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Brown v. Contemporary OB/GYN Associates3/27/2002
ursues the point in a post-trial motion, is precluded from raising the substantive issue on appeal. See Anderson v. Litzenberg, 115 Md. App. 549, 578-79 (1997)(stating that although "a trial court may grant a new trial on the basis of an issue that could have been, but was not, raised at trial," when "the trial court denies such a motion, . . . the movant is precluded from raising those substantive issues on appeal."); see also Buck v. Cam's Broadloom Rugs, Inc., supra, 328 Md. at 61. In addition, appellees examined other experts on the same issue, without objection. Consequently, we are satisfied that the propriety of Dr. Alger's testimony is not properly before us.
III.
Appellants' third issue is integrally related to their first issue. They contend that the trial court erred in ordering the use of the transcript of Dr. Osborne's testimony from the first trial in June 1999, in lieu of delaying the trial in order to obtain his live testimony. They note that Dr. Osborne's testimony at the first trial pertained only to liability, because the case was initially bifurcated for trial. Thus, they complain that Dr. Osborne never had an opportunity to render an opinion as to the Browns' "mental anguish," suffered as a result of the loss of their baby. In their view, "the trial Court denied the Appellants an opportunity to present that opinion to the jurors which prejudiced the Plaintiff's case at trial."
In the half page that appellants devote to this issue, they fail to direct our attention to any legal authority in support of their contention. As we see it, the claim lacks merit.
In the first place, the court never ordered appellants to use the testimony of Dr. Osborne from the first trial. Rather, in the exercise of its discretion, the court denied a request for postponement. Based on the facts that we previously set forth, we are readily satisfied that the court did not abuse its discretion in denying the postponement request. See Green v. Director, Patuxent Institution, 3 Md. App. 1, 4 (1968). As a consequence of the denial, the court gave appellants the option of either using Dr. Osborne's earlier trial testimony or proceeding without any evidence from him.
To be sure, on March 22, 2000, when the court first considered the use of Dr. Osborne's prior testimony, appellants' counsel expressed concern about the limited scope of that prior testimony. The following colloquy is relevant:
[APPELLANTS' COUNSEL]: Again, Your Honor, [the first trial] was a bifurcated trial, and there were a lot of rulings with regards to inquiries in the area of damages, and I am not sure if we can actually be -
[THE COURT]: Dr. Osborne was a liability witness; right?
[APPELLANTS' COUNSEL]: He was.
[THE COURT]: Not a damage witness.
[APPELLANTS' COUNSEL]: With respect to - there is an area with respect to mental anguish which has to be with them being trained as OB/GYN physicians to recognize when a patient has suffered mental anguish from these kind of losses and referring that patient to a psychiatrist.
So there is that area which we had attempted to have Dr. Osborne testify as an expert in that area, which counsel objected to and in which counsel had previously acknowledged that the American College of Obstetrics and Gynecology even trains these doctors to be able to evaluate these patients for this kind of condition so that there is an issue with that, and that was an area I wasn't able to bring up with Dr. Osborne at the trial.
THE COURT: What do you [appellees' counsel] have to say about his argument that there were certain objections sustained in the earlier trial because i
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