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 have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

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