Phung v. Waste Management, Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO

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Phung, Appellee and Cross-appellant, v. Waste Management,
Inc., Appellant and Cross-appellee.
[Cite as Phung v. Waste Management, Inc. (1994), Ohio St.
3d .]
Witnesses -- Trial court abuses its discretion in denying
request to present rebuttal witnesses, when.
(No. 93-936 -- Submitted October 11, 1994 -- Decided
December 27, 1994.)
Appeal from the Court of Appeals for Sandusky County, No.
S-91-48.
On April 30, 1981, appellee, Dr. Peter L. Phung, was
discharged from his employment with appellant, Waste
Management, Inc. ("WMI"). On June 1, 1983, Phung filed a
wrongful-discharge claim and an
intentional-infliction-of-emotional-distress claim against WMI
in the Court of Common Pleas of Sandusky County. The trial
court dismissed the wrongful-discharge claim for failure to
state a cause of action. The Court of Appeals for Sandusky
County reversed the trial court's dismissal. The Supreme Court
of Ohio reversed the appellate court's judgment and reinstated
the trial court's dismissal. Phung v. Waste Mgt., Inc. (1986),
23 Ohio St.3d 100, 103, 23 OBR 260, 263, 491 N.E.2d 1114, 1117.
On leave of the trial court, Dr. Phung amended the
portions of his complaint addressing wrongful discharge. The
trial court then dismissed both the wrongful-discharge and
intentional-infliction-of-emotional-distress claims. The court
of appeals affirmed the dismissal of the wrongful-discharge
claim, but reversed the dismissal of the
intentional-infliction-of-emotional-distress claim and remanded
the cause to the trial court. Phung v. Waste Mgt., Inc.
(1988), 40 Ohio App.3d 130, 532 N.E.2d 195. The Supreme Court
of Ohio denied Dr. Phung's motion to certify the record. Phung
v. Waste Mgt., Inc. (1988), 38 Ohio St. 3d 702, 532 N.E.2d 1317.
On remand to the trial court, Dr. Phung moved to proceed
to trial on the dismissed wrongful-discharge claim. The trial

court overruled that motion and the case proceeded to trial on
the intentional-infliction-of-emotional-distress claim. The
jury returned a verdict in favor of WMI, and the trial court
entered a judgment accordingly.
The court of appeals affirmed the trial court's decision
not to proceed to trial on the dismissed wrongful-discharge
claim. The appellate court, however, reversed the judgment
entered on behalf of WMI because it found that, during trial,
Phung was improperly denied the opportunity to present two
witnesses to rebut the testimony of WMI's expert witness. The
appellate court then ordered a new trial on Dr. Phung's
intentional-infliction-of-emotional-distress claim.
This cause is now before this court upon a motion and a
cross-motion to certify the record.

Murray & Murray Co., L.P.A., Dennis E. Murray, Sr., and
Kirk J. Delli Bovi, for appellee and cross-appellant.
Vorys, Sater, Seymour & Pease, Thomas B. Ridgley and Gail
C. Ford, for appellant and cross-appellee.

Pfeifer J.
I
We must first determine whether the trial court abused its
discretion when it denied Dr. Phung's request to present the
testimony of his sister, Betsy Phung, and his first wife, Faye
Phung, to rebut the testimony of WMI's expert witness, Dr.
Elissa P. Benedek. For the following reasons we conclude that
the trial court abused its discretion.
A
When Dr. Phung's counsel indicated he would be calling the
two witnesses, counsel for WMI objected, contending that the
witnesses' rebuttal testimony would be cumulative and, thus,
unnecessary. Additionally, WMI argued that Dr. Phung was
precluded from presenting the witnesses because they were not
on a witness list. We disagree with both of WMI's contentions.
1
Cumulative Nature of Testimony
WMI contends the trial court was not required to permit
Dr. Phung's sister and his first wife to testify because the
two witnesses in their testimony would address those matters
that Dr. Phung was permitted to address during his rebuttal
testimony. Thus, WMI contends that the testimony of the two
witnesses would have been cumulative and unnecessary.
Dr. Phung's counsel offered the testimony of Betsy Phung
and Faye Phung, among other things, to rebut Dr. Benedek's
testimony. During trial, Dr. Benedek concluded that Dr.
Phung's delusional condition was caused and began to evidence
itself prior to Dr. Phung's employment with WMI. Dr. Benedek
based her conclusion on certain facts that she had learned from
conversations with Dr. Phung and that she believed to be true:
Dr. Phung observed dead bodies when living in Viet Nam, Dr.
Phung threatened and beat his first wife, Dr. Phung's
immigration was a stressful occasion, and Dr. Phung disputed
the parentage of his first son when the child was born. Dr.
Benedek believed these facts learned from Dr. Phung to be true
because she claimed that she was able to separate fact from
fiction as a trained clinician.

While it is true that Dr. Phung's rebuttal testimony
contested the truth of these facts relied on by Dr. Benedek,
this testimony was of minimal value. One of the few things
that the parties agreed to at trial was that Dr. Phung was
delusional, living in his own state of reality. Nevertheless,
WMI argues that Dr. Phung was the ideal witness to refute the
testimony of Dr. Benedek. We disagree. Dr. Phung should have
been entitled to present non-delusional, rebuttal witnesses to
contest the truth of the facts on which Dr. Benedek relied.
The testimony of the two rebuttal witnesses was crucial, not
cumulative, and should have been admitted by the trial court.
2
Requiring Rebuttal Witnesses to be on Witness Lists
WMI also contends that it was proper for the trial court
to exclude the rebuttal testimony of Faye Phung and Betsy Phung
because the two witnesses were not on the court's witness
list. We disagree.
A party has an unconditional right to present rebuttal
testimony on matters which are first addressed in an opponent's
case-in-chief and should not be brought in the rebutting
party's case-in-chief. See Katz v. Enzer (1985), 29 Ohio
App.3d 118, 29 OBR 133, 504 N.E.2d 427. Because the testimony
of the two witnesses fulfills both of these criteria, it should
have been admitted by the trial court.
The rebuttal witnesses were introduced to rebut matters
first alleged in WMI's case-in-chief. During its
case-in-chief, WMI presented Dr. Benedek's testimony to prove
an alternative cause of Dr. Phung's delusional condition. The
testimony of Faye Phung and Betsy Phung was offered to rebut
the factual basis for Dr. Benedek's theory of an alternate
cause.
The testimony of the two witnesses was properly offered in
rebuttal and not in Phung's case-in-chief. Matters which the
plaintiff bears the burden of proving are properly presented in
plaintiff's case in chief. R.C. 2315.01. In a case for
intentional infliction of emotional distress, a plaintiff must
prove: (1) that the defendant intended to cause the plaintiff
serious emotional distress, (2) that the defendant's conduct
was extreme and outrageous, and (3) that the defendant's
conduct was the proximate cause of plaintiff's serious
emotional distress. See Reamsnyder v. Jaskolski (1984), 10
Ohio St.3d 150, 10 OBR 485, 462 N.E.2d 392. Thus, in this
case, Dr. Phung would be required to present evidence that WMI
caused or exacerbated his mental distress. The testimony of
Betsy Phung and Faye Phung, however, was not introduced to
reinforce Dr. Phung's contention that WMI caused his delusional
condition; instead, this testimony was offered to rebut WMI's
contention that Phung's condition was caused by something other
than his employment with WMI. Thus, the testimony of these
witnesses was properly offered in rebuttal and not in Dr.
Phung's case-in-chief.
Betsy Phung and Faye Phung were proper rebuttal
witnesses. Dr. Phung had a right to present their testimony to
the extent it rebutted Dr. Benedek's testimony. The fact that
counsel for Dr. Phung never placed the names of the two
witnesses on the court's witness list is immaterial.
When the trial court deprived Dr. Phung of his right to

call a rebuttal witness, it was acting in an unreasonable and
arbitrary manner and, thus, abused its discretion.
B
WMI contends that even if the trial court erred when it
refused to allow the two rebuttal witnesses to testify, the
error was not prejudicial. WMI argues that even if the
testimony of the two witnesses was offered to rebut Dr.
Benedek's testimony about the causation of Dr. Phung's mental
illness, the jury entered its verdict not because it agreed
with Benedek's conclusion that WMI had not caused Dr. Phung's
illness but because it found WMI did not breach the standard of
care it owed to Dr. Phung. In support of its contention, WMI
notes that the jury provided a negative answer to the following
interrogatory:
"Do you find that plaintiff has proven by a preponderance
of the evidence that defendant intended that its conduct would
cause serious emotional distress to plaintiff or that defendant
knew, or should have known, that its action would result in
serious emotional distress to plaintiff?"
We disagree with WMI's interpretation of the jury's answer
to this interrogatory. It is unclear why the jury answered the
interrogatory the way it did. The jury could have agreed with
Dr. Benedek's unrebutted assessment that Dr. Phung was already
delusional when he began to work at WMI. Thus, the jury may
have concluded that the employees of WMI could not have known
that their behavior would likely cause emotional harm to Dr.
Phung. In such a case, the jury would have answered "no" to
the interrogatory, despite the fact that the interrogatory was
worded to elicit the jury's determination of whether WMI
breached its standard of care.
The negative answer to the jury interrogatory does not
conclusively support WMI's contention that Dr. Phung was not
prejudiced when the trial court failed to allow the rebuttal
witnesses to testify.
Instead, it appears that the absence of witnesses to rebut
those facts that Dr. Benedek relied on when she concluded that
WMI did not cause Dr. Phung's delusional condition was very
prejudicial. Faye Phung and Betsy Phung were the only two
non-delusional witnesses at trial who were capable of
testifying about those events that Dr. Benedek claimed had
caused Dr. Phung's delusional disorder.
The trial court committed a reversible error when it
failed to allow Faye Phung and Betsy Phung to testify as
rebuttal witnesses to Dr. Benedek's testimony.
II
For the following reasons we determine that the doctrine
of res judicata precluded the trial court from proceeding to
trial on Dr. Phung's dismissed wrongful-discharge claim.
Section 19 of 1 Restatement of the Law, Judgments 2d
(1982) 161, sets forth the following rule regarding the impact
of res judicata when judgment is entered in favor of a
defendant:
"A valid and final personal judgment rendered in favor of
the defendant bars another action by the plaintiff on the same
claim."
By applying the Restatement rule to the present case, we
hold that our 1988 decision to overrule Dr. Phung's motion to

certify the record constituted a valid and final judgment which
dismissed Dr. Phung's wrongful-discharge claim.
The fact that our action was not a final disposition of
Dr. Phung's entire case -- his
intentional-infliction-of-emotional-distress claim remained
remanded for trial -- is irrelevant. The Restatement of
Judgments 2d, supra, at 134, Section 13, Comment e states in
part that:
"[a] judgment may be final in a res judicata sense as to a
part of an action although the litigation continues as to the
rest."
When this court overruled Dr. Phung's motion to certify,
res judicata precluded the relitigation of his
wrongful-discharge claim but allowed his
intentional-infliction-of-emotional-distress claim to
continue.
Dr. Phung contends that public policy creates an exception
to the law regarding finality of judgments and that he falls
within this exception. We disagree.
In support of his contention, Dr. Phung notes that since
his termination, the General Assembly has enacted Ohio's
Whistleblower's Protection Act. R.C. 4113.51 through 4113.53.
In oral argument, Dr. Phung's counsel noted that, after we
denied Dr. Phung's motion to certify the record in Phung v.
Waste Mgt., Inc. (1988), 38 Ohio St. 3d 702, 532 N.E.2d 1317,
we broadened the public policy exception to the
employment-at-will doctrine in Painter v. Graley (1994), 70
Ohio St.3d 377, 639 N.E.2d 51. Dr. Phung argues that his case
should be reopened and this new law should be applied to his
wrongful-discharge claim.
While we acknowledge that there is an exception to the
rule of res judicata relating to subsequent developments in the
law. This exception is extremely narrow and not applicable to
Dr. Phung's case. In Natl. Amusements, Inc. v. Springdale
(1990), 53 Ohio St.3d 60, 558 N.E.2d 1178, this court held that:
"Generally, a change in decisional law which might
arguably reverse the outcome in a prior civil action does not
bar the application of the doctrine of res judicata. Since the
doctrine of res judicata serves important public and private
interests, exceptions to the doctrine's application should be
narrowly construed." Id. at syllabus.
In Natl. Amusements, we examined an exception to res
judicata when there has been "'a fundamental change in the
controlling law.'" Id. at 62, 558 N.E.2d at 1180. While we
acknowledged the existence of such an exception, we found that
it was applicable only to some cases involving changes in
constitutional law, such as school desegregation and racial
discrimination. Id. at 63, 558 N.E.2d at 1181.
The recent developments in the law of wrongful discharge
do not fall within this limited exception to the doctrine of
res judicata. Thus, the court of appeals properly upheld the
trial court's determination that Dr. Phung's wrongful-discharge
claim had been terminated.
III
Finally, we note the unfortunate irony of today's
decision. Dr. Phung's brave efforts to stop WMI's conduct will
go unrewarded. Although Dr. Phung's case catalyzed the General

Assembly to enact Ohio's Whistleblower's Protection Act, he
will remain unable to obtain recourse through the statute that
he inspired. He will, of course, be able to have a new trial
on his intentional-infliction-of-emotional-distress claim. The
law clearly mandates that the judgment of the court of appeals
be affirmed and that this cause be remanded to the trial court.
Judgment affirmed
and cause remanded.
Moyer, C.J., A.W. Sweeney, Whiteside, Shannon, Farmer and
F.E. Sweeney, JJ., concur.
Alba L. Whiteside, J., of the Tenth Appellate District,
sitting for Douglas, J.
Raymond E. Shannon, J., of the First Appellate District,
sitting for Wright, J.
Sheila G. Farmer, J., of the Fifth Appellate District,
sitting for Resnick, J.