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U.S. judge sanctions Indianapolis law firm

Michael W. Hoskins
January 1, 2009
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A federal judge has sanctioned an Indianapolis law firm that employed a few attorneys he says helped abuse the discovery process, failed to correct misleading or false statements made by its client, and didn't properly turn over to the court or opposing counsel key documents relating to an environmental contamination case out of Southern Indiana. In a 66-page order issued Friday, U.S. District Judge Larry McKinney in the Southern District of Indiana determined that Bose McKinney & Evans should be sanctioned for its attorneys' actions that "skated the edge of its responsibility," and for acting like "a chameleon" in becoming indistinguishable from its client and allowing that client to evade the truth. "The Court notes that it may be unusual to sanction a law firm for conduct that violates the Federal Rules of Civil Procedure," the judge wrote. "However, in this case, where three partners of the firm had knowledge of its client's apparent disregard for those rules and failed to properly supervise an associate and paralegal who had knowledge of adverse facts that remained undisclosed to the opposing party, the Court can only conclude that the firm must be held accountable under its inherent authority to deter such conduct in the future." Specifically, the judge's order focuses on former Bose attorneys Richard VanRheenen and Amy Cueller, who firm leaders asked to leave late last year because of this case. A declaration submitted to the court by Bose Managing Partner Kendall Crook shows that VanRheenen voluntarily resigned his partnership effective Jan. 1, 2009, and remained on a limited contract attorney basis until Feb. 20 to transition his practice and clients to a new firm; Cueller declined to resign and was fired Jan. 6. Others mentioned include partner Kathleen Lucas, who remains at the firm; former associate Matthew Klein and former partner Jan Nelson, both of whom are no longer listed on the firm's Web site; and an unnamed paralegal who assisted on the case. In a statement issued to Indiana Lawyer today, Crook wrote, "This remains a pending matter and we intend to work diligently to seek an appropriate resolution. We have taken this matter extremely seriously and took prompt action to address the issues described in the Court order. The two principal litigators involved in this case are no longer associated with the firm." The case, 1100 West LLC v. Red Spot Paint & Varnish Co., No. 1:05-CV-1670, involves a business's 7-acre site in the Evansville area that 1100 West claims was heavily contaminated with toxic chemicals from the nearby Red Spot property. After filing a state court suit in 2003 about the alleged contamination, 1100 West took the case to federal court in 2005 and sought injunctive relief under the federal Resource Conservation and Recovery Act. 1100 West asked the judge to order the removal of all the chemicals near its property and for the company to stop discharging any of that hazardous and solid waste from its nearby property. A central issue in the case was whether particular chemicals were used at the site, and both sides debated during discovery whether those chemicals were ever stored or used at the Red Spot site. Former Red Spot president and board chairman, Charles Storms, and environmental manager Susan Henry, testified throughout the litigation that the company hadn't used or stored specific chemicals. But discovery withheld from the court and opposing counsel showed otherwise, Judge McKinney wrote, and he noted that the company continued pressing that claim up to October 2008 when those previously withheld documents were discovered. Lucas began as Red Spot's counsel in 2003 to enroll its property in the voluntary remediation program. Lucas later brought in VanRheenen as the primary litigator before Cueller joined the case, according to the order, and the others assisted throughout the years. In October 2008, attorneys for 1100 West filed a motion for sanctions and after a two-day hearing on May 6 and 7, 2009, the judge issued his decision late last week. He found the conduct goes back to at least the summer of 2006, and that both Henry and Storms had on several occasions misrepresented facts. As a result, Judge McKinney entered a default judgment against Red Spot and determined the company had forfeited the right to have these issues determined on the merits. "But, BME, through both Cueller and VanRhennen and, to a lesser extent, Lucas, had opportunities to steer Red Spot, particularly Henry and Storms, on a different path and it never did," the judge wrote. "If all BME had was one individual who wished to ignore a small amount of information, it would be one thing. In this case, however, the evidence that Red Spot had used (those chemicals) was too persuasive for BME to continue to ignore." Judge McKinney later wrote, "Being a zealous lawyer does not mean zealously believing your client in light of evidence to the contrary." The attorneys for 1100 West have until Aug. 4 to submit a proposed remedial plan for its property, and a show cause hearing is set for Nov. 4 to allow Red Spot to respond to the appropriateness of that plan. Judge McKinney also ordered that 1100 West is entitled to attorneys' fees and costs from all discovery dating back to May 23, 2006, and for the fees and costs associated with the sanctions' motions and hearings. A report is due by mid-July on those costs, and Judge McKinney has ordered that Red Spot and Bose McKinney shall each pay one-half of those determined costs.

Let us know what you think about the sanctions at our blog, First Impressions.
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  1. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  2. It's a capital offense...one for you Latin scholars..

  3. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

  4. The promise of "Not to Tell" is the biggest lie ever given to a Birth Mother. THERE WERE NEVER ANY PROMISES GIVEN TO ANY OF US. One of the lies used to entice us to give up our Babies. There were many tactics used to try to convince us that it was best for Mother and Baby to cut the cord at birth. They have no idea of the pain and heartache that was caused by their attitude. The only thing that mattered was how great and wonderful they appeared to the prospective parents and their community. I completed my search, but that didn't stop the pain, heartbreak and the tears of the last 62 Years. I keep track and do know that he is alive, well educated and a musician. That little knowledge in itself is a Godsend to me. I pray that other Mothers also know that much and more to help heal their pain and open wounds. open wounds.

  5. please do your firm handles cases on breach of contract? please advise...

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