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Brown v. Contemporary OB/GYN Associates3/27/2002
ropriety of contact between an attorney and an expert for an opposing party "depends upon the facts and the particular circumstances of the case. . . ." Bekman opined: "I think [Armstrong] acted totally appropriately when he contacted [Dr. Osborne]. . . ." In Bekman's view, it was significant that Dr. Osborne had "committed himself to his testimony in June of 1999. . .", before Howard Hospital ever retained Armstrong. He also considered it noteworthy that Armstrong had not sought out Dr. Osborne.
Additionally, Bekman deemed it significant that Armstrong was never put in the position of having to cross-examine Dr. Osborne. Moreover, Bekman suggested that it was Dr. Osborne who may have had the conflict. He stated:
I believe it is Dr. Osborne's call here as to whether there is a conflict, and I think that was made very clear in Mr. Armstrong's letter to him.
Let's say that Mr. Armstrong had met with Dr. Osborne and was going to cross-examine him at the time of trial, and Dr. Osborne, in connection with the Singleton case, gave Mr. Armstrong confidential information about his background; for example, that he had been denied privileges or his privileges had been suspended at a hospital for some conduct.
That would be information that Mr. Armstrong would have garnered during the course of his professional relationship with Dr. Osborne which he would not otherwise have learned, and for him to then take that and use it in the Brown case would be improper, and that is why, under those circumstances, had that situation arose, it would have been improper, but as I have indicated and as the facts in this case have shown, there was no taint because the testimony that was used was the June 1999 testimony, and Mr. Armstrong never cross-examined Dr. Osborne after he was appointed to his representation.
On the other hand, Bekman was critical of the failure of appellants' counsel to subpoena Dr. Osborne. Although "Mr. Agbaje . . . candidly admitted that he did not subpoena Dr. Osborne. . . .," Bekman said that, by custom and practice, and for the protection of both the lawyer and the doctor, a lawyer should subpoena a physician whose testimony is needed for trial. He explained:
he physicians and experts who testify are extremely busy and their calendars are extremely busy, so it's critical to map out when someone is going to testify during a trial.
The court does not want any down time; the court wants to move the case along, and the parties and everyone is entitled to do so.
So the specific time and date is going to be determined well in advance because the physician or expert has to make arrangements within their schedule when they can come in.
So you have got to give them as much advance notice as is possible, and they are going to want to know not just a week ahead of time; they're going to want to know as much as a month or more ahead of time when they're going to be able to come in.
The court carefully considered the circumstances of the case and the evidence. It was "persuaded" that "the so-called Chinese wall was effectively erected; that is, one was put in place immediately. . ." by Armstrong. Although the court was satisfied that "no information was exchanged or obtained with respect to the Brown case. . .," it was also mindful of the potential "subliminal effect" of Armstrong's representation of Dr. Osborne. The court reasoned:
The problem . . . perhaps transcends [the Chinese wall]. The problem is in the existence of a lawyer/client confidential relationship and its potentially subtle . . . effect on Dr. Osborne's later testimony. . . . It is not always possible to fully u
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