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Brown v. Contemporary OB/GYN Associates3/27/2002
epresenting a doctor that you knew was going to be involved on the other side as an expert witness in a case, but that under the particular circumstances of this case I didn't feel it necessary to delve too deeply into that because you had not made the necessary arrangements for the presence of the doctor nor had you exercised any prudence or been in contact with the doctor nor had you issued a subpoena for the doctor to be present, and we were going to allow you to use the doctor's deposition, and there was no possibility that that testimony could have been in any way tainted by subsequent representation.
f you could offer some evidence . . . that [Dr. Osborne's] absence had been procured, . . . then that would put a different light on it, but what evidence do you have, therefore, that his absence had been procured by Mr. Armstrong?
Mr. Armstrong represented to the Court he had not procured his absence.
ou think that inferences can be drawn that somehow Mr. Armstrong procured the absence of this witness for this trial, and I guess I am asking you what evidence you have of that?
The following colloquy ensued:
[APPELLANTS' COUNSEL]: Well, first and foremost, if we review the testimony of Dr. Osborne throughout the course of this trial and, you know, the question that bothers me is how his testimony continued to just change.
Everything just kept changing.
[THE COURT]: Well, now wait a minute. The testimony of Dr. Osborne that was admitted at the trial before the jury. . . was taken before the representation of Mr. Armstrong began, was it not?
[APPELLANTS' COUNSEL]: It was taken . . . before the representation.
[THE COURT]: So how could that representation have affected that pre-existing testimony?
[APPELLANTS' COUNSEL]: Well, that is assuming -- that is if we were to assume that this whole collusion began in December.
[THE COURT]: All right. Now what evidence do you have to the contrary?
[APPELLANTS' COUNSEL]: Your Honor, I do not believe that I need to present that evidence to this Court. I think --
[THE COURT]: Well do you have it? I mean, are you holding it in your back pocket?
[APPELLANTS' COUNSEL]: As to -- no, I don't, Your Honor, but that is not the inquiry, Your Honor. What we are trying to do here is find direct evidence of their involvement.
It is never going to happen.
[THE COURT]: No, circumstantial evidence can be just as strong as direct sometimes.
[APPELLANTS' COUNSEL]: That is right, and I do have the circumstantial evidence.
[THE COURT]: All right, tell me what it is.
[APPELLANTS' COUNSEL]: Okay. The circumstantial evidence is Dr. Osborne's testimony had started changing from the time - and I did present the Court with the various reports, his deposition testimony and his trial testimony, from the time that we hired him up until the time of the last trial in June. . . .
Mr. Armstrong should be removed from this case because we believe that he has had confidential information. He . . . knew about our strategy. Everything that was done in this court was orchestrated.
As noted, shortly after the third trial, appellants deposed Dr. Osborne. They introduced his deposition testimony, which included the following:
[APPELLANTS' COUNSEL]: When was the first time that you had contact with Mr. Armstrong?
[DR. OSBORNE]: That was [when] Howard University referred me to Mr. Armstrong because of an unrelated matter just before I left for Caracas, Venezuela. . . . There was no discussion abo
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