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Brown v. Contemporary OB/GYN Associates3/27/2002
any kind of reasonable disclosure, which I do not find from my review of the record, would in fact unfairly and severely prejudice the defendants.
Accordingly, over the objection of the plaintiffs, I will grant the motion for the mistrial.
Because the court also struck the bifurcation, the trial was rescheduled for January 10, 2000, as to both liability and damages.
In the meantime, on or about September 2, 1999, Dr. Osborne was sued in the District of Columbia for malpractice, in his capacity as Chairman of Howard's Department of Obstetrics and Gynecology, in the "Singleton" case. In December 1999, a representative of Howard Hospital contacted Armstrong and asked him to represent Dr. Osborne in that unrelated matter. Although appellants were not aware of the request, Armstrong knew, of course, that Dr. Osborne was appellants' expert in the case sub judice. In a telephone conversation with Dr. Osborne on January 5, 2000, Armstrong advised the doctor of his willingness to represent him. But, mindful of the impending trial in this case, he suggested that they defer meeting until after the conclusion of the second Brown trial, then scheduled to commence on January 10, 2000. Armstrong also advised Dr. Osborne that it would be inappropriate for the two of them to discuss the Brown litigation at any time.
Armstrong confirmed his telephone conversation with Dr. Osborne by letter of January 6, 2000, stating:
This will confirm our telephone conversation of January 5, 2000. At that time, we discussed that I had been retained by Howard University Hospital to represent your interest in a lawsuit brought by the Singleton family in the Superior Court for the District of Columbia, Civil Action No. 99-0006001.
We have a meeting set up in my office for Thursday, January 20, 2000 at 10:00 a.m.
This will also confirm that I specifically advised you that I will not discuss the Brown litigation with you at any time. In addition, I specifically set our first meeting to discuss the Singleton case for after the Brown case is concluded in the Circuit Court. While I do not believe that your participation as an expert in the Brown case will prevent us from having a completely appropriate and satisfactory attorney/client relationship, I did not want to discuss any matters with you in the Brown case at all as I am preparing in my last couple of days prior to the beginning of that trial. Feel free to advise [appellants' counsel] that I will be representing you in the litigation and that we will not discuss the Brown case if you feel that you would like to do so.
I look forward to meeting you on the 20th [of January, 2000]. (Italics added).
On January 6, 2000, appellants' counsel deposed an expert witness of the appellees. In preparation for that deposition, appellants' counsel met with Dr. Osborne, but the doctor did not disclose that Howard Hospital had retained Armstrong to represent him in another matter. Armstrong entered his appearance as attorney for Dr. Osborne in the Singleton case on January 7, 2000, three days before the second trial in the instant case was scheduled to begin.
Although the second trial commenced on January 10, 2000, as scheduled, it ended in a mistrial the next day. As the court told the jury, "during one of the recesses a representative of a former Defendant in this case was overheard by several jurors making comments about this case." That same day, the parties agreed to yet a third trial date -- March 20, 2000.
Thereafter, appellants' counsel sent a letter to Dr. Osborne on January 16, 2000, informing him that the case had been rescheduled for trial beginning on March
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