ILNews

Attorney blamed for lack of proper relief

Jennifer Nelson
January 1, 2008
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The 7th Circuit Court of Appeals upheld a decision by the U.S. District Court in Hammond in which two plaintiffs were injured by a drunk driver and then awarded less-than-adequate relief from a jury, agreeing that any proper relief denied to the plaintiffs was a result of their attorney.

In Christina Soltys and Danuta Pauch v. Yvonne Costello, No. 06-3175, the 7th Circuit affirmed the District Court didn't err in denying the plaintiffs' eleventh-hour motion to amend their complaint to add a count for punitive damages nor did it err in denying the plaintiffs' motion for a new trial.

Soltys and Pauch were injured in a car accident caused by an intoxicated Costello and sustained serious injuries. Soltys and Pauch hired attorney Benjamin Nwoye, who filed their complaint in federal court in the Northern District of Illinois against Costello on the basis of diversity jurisdiction. At the time the complaint was filed in 2004, Nwoye was not yet admitted to practice in Indiana, so when Costello requested a change of venue to the Northern District of Indiana, Nwoye couldn't access documents on the court's electronic system.

Nwoye repeatedly defaulted in responding to discovery requests, leading Costello's attorney to file a motion to dismiss on the grounds Nwoye had not complied with discovery orders; her attorney also filed a motion for sanctions. Nwoye didn't respond until weeks later and explained he had a death in the family so he couldn't comply with the discovery schedule. He failed to specify the dates in which he was kept out of work or why he delayed in responding to the motions.

As a result, the District Court imposed sanctions against the plaintiffs for their refusal to comply with discovery requests. The District Court excluded "all plaintiffs' experts, expert reports, and personal medical records from the evidence...except for the 43 pages produced in discovery."

Costello's attorney filed a motion in limine to exclude any evidence of her conviction for driving under the influence; again, Nwoye didn't file a response to the motion. He did, however, file a motion to amend Soltys and Pauch's complaint to add a claim for punitive damages; the District Court denied his motion because he had unduly delayed filing it.

At trial, Costello's attorney made a reference in the opening statement to some evidence being excluded; the court instructed her attorney to comment only on admissible evidence. In closing arguments, Costello's attorney mentioned that no expert witnesses or medical records were introduced, but did not say that the evidence specifically had been excluded.

After deliberation, the jury awarded a $10,000 verdict for Soltys and $5,000 for Pauch. Nwoye made a motion for a new trial based on the denial of the court to add for the allowance of punitive damages and Costello's attorney's statements during opening and closing arguments. The District Court lamented the amounts were "unfair" and "inadequate," but denied the motion.

Unfortunately for Soltys and Pauch, Nwoye is the reason for their low jury award and sanctions, wrote Judge Michael Kanne. This appeal should be about whether punitive damages are considered "special damages" which must be specified in a complaint, however, Nwoye never raised this issue so the 7th Circuit will only consider whether the District Court abused its discretion in denying the plaintiffs' motion to amend their complaint.

The District Court based its denial on the long delay by Nwoye. The attorney could have actually sought to amend the complaint earlier because the plaintiffs alleged in their original complaint that Costello was intoxicated. As far as the 7th Circuit can tell, Nwoye seemed to have failed to act with diligence and inadvertently failed to address everything in the original complaint.

Regarding Costello's attorney's statements during opening and closing arguments, Judge Kanne wrote that the court assumes that juries follow the instructions given to them by the court and the District Court told the jury to refrain from treating the testimony of the attorney as evidence and to avoid drawing inferences from sustained objections. Therefore, Soltys and Pauch were not entitled to a new trial.

Judge Kanne wrote the outcome of this case seems unfortunate, given the serious injuries sustained by the plaintiffs and the lack of financial award the jury granted. They were denied proper relief because their attorney did not comply with discovery orders and didn't raise valid legal questions that likely would have led to adequate relief.

"As the district court noted, 'any blame lies with the plaintiffs' attorney.' If Soltys and Pauch have any hope of securing additional relief, they must look to Benjamin Nwoye," he wrote.
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  1. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  2. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  3. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  4. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  5. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

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