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Brown v. Contemporary OB/GYN Associates3/27/2002
20, 2000. The letter provided, in part:
We have a new trial date in two months beginning on March 20, 2000. It is a 10 day trial. Please mark your calendar. As usual, I will contact you shortly before the trial to meet you to prepare for this case.
Dr. Osborne did not respond to the letter, nor did he ever advise appellants' attorney as to his availability for trial.
Although the Brown matter was not resolved by January 22, 2000, the date Dr. Osborne was to have his initial meeting with Armstrong concerning the Singleton case, Armstrong decided to proceed with the meeting, because the deadline for a responsive pleading was approaching. As a result of that meeting, Armstrong learned that Dr. Osborne would not be available when the third trial in the Brown case was set to commence on March 20, 2000. By letter dated January 27, 2000, Armstrong wrote to Dr. Osborne about their meeting of January 22, 2000. The letter said, in part:
I understand that you will be out-of-town in late February to Venezuela and the week of March 21 to Panama. We should hopefully have a number of things happening before you go to Panama. In the meantime, if you have any questions, please do not hesitate to contact me. (Emphasis added).
As scheduled, the third jury trial in the Brown case began on March 20, 2000. On the morning of March 22, 2000, one of appellants' attorneys advised the court that he had just learned on March 21, 2000, that Dr. Osborne was out of the country at a medical conference and was unavailable to testify until Monday, March 27, 2000, "at the earliest." The court initially said: "That is not acceptable. We can't wait till then. . . ," because "it would set us way back. . . ."
Armstrong indicated to the court that he had no knowledge of Dr. Osborne's unavailability. The following colloquy is relevant:
[APPELLEES' COUNSEL]: As you know from our scheduling discussions, Dr. Alger [, the defense's expert witness,] is scheduled to testify on Friday afternoon [March 24, 2000]. It was always my understanding in the scheduling of the events of this case that Dr. Osborne was testifying prior to Dr. Alger so that in the normal course of events --
THE COURT: Almost have to.
[APPELLEES' COUNSEL]: -- I would be able to then rebut the allegations. This is the first that I have heard of his unavailability, and I think I can say this without it being inappropriate: If it goes as scheduled, Alger first and Osborne second, I am screwed. (Emphasis added).
Because of Dr. Osborne's absence, the court explored appellants' possible use of the prior testimony of Dr. Osborne, elicited at the first trial in June 1999. The following colloquy is relevant:
THE COURT: Did [Dr. Osborne] testify fully at the prior trial?
[APPELLANTS' COUNSEL]: No, he did not, Your Honor.
THE COURT: It was aborted before he finished his testimony?
[APPELLEES' COUNSEL]: Well, they had finished the direct examination, and I was half way through my cross, at which time we had fully developed the issue that was precipitating the mistrial.
THE COURT: Well, obviously, the reason I ask is, s the prior testimony available for utilization by the plaintiffs in the absence of the witness?
[APPELLEES' COUNSEL]: Yes, and to the extent that it is a full direct examination, then I think we are okay....
THE COURT: Well, I guess the ball is in your court. You say you have got about a half of cross; is that enough? I mean, you covered the issues that you wanted to cover?
[APPELLEES' COUNSEL]: I will have to discuss that with my cli
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