A recent Indiana Supreme Court case, Raess v. Doescher, 883 N.E. 2d 790 (Ind. 2008), has really grabbed the interest of employment lawyers across the nation. In a national phone-in seminar last month on “New Trends in Employment Law,” a panel of legal experts spent considerable time discussing the case.
Enter “workplace bully” in any search engine and many sites will appear discussing the Raess case. With the national attention being given to this case, we want to review the decision in this column. A disclaimer: I will neither try to interpret the case nor forecast what impact it will have. All quotes in this article are directly from the published opinion.
For ease of reading, the plaintiff, Joseph Doescher, will be referred to in this article as “the technician” and the defendant, Dr. Daniel Raess, will be referred to as “the surgeon.” The technician was a perfusionist, operating the heart/lung machine during open heart surgeries at St. Francis Hospital in Beech Grove, Indiana. The technician complained to the hospital about the surgeon’s treatment of other perfusionists. Angry at the reports, the surgeon:
“…rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him. The plaintiff backed up against a wall and put his hands up, believing that the defendant was going to hit him, ‘that he was going to smack the s**t out of me or do something.’ (transcript cite omitted) Then the defendant suddenly stopped, turned, and stormed past the plaintiff and left the room, momentarily stopping to declare to the plaintiff ‘you’re finished, you’re history.’”
As a result of the surgeon’s behavior, the technician suffered a major depressive disorder which prevented his return to work as a perfusionist and detrimentally affected his life in other ways.
The technician sued the surgeon for assault, intentional infliction of emotional distress, and tortious interference with employment. The presiding trial court judge, then Marion County Superior Court Judge Cale Bradford, granted partial summary judgment to the surgeon on the tortious interference claim. The jury returned a verdict after trial for the surgeon on the claim for intentional infliction of emotional distress, but found for the technician on the assault count and awarded him $325,000 in compensatory damages.
Dr. Raess appealed on multiple grounds, including trial court’s over-ruling objections to testimony from the technician’s expert witness, and on over-ruling a tendered instruction on workplace bullying offered by the surgeon. The Court of Appeals reversed and remanded the case for a new trial.
Mr. Doescher appealed that decision and the Supreme Court granted transfer and affirmed the judgment of the trial court.
At trial, Dr. Gary Namie1, an organizational psychologist with a Ph.D. in social psychology, gave testimony for the technician as an expert witness. The defense filed a motion in limine to exclude the testimony of Dr. Namie, and to prevent Dr. Namie and other witnesses from depicting, or referring, to the surgeon as a “workplace bully.” The trial court ruled that Dr. Namie could testify only as to the surgeon’s acts toward the technician. At trial, counsel for the technician asked Dr. Namie to define “workplace bully.” The surgeon’s counsel made a general objection to the entire line of questioning. After a volley of attempts to lay a foundation and multiple objections to his testimony, Dr. Namie eventually stated, “In my opinion it’s an episode of workplace bullying. . .” When Dr. Namie was asked if he had been able to render an opinion as to the defendant, the defense objected that he was not qualified to render an opinion because Dr. Namie had not talked to the defendant.
Justice Dickson, writing for the majority, noted that motions in limine are not effective to preserve claims of error for appellate review. The court found that the only trial objection supporting the surgeon’s appellate claim was the general trial objection that Dr. Namie is not qualified to render an opinion. This objection did not refer to Rule 702 or provide any other specific ground for the objection. During trial, there was neither a specific objection that Dr. Namie was unqualified because he failed to personally interview the surgeon, nor was there a specific objection because Dr. Namie’s usual professional function is as a consultant. Therefore, the majority found that the appellate claim was barred by procedural default.
The surgeon also cited as error the trial court’s refusal to give his tendered instruction:
“Workplace bullying” is not at issue in this matter, nor is there any basis in the law for a claim of “workplace bullying.” In other words, you are not to determine whether or not the Defendant, Daniel Raess, was a “workplace bully.” The issues are as I instructed you: whether the Defendant assaulted the Plaintiff, Joseph Doescher on November 2, 2001, and whether that assault constituted intentional infliction of emotional distress.”
The Supreme Court ruled:
The tendered instruction advanced two concepts: (a) that “workplace bullying” was not an issue in the case, and (b) that the jury need not determine whether the defendant was a “workplace bully” to decide the case. As to the first concept, we disagree. . . . The phrase “workplace bullying,” like other general terms used to characterize a person’s behavior, is an entirely appropriate consideration in determining the issues. . . the tendered instruction was incorrect. Furthermore, in seeking to advise the jury that “workplace bullying” was not an element . . . the tendered instruction was unnecessary. Other instructions adequately informed the jury of the elements. . .
Justice Boehm dissented and thought the challenges to Dr. Namie’s testimony were properly preserved for appeal and Dr. Namie’s testimony was inadmissible and prejudicial. Justice Boehm wrote that the motions and the record reflect that the trial court “clearly understood the grounds for these objections and its previous rulings on admissibility.” After finding that the defendant had preserved the issues, Justice Boehm found the objections to be well grounded. He believed that Dr. Namie was not qualified to testify as to how workplace bullying affected the technician and that, without proper context, the “workplace bullying” label was name-calling and highly prejudicial to the jury.
Justice Sullivan concurred in the majority opinion but agreed with Justice Boehm that the defendant’s pre-trial objections were adequately preserved for appeal. Justice Sullivan thought that even if Dr. Namie’s testimony was erroneously admitted, it was harmless error in respect of the judgment on the assault claim.
Whatever transpires next on the legal scene, it is clear that workplace bullying is becoming a growing concern for employers. We all spend long amounts of time in our workplace and one that is full of strife will lead to an unproductive and poorly performing workforce. The Raess case was not one holding strictly against the employer, but was rather one based on a pattern of abusive behavior by one individual against fellow employees. Keeping the work environment pleasant and conducive to high productivity, like the Division of State Court Administration, is of great value to the mission of the employer.
1Dr. Namie and his wife are co-founders of The Workplace Bully & Trauma Institute.
Trial courts can seek advice on employment law issues by contacting Brenda Rodeheffer directly at (317) 234-3936 or