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Justices rule on 'workplace bullying' case

Jennifer Nelson
January 1, 2008
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The phrase "workplace bully" was applicable to a plaintiff's claims of assault and is an entirely appropriate consideration in determining issues before a jury, ruled the Indiana Supreme Court April 8. However, the court did not define in the opinion what makes a "workplace bully."

The majority of Indiana Supreme Court justices affirmed the trial court jury verdict of $325,000 and judgment on a claim for assault against a surgeon.

In Daniel H. Raess, M.D., v. Joseph E. Doescher, No. 49S02-0710-CV-424, Dr. Raess appealed and the Indiana Court of Appeals reversed and remanded for a new trial.

Raess and Doescher, a perfusionist (the person who operates the heart/lung ma-chine during open-heart surgeries), got into a confrontation at an Indianapolis hospital. Doescher testified that Raess aggressively charged at Doescher after learning he had reported to hospital administration about Raess treatment of other perfusionists. Doescher was backed against a wall and put his hands up, believing Raess would hit him. Raess swore and screamed at Doescher, and then turned and walked away. As a result of the incident, Doescher claimed he couldn't go to work and experienced anxiety.

Doescher sought compensatory and punitive damages for assault, intentional infliction of emotional distress, and tortuous interference with employment. The trial court granted Raess' motion for partial summary judgment on the tortious interference claim. The jury found in favor of Raess on the intentional infliction of emotional distress claim, but found in favor of Doescher on his assault claim and awarded him compensatory damages.

On appeal, Raess challenged the trial court denial of his motion for judgment on the evidence challenging its sufficiency to support the jury finding of assault; his request to set aside or reduce the award of compensatory damages as excessive; his objections to testimony from Doescher's expert witness; his objections to Doescher's testimony regarding the doctor's prior conduct; and his tendered instruction on workplace bullying.

Authoring Justice Brent Dickson wrote since Raess did not assert the same claims during the trial that he does on appeal regarding the expert witness' testimony, the claims are barred by procedural default. Raess tried before trial to file a motion in limine to exclude Dr. Gary Namie's testimony or evidence referring to Raess as a workplace bully. The trial court denied the motion to exclude testimony and granted the "workplace bully" motion only in part. Although Raess' counsel repeatedly objected to Namie's testimony at trial, he didn't assert the claim he presents at trial - that Naime's testimony lacked scientific reliability. He also didn't raise the claim that the trial court's limitation on the testimony referring to Raess as a workplace bully was inherently prejudicial, so the claim is procedurally barred.

Also barred is Raess' argument that he deserves a new trial because he was unfairly prejudiced by hearsay evidence of his alleged prior bad acts and bad character.

"Because there were no contemporaneous trial objections asserting improper prior bad acts or character evidence, consideration of these appellate claims is foreclosed," wrote Justice Dickson.

The trial court did not err in denying Raess' motion for judgment on the evidence incorporated in his motion to correct errors. Raess believed there was no evidence to support liability for assault and that the jury verdict was unsupported or excessive. Based on Doescher's testimony about the incident, there is substantial evidence to support the jury's conclusions that an assault occurred, wrote Justice Dickson.

The Supreme Court declined to disturb the jury's award of damages in this case because even if there is conflicting evidence, as long as there is evidence to support the award, the award won't be disturbed, he wrote.

Finally, the majority affirmed the term "workplace bullying" can be used in the trial because the phrase, "like other general terms used to characterize a person's behavior, is an entirely appropriate consideration in determining the issues before the jury," wrote Justice Dickson. Workplace bullying could be considered a form of intentional infliction of emotional distress. The trial court didn't abuse its discretion in refusing to tender Raess' instruction on the matter, which told the jury the phrase was irrelevant to the plaintiff's claims. In the opinion, the high court didn't attempt to define what makes a workplace bully.

In a separate opinion, Justice Theodore Boehm dissented from the majority's conclusions that challenges to Namie's testimony weren't preserved for appeal. He also concluded that the testimony was inadmissible and prejudicial. Justice Frank Sullivan, in a separate opinion, concurred in result with Justice Boehm that the objections to the admissibility of Namie's testimony were preserved for appeal; however, he concurred in the Supreme Court's opinion because he believes even if the testimony was erroneously admitted, it would be a harmless error.
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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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