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Brown v. Contemporary OB/GYN Associates3/27/2002
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To be sure, it is unfortunate that Dr. Osborne did not see fit to respond to the efforts of appellants' counsel to contact him, so as to advise appellants' lawyers of his scheduling difficulty. On the other hand, he never affirmatively represented that he would be present at the June trial, and therefore appellants did not rely on any such representation. In short, Dr. Osborne neither misled appellants' attorneys nor induced them not to issue a subpoena for his attendance.
Moreover, although Armstrong knew that Dr. Osborne would be out of the country during the week of March 20, 2000, there was no evidence that Armstrong encouraged or directed Dr. Osborne to leave the country at the time of the third trial, or to withhold such information from appellants. Further, although Armstrong was aware of Dr. Osborne's unavailability, there was no evidence that appellants lacked such knowledge, or that he was aware that Dr. Osborne was unavailable for the entire trial. While not dispositive, we also observe that in Erickson it was the attorney who solicited the opposition's expert, while here it was the expert's employer who solicited the opposing attorney in an unrelated case.
We recognize that Armstrong might have found himself in an uncomfortable position had Dr. Osborne been present at the third trial, and we do not commend his decision to leave it to Dr. Osborne to disclose to appellants that Armstrong had been retained to represent Dr. Osborne in the Singleton case. Dr. Osborne, who is not an attorney, may not have appreciated the possible implications of the situation. Appellants' eleventh hour discovery of that representation injected an issue in the case that was completely avoidable.
Nevertheless, even if it was improper for Armstrong to have represented Dr. Osborne during the pendency of the Brown case, and even if he should have disclosed to appellants his representation of Dr. Osborne in the Singleton matter, such conduct ultimately had no bearing on Dr. Osborne's failure to appear at trial. Put another way, any impropriety or conflict was not the proximate cause of appellants' fundamental problem. Rather, the problem resulted from the unavailability of Dr. Osborne, and it was a problem of appellants' own making. Given the attendant circumstances, we conclude that the trial court neither erred nor abused its discretion in denying appellants' motions for mistrial and new trial.
II.
Appellants complain that, during the third trial, appellees' expert witness, Lindsay Alger, M.D., improperly and unfairly offered new opinion testimony concerning gram negative rods and E. coli, without providing appellants with notice of these opinions. Therefore, they maintain that they were unable to prepare for them. Appellants also observe that, at the first trial in June 1999, when appellees alleged that Dr. Osborne offered an opinion that had not been disclosed, the court granted appellees' mistrial motion. In a "good for the goose, good for the gander" argument, appellants suggest they were entitled to the same relief when they sought a mistrial at the third trial. Appellants add that they were prejudiced by the absence of Dr. Osborne at the third trial, because it was "impossible" for them "to rebut any new testimony . . . ," that Dr. Osborne's prior testimony did not address. Consequently, appellants argue that the trial court erred in denying their motions for mistrial or new trial.
Appellees argue that, for several reasons, appellants have waived their objection to the admissibility of evidence regarding gram-negative rods and E.coli. First, they contend that Lewis Townsend, M.D., who was identified in appellees' "Preliminary Identific
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