COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 65517 CATHERINE CZUBAJ : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION E.B.P., INC., DBA EPIC STEEL, : ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT : OF DECISION : OCT. 12, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-218221 JUDGMENT : Reversed. Final judgment entered for appellants. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANTS-APPELLANTS: Bruce W. McClain, Esq. Kevin H. Young, Esq. Childs, Miller and Associates Josh M. Friedman, Esq. 24600 Detroit Road Benesch, Friedlander, Coplan Suite 240 & Aronoff Westlake, Ohio 44145 1100 Citizens Building 850 Euclid Avenue and Cleveland, Ohio 44114 Thomas H. Vogtsberger, Esq. Spitler, Vogtsberger and Huffman 131 East Court Street Bowling Green, Ohio 43402 -2- HARPER, J.: Defendants-appellants, E.B.P., Inc., d.b.a. Epic Steel, and Gary Fremont, appeal from a jury verdict in favor of plaintiff- appellee, Catherine Czubaj, on her claim for intentional infliction 1 2 of emotional distress. Appellants submit for review , a variety of issues relating to the verdict, the damages awards, the trial court's evidentiary rulings, and its ruling in post-judgment matters. I. Neff Fremont founded Epic Steel ("Epic"), a company engaged in the business of structural steel fabrication and erection, in approximately 1963. Neff and his three sons, Mark, Dan and Gary, all work for Epic, a family-owned company, in a variety of capacities. Neff is the company President, and Gary, who joined Epic as a full-time employee in the early 1980's, is its Vice- President/Corporate Treasurer, and also an estimator. Epic hired Czubaj as a bookkeeper in 1972. Czubaj emigrated to the United States in the early 1960's from Poland. Though she was educated to be a teacher, according to Czubaj, her only marketable skill in the United States was bookkeeping. During her years of employment with Epic, Czubaj established a personal relationship with the Fremont family. In fact, Neff and 1 Neff Fremont was also named as a defendant in Czubaj's complaint, but not on her claim for intentional infliction of emotional distress. Neff is, therefore, not a party to this appeal. 2 See Appendix. -3- Gary both testified that they regarded Czubaj as part of the family. Neff testified in this regard that he advised her on the construction and financing of rental properties. He also suggested that she learn new skills, to either keep up with the modernization of the office or to keep busy in the office as a result of certain duties being accomplished quicker with the modernization. Neff testified, however, that Czubaj refused to learn new skills, e.g., how to compute weights. With regard to social activities, Czubaj often had dinner with Neff, sometimes at her home; she accompanied him to dances; and once traveled to Chicago with her daughter, Neff and Gary. Neff ended the social relationship with Czubaj in the early 1980's. He explained that Czubaj was a young, attractive woman, but he knew that he did not want to marry her. Neff, therefore, thought it best to end the relationship. According to Czubaj, there were certain aspects of her employment which caused her concern from the moment Epic hired her. Specifically, she related how Neff ordered her to falsify tax returns and workers' compensation reports. Czubaj nonetheless complied with Neff's instructions because she feared that she would not only lose her position, but that her limited abilities and skills, as well as her immigrant status and imperfect English, would prohibit her from procuring a comparable position elsewhere. She also did not want to "squeal" on her employer. Czubaj, however, became increasingly troubled by these "illegal" documents some time after 1985. Prior to this time, -4- Czubaj had a close friend in the office who was aware of the preparation of the documents since 1972. Czubaj trusted that this friend, Louise Neubauer, would not reveal the illegality of the documents. Upon Neubauer's retirement in 1985, Epic hired younger women who generally did not stay with the company for long periods of time. Czubaj, therefore, feared that these newly hired women would not hesitate to report the "illegal" tax returns and workers' compensation reports to the proper authorities. Additionally, once Gary became a full-time employee of Epic, Czubaj was subjected to his office behavior. According to Czubaj, and other witnesses who testified on her behalf, Gary's treatment of her was distinct from that of other employees. Gary often yelled at other employees in the office, and even at his father and brothers. He, however, called Czubaj names and screamed obscenities at her on a constant, almost daily basis, and often commented that women, especially women over forty, did not belong in the work force. Gary would often place his face up to hers while screaming at her. Moreover, Czubaj's fellow employees testified that there were times when Gary actually worked himself into a sweat, and times when he threw papers at Czubaj during the verbal attacks. One employee described how Gary stormed out of his office, "like a lunatic, hands flying, spit going everywhere" when there was a problem with receiving a telephone call. These episodes were always based on Gary's alleged dissatisfaction with Czubaj's work performance. However, there was no testimony that Czubaj's work performance ever fell below an -5- acceptable standard except for her refusal to learn new duties. Czubaj never reacted to Gary's attacks by, e.g., verbally fighting back. She would however, be reduced to tears, either in Gary's presence, or while hiding in the bathroom. By 1987 at the earliest, Czubaj experienced a series of health problems for which she sought treatment. She eventually visited a neurologist who could not find a physical cause for her problems. He, therefore, suggested that she seek psychiatric treatment which she did in June or July 1990. Czubaj's first psychiatrist, Dr. Bari, referred her to Dr. Robert T. Seagraves when he decided to leave Ohio to practice in California. Dr. Seagraves' first session with Czubaj, a clinical interview, occurred on June 24, 1991. At this time, the doctor collected a patient history, both medical and familial, and was also watching for nonverbal cues. When questioned as to whether Czubaj ever described her work environment, Dr. Seagraves responded that "it was like getting blood from a stone." He tried to pursue these conversations, but Czubaj would start to cry, and then either change the subject or state that she could not talk about it. Czubaj eventually communicated her concerns about the legality of her work to Dr. Seagraves. He testified that he concluded at about this time that "stress at work was one of the major factors in her difficulties." Dr. Seagraves also testified that Czubaj's reluctance to speak about work stemmed from her loyalty to her original employer, Neff, and her place of birth where you did not "rat on your neighbors." -6- Dr. Seagraves ultimately diagnosed Czubaj as suffering from a major depressive reaction or major depressive episode. He testified that this diagnosis was based upon his medical training, education, experience, examinations of Czubaj, her history as reported by her and other physicians, and was made with a reasonable degree of medical certainty. The doctor testified further that factors which contributed to his opinion were weight loss, crying, insomnia, decreased concentration, decreased ability to experience pleasure, social withdrawal, and her appearance when she met with him. Dr. Seagraves renewed a prescription for an anti-depressant which was originally prescribed by Dr. Bari following the initial interview. He also advised Czubaj to "seriously consider looking for other employment." The doctor testified that he subsequently prescribed a number of different anti-depressants, and estimated that he saw Czubaj fifteen to twenty times by the time of trial. Dr. Seagraves excluded biological or inheritance factors as a cause of Czubaj's major depressive reaction. In his opinion, the stressors in her life, either in severity or duration, finally overwhelmed her. Dr. Seagraves testified that he looked for other stressors beyond the work-related ones, but he "couldn't find anything else other than the stress at work." He, therefore, opined with a reasonable degree of medical certainty that her condition was "related to stress at work." During cross-examination, Dr. Seagraves admitted that he first diagnosed Czubaj with a different disorder, but the onset and -7- duration of her illness caused him to change that diagnosis to major depressive reaction. He once again discounted, however, other causes as contributing to the condition, specifically the onset of menstrual problems and the death of Czubaj's brother. Dr. Seagraves testified that Czubaj's medical visits, at which her physicians noted in their records that anxiety or stress could be causing physical symptoms, preceded these incidents. Dr. Seagraves also acknowledged that Dr. Bari's diagnosis of Czubaj fluctuated, and concluded with a diagnosis of adjustment reaction and mixed emotions in his final report of June 7, 1991. Dr. Bari's previous diagnoses included major depression and atypical depression. Dr. Seagraves testified that Dr. Bari made a mistake in his final report because an adjustment reaction is limited to a six-month duration, and Dr. Bari saw Czubaj for a period of longer than six months. Regarding Czubaj's future treatment, Dr. Seagraves testified with a reasonable degree of medical certainly that she would probably need to take anti-depressant therapy and some form of psychotherapy on an intermittent basis. He could not, however, give an accurate judgment as to whether her condition was permanent. In this regard, he testified, "I think, once she is removed from the stressful situation and, hopefully, reemployed and has a new source of meaning in her life, this problem will, I assume, decrease in severity." Appellants' counsel questioned Dr. Seagraves further as to Czubaj's future during re-cross examination. Counsel directed the -8- doctor to a letter written by him to Czubaj's counsel, which included the following recommendation: "This is in reference to my patient, Catherine Czubaj, whom you know has been suffering from a mixed anxiety depressive reaction secondary to stress at work. I recommend that she not return to work at Epic Steel until at least three months from now." In order to clarify the recommendation, appellants' counsel proceeded: Q. In other words, then, you felt that it would not be harmful for her to continue after those three months? May we imply that? A. What I was hoping was that a temporary removal from the stressful situation would allow her to recompose herself and reenter that situation. Since Czubaj's resignation from her employment with Epic, she pursued a college education which she commenced in 1984. She attended Cleveland State University from the Winter 1991 term to the Spring 1992 term, and graduated in June 1992. Throughout this period, Czubaj took eight business courses, received at least four "A's," and was placed on the Dean's List at one time or another. In September 1992, Czubaj started to teach at the Alliance of Poles. She resigned, however, in November of the same year, leaving just after Thanksgiving. Czubaj testified that she "couldn't work. I can't take any stress. I just -- it was too much for me. I -- I couldn't function." II. Czubaj filed a complaint in the Court of Common Pleas of Cuyahoga County on September 17, 1991, naming Epic, Neff and Gary -9- as defendants. Her complaint contained two claims for relief, one for age discrimination in violation of R.C. 4112.02, and the other for intentional infliction of emotional distress. Only Epic and Gary were named as culpable parties in the intentional tort claim. The case proceeded to jury trial on March 9, 1993. The jury returned a verdict in favor of the defendants on Czubaj's claim for age discrimination, but returned a verdict in Czubaj's favor on her intentional infliction of emotional distress claim. The jury awarded damages in the amount of $31,275 against Gary, and $177,225 against Epic; it also found that Czubaj was entitled to punitive damages and attorneys fees. Czubaj, on March 24, 1993, filed a motion for prejudgment interest, and a request for hearings on the punitive damages and attorney fees awards. Appellants filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial on March 31, 1993. The trial court issued a journal entry on May 3, 1993, following briefing and hearing on the pending motions of the parties. The court first reduced the jury's combined award of $208,500 to $200,000 because of ambiguities in Czubaj's prayers for relief. The $31,275 judgment against Gary was, therefore, reduced to $30,000, and the $177,225 judgment against Epic was reduced to $170,000. The trial court then denied appellants' motion for judgment notwithstanding the verdict or for new trial. The trial court granted Czubaj's motion for prejudgment interest, and calculated the total as $31,068 against Epic and $5,482.74 against -10- Gary as of April 28, 1993. It then ordered Epic to pay $46.58 per day as interest thereafter; Gary's interest beyond April 28, 1993 was $8.22 per day. Pertaining to punitive damages, the trial court awarded $29,750 against Epic, and $5,250 against Gary. Finally, the trial court ordered a total award of $37,519 to be paid to Czubaj's two attorneys. It then apportioned 85 percent of the award against Epic, and 15 percent against Gary. III. 3 Appellants' first, second and seventh assignments of error deal with the trial court's denial of their motion for judgment notwithstanding the verdict and for new trial. Specifically, appellants contest the compensatory damages award; the jury's finding that Epic was liable on Czubaj's intentional infliction of emotional distress claim; and the jury's verdict based upon the alleged inconsistency between it and the jury's interrogatories. A motion for judgment notwithstanding the verdict is governed by Civ.R. 50(B) which provides in relevant part: Whether or not a motion to direct has been made or overruled and not later than fourteen days after entry of judgment, a party may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion; or if a verdict was not returned such party, within fourteen days after the jury has been discharged, may move for judgment in accordance with his motion. A motion for new trial may be joined with this motion ***. The standard to be applied by a trial court in determining a motion for directed verdict is the same standard to be applied in 3 Appellants' assignments of error will be addressed in an order which is expedient to the resolution of this appeal. -11- ruling on a motion for judgment notwithstanding the verdict. Osler v. Lorain (1986), 28 Ohio St.3d 345, 347; Shore, Shibley & Co. v. Kelley (1988), 40 Ohio App.3d 10, 13. A favorable ruling on a Civ.R. 50(B) motion is not easily obtained, as explained as follows: *** The evidence adduced at trial and the facts established by admissions on the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions. [Citations omitted.] Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275. See, also, Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 127; Osler, 347. A. The jury awarded damages of $177,225 against Epic, and $31,275 against Gary on Czubaj's claim for intentional infliction of emotional distress. Appellants, in their second assignment of error, first assert Czubaj failed to prove that Epic is liable under the doctrine of respondeat superior for Gary's allegedly tortious conduct, as it was outside the scope of his employment as matter of law. Appellants claim next that assuming arguendo that Gary was acting within the scope of his employment, Czubaj failed to demonstrate that Epic either authorized or ratified Gary's conduct, and, therefore, Epic could not be liable for the allegedly tortious conduct. Appellants thus argue that the trial court's -12- denial of their motion for judgment notwithstanding the verdict and for new trial as to Epic's liability was erroneous, and subject to reversal by this court. A former employee may recover damages against an employer for the intentional infliction of emotional distress in a separate tort action. Russ v. TRW, Inc. (1991), 59 Ohio St.3d 42; Kurtz v. Harcourt Brace Jovanovich, Inc. (1990), 69 Ohio App.3d 267. The Supreme Court of Ohio discussed the doctrine of respondeat superior to a lengthy degree in Osborne v. Lyles (1992), 63 Ohio St.3d 326, by first referring to the Restatement of the Law 2d, Agency (1958) 481, Section 219(1). This section provides: "A master is subject to liability for the torts of his servants committed while acting in the scope of their employment." In order for an Ohio-based employer to be liable for the tort of its employee under the doctrine of respondeat superior, the employee must commit the tort within the scope of employment. Osborne, 329. If the tort is intentional, "*** the behavior giving rise to the tort must be 'calculated to facilitate or promote the business for which the servant is employed ***.'" Id., quoting Byrd v. Faber (1991), 57 Ohio St.3d 56, 58. Conversely, if an employee's acts are independent and self-serving, and in no way facilitate or promote the employer's business, the employer is not liable. Id. This rule regarding the doctrine of respondeat superior is well- established in the state of Ohio. See, e.g., Hart v. Justarr Corp. (1994), 98 Ohio App.3d 673; Evans v. Smith (1994), 97 Ohio App.3d 59; Szydlowski v. Ohio Dept. of Rehab. & Corr. (1992), 79 Ohio -13- App.3d 303. Generally, an employee's intentional and wilful attack upon another employee so as "to vent his own spleen or malevolence," clearly departs from his or her employment for which the employer is not responsible. Osborne, 329-330. See, Vrabel v. Acri (1952), 156 Ohio St. 467, 474; Szydlowski, 305. Wilful and malicious acts of an employee, however, are not always removed from the scope of employment. Osborne, 330, citing Stranahan Bros. Catering Co. v. Coit (1896), 55 Ohio St. 398, 410; Wiebold Studio, Inc. v. Old World Restorations, Inc. (1985), 19 Ohio App.3d 246. For the employer to be held responsible under these circumstances, the acts must be "'so divergent that [they sever] the relationship of employer and employee.'" Osborne, 330, quoting Wiebold, 250. See, Amstulz v. Prudential Ins. Co. of America (1940), 136 Ohio St. 404; Thomas v. Ohio Dept. of Rehab. & Corr. (1988), 48 Ohio App.3d 86. The question whether an employee is acting within the scope of employment is commonly a question of fact for the jury. Osborne, 330; Posin, paragraph two of the syllabus; see, Malone v. Courtyard by Marriott, L.P. (1994), 95 Ohio App.3d 74, 89. Nonetheless, the question becomes one of law when the facts are undisputed and there is no possibility of conflicting inferences. Osborne, 330 (citing case law from the state of California). In the present case, it is not contested that Gary, in a supervisory capacity, would be acting within the scope of employment if he disciplined Czubaj for work-related reasons. In light of Czubaj's claim that Gary's abusive behavior was -14- intentional, the behavior had to be calculated to facilitate or promote Epic's business in order to hold Epic responsible under the doctrine of respondeat superior. See, Osborne; Byrd. The record does not demonstrate, however, that Gary's outbursts, whether directed at Czubaj, or any other employee, were "calculated to facilitate or promote" Epic's business. What the record illustrates is that these outbursts were unprovoked, spontaneous, and most certainly uncontrollable. As such, we fail to find any evidence of calculation on the part of Gary. We recognize that if Epic's actions after Gary's outbursts show that it accepted his conduct as proper disciplinary procedure, Epic could have ratified the conduct. See, Evans, 66; Dorsey v. Morris (1992), 82 Ohio App.3d 176, 179; see, also, Pennsylvania RR. Co. v. Deal (1972), 116 Ohio St. 408; State v. McDaniel (1975), 44 Ohio App.2d 163, 174. Gary's intent could then be imputed to Epic. See, Dorsey, 179. However, ratification was not established at trial considering the lack of any evidence that Neff Fremont condoned Gary's actions. Quite to the contrary, testimony revealed that Neff, who was also a recipient of Gary's verbal tirades, often disciplined him, including ordering him to take time off without pay. See, Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486 (even if employee acted outside scope of employment, employer may be liable for employee's acts if employer fails to take corrective action against employee who poses threat of harm to fellow employees). We conclude, construing the evidence most strongly in favor of -15- Czubaj, that reasonable minds could come to but one conclusion that Gary acted outside the scope of his employment when he confronted Czubaj at Epic's office. Gary's acts were not calculated to facilitate or promote Epic's business. As reprehensible as Gary's actions may seem, as a matter of law, Epic's reactions to his conduct fails to establish that it is liable under the doctrine of respondeat superior. Osborne; Byrd. The trial court, therefore, should have granted appellants' motion for judgment notwithstanding the verdict pursuant to Civ.R. 50(B) as to Epic's liability. Osler; Posin. Czubaj submits in this appeal that she did not solely charge Epic with liability based upon the doctrine of respondeat superior. She argues that Epic was severally liable on her claim for intentional infliction of emotional distress because Gary committed the tort as a supervisor, i.e., while carrying out corporate policy, and Neff forced her to prepare the documents at issue. The joint tortfeasor theory is premised on the following language found in American Ins. Group v. McCowin (1966), 7 Ohio App.2d 62: "'*** when the tort is committed in accordance with the express orders of corporate officers or agents carrying out corporate policy, the corporation is a joint tort-feasor, ***.'" (Emphasis sic.) Id., 65, quoting Pacific Employers Ins. Co. v. Hartford Accident & Indemnity Co. (1956), 228 F.2d 365, 373, certiorari denied (1956), 352 U.S. 826, 77 S.Ct. 38, 1 L.Ed.2d 49. However, the sentence following this one reads: "'*** if the tort is the undirected act of the employee acting within the scope of his employment, the corporation -16- is liable solely under the doctrine of respondeat superior.'" Id. Our review of the complaint, the arguments of counsel at trial, and the parties' briefs on appeal, discloses that Czubaj's emotional distress claim is premised upon the following alleged culpable conduct: Gary's conduct toward her in the office; Neff's allowing the conduct to continue; and Neff's insistence that she prepare "illegal" tax returns and workers' compensation reports. Considering our conclusion that Epic did not ratify Gary's conduct, her only right to recovery against Epic for intentional infliction of emotional distress would be based upon the document preparation and/or Gary's carrying out corporate policy while abusing Czubaj. We, however, reject the allegedly forced "illegal" document preparation as a basis for recovery in appellants' third assignment of error, infra. More importantly, we previously concluded that Gary's actions toward Czubaj were not in any way related to corporate policy. Appellants' second assignment of error is sustained. B. In their first assignment of error, appellants assert that the trial court erred in denying their motion for judgment notwithstanding the verdict as to the damages rendered against Epic. In light of our conclusion that the trial court erred in not granting Epic's motion for judgment notwithstanding the verdict, we vacate the award of damages against Epic in the amount of $177,225. -17- The issue presented in this assignment, i.e., whether the damages against a master are limited to the damages awarded against the servant under the doctrine of respondeat superior is otherwise moot. We, therefore, have no need to review it. App.R. 12(A)(1)(c). C. Appellants' seventh assignment of error pertains to the jury's interrogatories. The twentieth through twenty-second interrogatories questioned, respectively, whether the jury found that Czubaj was constructively discharged as a result of either Neff or Gary creating working conditions so difficult and unpleasant because of her age; or if Neff and/or Gary made her working conditions intolerable as a result of age discrimination. The jury responded negatively to these interrogatories. Appellants argue that the jury's verdict on Czubaj's intentional infliction of emotional distress claim is, therefore, inconsistent with the interrogatories because the jury found that neither Neff nor Gary made Czubaj's working conditions intolerable. Appellants cite Civ.R. 49(B) in support of this assignment. This rule reads as follows: When the general verdict and the answers [to interrogatories] are consistent, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When one or more of the answers is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. The procedure set forth in this rule is only meant to govern -18- the relationship between a specific verdict and the answers to the corresponding interrogatories. See, Kenney v. Fealko (1991), 75 Ohio App.3d 47, 53. Civ.R. 49(B) is thus inapplicable to the present case where the jury returned more than one general verdict, and the questioned interrogatories address only the unchallenged verdict. Id. The Kenney court nonetheless recognized that in limited situations, a trial court can order either a new trial or judgment notwithstanding the verdict when the jury renders conflicting verdicts on multiple claims. Id., citing Miller v. Scott (1952), 66 Ohio Law Abs. 308, 117 N.E.2d 179. However, relief is only available where the claims are so interrelated that the conflicting verdicts are illogical under the facts of the case. Id., 54; see, also, Kaye Bros. Pet Supply Co. v. Calvon Corp.. (Oct. 2, 1980), Cuyahoga App. No. 42083, unreported. The interrogatories in question clearly were directed to Czubaj's age discrimination claim, not her intentional infliction of emotional distress claim. The elements necessary to prove liability on age discrimination claims are distinct from those necessary to prove intentional infliction of emotional distress. Simply because the jury determined that Czubaj's working conditions were not intolerable because of age discrimination does not mean that her working conditions in general were not intolerable. We thus decline to adopt appellants' "inconsistency" argument. Compare, Russ (no conflict in jury's determination that no outrageous conduct accompanied plaintiff's termination and -19- determination that defendant engaged in outrageous conduct). Moreover, remedies under Civ.R. 49 cannot be exercised once the jury is excused; a party's objections to interrogatories must, therefore, be raised while the jury is still empaneled and the trial court possesses a full range of options before it. Shoemaker v. Crawford (1991), 78 Ohio App.3d 53, 61, citing Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207. A party's failure to timely object to alleged inconsistencies in the jury's interrogatories constitutes waiver of the claimed error. Id. The interrogatories in question, therefore, did not require the trial court to grant appellants' motion for judgment notwith- standing the verdict. Appellants' seventh assignment of error is thus overruled. IV. Appellants, in their third assignment of error, challenge the jury's verdict on Czubaj's intentional infliction of emotional distress claim based upon the weight of the evidence. Epic and Gary first contend that Gary merely exercised his legitimate right to criticize Czubaj's work performance, and his conduct, therefore, 4 did not rise to the level necessary to support the jury's verdict. Appellants moreover propose that Czubaj's testimony contradicts her allegation that she suffered from emotional distress almost immediately after being hired by Epic, because she remained in the 4 Appellants also repeat the argument presented and accepted in their second assignment of error, i.e., Epic is not liable under the doctrine of respondeat superior. -20- 5 position for almost twenty years without complaint. Appellants thus seek a reversal of the jury's verdict. The merits of this assignment of error turn on two issues. The first issue is whether Epic and/or Gary engaged in extreme and outrageous conduct beyond all possible bounds of human decency. Our review of the evidence presented at trial convinces us that the 6 evidence does not support the verdicts against Epic and Gary on Czubaj's intentional infliction of emotional distress claim. Therefore, we are not compelled to consider the second issue of whether Czubaj produced sufficient evidence to establish that she suffered serious mental distress, to wit, severe and debilitating anguish of a nature that no reasonable person could be expected to endure. This court set forth the essential elements that Czubaj was required to prove in order to recover on her intentional infliction of emotional distress claim in Ashcroft v. Mt. Sinai Med. Ctr. (1990), 68 Ohio App.3d 359, 366: A claim for intentional infliction of serious emotional distress requires proof of four elements: "*** 1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the 5 Appellants also suggest in this assignment that the jury's interrogatories demonstrate that its verdict is against the manifest weight of the evidence. The interrogatories were discussed, supra, in appellants' seventh assignment of error. 6 The only conduct at issue with regard to Epic in this assignment of error is the allegedly forced preparation of tax returns and workers' compensation reports as a result of our ruling in appellants' second assignment of error. -21- plaintiff; 2) that the actor's conduct was so extreme and outrageous as to go 'beyond all possible bounds of decency' and was such that it can be considered as 'utterly intolerable in a civilized community.' Restatement of Torts 2d (1965) 73, Section 45, comment d; 3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that 'no reasonable man could be expected to endure it,' Restatement of Torts 2d 77, Section 46, comment j." Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34, 11 OBR 63, 66, 463 N.E.2d 98, 103. See, also, Dickerson v. Internatl. United Auto Workers Union (1994), 98 Ohio App.3d 171. Ohio has adopted Section 46(1) and (2) of the Restatement of Law 2d, Torts (1965), and the comments thereto as standards to be used in deciding emotional distress cases. Comment d of the Restatement, in describing the standard, reads as follows: "[I]t has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!' "The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There still must be freedom to express an unflattering opinion, and some safety valve must be left -22- through which irascible tempers may blow off relatively harmless steam. ***" Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374-375. Followed in Reamsnyder v. Jaskolski (1984), 10 Ohio St.3d 150, 153; Ashcroft, 366; Pyle, 34. Comments e and f to the foregoing section of the Restatement are also relevant to this appeal. They state: "The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to effect his interests. *** "The extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know. It must be emphasized again, however, that major outrage is essential to the tort; and the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough." Foster v. McDevitt (1986), 31 Ohio App.3d 237, 240. However, the aforementioned comments must be balanced against comment g to Section 46 of the Restatement: "The conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress. ***" Id., 239. In the present case, testimony revealed that Gary primarily focused his questionable behavior on Czubaj, but for the most part, -23- his confrontations with her were based on work performance. As distasteful and reprehensible as Gary's actions may seem, his conduct fails to establish the outrageous character necessary to find him liable on Czubaj's intentional infliction of emotional distress claim. Compare, Boggs v. Avon Products, Inc. (1990), 56 Ohio App.3d 67 (extreme and outrageous conduct constituting intentional infliction of emotional distress not proved by employer pressuring employee and demanding more of him than other employees); Sacco v. United Parcel Service, Inc. (Oct. 10, 1991), Cuyahoga App. Nos. 59071, 59072, unreported (defendant merely exercised legitimate right to criticize and correct its employee, therefore, conduct not outrageous); Shrader v. McGonigal (Mar. 20, 1990), Clark App. No. 2584, unreported (extreme and outrageous conduct not shown through tag team questioning by supervisors and repeated references to termination); Voisard v. Noble (Feb. 23, 1990), Auglaize App. No. 2-88-1, unreported (employer's allegations of substandard job performance not sufficient to show outrageous conduct); Webb v. Ohio Casualty Ins. Co. (Apr. 16, 1990), Butler App. No. CA89-07-109, unreported (frequent and harsh criticism of employee's job performance not outrageous acts). Furthermore, the distress must be reasonable and justified under the circumstances, i.e., that there is no liability if Czubaj suffered exaggerated and unreasonable emotional distress. See, Dickerson, 183; Lynn v. Allied Corp. (1987), 41 Ohio App.3d 392, 401; Restatement of the Law 2d, Torts (1965), Section 46, comment j. The allegedly exaggerated and unreasonable emotional distress, -24- however, forms a basis for recovery if it results from a peculiar susceptibility of which the actor has knowledge. Id. The case herein demonstrates that assuming arguendo that Czubaj suffered serious emotional distress, there is no evidence which shows that Gary had any knowledge that Czubaj would suffer such distress. In other words, while it may have been true that Gary knew that Czubaj became upset following an episode, there was no evidence that Gary knew she would eventually be unable to cope with the situation and suffer from severe emotional distress. See, Lynn, 401. In Foster, supra, a supervisor knew of Foster's heart condition. The supervisor, regardless of this knowledge, subjected him to excessively demeaning behavior, decreased pay, and a reduction of responsibilities. The supervisor moreover specifically stated to others that she knew she was abusing Foster, and intended to force him to quit. She subsequently ordered Foster to complete a task which normally required two people; she prohibited anyone else from helping him. Foster was later hospitalized after suffering heart problems. The supervisor threatened to fire him, and then fired him, because he did not return to work within two days as advised by her. Foster ultimately died of a heart attack. The evidence before this court fails to convince us that Gary's conduct amounted to the outrageous behavior described in Foster. Compare, Boggs (employer's conduct not outrageous when employer, aware of employee's physical and emotional problems, -25- harassed him and threatened to fire him, knowing the anxiety it created). Czubaj's evidence fails to demonstrate that Gary used his position of authority to intentionally cause her to suffer emotional distress or that Gary engaged in conduct that was "heartless, flagrant and outrageous," despite knowledge that she was susceptible to emotional distress. As to Czubaj's claim against Epic, the only basis for recovery would be based upon Neff Fremont's insistence that she prepare allegedly illegal tax returns and workers' compensation reports. Testimony was lengthy at trial with regard to the preparation of these documents. However, there was no evidence that Czubaj complained about the documents, and was nonetheless forced into preparing them, accompanied by threats of dismissal. Even if Czubaj complained, Epic's conduct was neither outrageous nor extreme as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society. In conclusion, we fail to find competent, credible evidence in support of the elements necessary for a claim of intentional infliction of emotional distress. The verdicts are thus reversed as being against the manifest weight of the evidence as to both Epic and Gary. Seasons Coal v. Cleveland (1984), 10 Ohio St.3d 77, 80; C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, syllabus; see, Felden v. Ashland Chem. Co., Inc. (1993), 91 Ohio App.3d 48, 63; Royer v. Bd. of Edn. (1977), 51 Ohio App.2d 17, 20. We appreciate Czubaj's heavy reliance on Dr. Seagraves' -26- testimony to prove that she suffered serious emotional distress as a result of work-related stress. She, in fact, emphasized his expert opinion in her motion for prejudgment interest, and in the hearing on the motion. Specifically, she charged that the appellants never challenged Dr. Seagraves' medical opinion either by having her examined by another psychiatrist, or by offering expert testimony which contradicted that of the doctor. However, the fact that Dr. Seagraves testified that Czubaj suffered from major depressive reaction and that it was caused by work-related stress does not prove, in and of itself, the tort of intentional infliction of emotional distress. Moreover, the appellants never absolutely disputed Czubaj's mental condition. They focused instead on her inability to prove that any of the appellants' acts were outrageous. Not only did Dr. Seagraves offer no opinion on this aspect of the case, he could not have done so because the outrageous nature of a defendant's acts for the purposes of an intentional infliction of emotional distress action is a legal question, not a medical one. Appellants' third assignment of error is accordingly sustained. V. Appellants question several of the trial court's evidentiary rulings in their fifth, sixth, eighth and ninth assignments of error. Specifically, they challenge Dr. Seagraves' right to testify as an expert witness; the introduction of testimony relating to the preparation of workers' compensation reports; and -27- the introduction of the reports themselves into evidence. A. Appellants argue in assignments five and six that Dr. Seagraves should not have been permitted to testify as an expert witness because his opinions were based on hearsay opinions of other physicians and reports not in evidence, and he otherwise failed to disclose the data underlying his opinion. Consequently, according to appellants, Czubaj would not have been able to prove her claim of intentional infliction of emotional distress without 7 Dr. Seagraves' improperly admitted testimony. They refer to Evid.R. 703 and 705 in support of these assignments. The rule governing the admissibility of expert testimony at 8 the time of trial was Evid.R. 702 : If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. It is within the sound discretion of the trial court to determine 7 This assertion by appellants is an inaccurate statement of the law. A plaintiff in an intentional infliction of emotional distress action may wish to present expert medical testimony which assists the jury in determining whether an emotional injury is serious. See, Paugh; Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 131. However, lay witnesses who are acquainted with the plaintiff may testify as to any marked changes in the plaintiff's emotional makeup following the culpable conduct. Paugh, 78; see, Dickerson, 183; Foster, 239. 8 Though Evid.R. 703 permits expert testimony, a threshold determination must first be made under Evid.R. 104(A) concerning the witness' qualifications. Appellants, however, do not attack Dr. Seagraves' qualifications to testify as an expert, only the basis for his opinions. -28- the admissibility of expert testimony on a case-by-case basis. Scott, 221, citing Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 157. Appellants' first challenge to Dr. Seagraves is based upon Evid.R. 703 which reads as follows: RULE 703. Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing. Appellants submit that Dr. Seagraves relied on hearsay evidence, i.e., Czubaj's medical reports and the impressions of her treating physicians, including those of Dr. Bari, in forming his diagnosis of Czubaj's condition. They argue, therefore, that Dr. Seagraves was prejudicially allowed to offer an expert opinion at trial which was based on the opinions of other experts because, in part, not all of Czubaj's medical records were admitted into evidence. Appellants misinterpret Evid.R. 703. The rule is satisfied if an expert bases an opinion, in whole or in part, on facts or data which is perceived by him or her. State v. Solomon (1991), 59 Ohio St.3d 124, 126; see, also, State v. Underwood (1991), 73 Ohio App.3d 834. The Supreme Court of Ohio noted in Solomon that Evid.R. 703 is written in the disjunctive, meaning opinions may be premised on either perceptions or facts or data admitted into evidence. The court also distinguished a case which is now cited by appellants, State v. Chapin (1981), 67 Ohio St.2d 427, by recognizing that there was no indication that the psychiatrists who -29- were called to testify in that case ever personally examined the defendant. Solomon, 126; see, also, State v. Jones (1984), 9 Ohio St.3d 123. Herein, Dr. Seagraves clearly testified that his initial diagnosis of Czubaj was based upon his own personal interview with her. In fact, he testified that he made the diagnosis without even being in custody of Czubaj's other medical reports. Moreover, Dr. Seagraves disagreement with Dr. Bari's final diagnosis of her condition refutes appellants' assertion that he based his opinion on that of Dr. Bari. Under these circumstances, Dr. Seagraves' expert testimony was properly admitted under Evid.R. 703. Appellants also rely on Evid.R. 705 which provides: RULE 705. Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give his reasons thereof after disclosure of the underlying facts and data. The disclosure may be in response to a hypothetical question or otherwise. Appellants focus on Dr. Seagraves' failure to provide all of Czubaj's progress reports as exhibits, as well as all of the third party reports "upon which his testimony was based." They argue, therefore, that Dr. Seagraves failed to disclose the facts and data which underlay his diagnosis of Czubaj. As stated supra, Dr. Seagraves testified that his opinion was primarily premised on his initial interview with Czubaj. Our review of the record reveals that Dr. Seagraves offered ample testimony as to how he concluded that Czubaj suffered from major depressive reaction, and thus we fail to find a violation of -30- Evid.R. 705. In conclusion, the trial court did not abuse its discretion by allowing Dr. Seagraves to offer expert testimony at trial, including his diagnosis. Appellants' fifth and sixth assignments of error are overruled. B. Appellants' eighth and ninth assignments of error relate to the workers' compensation reports prepared by Czubaj during her employ by Epic, and Czubaj's testimony at trial with regard to the reports. Appellants submit that the trial court abused its discretion in permitting the introduction of the reports into evidence because a previous judge denied Czubaj's motion to compel their production. The trial court, therefore, violated the law of the case doctrine. Moreover, appellants argue that the reports and Czubaj's testimony regarding them were irrelevant and prejudicial, and thus not admissible pursuant to Evid.R. 401, 403. We first reject appellants' arguments regarding the reports. The ruling on Czubaj's motion to compel documents was an interlocutory discovery ruling, not a ruling which definitively determined that the workers' compensation reports could not be admitted into evidence at trial. In other words, Judge Mahon failed to order appellants to produce the reports, but he did not determine their admissibility into evidence. Therefore, the law of the case doctrine is not applicable to this final determination that the workers' compensation reports could be admitted into evidence. -31- This court nonetheless doubts the relevancy of the reports under Evid.R. 401 because they had no "tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence." Though the reports were admitted to substantiate Czubaj's testimony that she was forced to prepare illegal reports, there was no testimony offered to confirm the improper preparation of the reports, e.g., through a bureau of workers' compensation employee. However, we do not find that the admission of the reports prejudiced appellants' defense since Czubaj herself offered testimony that she was forced to prepare illegal documents. We, therefore, do not find that the admission of the reports violated Evid.R. 403 because their "probative value is [not] substantially outweighed by the danger of prejudice, of confusion of the issues, or of misleading the jury." Pertaining to Czubaj's testimony on this matter, appellants are incorrect in stating that the testimony was irrelevant to the issues to be decided by the jury. One of Czubaj's claims at trial was that the forced preparation of the workers' compensation reports was such an outrageous act that it contributed to her mental condition. She did not merely claim that Gary's acts alone proximately caused it. Her testimony was, therefore, relevant under Evid.R. 401. The trial court, enjoying broad discretion in the admission and exclusion of evidence, did not abuse its discretion on these evidentiary rulings. This court will not reverse these rulings -32- absent a clear abuse which materially prejudices the objecting party. Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv., Inc. (1992), 81 Ohio App.3d 591, citing State v. Hymore (1967), 9 Ohio St.2d 122, 128, certiorari denied (1968), 390 U.S. 1024, 88 S.Ct. 1409, 20 L.Ed.2d 281; Humphrey v. State (1984), 14 Ohio App.3d 15, 18. Appellants' eighth and ninth assignments of error are accordingly overruled. VI. Appellants, in their fourth, tenth, eleventh and twelfth assignments of error, challenge the jury's award of compensatory damages, punitive damages and attorney fees, and the trial court's award of prejudgment interest against both Epic and Gary. Based upon our conclusion that the appellants are not liable on Czubaj's intentional infliction of emotional distress claim, we vacate all of these awards. Appellants' fourth, tenth, eleventh and twelfth assignments of error are sustained. In accordance with the foregoing, this court reverses the judgments against Epic and Gary on Czubaj's intentional infliction of emotional distress; vacates the awards against Epic and Gary for compensatory damages, including attorney fees and punitive damages; and vacates the awards of prejudgment interest. Final judgment entered in favor of defendants-appellants, Epic Steel and Gary Fremont. -33- APPENDIX 1. The Trial Court Erred to the Prejudice of Appellants in Denying Appellants' Motion for Judgment Notwith- standing the Verdict or in the Alternative for New Trial Because the Damage Award Against Epic Steel Should have been Limited to the Damage Award Against Gary Fremont Under the Principles of Respondeat Superior 2. The Trial Court Erred to the Prejudice of Appellants in Denying Appellants' Motion for Judgment Notwith- standing the Verdict or in the Alternative for New Trial Because Epic Steel is not Liable Under the Doctrine of Respondeat Superior for the Intentional Torts of its Employees 3. The Jury's Verdict that Epic Steel and Gary Fremont are Liable to Czubaj for Intentional Infliction of Emotional Distress was Against the Manifest Weight of the Evidence and Should Be Reversed 4. The Jury's Damage Award was Excessive and was Against the Manifest Weight of the Evidence 5. The Trial Court Erred to the Prejudice of Appellants in Admitting the Testimony of Appellee's Expert Witness Because His Testimony was Impermissibly Based on the Hearsay Opinions of Other Physicians and Reports not in Evidence 6. The Trial Court Erred to the Prejudice of Appellants in Admitting the Testimony of Appellee's Expert Witnesses [sic] Because he did not Disclose the Data Underlying his Opinion 7. The Trial Court Erred to the Prejudice of Appellants in Denying Appellants' Motion for Judgment Notwithstanding the Verdict or in the Alternative for New Trial Because There was an Inconsistency Between the Jury's Verdict and the Answers to its Interrogatories 8. The Trial Court Erred to the Prejudice of Appellants in Admitting Epic Steel's Workers' Compensation Reports Because, Under the Doctrine of the Law of the Case, Judge Mahon's Prior Ruling that the Reports Were Inadmissible was Binding on the Trial Court and Because they were not Relevant 9. The Trial Court Erred to the Prejudice of Appellants in -34- Allowing Testimony Concerning the Workers' Compensation Reports Because Such Testimony was Irrelevant 10. The Jury's Award of Punitive Damages Against Appellants was Against the Manifest Weight of the Evidence 11. The Jury's Award of Attorneys' Fees Against Appellants is Against the Manifest Weight of the Evidence 12. The Trial Court Erred as a Matter of Law to the Prejudice of Appellants in Awarding Prejudgment Interest to Appellee -35- It is ordered that appellants recover of appellee their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN T. PATTON, CHIEF JUSTICE JAMES M. PORTER, J., CONCUR JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza-tion, .