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Brown v. Contemporary OB/GYN Associates3/27/2002
ents at a recess to determine whether they believe that we can proceed with the status of the cross.
THE COURT: So if plaintiffs are required to proceed and they do not have the presence - the physical presence of the doctor, then the question will arise whether the use of the deposition is sufficient. . .
At that point, appellants' lead counsel, Taiwo Agbaje, arrived in court. The following transpired:
THE COURT: A situation has arisen where your co-counsel advised me that Dr. Osborne has, as recently as last night, advised the two of you that he will be out of the country until Sunday.
[APPELLANTS' COUNSEL]: Yes, Your Honor.
THE COURT: That is not acceptable. We can't wait till then, and the question is - and he was scheduled to testify and you were scheduled to finish your case this wee . The question is whether you can work it out with his prior testimony in the earlier case being read in.
[APPELLANTS' COUNSEL]: Your Honor, I, before responding to that, admit a representation to the Court that my case may go until Monday.
THE COURT: Well, it is not going to because of a doctor who you said was arranged to be here tomorrow. Now I don't know whose fault that was that the doctor is not here tomorrow, but it would set us way back and cause us distress.
Now either get the doctor here or proceed by deposition or by prior testimony, if the prior testimony is sufficient.
Do you know?
Armstrong informed the court that he was "willing to go with the reading of the prior testimony from the June trial." He also said: " f there is any prejudice in proceedings with the transcript alone, the prejudice is against my clients and not against the plaintiffs." Nevertheless, appellants' counsel complained that, at the first trial, Dr. Osborne testified only as to matters regarding liability, and appellants had intended to elicit additional evidence from him pertaining to damages.
Agbaje also disputed that Dr. Osborne had been scheduled to testify on March 23, 2000, despite what his co-counsel had previously told the court. Agbaje insisted that he had arranged for Dr. Osborne to testify on Friday, March 24, 2000 or Monday, March 27, 2000. After reviewing the record, the court determined that appellants had said they planned to call Dr. Osborne on March 23, 2000.
The court expressed concern about a lengthy delay of the trial if it were to accommodate Dr. Osborne by waiting until March 27, 2000, for his testimony. Nevertheless, it continued to explore the matter, noting appellants' desire while also observing that the testimony of several other witnesses had been scheduled based on the belief that Dr. Osborne would testify on March 23, 2000. The following colloquy is illuminating:
THE COURT: And I don't know that you are even certain of having Dr. Osborne on Monday, are you?
[APPELLANTS' COUNSEL]: We can get him here Monday.
THE COURT: Well, let's assume that happened. That would mean that the defense doctor would have to be put off beyond Dr. Osborne because obviously the defense doctor is testifying in response to Dr. Osborne.
The whole trial was aborted last time to allow counsel to get some doctor to meet this new theory that Dr. Osborne presented, as I understand. Is that correct?
[APPELLANTS' COUNSEL]: Yes.
THE COURT: All right.
[APPELLANTS' COUNSEL]: To meet the theory, but in sequence --
THE COURT: Well, of course. You can't meet it before it is presented, and you see what that would do to our scheduling? We would probably have a down day.
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