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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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