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Brown v. Contemporary OB/GYN Associates3/27/2002
that Dr. Osborne was going to be out of the country this week and he knew -
THE COURT: If you had contacted Dr. Osborne, you would have known that. . . . The failure to contact your expert witness, a failure to make arrangements for his presence on a specific day or days is what has gotten us into this problem, and I have got restless jurors who have got other things to do in their lives.
In a chambers conference the next day, March 23, 2000, appellants' counsel voiced concern about Armstrong's representation of Dr. Osborne in the Singleton matter. The court considered the matter "of sufficient import . . . that it ought to be fully on the record." Accordingly, in open court, the judge recounted "part of what was said [in chambers] and then call upon counsel to flesh out the bones."
For its part, the court noted that Armstrong had intended to delay meeting with Dr. Osborne until the end of the second Brown trial in January 2000. But, that trial abruptly and unexpectedly ended before the date that Armstrong had scheduled for the meeting with Dr. Osborne. The court said:
So, it became necessary for Mr. Armstrong to get on with his representation of Dr. Osborne in the D.C. case, and he did so, he says, by making it clear and having an understanding with Dr. Osborne that he would not, could not in any way discuss the aspects of this case with Dr. Osborne while he represented him in Dr. Osborne's case.
The court continued:
The concern of the plaintiffs is that - two-fold, I guess, or maybe three-fold: That the representation of Dr. Osborne by Mr. Armstrong presents an irreconcilable and unwaivable conflict, in that Dr. Osborne, by reason of the ongoing representation of him by Mr. Armstrong, may be biased somewhat, which may affect his testimony, either in substance or in flavor, and that they are concerned that they were not advised of this earlier....
The attorneys are concerned about the appearance of the matter to their clients. So, whether there is a conflict in fact or not, there is the appearance that concerns them.
And finally, I am advised [by appellants' counsel] that they are unable to procure the attendance of Dr. Osborne on Monday [March 27, 2000]. Dr. Osborne is, as we know, out of the country attending a meeting.
And we knew that, but I said if he could be back here by Monday morning, we would allow them to go, notwithstanding my concerns about their failure to have placed him under subpoena or made any precise arrangements with him for the date of his attendance.
I am now advised that he cannot be back here to testify on Monday and that they are simply unable to procure his attendance.
Now, plaintiffs' counsel have indicated that they are concerned that in some fashion or some manner perhaps Mr. Armstrong's representation of Dr. Osborne has caused or contributed to (a) Dr. Osborne's absence or (b) Dr. Osborne's inability to be back by Monday or reticence to be back by Monday
That is as far as we got. I felt it was sufficiently serious so that we ought to be on record.
I pointed out to counsel that certainly my initial observation here is that counsel for plaintiff did not make the necessary, prudent, and required arrangements with Dr. Osborne to be present. He is not under subpoena.
We have bent over backwards to say that if he could get him here by Monday and if other arrangements could be made for the rebuttal witness or for the defense witness to follow him, that I would reconsider my earlier determination, and indeed I am willing to.
But now I am told he can't be here, but then that is compli
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