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Brown v. Contemporary OB/GYN Associates3/27/2002
nderstand how the representation of an expert in a separate case, by the very lawyer opposing the party who retained the expert in another case, may impact on you whether you want it to impact on you or not.
Thus, the court acknowledged a "lingering concern about the representation of the opposing expert even under the circumstances that occurred here." It also had a "lingering concern about Mr. Armstrong's obligation, if any, to say something to Mr. Agbaje about this so that if there was a problem that required the court's attention before the case came to trial, it might have been fully litigated then. . . ."
Ultimately, however, the court again determined that, in the context of this case, any conflict or impropriety of Armstrong was of no consequence, because it was the conduct of appellants in failing to arrange for Dr. Osborne's appearance at trial that led to his unavailability. The court reasoned that there were two possible grounds that would alter the significance of appellants' failure to arrange for Dr. Osborne's appearance at trial:
f there is harm, there is no foul unless one of two things is present.
If Mr. Armstrong procured the absence of Dr. Osborne or counseled Dr. Osborne as to non-availability or non-communication with plaintiff's counsel, that would be a different matter because that then would affect why Dr. Osborne was not there.
The second possibility that could change my mind would be if Mr. Armstrong had some contact with Dr. Osborne apart from normal and appropriate contact dealing with this Brown case before Dr. Osborne's deposition and testimony became of record.
The court was readily satisfied that neither circumstance outlined above occurred. Therefore, it did not consider it necessary to determine whether Armstrong committed any ethical violation. The court stated:
I find without difficulty that neither of those two contingencies occurred. Mr. Armstrong did not procure the absence of Dr. Osborne nor did he counsel him about non-availability or non-communication with plaintiff's counsel.
Mr. Armstrong, furthermore, had no contact outside of the normal expected contact in this case with Dr. Osborne before Dr. Osborne's deposition and testimony were taken.
So what I opined at the time I think continues to be true, that I need not determine here whether there was a violation of an ethical standard.
I have admitted to having some lingering concern for the reasons I have expressed, but it doesn't matter in the context of this case.
The ruling that I made was a ruling that had to do with whether Dr. Osborne -- whether there had been any prudent steps to procure his presence, and actually his deposition was ultimately used.
The court also concluded that the use at the third trial of Dr. Osborne's testimony from the first trial was due solely to appellants' failure to subpoena Dr. Osborne. Because that testimony was elicited in June 1999, months before Armstrong ever began to represent Dr. Osborne in the Singleton case, the court found that the June 1999 testimony could not have been tainted by any conflict of interest. The court explained:
ere, as I pointed out at trial, the determination of whether there was anything that was in violation of ethical standards turns out not to be critical because I found then and I was absolutely correct, in my opinion, that plaintiffs' counsel had made no appropriate arrangements for the appearance of Dr. Osborne, had not subpoenaed Dr. Osborne, had not made sufficient pre-trial efforts to locate him.
At one point I was told by co-counsel for Mr. Agbaje that yes,
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