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ATTORNEYS FOR APPELLANTS Karl L. Mulvaney Nana Quay-Smith Candace L. Sage Indianapolis, Indiana

ATTORNEYS FOR APPELLEES P. Gregory Cross Muncie, Indiana Michael J. Alexander Muncie, Indiana Donald K. McClellan Muncie, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 18S04-0602-CV-66 OUTBACK STEAKHOUSE OF FLORIDA, INC., TONCREDI, INC., AND JOHN BROZ, D/B/A OUTBACK STEAKHOUSE OF MUNCIE, Appellants (Defendants below), v. DAVID D. MARKLEY AND LISA K. MARKLEY, Appellees (Plaintiffs below). _________________________________ Appeal from the Delaware Circuit Court, No. 18C01-9907-CP-284 The Honorable Joel D. Roberts, Special Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 18A04-0401-CV-13 _________________________________ November 8, 2006 Boehm, Justice. The plaintiffs' response to the defendants' discovery request failed to identify a critical witness whose identity was known to plaintiffs' counsel. 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. Facts and Procedural History On the evening of July 21, 1997, William Whitaker attended the "grand opening" of Outback Steakhouse in Muncie. There was conflicting testimony as to Whitaker's level of intoxication when he left Outback between 9:00 and 9:30 pm. After leaving Outback, Whitaker went to Van's, a bar in Muncie, where he was served one or more drinks. Testimony conflicted as to whether the drinks at Van's contained alcohol. 1 At approximately 11:00 pm, David and Lisa Markley were severely injured when the motorcycle they were riding was struck by Whitaker's car. The Markleys retained attorneys Michael J. Alexander and Donald McClellan, who shared an office in Muncie. Patrice Roysdon had been a waitress at the grand opening but left Outback's employ soon thereafter. 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. 2 In July 1999 the Markleys sued Outback Steakhouse of Florida, Inc. 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).

The bartender and waitress at Van's testified that they perceived that Whitaker had had too much to drink when he arrived at Van's and served him only Diet Coke. Whitaker testified that at Van's he drank one or two glasses of Crown Royale and Coke and was confident he knew the difference between that cocktail and a soft drink. In Part II we explain why we conclude the jury rejected Whitaker's testimony on this point. 2 The record does not make clear whether Roysdon was still in Outback's employ at the time of this visit. 3 The relationship between these defendants is not clear from the record. The complaint alleges that the defendants were "the owners and operators" of the restaurant in question. No issue is raised on appeal as to the proper parties or the responsibility of these defendants for the actions of the restaurant employees at the grand opening.

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In 1999 Outback served interrogatories on the Markleys. Interrogatory 12 read: State specifically each and every fact upon which you rely to support your allegation under I.C.

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Indiana Law