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Brown v. Contemporary OB/GYN Associates3/27/2002
he testimony of Dr. Osborne, elicited at the first trial in June 1997.
On appeal, appellants present the following four questions:
I. Did the rial court err in denying the Plaintiffs' Motion for a Mistrial and Post-trial Motion for a new trial where the court had before it evidence of witness tampering by defense counsel, Kenneth Armstrong, Esquire, when he had undisclosed and unsupervised access to Appellants' expert and he became attorney for Appellants' expert in an unrelated case shortly before Appellants' expert was scheduled to testify in this case; which caused or contributed to the absence of Appellants' expert witness at trial; which had prejudicial effect upon Appellants' ability to present their case at trial; which deprived Appellants a fair trial; and was prejudicial to the administration of justice in this case[?]
II. Did the trial court err in allowing testimony of defense expert Lindsay Alger who rendered new opinions at trial which were prejudicial to Appellants' case, which had never been rendered before and Appellants were not put on reasonable notice of those opinions at anytime before trial[?]
III. Did the trial court err when it ordered the use of Dr. Osborne's previous trial testimony at the March 2000 trial which did not contain testimony regarding ental anguish that Dr. Osborne had prepared to render at the June 1999 trial but for the bifurcation of the trial and the objection of Appellees[?]
IV. Did the trial court err where the court gave an incorrect instruction to the jury that a wrongful death claim could not be brought by the Plaintiffs because the baby was non-viable without advising the jurors that that under Maryland law, a wrongful death suit may be maintained if a nonviable fetus was born alive[?]
For the reasons that follow, we shall affirm.
FACTUAL BACKGROUND
In January 1994, Ms. Brown came under the prenatal care of Contemporary. At that time, she had already endured four unsuccessful pregnancies, and was experiencing difficulties in the early stages of the pregnancy at issue, including infection and vaginal bleeding.
On May 12, 1994, when Ms. Brown was twenty-two weeks pregnant, she had severe abdominal pains and contractions. As a result, Dr. Brown took his wife to the Hospital's emergency room, where she was examined by Craddock and McKibben. The nurses then contacted Dr. Goodman, the physician on call for Contemporary. He told the nurses to discharge Ms. Brown and instruct her to follow up with Contemporary the next day. Accordingly, Ms. Brown was examined the next day by Dr. Rosenblatt. After an ultrasound revealed that Ms. Brown was dilated four centimeters, she was admitted to Holy Cross. The baby was delivered by Dr. Donald Levitt on May 13, 1994. During the delivery, the baby's head was severed from its body.
At the first trial in June 1999, Dr. Osborne opined that the premature delivery was caused by an undiagnosed "lower genital tract infection" that "eventually progressed to an upper genital tract infection with amnionitis and chorioamnionitis, and caused a contraction of the uterus that resulted in a [premature] delivery." Defense counsel claimed that Dr. Osborne's opinion had not been disclosed by appellants prior to trial, in violation of the Pretrial Scheduling Order. Therefore, appellees moved for a mistrial. Although the court recognized that the disputed opinion was "so important" to the plaintiffs' case, it found that they never disclosed the opinion "in any reasonable form," or "at any time. . . ." Accordingly, the court granted a mistrial, stating:
o allow the case to proceed in the absence of
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Maryland Personal Injury Attorneys
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