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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.