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Brown v. Contemporary OB/GYN Associates3/27/2002
, and he had inquired of Dr. Osborne as to where he would be on that date, so that he "could report to him . . . what happened." As he saw it, that did not mean that Dr. Osborne would be unavailable for the duration of the trial. Armstrong also observed that Dr. Osborne had already given his opinion in court, before Armstrong was ever retained in the Singleton case, and his opinion was thus cast "in concrete . . . ."
The court questioned Armstrong about whether he encouraged Dr. Osborne not to appear. The following colloquy is relevant:
THE COURT: Did you in any way procure the absence of Dr. Osborne at this time or encourage it?
[ARMSTRONG]: My understanding from what he told me about the scheduling was that he is from Panama and that he was planning on going to Panama the week of March 21st, and he was going for a conference, and I think he was receiving an award if I remember correctly, and that it had been scheduled for many months.
So, the direct answer is no, but that was the context.
The court also asked:
THE COURT: Did you in any way, you know, encourage him not to cooperate with plaintiffs' counsel in this case?
[ARMSTRONG]: I haven't even discussed that subject.
Appellants' attorney responded that, "knowing what counsel knew, . . . as an officer of the court, [Armstrong] had a duty to at least inform the Court that he knew that Dr. Osborne was now going to be away. . . . It looks like there is an attempt to mislead in this situation. My clients have been seriously prejudiced."
Nevertheless, the court questioned how Dr. Osborne's "earlier testimony could have been in any way contaminated," given that Armstrong did not represent Dr. Osborne in June 1999. In the view of appellants' counsel, the answer to that question required "Dr. Osborne here to tell us exactly when this representation began." The court replied:
Well, I am going to accept [Armstrong's] representation on the record in court that it began in December of 1999. . . . I mean, if you find out something different at a subsequent time, obviously that is the subject of a post-trial motion. But at this point I am certainly going to accept it for the purposes of making a determination.
Accordingly, the court denied appellants' mistrial motion. In reaching that decision, the court was satisfied that it did not have to resolve the conflict issue, because it concluded that it was the failure of appellants' counsel to make the necessary arrangements to secure the presence of Dr. Osborne at trial that resulted in the expert's unavailability. Moreover, the court was also satisfied that appellants' cause was not completely disadvantaged, because the court agreed to permit appellants to introduce in evidence Dr. Osborne's testimony from the first trial. The court said, in part:
I am going to stick with my original determination in this case, which is reinforced, that sufficient arrangements were not made - notwithstanding the representations made to me, sufficient arrangements were not made for the presence of Dr. Osborne. And therefore, I am - and to this date can't be made to have him here in anywhere near time.
At the very latest, we should finish up the testimony Monday at noon, according to current scheduling, as I gathered. And I am not going to put this case off any longer or drag it or delay it.
And obviously defense counsel would have the right to have their doctor who rebuts Dr. Osborne come after Dr. Osborne. So, that would completely snarl things....
You didn't make sufficient arrangements. There was not the exercise of ordinary prudence in
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