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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. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

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  3. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  4. JLAP and other courtiers ... Those running court systems, have most substance abuse issues. Probably self medicating to cover conscience issues arising out of acts furthering govt corruption

  5. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

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