Soltys v. Costello

Decision Date25 March 2008
Docket NumberNo. 06-3175.,06-3175.
Citation520 F.3d 737
PartiesChristina SOLTYS and Danuta Pauch, Plaintiffs-Appellants, v. Yvonne COSTELLO, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Benjamin O. Nwoye (argued), Nwoye & Associates, Chicago, IL, for Plaintiffs-Appellants.

Garrett V. Conover (argued), Bokota Ehrhardt McCloskey Wilson & Conover, Merrillville, IN, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and KANNE and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Christina Soltys and Danuta Pauch were seriously injured in a car accident caused by Yvonne Costello, who, at the time, was driving under the influence of alcohol. Soltys and Pauch sued Costello, who admitted liability; trial was limited to the amount of damages owed to Soltys and Pauch. The district court denied Soltys and Pauch's eleventh-hour motion to amend their complaint to add a count for punitive damages. After the jury returned its verdict, the district court denied Soltys and Pauch's motion for a new trial. The district court did not abuse its discretion on either of these issues, so we affirm.


The facts of the accident underlying this case are simple enough: in the early-morning hours of February 27, 2004, Soltys and Pauch were traveling north on U.S. Highway 41 in Hammond, Indiana, when their vehicle was struck by an oncoming vehicle driven by Costello. Costello, who had been driving south on the highway, crossed the center line and caused a head-on collision. Both Pauch and Soltys suffered serious injuries. In a later criminal proceeding arising out of the incident, Costello pled guilty to driving under the influence.

The facts of the litigation surrounding the accident, on the other hand, are muddled and chock-full of attorney blunders. Soltys and Pauch hired attorney Benjamin Nwoye, who filed a complaint in federal court against Costello in June 2004, on the basis of diversity jurisdiction. The complaint included negligence counts, and averred that Costello was legally intoxicated at the time of the accident. Unfortunately for Soltys and Pauch, Nwoye made numerous mistakes after the pleading stage of the litigation, some of which led to the imposition of sanctions against Soltys and Pauch. But Nwoye was not the only attorney committing errors in the case. Counsel for Costello committed a grand oversight by failing to file an answer until nearly two years after the suit commenced.

Part of the confusion for the attorneys on both sides stemmed from an early (albeit routine) change of venue — requested by Costello — from the Northern District of Illinois to the Northern District of Indiana. According to Nwoye, when the case was transferred he was not yet admitted to practice in Indiana, and he could not access the pertinent documents on the court's electronic system. Nwoye assumed that Costello had filed an answer, and he proceeded with his representation of Soltys and Pauch even though he had no knowledge of the defendant's position. As for Costello's attorney, he inherited the case from an Illinois law firm upon transfer; he, too, thought the complaint had been answered and he proceeded with discovery.

Between the scheduling conference on February 2, 2005, and December 12, 2005 (the originally-scheduled trial date), Nwoye defaulted in responding to discovery requests. He was ordered to disclose Soltys's and Pauch's medical reports, expert witnesses, and expert reports, but failed to do so. This, in turn, affected Costello's discovery obligations; Costello filed a motion seeking an extension of time to disclose her expert witnesses because she was still waiting on the plaintiffs' disclosure of the same. In early July, the district court ordered Soltys and Pauch to satisfy their discovery obligations within the next two-and-a-half weeks. But the plaintiffs and Nwoye did nothing.

Costello forced Nwoye's hand in October by filing a motion to dismiss on the ground that he still had not complied with discovery orders. Shortly thereafter, Costello filed a motion for sanctions, again because of Nwoye's obstinance with respect to discovery. Consistent with previous behavior, Nwoye did not respond to either of these motions. The district court gave Nwoye additional time to respond — until the end of November. But it was not until January 2006 that Nwoye finally responded to the pending motions. In that response, Nwoye explained that a death in his family had kept him from complying with the discovery schedule. However, Nwoye failed to explain the exact dates he was away from work, why he did not ask for an extension, or why he delayed so long in responding to the motions.

The district court did not-dismiss the case, but it did impose sanctions on Soltys and Pauch on January 12, 2006, for their refusal (that is, their attorney's refusal) to respond to discovery requests. As its sanction, the district court excluded "all plaintiffs' experts, expert reports, and personal medical records from the evidence pursuant to [Fed.R.Civ.P.] 37(b)(2) except the 43 pages [already] produced in discovery." Trial was set for May 30, 2006.

In the spring of 2006 — after discovery and shortly before trial — Nwoye reviewed the court record and saw that there was no answer. He contacted Costello's attorney and their exchange revealed to both parties that Costello had never filed an answer. On March 24, 2006, Nwoye filed a motion for default judgment, based on the lack of an answer. That same day, Costello filed her answer, in which she admitted liability for the accident. The district court denied Nwoye's motion for default judgment, characterizing Costello's failure to timely file an answer as a "technical deficiency."

About a month before trial, Costello filed a motion in limine, seeking to exclude at trial any evidence of her conviction for driving under the influence. Her position was that Soltys and Pauch's complaint only sought compensatory damages, and as such, evidence of her conviction would be prejudicial and irrelevant. Once again, Nwoye did not file a response to Costello's motion.

After the final pretrial conference, Nwoye filed a motion to amend Soltys and Pauch's complaint to add a claim for punitive damages. In this motion, Nwoye opposed Costello's motion in limine. He argued that Costello's intoxication was relevant to the new claim for punitive damages, so it should not be excluded at trial. The district court denied Nwoye's motion to amend, without explanation, but it later explained the denial in a post-trial opinion and order. The court decided that Nwoye had unduly delayed in filing the motion to amend and that Costello would be prejudiced if the complaint was amended just two weeks before trial.

At trial, Soltys and Pauch were prohibited from testifying about medical expenses that had been excluded by the January 12 sanction. Soltys and Pauch refrained from such testimony, but Costello's attorney referenced the excluded evidence in his opening statement. Specifically, Costello's attorney told the jury: "The Court has made several rulings before this trial about what evidence you will hear and will not hear . . . you must suspend that desire to have all the information because not all the information available in this case is going to be presented to you in evidence." Nwoye objected to this, and the court sustained his objection. The court specifically instructed Costello's attorney to comment only on the admissible evidence.

The evidence at trial showed that Soltys and Pauch suffered serious injuries. Pauch could not work for two weeks due to back and leg injuries. Soltys broke both hands and was in casts for three months. This made it difficult for her to continue as the sole caregiver for her child and her elderly mother. Both women had medical expenses.

In Costello's closing argument, her attorney repeatedly drew the jury's attention to the lack of evidence produced by Soltys and Pauch at trial. He pointed out that doctors did not testify, that medical records were absent, and that there was no accident reconstructionist. He called the plaintiffs' evidence "flimsy." Nwoye did not object to any of Costello's closing statements pertaining to the lack of evidence.

The judge told the jury twice that attorneys' comments are not evidence and should not be weighed as such. The judge instructed the jury not to consider exhibits or testimony that was not admitted into evidence, and not to consider "testimony to which an objection was sustained." Additionally, the jury was told not to "speculate or draw an inference from the fact that one attorney made such an objection."

After deliberation, the jury returned a $10,000 verdict in favor of Soltys, and a $5,000 verdict for Pauch — Costello's attorney had suggested these amounts to the jury, while Nwoye had argued that Soltys deserved at least $300,000 and Pauch was due at least $100,000. Nwoye then made a motion for a new trial based on (1) the court's denial of the motion to amend the complaint, and (2) the comments of Costello's attorney during his opening and closing statements that related to the lack of medical evidence. The district court denied the motion on these two grounds, but lamented that the verdicts for Soltys and Pauch were clearly "inadequate" and "unfair." The court commented that, "for some inexplicable reason, the plaintiffs' attorney did not request a new trial based upon the amount of the jury verdict."


On appeal, Soltys and Pauch challenge the district court's denial of their motion to amend their complaint to add a claim for punitive damages. They also argue that they were denied a fair trial because of statements made by Costello's attorney during his opening and closing statements, which alluded to the pretrial sanction.

A. Denial of the motion to amend the complaint

After Costello filed her answer and admitted liability due to her intoxication, Soltys and Pauch requested...

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