in favor of hoffman la roche on the claim of intentional infliction of emotional distress because the conduct that was the subject of this lawsuit is not even close to that very small slice of human behavior that meets the standard of liability in an intentional infliction claim of outrageous conduct which as the court well knows is conduct that is outside  possible bounds of decency and is regarded as utterly intolerable in a civilized community doing so in this case will not deny recovery to mr dawson or his state now he in his turn is have also already been paid over three hundred thousand dollars with the award of the judgment on his retaliation claim the cause of action for intentional infliction of emotional distress first appeared in form in one nine hundred forty six when the ally restatement of torts first incorporated into that body jurisprudence in this area i think it's important to look at the most recent restatement of torts third section forty six which has now been fully adopted for what it says about a allied because it's clear that the state of vata looks closely to it for guidance and some of the things they note about this particular tort is that first it is a catchall that would permit recovery in that narrow instance when an actor's conduct reaches this outrageous standard but an existing tort claim is unavailable the ally says it is one that can easily but often and appropriately be a as a supplement to another cause of action in which the gravel man is another tort or statutory violation certainly our situation in this case they also are concerned that because so many appropriate legal acts can and in fact do cause emotional harm that without some guidance this is a poor pick could be too expensive and one of the specific examples that the ally get this is terminations of an employee and often appropriate legal almost distress yes but of course we do not have here a mere germination and if this were merely a drama nation you'd be right that is correct rather it is our view that this is a case where there was less than terminations he was never terminated he had hoped when he went out on disability well then germination is off the table so we're not talking about termination we're talking about the conduct to which every was lee referred yes or at it and our view of that conduct and we think it goes to the central is that the conduct in  question is for the most part what we would call and what other courts in nevada have called personnel management activity that is those steps leading up to terminations but falling far short of you know had an interesting style for his personal management i was it that way your honor i would say that in the courtroom where it is not the workplace he did not come across as a particularly warm and fuzzy manager but there are lots of non warm and fuzzy managers in the world and i don't think that the intent of intentional infliction is to make for non stern managers me i think you know one thing i hear i hear your argument but then you have to go back and look at the trial and i take it that you agree that the jury instruction on intentional infliction was appropriate we're not challenging  trial and it seemed to me if you look at where the trial ended at the at the closing argument everything's devoted to everything but intentional infliction and here's what is said in closing argument you may recall on intentional infliction it comes at the very end and it's very short it says on intentional infliction the court has said you must find intentional infliction of emotional distress you must find that it was the intent in other words you must get into mr holloway and mr george and mr collins might ms collins mind and find they intended to inflict emotional harm and that's what the jury was told in conjunction with the jury instruction and then of course there's a large number that comes out of that and you know you said it he wasn't particularly warm and fuzzy we aren't there but we can read what was almost a throwaway argument on intentional infliction and the jury was there they heard the people they evaluated their credibility they evaluated basically as you said they got into the mind and it seems like would be hard pressed in light of how this went down to say well we have to say as a matter of law just ignore all that yes your honor i think you do i think because this should never have been submitted to the jury juries are not they have different frames of mind and the case law i believe and i believe the intent of the line is that we do not get to the jury but in the most rare case in intentional infliction of emotional distress cases that this should be a very rare time when that becomes a jury question in fact they point out in the l i comment that there is for example a lot of deference traditionally given to whether we submitted negligence case it would be almost here not that because you thought it should be dismissed as a matter of law you would just i mention it in passing to the jury i mean it's a major issue in the case was certainly turned out to be a major issue in the case your honor up trying the case where intentional infliction of emotional distress is still in the case at the end is a very difficult task for the trial or and my judgment as it turned out perhaps was not a perhaps should have argued it more forcefully but the real point is that the considerations of a jury are much different in considerations of the jurist right  but also at this stage we have to look for substantial evidence we operate under a different standard we're not going to retry the case were for you and i'm not asking that to write it but i mean when you say image as a general matter very fact specific cases there's no question and so there are cases that can be called decide on almost anything but if you step back and try to look at a survey of nevada law both from the district courts where a large body of nevada law comes and from the state supreme court it appears to us that there is this body of law that does set personnel management activity which are those steps that are question here less then termination alone is not sufficient certainly the case law it ation alone is not sufficient in every case where there has been a positive holding for intentional infliction of emotional distress there has been what i would call a plus factor and they generally fall into three categories one is where there was physical harm threatened to the point of second is where we have a historically category that has been subject to grace and gender discrimination sexual harassment cases for example are often submitted on the grounds intentional infliction and sexual harassment as well so are racially ten judged outburst are often submitted well let me let me ask you more specifically about nevada law because all the categories you cite are are definitely true i mean that's those are cases that the ellard they basically say ok number one you can have this tour in the employment context so we all agree i think even the panel agree on that and then they said there was substantial evidence to support and this was a deal where  e this refusal to put this individual back in that area sales manager position occurred and there was no racial slur or or you know any kind of protected category problem or anything it was it was as the court says above having to do with employment terminations so i guess i'm having a problem with squaring what you know from the outside i might view this as a pretty much a garden variety employment case the nevada supreme court says it's ok to have this toward so did you expect would you elaborate on that i would your honor the dillard case i think is a prime example actually has i think two of the three what i would call plus categories the first is physical harm she was actually ordered back to work by her supervisor when she had not been released by her doctor after hurting her back at the work and so there was a risk that the employer had attempted to physically harm or so that would be one category but the third category i had not yet reached your honor was public chameleon a ship and that is clearly a plus factor that is not present in our circumstances and so when they figure triggering episode occurred in public that was not public it was not in public all of the peep the record is clear that the backs of the people were it was her public they may not have seen it that is correct and it was not a jury question no your honor that if the single fact of walking by and making that gesture is intentional infliction of emotional distress i think that throws out the whole body of  a law that says it is limited to the most rare of circumstances and in that case what mr dawson testified to was that his fault was that means i'm about to be fired so i think the beckwith case is important your honor but i think it is clearly distinguishable from our facts because it has two of the plus categories there was public humiliation in two separate ways in dillard first the person was reduced from a sales manager position all the way down to the lowest sales position and should held this position for twenty years nothing comparable in our case secondly she was told to leave a meeting that she had attended regularly for one remind us how long he'd been with the company he had been with the company for about seventeen or eighteen years so maybe a couple years short of twenty yeah he was somewhat  game he graduated from the university of toledo he when he got an m b a in one nine hundred ninety he was married for forty years to his high school sweetheart he was a division sales manager and you had a very successful career in a span of a few short years his doctor would be testifying on the on the stand that this was now a changed man a broken man a shell of the man that he used to be and that's what the jury heard and the judge in this case made the proper decision he listened to the arguments on part of opposing counsel six times this is the sixth time that i've heard the same arguments that i should never have been submitted to the jury but i think your honor made a significant point in looking t jury verdict there's a critical point here that it is not disputed that the actions of the defendant in this case were intentional there's no dispute that the jury very  the answer is yes why does this matter under intentional infliction of emotional distress in nevada law there is three elements that you must be prudent and this is in dillard and the judge junior judge  dawson properly applied this first extreme and outrageous conduct with either the intention or reckless disregard for causing distress back in the plane just having suffered severe emotional terrified of his supervisor this was as early as december of two thousand and seven randy gossett submitted a complaint a written complaint that said my supervisor is aggressive and i am threatened by him and he were repeatedly tells hofman the roche in his communications that you know this guy is out to get me i am afraid of him and what do they do they put him on a performance improvement plan that is super man that mr randy dos it believes is threatening him this aggressive towards him that talks to him in a demeaning and threatening manner in fact mr gosset notified hofmann laroche that this  affecting him ultimately he went out on this ability leave and the evidence says it's because of a work related stress the doctor testified to that that he that everything led up over a period of years your honor we're not talking about months but over a period of years of repeated over repeatedly being subjected to this threatening behavior and aggressive behavior on part of james holloway your honour's also mentioned the fact that there was a guest a hand gesture that was made in the form of a gun and the trigger was pulled so you know i mean the record you have yelling and cursing and the hand gesture what else do you have well i'm just focusing on the conduct not on your client's reaction to the sure and the conduct if we put the handgun guessed right into context although the testimony was that the people's backs were turned were turned and that they could not see him the fact is that randy knew mr gossett knew and that james holloway walked by a room full of people knowing that at any moment the room full of people could have seen him and if randy felt humiliated internally in front of a roomful of people that's humiliation in that doesn't take away from the fact that he was humiliated in a venue you know when one of the difficulties too is that almost any employee situation the people feel humiliated mad irritated distressed by an adverse employment action so i think mr fox is saying you have to draw the line somewhere between what literally happens in almost any case where they make an adverse condition against you in your employment and one where you would allow a supplemental tort to take hold and the difficulty here is whether there's enough evidence to push it into that properly applied the dillard standards here in looking at this case like dillard there was a reduction in pay although the defendants beef does not recognize that there was a reduction in pay which is  dillard this was a longtime employee just like my client this was an employee that suffered humiliation there was no requirement in dealers that you had to have public humiliation it was a particular requirement but nevada law it's hard to say that personnel management actions ordinary personal management actions would include putting up with an aggressive threatening terrifying supervisor who ultimately pulls the gun pulls the trigger on you at the end of the gate well how did you do that was terrifying and specifically my client testified that what he was terrified is that his demeanor the way he interacted with my client when they did interact my client felt that he was very aggressive by saying i'm not going to take this shit anymore i'm not going to put up with  it's hard to say when you're not in that particular situation but one can imagine by the effect that it had on my client that he was threatened that this person was aggressive and i think that that's what the jury saw but i think that does happen a lot in the workplace no question about it you have a lot of biases so yell at their employees and that doesn't always give rise to a tart so tell me what takes it out of a normal although regrettable workplace environment these acts were intentional and they were done in an environment of retaliation there is no dispute here that retaliation was an issue so when you can prevail on a tally action which is not on appeal so it seems to me you have to take take that retaliatory conduct a little bit out of this equation because we're talking about a separate story but i think we carry a should matters to the extent that you're looking at the intent and what was the the motive that the under that was underlying all of these actions why did they do this when you're talking about ordinary you know routine personal management activity perhaps you would do it in a neutral way or apply it in a neutral application of policies not in a way that i am going to apply this because i want to retaliate against i want to get this guy because of what he did to me and i'm going to do it intentionally so there is a difference there this is hardly an issue of routine personnel management activity and also deal it is what applies here and i think that judge dawson properly pointed out the similarities between this case and d and i think dillard is a political in this case you know the trial plaintiff did provide his own testimony about what happened the testimony of his doctor the change of his behavior in character at the time of defendant's actions that he was diagnosed with post traumatic stress disorder and experienced physical symptoms heart problems and all of which supported the elements of his  distress so what that means is important to go back to the standard and this was articulated by judge das and under the standard there is there is not just the defendants have not been able to show that jury could not have found any other way could you help me understand the extent that there's any evidence here that mr holloway's behavior or perhaps the company's behavior might have been rotovator by the fact das was coming up to a period after if he makes a certain number of years his pension bumps up what evidence was there if you me in front of the jury on that question i don't believe there were any evidence presented regarding the benefits portion but mr gosset did believe that because of the actions of mr holloway that he was ineligible for variable pay and that resulted in loss of ben jury but there was no specific testimony about some amount or change in retirement is that correct there was testimony regarding loss of variable pay but not in terms of it wasn't quantified in other words it was talked about correct ok also is there some is there some of your version of the actual head rule buried and intentional infliction of emotional distress by that i mean if we have someone who is for various reasons vulnerable does the standard of objective behavior change in terms of what's required because certain objective  affect more vulnerable people more severely is there something in that a law that tells us that i thought aware of anything in nevada law but that certainly makes sense your honor to the extent that i is a tort and and as with any tort you do take the plaintiff as you take them but in the context of employment law i think i think this case does rise to the level of extreme and outrageous that's what you have to look at because if you if you just talk about the actual rules and then you know the pandora's box of evils that the defendant talks about might might come into play there so there is no specific nevada law in terms of the actual  attended for a long time but the record reflected that there after she was made fun of by coworkers talking about her situation where she had been publicly exited and publicly demoted in such a grand fashion so it falls squarely within one of those three plus categories that are not here i think it's important that the court was asking for a recitation of the facts and i think it is important to realize a couple of things one mr dawson and mr holloway lived and office did one in california and one in vegas they only interacted in person three to six times per years at regional meetings this is not a daily torment type situation and boiled down the bulk of the problem in this case was to write ups which one resulted in a loss of pay but it was we're talking six thousand to three thousand dollars not massive reductions like a forty percent reduction that occurred in dillard three favorable reviews being offered a severance package or a pip those are personnel actions that happen every day as  noted outside those we have two actions where he raised his voice early on he continued to work for three years and the gun gesture those are not the sort of facts that should lead a jurist looking at the case deciding whether it should go to court to say this is outrageous i believe that is the test this also would send a terrible message to employers because it's clear terminations is appropriate and you can see that is not the basis for liability if you instead keep someone on it and try to rehabilitate then as plaintiff's lawyer said in his opening this was death by a thousand paper cuts an affirmation of this decision will tell employers that the action they should take is to terminate not try to rehabilitate because terminations is foolproof against a claim of intentional infliction but engage in a protracted period of trying to rehabilitate and you put yourself at risk we would ask the court to direct judgment in favor of