TAKE NOTICE, that pursuant to the provisions of R-1:9-2 and the undersigned Attomey for Plaintiff JOSEPH MATHEW hereby demands that you produce for appearance for deposition at The Mark Law Firm, LLC, 403 King George Road, Suite 201, Basking Ridge NJ 07920 on May 22, 2017, at 10:00 a.m: CHRIS CLARK PLEASE TAKE NOTICE, that pursuant to the provisions of R.1:9-2 and Rule 4:14-2, the undersigned Attorney for Plaintiff JOSEPH MATHEW hereby demands that you produce for appearance for deposition at The Mark Law Firm, LLC, 403 King George Road, Suite 201, Basking Ridge NJ 07920 on May 23, 2017, at 10:00 am: JEFF SPALAZZ1 PLEASE TAKE NOTICE, that pursuant to the provisions of R.1:9-2 and Rule 4:14-2, the undersigned Attorney for Plaintiff JOSEPH MATHEW hereby demands that you produce for appearance for deposition at The Mark Law Firm, LLC, 403 King George Road, Suite 201, Basking Ridge NJ 07920 on May 23, 2017, at 2:00 p.m: ANDREA LINDWALL PLEASE TAKE NOTICE, that pursuant to the provisions of R.1:9-2 and Rule 4:14-2, the undersigned Attorney for Plaintiff JOSEPH MATHEW hereby demands that you producefor appearance for deposition at The Mark Law Firm, LLC, 403 King George Road, Suite 201, Basking Ridge NJ 07920 on May 24, 2017, at 10:00 a.m: MARTHA LINEHAN MAR} AW FIRM, LL Attorneys\for Plaintiff, Joseph Mathew Vie fro) By: