Yesterday, in a 4-1 decision, the Indiana Supreme Court upheld a $325,000 verdict against a cardiovascular surgeon accused of being a “workplace bully.”  Previously, the trial and appellate court decisions in the case had received nationwide attention because of the interest in the concept of “workplace bullying.”  Raess v. Doescher, No. 49S02-0710-CV-424, Indiana Supreme Court (April 8, 2008). 

Factual/Legal Background

Joseph Doescher was a hospital operating room perfusionist, the person who operates the heart/lung machine during open heart surgery.  He alleged that Dr. Daniel Raess, a cardiovascular surgeon, aggressively charged him “with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him.”  Doescher testified that he backed up against the wall and put his hands up, fearing that Raess was going to hit him.  Although Doescher’s legal claims were intentional infliction of emotional distress and assault, the trial strategy was to present Raess as a classic “workplace bully.”  The jury found for Raess on the intentional infliction of emotional distress claim, but for Doescher on the assault claim and awarded him $325,000.

On appeal, the Indiana Court of Appeals reversed and remanded the case because the trial judge allowed the testimony of a “bullying expert,” Dr. Gary Namie, and failed to give a jury instruction requested by Raess that “workplace bullying” was not an issue in this case and that there was no basis in the law for such a claim.

Indiana Supreme Court Weighs In

In reinstating the verdict in favor of Doescher, the Indiana Supreme Court addressed two issues relating to “workplace bullying”; namely, whether it was error to 1) admit the testimony of Dr. Gary Namie as a workplace bullying expert, and 2) refuse to submit Raess’ proposed jury instruction.

As to the admission of Dr. Namie’s testimony, the Court refused to decide this issue because it found the question of Dr. Namie’s qualifications had not been preserved at trial for the appeal.  Justices Frank Sullivan, Jr. and Theodore Boehm disagreed with the majority on this issue, although Justice Sullivan concluded that, even if Dr. Namie’s testimony had been erroneously admitted, it was harmless error.  In concluding that the issue had been preserved and it was error to permit Dr. Namie’s testimony, Justice Boehm stated in dissent:

Dr. Namie by his own testimony is not a clinical psychologist and is not qualified to testify as to how workplace bullying affected the plaintiff, and he did not testify on that subject. This is testimony characterizing an event, but offering no assistance to interpret or understand it. Without any context, the “workplace bullying” label is nothing more than highly prejudicial name-calling of no help to the jury.

In defending the trial judge’s decision to exclude Raess’ “workplace bullying instruction,” the Court found the instruction was inconsistent with the law.  In language that will likely be utilized in other “bullying” cases, the Court said:

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. In determining whether the defendant assaulted the plaintiff or committed intentional infliction of emotional distress, the behavior of the defendant was very much an issue. The phrase “workplace bullying,” like other general terms used to characterize a person’s behavior, is an entirely appropriate consideration in determining the issues before the jury. As evidenced by the trial court’s questions to counsel during pre-trial proceedings, workplace bullying could “be considered a form of intentional infliction of emotional distress.”

The Court also noted that, although the trial judge refused Raess’ proposed instruction, he allowed him to argue that workplace bullying was not an issue in the case.

Because the Court side-stepped whether Dr. Namie’s testimony concerning workplace bullying was properly admissible, the application of Raess may be limited.  On this point, Ogletree Deakins shareholder Brian McDermott states, “Hopefully any other court considering this case as supportive of bringing ‘bullying’ claims or offering ‘bullying’ evidence, will see how limited it is.  Let’s just hope that in trying to right one wrong, the Indiana Supreme Court has not opened the lid to a true Pandora’s Box.”

The concept of “workplace bullying” continues to be a topic of discussion for employers and the subject of academic debate.  Many companies, even prior to Raess, have included “workplace bullying” among the behaviors prohibited by company policies and procedures.  This should not be surprising given that “workplace bullying” legislation has been introduced in at least 13 states in the past five years.  Indiana, however, has not enacted such legislation to date, but the Raess court nevertheless allowed “workplace bullying” evidence to support another legal claim. 

Additional Information 

If you have questions on this particular ruling or its ramifications, please contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via email at

Note: This article was published in the April 9, 2008 issue of the Indiana eAuthority.

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