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Brown v. Contemporary OB/GYN Associates3/27/2002
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Now you have the testimony of Dr. Osborne from a prior transcript, do you not?
[APPELLANTS' COUNSEL]: We do, Your Honor.
THE COURT: And I have offered you the opportunity to use that, and counsel has agreed that even though you had incomplete cross-examination that he would not interpose an objection to that as opposed to not having the testimony of Dr. Osborne at all, and now you are telling me you want Dr. Osborne here on Monday.
The prejudice is loss of a full trial day potentially, maybe more.
" ut of a super abundance of caution," the court decided it would permit Dr. Osborne to testify on Monday, March 27, 2000, if appellants' counsel could assure the court the next day of Dr. Osborne's availability on that date. Unfortunately for appellants, Dr. Osborne was not available on March 27, 2000.
During the discussion about delaying Dr. Osborne's testimony until March 27, 2000, Armstrong made a statement to the court that is of significance:
I have to be careful how I do this. It is no secret to me from January that Dr. Osborne wasn't going to be here this week, no secret to me at all, and that is because of other business contacts that I had with him.
I knew in January that he wasn't going to be in town this week. I knew he wasn't even going to be in the country, and the gall it takes [for appellants' counsel] to come in and represent [that they just found out last night that Dr. Osborne would be unavailable to testify until Monday] is appalling to me. (Emphasis added).
At that juncture, however, appellants did not complain, protest, or inquire about Armstrong's communications with Dr. Osborne regarding "other business contacts. . . ."
At that point, the court revisited its earlier concern about the failure of appellants' counsel to arrange for Dr. Osborne's presence at trial. The following colloquy ensued:
THE COURT: Well, how could you have possibly --I am going back to the question I asked you before: How could you have possibly made any arrangements with this doctor for his testimony this week if since January Dr. Osborne has known he is not going to be here this week?
[APPELLANTS' COUNSEL]: I sent him a letter every time I have tried this case with him. I have always sent him a letter --
THE COURT: You have had no communication with him, no confirmation of a date?
[APPELLANTS' COUNSEL]: A lot of times I don't call; I just send him a letter. That is how we have always done this, and he has always been very flexible with us -- always.
THE COURT: You sent him a letter when? I just asked you if you had a letter to him.
[APPELLANTS' COUNSEL]: I sent him a letter in January --
THE COURT: But you didn't tell him when you expected him to testify; you just told him --
[APPELLANTS' COUNSEL]: No.
THE COURT: -- when the case was going to start.
[APPELLANTS' COUNSEL]: I told him the case was March 20 and I will get back in touch with him.
THE COURT: Did you?
[APPELLANTS' COUNSEL]: When I came in, that is when I sent him the e-mail.
THE COURT: When?
[APPELLANTS' COUNSEL]: It was Monday.
THE COURT: Not until Monday?
[APPELLANTS' COUNSEL]: It wasn't until Monday that I sent him an e-mail.
THE COURT: That is just not enough lead time for any expert witness when you are trying to set up scheduling, and we discussed scheduling even last week.
[APPELLANTS' COUNSEL]: And again, Your Honor, just to -- just for credibility purposes, if I knew
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