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Brown v. Contemporary OB/GYN Associates3/27/2002
cated by the fact of why can't he be here. . . . And this certainly does pose a problem.
However, my initial inclination is that since they did not take the necessary steps to procure the presence of Dr. Osborne - and although having represented to me that arrangements were made for his attendance on Thursday, they clearly did not. . . . o arrangements were made either for Thursday or for Monday - specific arrangements, because if so, Dr. Osborne would be here and there would be no problem.
I am not going to wait until Tuesday, Wednesday, Thursday, or Friday of next week for Dr. Osborne. And therefore, it seems to me the solution is that the plaintiffs, by reason of their own failure to make the necessary arrangements, are going to be required, if they want Dr. Osborne at all, to use the prior sworn testimony of Dr. Osborne [from the first trial].
They are concerned about that for two reasons. I guess (1) it doesn't have the impact of a live witness, and (2) they claim that had Mr. Armstrong finished his cross-examination, they would have been entitled to redirect.
Well, I am not much impressed by certainly the second argument, because redirect is nothing except meeting new matter that is presented on cross.
And so, theoretically at least and practically, they should have laid forth their entire case to be presented by Dr. Osborne during the direct testimony.
That being the case and it being the fact that Dr. Osborne indeed gave his prior testimony before there was any sniff of representation of Dr. Osborne by Mr. Armstrong, there can be no bias. There can be no potential for bias in the testimony that Dr. Osborne has already given.
Accordingly, it seems to me that a potential problem and a potential conflict that would have required much deeper inquiry is avoided, perhaps fortuitously, by the developments in this case. (Emphasis added).
During the ensuing discussion, appellants vigorously complained that they had "been prejudiced by the failure of Mr. Armstrong to notify [them] that he had been in contact with Dr. Osborne" since December 1999. They also claimed that their "expert ha been contaminated." In addition, appellants expressed "concern with regards to the objectivity and the credibility" of Dr. Osborne, claiming that if they had been provided with notice of Armstrong's representation, appellants could have made a decision "as to what [they] wanted to do with Dr. Osborne." Consequently, appellants "mov the Court for a mistrial," moved to disqualify Armstrong, and asked the court "to grant the plaintiffs an extension of time within which to designate a new expert witness and to grant the plaintiffs a new trial date in this case."
Armstrong explained how he came to represent Dr. Osborne in the Singleton matter. Before agreeing to do so, he claimed that he had reviewed the ethics rules but did not perceive a conflict because the Singleton case was "a completely unrelated matter in a different jurisdiction." Moreover, he said that he met with Dr. Osborne in the Singleton case on only one occasion, and made a genuine effort to avoid contact with Dr. Osborne until the conclusion of the Brown trial. He added: "We made very specific arrangements that we would not discuss this case." Armstrong asserted, however, that after the second mistrial in January 2000, he "had to meet" with Dr. Osborne because an answer had to be filed in the Singleton case by the end of January 2000.
Further, Armstrong maintained that he learned of Dr. Osborne's plans to be out of the country the week of March 21, 2000, only because the Singleton case was scheduled for a status conference on March 24, 2000
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