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. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  2. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  5. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

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