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Brown v. Contemporary OB/GYN Associates3/27/2002
ation of Expert Witness" as a board certified obstetrician/gynecologist, testified prior to Dr. Alger and expressed the same opinion as Dr. Alger, without objection. In addition, appellees maintain that appellants pursued this issue by eliciting like evidence through their witness, Dr. Anthony Scialli. Appellees also assert that it was appellants who elicited the testimony on cross-examination. Further, appellees argue that " ppellants' assertions on this issue were not preserved by raising them for the first time, in a motion for new trial."
We agree with appellees that the issue of the propriety of Dr. Alger's testimony has not been properly preserved. Nor is the issue of surprise supported by the record.
The record reflects that, on March 24, 2000, Dr. Townsend, a defense expert, expressed an opinion similar to Dr. Alger's, without objection from appellants' counsel. The following testimony is relevant:
[APPELLEES' COUNSEL]: Now, have you learned from your review of the records anything about the condition of the child at the time of the autopsy?
[DR. TOWNSEND]: Well, the condition of the child from the pathology report from Holy Cross demonstrated several things.
No. 1, there was - seemed to be an acute infection of the placenta, the cord, as well as the baby. There were some - within the embryo itself, there were signs of infection.
And looking forward in those records, it appeared that the infection was caused by a gram-negative rod organism, which is a particular organism that we find not uncommonly in the female genital tract and can cause infections in the uterus.
[APPELLEES' COUNSEL]: And what is that common gram-negative rod organism?
[DR. TOWNSEND]: It could be an E. coli, which comes from the bowel area and certainly is colonized in a lot of patients' vaginal-cervical areas.
[APPELLEES' COUNSEL]: That is all the questions I have. (Emphasis added).
Moreover, in reviewing Dr. Alger's testimony at the third trial, we are unable to find any place where appellants' counsel objected to the testimony regarding gram-negative rods and E. coli. The following testimony is illustrative:
[APPELLEES' COUNSEL]: Is there any way for you to determine where the infection of the placenta and the fetus came from or comes from?
[DR. ALGER]: Well, we know that the bacteria that they wrote in the - I think there was a culture that was done. I can't remember what it was, but I know there's a report that says enteric -
[APPELLEES' COUNSEL]: Yes.
[DR. ALGER]: - gram-negative rods.
[APPELLEES' COUNSEL]: Yes . . . .
[DR. ALGER]: Let's see. Where is that coming from? There is - the placenta was cultured after the delivery, and what it showed was many and a pure growth of gram-negative rods (enteric).
And what that normally would mean is that this is E. coli. Escherichia coli is the bacteria -
[APPELLEES' COUNSEL]: And where does E. coli come from?
[DR. ALGER]: And that comes from the gut, the intestines. And it's very common, because the vagina is close to the anal orifice, to have E. coli get inside the vagina. This is one of the most common pathogens.
When you have somebody who has this kind of single organism grow out, usually it is E. coli, or it can be Group E strep. Group E strep doesn't look anything like this - little cocci.
And the fact that it says "enteric" means that it's coming from the gut. And when you have bacterial vaginosis, for example, Gardnerella is not an enteric organism.
So, that wasn't what they we
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