![]() As a result of the mistrial, she did not testify at the first trial.Ī second trial began in June 2003. A person who had not been identified as a witness testified for the plaintiff, and a juror passed a note to the judge stating that the juror knew the witness and the witness was a “pathological liar.” Roysdon had been identified as a witness by Outback but not by the plaintiffs. The trial first started in 2002, but circumstances unrelated to Roysdon produced a mistrial. McClellan did not challenge Roysdon's testimony that Whitaker seemed “fine.” Alexander was not present at the deposition, and the Markleys were represented by McClellan alone. She was not asked whether she had communicated with the plaintiffs' attorneys. Roysdon testified in the deposition that Whitaker was not visibly intoxicated at Outback. It concluded: “this Interrogatory will be supplemented as discovery proceeds.” 4 Rather, it described lack of control over the amount of alcohol consumed by all attendees and made several other factual claims that any server at the opening would presumably have been in a position to confirm or deny. It did not allege that Whitaker displayed any symptoms of intoxication or allege any other facts specific to Whitaker. The Markleys' response identified several individuals who attended the grand opening but did not mention Roysdon. Whitaker with actual knowledge that he was visibly intoxicated, and the names and addresses of those persons possessing knowledge of such facts. § 7.1-5-10-15.5 that these Defendants, and each of them, provided alcoholic beverages to William J. ![]() ![]() State specifically each and every fact upon which you rely to support your allegation under I.C. In 1999 Outback served interrogatories on the Markleys. and John Broz, d/b/a Outback Steakhouse of Muncie (collectively “Outback”) 3 alleging a common law claim that Outback had negligently served alcohol to an intoxicated person and statutory violations that Outback had knowingly served alcohol to a habitual drunkard in violation of Indiana Code section 7.1-5-10-14 (2004) and had knowingly served alcohol to a visibly intoxicated person in violation of Indiana Code section 7.1-5-10-15.5 (2004). In July 1999 the Markleys sued Outback Steakhouse of Florida, Inc. One or two months after the opening, Roysdon went to Alexander's office at Alexander's request and told Alexander and his investigator that Whitaker was visibly intoxicated when she served him on the evening of the collision. Patrice Roysdon had been a waitress at the grand opening but left Outback's employ soon thereafter. Alexander and Donald McClellan, who shared an office in Muncie. The Markleys retained attorneys Michael J. 1 At approximately 11:00 p.m., David and Lisa Markley were severely injured when the motorcycle they were riding was struck by Whitaker's car. Testimony conflicted as to whether the drinks at Van's contained alcohol. After leaving Outback, Whitaker went to Van's, a bar in Muncie, where he was served one or more drinks. There was conflicting testimony as to Whitaker's level of intoxication when he left Outback between 9:00 and 9:30 p.m. On the evening of July 21, 1997, William Whitaker attended the “grand opening” of Outback Steakhouse in Muncie. Under the circumstances of this case we conclude that this omission, in concert with other acts and omissions attributable to plaintiffs' counsel, constituted misconduct requiring a new trial. The plaintiffs' response to the defendants' discovery request failed to identify a critical witness whose identity was known to plaintiffs' counsel. On Petition To Transfer from the Indiana Court of Appeals, No. ![]() McClellan, Muncie, IN, Attorneys for Appellees. Sage, Bingham McHale, LLP, Indianapolis, IN, Attorneys for Appellants. OUTBACK STEAKHOUSE OF FLORIDA, INC., Toncredi, Inc., and John Broz, d/b/a Outback Steakhouse of Muncie, Appellants (Defendants below), v.
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