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staff reporter It took a mistrial and a Perry Mason moment for two Indiana attorneys to win a $39 million verdict in a recent “dram shop” alcohol liability suit against Outback Steakhouse Inc. Plaintiffs’ attorneys Michael J. Alexander and Donald McClellan brought the suit on behalf of a couple who were injured in a crash with a driver who allegedly became intoxicated at a grand opening party for an Outback Steakhouse in Muncie, Ind. The plaintiffs, David and Lisa Markley, were driving home from a friend’s house on their motorcycle when they were struck by a car driven by William J. Whitaker in 1997. David Markley, 37, broke every bone from his left foot to his hip. His wife suffered an “open-book” pelvic fracture, an 11-inch abdominal tear, precluding her from ever being able to carry a child, said the couple’s lawyers. Whitaker was sentenced to one year of house arrest and three years of probation for leaving the scene of the accident. The Markleys sued Outback under Indiana’s “dram shop” statute, which states that a provider of alcohol can be liable if it knowingly serves a visibly intoxicated person. The trial began last year, but after three days of evidence, the court declared a mistrial because the plaintiffs had called a witness who did not appear on the schedule. It was an honest mistake, asserted McClellan, a partner at McClellan McClellan and Arnold in Muncie. The judge decided that it was not fair to the defense and scheduled a new trial before a new judge and jury. “We were very upset,” McClellan recalled. A dress rehearsal But in hindsight, the mistrial was like a dress rehearsal that prompted McClellan and co-counsel Alexander, a solo practitioner based in Muncie, to rethink their strategy. They decided to shift their primary focus from the devastating injuries caused by the accident to the culpability of Outback. In the earlier trial they had led off with the accident and then came back to the issue of Outback’s liability. After the mistrial, they put Outback first. From the opening statement on, McClellan said the jury heard that “the case was not about drunk driving; it was about a corporate policy that had set all this in motion.” And there was another stroke of luck, the testimony of an Outback server that occurred midway through trial. The woman broke down on the stand, according to McClellan, admitting that she had lied in her deposition and that she knew Whitaker was drunk but had served him anyway. “It was one of those Perry Mason moments,” McClellan said. Whitaker attended the open-bar party as a guest of the resident owner and the plaintiffs alleged he became intoxicated after several Crown and Cokes. Typically, the servers at Outback are assigned particular sections. That night, people could get a drink from any server. The plaintiffs alleged that Outback had no safeguards in place to monitor the distribution of alcohol. After an eight-day trial, the jury of three men and three women attributed 65% fault to Outback and 35% fault to Whitaker. The verdict was for compensatory damages only. The plaintiffs agreed to withdraw a punitive damages claim, and, in exchange, the defense dismissed any claim of comparative fault against the Markleys. Outback’s outside trial counsel, Richard McDowell at Hill, Fulwider, McDowell, Funk & Matthews of Indianapolis, referred all comment to the company. Outback’s general counsel, Joe Kadow, did not return phone calls for comment. The company released a statement saying that it is fully insured for the verdict amount and that it intends to appeal. Markley v. The Outback Steakhouse of Florida Inc., No. 18C01-9907-CP284 (Delaware Co. Ind., Cir. Ct.). McAree’s e-mail address is [email protected].

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