Jottings By An Employer's Lawyer

Wednesday, December 13, 2006

First "Bullying" Case Goes Down in Flames

When Dr. Daniel Raess, an Indiana heart surgeon, was sued as a "bully" for his conduct in the operating room and the result was a $325,000 verdict, it caused a flourish of publicity, in part because the expert witness for the plaintiff was Dr. Gary Namie, whose foundation, the Workplace Bullying & Trauma Institute, is a leading proponent for anti-bullying legislation. Check out my initial post, Is My One Man Quest Against Bullying Failing? "Bully case verdict ..."

That testimony has now come back to haunt the plaintiff, as it was the basis for the reversal of the verdict by the Indiana Court of Appeals last Friday, Raess v. Doescher (Ind. Ct. App. 12/8/06) [pdf]. And there was no question what the case turned on:
The following issue is dispositive: whether the trial court committed reversible error in allowing a witness to label Raess a "workplace bully."
The answer to that question was a clear — yes:

The confusion caused by Namie’s testimony is illustrated by the emphasis placed upon the testimony by Doescher’s counsel. Trial counsel referred to Raess as a "bully" in his opening statement, and in closing argument he referred to "bullying" numerous times. Counsel concluded his rebuttal closing argument by stating, "We ask for a verdict in favor of Joe Doescher. And, yes, that’s a verdict against workplace bullying and against the workplace bullying incident." .... In this case, where (1) the "workplace bullying" evidence had no probative value, (2) the evidence of assault was thin, (3) the verdict was almost completely dependent upon whom the jury chose to believe, and (4) trial counsel asked for a verdict on "workplace bullying," the label established by Namie’s testimony results in unfair prejudice to Raess by confusing and misleading the jury as to the issue.

If needed, the court drove one more nail into the "bullying" claim by holding that the trial court erred in not giving an instruction proposed by Dr. Raess that there was no such cause of action as "bullying":

"Workplace bullying" is not an 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 have instructed you: whether the Defendant assaulted the Plaintiff, Joseph Doescher on November 2, 2001, and whether that assault constituted intentional infliction of emotional distress.

It's not a total loss for plaintiff however, as the case is sent back for retrial. If that happens, no doubt there will be less "bullying talk" and my guess, no Dr. Namie.

The case is of more than passing interest to me as I am going to be speaking on the topic, Bullying In the Workplace: The Newest Litigation Threat? at the SHRM National Conference in Las Vegas this June.

Update: On 4/8/08 the Indiana Supreme Court reversed this decision and reinstated the trial court's judgment against the surgeon. See, Bullying Indiana Style Makes a (Limited) Comeback.


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