Brown v. Contemporary OB/GYN Associates

HOLLANDER, J. This appeal arises from the unfortunate death of a baby girl who was bom prematurely in May 1994 to Folake Odejinmi Brown and Richard Afolabi Brown, M.D., appellants, 1 at Holy ²⁰⁵ Cross Hospital of Silver Spring, Inc. (the “Hospital” or “Holy Cross”). On May 9, 1997, appellants filed a malpractice claim with the Maryland Health Claims Arbitration Office. After arbitration was waived, appellants filed a five-count complaint on December 10, 1997, in the Circuit Court for Montgomery County. The suit named sixteen defendants, including Contemporary OB/GYN Associates (“Contemporary”), the obstetrical practice that cared for Ms. Brown; Contemporary’s individual physicians and their respective professional associations; Holy Cross; and two of the Hospital’s nurses, all appellees herein. 2 Appellants sought compensatory and punitive damages of $20 million in connection with their claims for wrongful death (Count I); a survival action (Count II); health care malpractice (Count III); breach of contract (Count IV); and intentional infliction of emotional distress (Count V).

Prior to trial, the circuit court granted summary judgment in favor of Holy Cross, Dr. Jeffrey Levitt, Dr. Goldberg, Dr. Brooks, and the two nurses, McKibben and Craddock. As to Contemporary, Dr. Donald Levitt, Dr. Goodman, and Dr. Rosenblatt, the court granted summary judgment as to the claims of wrongful death, the survival action, and punitive damages. Thereafter, the court bifurcated the issues of liability and damages. Accordingly, as to the remaining defendants, the case proceeded to trial on liability in June 1999 (Mason, J.), ²⁰⁶ with respect to the claims of health care malpractice and intentional infliction of emotional distress.

At the trial, Newton Osborne, M.D., Ph.D., a professor of obstetrics and gynecology at Howard University Hospital (“Howard” or “Howard Hospital”), and chairman of the Department from 1994 to 1997, testified as an expert for appellants. After the court determined that he offered an opinion that had not been previously disclosed to opposing counsel, the court granted a mistrial. A second trial, as to both liability and damages, commenced in January 2000 (Woodward, J.). It, too, ended in a mistrial, apparently because a juror overheard certain comments by a lawyer representing the Hospital.

In the meantime, after the second trial, and without appellants’ knowledge, Dr. Osborne’s employer, Howard Hospital, retained H. Kenneth Armstrong, Esq., to represent Dr. Osborne in a medical malpractice action filed again him and others in the District of Columbia (the “Singleton ” case). At that time, Armstrong was also the attorney for Contemporary and its physicians in this case (hereinafter sometimes referred to as the “Brown" case). Nevertheless, Dr. Osborne and Armstrong did not plan to meet to discuss the Singleton case until after the trial in the Brown matter was completed. As a result of the second mistrial, that matter did not end when anticipated.

Nevertheless, prior to the third attempt to try the underlying case, Armstrong met with Dr. Osborne to discuss the Singleton litigation. After the commencement of the third trial in March 2000, appellants learned that Armstrong represented Dr. Osborne in the Singleton matter. During the course of the third trial, appellants also learned that Dr. Osborne was out of the country and unavailable to testify as their expert. They also discovered that Armstrong knew that Dr. Osborne would be unavailable at that time, yet had failed to disclose that information to appellants.

The court (John McAuliffe, J.) attributed Dr. Osborne’s unavailability to appellants’ failure to subpoena the doctor, but permitted appellants to put in evi ²⁰⁷ dence the testimony of Dr. Osborne, elicited at the first trial in June 1997. On appeal, appellants present the following four questions: I. Did the [tjrial [cjourt err in denying the Plaintiffs’ Motion for a Mistrial and Post-trial Motion for a new trial where the court had before it evidence of witness tampering by defense [cjounsel, Kenneth Armstrong, Esquire, when he had undisclosed and unsupervised access to Appellants’ expert and he became attorney for Appellants’ expert in an unrelated case shortly before Appellants’ expert was scheduled to testify in this case; which caused or contributed to the absence of Appellants’ expert witness at trial; which had [aj prejudicial effect upon Appellants’ ability to present their case at trial; which deprived Appellants [of] a fair trial; and was prejudicial to the administration of justice in this case[?J II. Did the trial [cjourt err in allowing testimony of defense expert Lindsay Alger who rendered new opinions at trial which were prejudicial to Appellants’ case, which had never been rendered before and Appellants were not put on reasonable notice of those opinions at anytime before trial[?J III. Did the trial [cjourt err when it ordered the use of Dr. Osborne’s previous trial testimony at the March 2000 trial which did not contain testimony regarding [mjen-tal anguish that Dr. Osborne had prepared to render at the June 1999 trial but for the bifurcation of the trial and the objection of Appellees[?J IV.

Did the trial [cjourt err where the [cjourt gave an incorrect instruction to the jury that a wrongful death claim could not be brought by the Plaintiffs because the baby was non-viable without advising the jurors that that [sic] under Maryland law, a wrongful death suit may be maintained if a nonviable fetus was born-alive[?J For the reasons that follow, we shall affirm. ²⁰⁸ FACTUAL BACKGROUND 3 In January 1994, Ms. Brown came under the prenatal care of Contemporary. At that time, she had already endured four unsuccessful pregnancies, and was experiencing difficulties in the early stages of the pregnancy at issue, including infection and vaginal bleeding. On May 12, 1994, when Ms. Brown was twenty-two weeks pregnant, she had severe abdominal pains and contractions. As a result, Dr. Brown took his wife to the Hospital’s emergency room, where she was examined by Craddock and McKibben.

The nurses then contacted Dr. Goodman, the physician on call for Contemporary. He told the nurses to discharge Ms. Brown and instruct her to follow up with Contemporary the next day. Accordingly, Ms. Brown was examined the next day by Dr. Rosenblatt. After an ultrasound revealed that Ms. Brown was dilated four centimeters, she was admitted to Holy Cross.

The baby was delivered by Dr. Donald Levitt on May 13, 1994. During the delivery, the baby’s head was severed from its body. At the first trial in June 1999, Dr. Osborne opined that the premature delivery was caused by an undiagnosed “lower genital tract infection” that “eventually progressed to an upper genital tract infection with amnionitis and chorioamnioni-tis, and caused a contraction of the uterus that resulted in a [premature] delivery.” Defense counsel claimed that Dr. Os ²⁰⁹ borne’s opinion had not been disclosed by appellants prior to trial, in violation of the Pretrial Scheduling Order. Therefore, appellees moved for a mistrial.

Although the court recognized that the disputed opinion was “so important” to the plaintiffs’ case, it found that they never disclosed the opinion “in any reasonable form,” or “at any time.... ” Accordingly, the court granted a mistrial, stating: [T]o allow the case to proceed in the absence of any kind of reasonable disclosure, which I do not find from my review of the record, would in fact unfairly and severely prejudice the defendants. Accordingly, over the objection of the plaintiffs, I will grant the motion for the mistrial. Because the court also struck the bifurcation, the trial was rescheduled for January 10, 2000, as to both liability and damages. In the meantime, on or about September 2, 1999, Dr. Osbojme was sued in the District of Columbia for malpractice, in his capacity as Chairman of Howard’s Department of Obstetrics and Gynecology, in the “Singleton ” case.

In December 1999, a representative of Howard Hospital contacted Armstrong and asked him to represent Dr. Osborne in that unrelated matter. Although appellants were not aware of the request, Armstrong knew, of course, that Dr. Osborne was appellants’ expert in the case sub judice. In a telephone conversation with Dr. Osborne on January 5, 2000, Armstrong advised the doctor of his willingness to represent him. But, mindful of the impending trial in this case, he suggested that they defer meeting until after the conclusion of the second Brown trial, then scheduled to commence on January 10, 2000.

Armstrong also advised Dr. Osborne that it would be inappropriate for the two of them to discuss the Brown litigation at any time. Armstrong confirmed his telephone conversation with Dr. Osborne by letter of January 6, 2000, stating: This will confirm our telephone conversation of January 5, 2000. At that time, we discussed that I had been retained ²¹⁰ by Howard University Hospital to represent your interest in a lawsuit brought by the Singleton family in the Superior Court for the District of Columbia, Civil Action No. 99-0006001. We have a meeting set up in my office for Thursday, January 20, 2000 at 10:00 a.m.

This will also confirm that I specifically advised you that I will not discuss the Brown litigation with you at any time. In addition, I specifically set our first meeting to discuss the Singleton case for after the Brown case is concluded in the Circuit Court. While I do not believe that your participation as an expert in the Brown case will prevent us from having a completely appropriate and satisfactory attorney/client relationship, I did not want to discuss any matters with you in the Brown case at all as I am preparing in my last couple of days prior to the beginning of that trial. Feel free to advise [appellants’ counsel] that I will be representing you in the litigation and that we tvill not discuss the Brown case if you feel that you would like to do so.

I look forward to meeting you on the 20th [of January, 2000]. (Italics added). On January 6, 2000, appellants’ counsel deposed an expert witness of the appellees. In preparation for that deposition, appellants’ counsel met with Dr. Osborne, but the doctor did not disclose that Howard Hospital had retained Armstrong to represent him in another matter.

Armstrong entered his appearance as attorney for Dr. Osborne in the Singleton case on January 7, 2000, three days before the second trial in the instant case was scheduled to begin. Although the second trial commenced on January 10, 2000, as scheduled, it ended in a mistrial the next day. As the court told the jury, “during one of the recesses a representative of a former Defendant in this case was overheard by several jurors making comments about this case.” That same day, the parties agreed to yet a third trial date — March 20, 2000. ²¹¹ Thereafter, appellants’ counsel sent a letter to Dr. Osborne on January 16, 2000, informing him that the case had been rescheduled for trial beginning on March 20, 2000. The letter provided, in part: We have a new trial date in two months beginning on March 20, 2000.

It is a 10 day trial. Please mark your calendar. As usual, I will contact you shortly before the trial to meet you to prepare for this case. Dr. Osborne did not respond to the letter, nor did he ever advise appellants’ attorney as to his availability for trial.

Although the Brown matter was not resolved by January 22, 2000, the date Dr. Osborne was to have his initial meeting with Armstrong concerning the Singleton case, Armstrong decided to proceed with the meeting, because the deadline for a responsive pleading was approaching. As a result of that meeting, Armstrong learned that Dr. Osborne would not be available when the third trial in the Brown case was set to commence on March 20, 2000. By letter dated January 27, 2000, Armstrong wrote to Dr. Osborne about their meeting of January 22, 2000. The letter said, in part: I understand that you, will be out-of-town in late February [2000] to Venezuela and the week of March 21 [2000] to Panama.

We should hopefully have a number of things happening before you go to Panama. In the meantime, if you have any questions, please do not hesitate to contact me. (Emphasis added). As scheduled, the third jury trial in the Brown case began on March 20, 2000.

On the morning of March 22, 2000, one of appellants’ attorneys advised the court that he had just learned on March 21, 2000, that Dr. Osborne was out of the country at a medical conference and was unavailable to testify until Monday, March 27, 2000, “at the earliest.” 4 The court ²¹² initially said: “That is not acceptable. We can’t wait till then ...,” because “it would set us way back....” Armstrong indicated to the court that he had no knowledge of Dr. Osborne’s unavailability. The following colloquy is relevant: [APPELLEES’ COUNSEL]: As you know from our scheduling discussions, Dr. Alger [, the defense’s expert witness,] is scheduled to testify on Friday afternoon [March 24, 2000]. It was always my understanding in the scheduling of the events of this case that Dr. Osborne was testifying prior to Dr. Alger so that in the normal course of events— THE COURT: Almost have to. [APPELLEES’ COUNSEL]: — I would be able to then rebut the allegations.

This is the first that I have heard of his unavailability, and I think I can say this without it being inappropriate: If it goes as scheduled, Alger first and Osborne second, I am screwed. (Emphasis added). Because of Dr. Osborne’s absence, the court explored appellants’ possible use of the prior testimony of Dr. Osborne, elicited at the first trial in June 1999. The following colloquy is relevant: THE COURT: Did [Dr. Osborne] testify fully at the prior trial? [APPELLANTS’ COUNSEL]: No, he did not, Your Honor.

THE COURT: It was aborted before he finished his testimony? [APPELLEES’ COUNSEL]: Well, they had finished the direct examination, and I was half way through my cross, at which time we had fully developed the issue that was precipitating the mistrial. ²¹³ THE COURT: Well, obviously, the reason I ask is, [i]s the prior testimony available for utilization by the plaintiffs in the absence of the witness? [APPELLEES’ COUNSEL]: Yes, and to the extent that it is a full direct examination, then I think we are okay.... THE COURT: Well, I guess the ball is in your court. You say you have got about a half of cross; is that enough? I mean, you covered the issues that you wanted to cover? [APPELLEES’ COUNSEL]: I will have to discuss that with my clients 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[k]. 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. ²¹⁴ 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: “[I]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? ²¹⁵ [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. 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. “[0]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 ivith him. I knew in January that he ivasn’t going to be in town this week. I kneiv 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. ²¹⁶ 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? ²¹⁷ [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 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[ed] 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: ²¹⁸ 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 unwaiva-ble 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 [the] 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 ²¹⁹ 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 complicated 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.... [N]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 stvom 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. ²²⁰ 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[d] 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[ed] 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, and he had inquired of Dr. Osborne as to where he would be on that date, so that he ²²¹ “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 ²²² 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. ^ H: Hi 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 ordwmry prudence in arranging for the attendance of Dr. Osborne, and you, know, you are stuck with that.

Now, happily, you are not shuck entirely, because you do have the earlier trial transcript, which I will allow to be used with a suitable reader and so on. We can work out the details of that. ²²³ And that can’t be tainted, ... I find from information available to me now, by any subsequent representation of [Dr. Osboime by] Mr. Armstrong. So, again, somewhat fortuitously, a potential problem is solved.

Now in making that determination, let me make it also clear that if things were different, if Dr. Osborne were coming in here on Monday to testify and you raised this problem with me, I would have to give that a great deal of thought as to whether that potential conflict and the potential for subtle influences on Dr. Osborne would necessitate granting your motion. But that is not the case, and I am not going to tilt at windmills. I just don’t want the record to shotu that I am accepting carte blanche the argument of defense counsel that there is no conflict. I am simply finding that I don’t have to get into that for other reasons that, as I say, are somewhat fortuitous.

Motion for mistrial is denied. (Emphasis added). At the conclusion of the evidence, the court granted appel-lees’ motion for judgment as to the claim of intentional infliction of emotional distress. The case was then submitted to the jury on the remaining claim of negligence.

The jury returned a verdict in favor of appellees. On April 7, 2000, appellants filed a “Motion For New Trial, And For Sanctions,” supported by an affidavit of Agbaje. He averred, inter alia, that he contacted Dr. Osborne on January 11, 2000, to advise him of the new trial date of March 20, 2000, and the doctor “confirmed that the week of March 20 — March 30, 2000 was available for him.” Agbaje also said that he wrote to Dr. Osborne on January 16, 2000, “to memorialize the trial date of March 20, 2000,” and made other attempts to contact the doctor in February and March 2000. The court held an evidentiary hearing on May 30, 2000, at which Robert Michael, Esquire, appeared as co-counsel with Armstrong.

The evidence included the post-trial testimony of Dr. Osborne, taken on March 29, 2000; transcripts from the ²²⁴ third trial; pleadings from the Singleton case, including Armstrong’s entry of appearance on January 7, 2000; Agbaje’s affidavit; testimony of Armstrong; and testimony of Paul Bekman, Esq., an expert for Armstrong. Appellants argued, inter alia, that, based on their prior relationship with Dr. Osborne, appellants’ counsel “never had a reason to subpoena Dr. Osborne.” Agbaje asserted: “This is not about me issuing a subpoena to Dr. Osborne.... ” He maintained that he did not subpoena Dr. Osborne because he considered it “unwise to subpoena your own expert, that it is actually never done....” Moreover, Agbaje reiterated his contention that Armstrong had access to “confidential information” and “strategies” of appellants through appellants’ expert. He also attributed the doctor’s “unusual behavior” in not responding to his calls to Armstrong’s involvement with Dr. Osborne, implying that Armstrong “connived to procure Dr. Osborne’s absence.” Agbaje conceded, however, that he had no evidence to that effect. Instead, he pointed to the “appearance of impropriety,” characterizing Armstrong’s conduct as “patently inappropriate” and “grossly unfair,” and charging that Armstrong “orchestrated” the expert’s failure to appear.

The court responded, as follows: I indicated that while I might have some concern with the advisability, propriety, what have you of representing a doctor that you knew was going to be involved on the other side as an expert witness in a case, but that under the particular circumstances of this case I didn’t feel it necessary to delve too deeply into that because you had not made the necessary arrangements for the presence of the doctor nor had you exercised any prudence or been in contact with the doctor nor had you issued a subpoena for the doctor to be present, and we were going to allow you to use the doctor’s deposition, and there was no possibility that that testimony could have been in any way tainted by subsequent representation. ²²⁵ [I]f you could offer some evidence ... that [Dr. Osborne’s] absence had been procured, ... then that would put a different light on it, but what evidence do you have, therefore, that his absence had been procured by Mr. Armstrong? Mr. Armstrong represented to the Court he had not procured his absence. [Y]ou think that inferences can be drawn that somehow Mr. Armstrong procured the absence of this witness for this trial, and I guess I am asking you what evidence you have of that? The following colloquy ensued: [APPELLANTS’ COUNSEL]: Well, first and foremost, if we review the testimony of Dr. Osborne throughout the course of this trial and, you know, the question that bothers me is how his testimony continued to just change. Everything just kept changing. [THE COURT]: Well, now wait a minute.

The testimony of Dr. Osborne that was admitted at the trial before the jury . .. was taken before the representation of Mr. Armstrong began, was it not? [APPELLANTS’ COUNSEL]: It was taken ... before the representation. [THE COURT]: So how could that representation have affected that preexisting testimony? [APPELLANTS’ COUNSEL]: Well, that is assuming — that is if we were to assume that this whole collusion began in December. [THE COURT]: All right. Now what evidence do you have to the contrary? [APPELLANTS’ COUNSEL]: Your Honor, I do not believe that I need to present that evidence to this Court. I think— [THE COURT]: Well do you have it? I mean, are you holding it in your back pocket? ²²⁶ [APPELLANTS’ COUNSEL]: As to — no, I don’t, Your Honor, but that is not the inquiry, Your Honor.

What we are trying to do here is find direct evidence of their involvement. It is never going to happen. [THE COURT]: No, circumstantial evidence can be just as strong as direct sometimes. [APPELLANTS’ COUNSEL]: That is right, and I do have the circumstantial evidence. [THE COURT]: All right, tell me what it is. [APPELLANTS’ COUNSEL]: Okay. The circumstantial evidence is Dr. Osborne’s testimony had started changing from the time — and I did present the Court with the various reports, his deposition testimony and his trial testimony, from the time that we hired him up until the time of the last trial in June.... Mr. Armstrong should be removed from this case because we believe that he has had confidential information.

He ... knew about our strategy. Everything that was done in this court was orchestrated. As noted, shortly after the third trial, appellants deposed Dr. Osborne. They introduced his deposition testimony, which included the following: [APPELLANTS’ COUNSEL]: When was the first time that you had contact with Mr. Armstrong? [DR.

OSBORNE]: That was [when] Howard University referred me to Mr. Armstrong because of an unrelated matter just before I left for Caracas, Venezuela.... There was no discussion about this case whatsoever.... [APPELLANTS’ COUNSEL]: Who initiated the contact, Doctor? [DR. OSBORNE]: Howard University. [APPELLANTS’ COUNSEL]: Did you have any telephone discussion with Mr. Armstrong? ²²⁷ [DR. OSBORNE]: I’m sure 1 did only to be notified that Howard has appointed him to represent me in the case against Howard. [APPELLANTS’ COUNSEL]: When was that, Doctor? [DR.

OSBORNE]: Oh, that was just before leaving for Venezuela. I don’t remember the exact date. It must have been February 25th or thereabouts. [APPELLANTS’ COUNSEL]: Prior to February 2000, have you had any contact with Mr. Armstrong? [DR. OSBORNE]: Only in court [with respect to the Brown matter], [APPELLANTS’ COUNSEL]: Did Mr. Armstrong advise you that — to inform the plaintiffs and their counsel of his potential representation? [DR.

OSBORNE]: I think he mentioned that we should talk about it.... [DR. OSBORNE]: He asked me if I had any problem, if I foresaw any conflict with this. I said no, I will testify what I have to testify in court regardless of who I am appointed to, it would have absolutely no bearing whatsoever on my testimony [in the Brown case], and I haven’t gotten in contact with him since then. [APPELLANTS’ COUNSEL]: Have you met Mr. Armstrong in person? [DR. OSBORNE]: Yes, I have. [APPELLANTS’ COUNSEL]: When did you meet with him? [DR.

OSBORNE]: Just before leaving [the country]. I don’t remember the exact date.... [APPELLANTS’ COUNSEL]: That was sometime in February? [DR. OSBORNE]: Late February. ²²⁸ [APPELLANTS’ COUNSEL]: What was the nature of the meeting? [DR. OSBORNE]: Just to discuss what the [Singleton] case was all about, what involvement I had with the patient .... [APPELLANTS’ COUNSEL]: Now, the trip to Panama, when was it planned? [DR.

OSBORNE]: Oh, it was planned months in advance. I don’t know if I have the program here. It’s over a year ago. [APPELLANTS’ COUNSEL]: Did Mr. Armstrong have your telephone number [in Panama]? [DR. OSBORNE]: No.... [APPELLANTS’ COUNSEL]: Doctor, before today have you advised the plaintiff of your role with Kenneth Armstrong, before this testimony that you are giving, have you ever contacted the plaintiffs about your involvement with Mr. Armstrong? [DR.

OSBORNE]: No. [APPELLANTS’ COUNSEL]: So if I didn’t bring this up, Doctor, there’s no way we would have known, correct? [DR. OSBORNE]: Well, I don’t know if there is any way. [APPELLANTS’ COUNSEL]: But it would not have come from you? [DR. OSBORNE]: Not from me, no. (Emphasis added).

Armstrong recounted the chronology of his representation of Dr. Osborne, explaining that Howard Hospital first contacted him in late December 1999. Thereafter, on January 5, 2000, Armstrong talked to Dr. Osborne for the first time, and told him that he wanted to meet after completion of the Brown trial, which was scheduled to begin January 10, 2000. He also maintained that he promptly invoked the principles of a “Chi ²²⁹ nese wall,” and advised Dr. Osborne that he “would not be discussing the Brown case with [Dr. Osborne] at any time.... ” Further, Armstrong testified that he “left it to [Dr. Osborne] to contact Mr. Agbaje if he wished to do so, about [Armstrong’s] representation [of him] in the Singleton case,” because he thought that was the “best” way to proceed. In his view, any conflict was Dr. Osborne’s, not his.

He said: I did not believe once I had created the information or wall, as it has been phrased, a Chinese wall, that I had a separate obligation to contact Mr. Agbaje to advise him. I believed that was — with the attorney/client privilege particularly at that stage, it was for Mr. — or for Dr. Osborne to waive the privilege and discuss it directly with— with counsel. The following testimony of Armstrong is also pertinent. [COUNSEL FOR APPELLEES]: And can you tell us, sir, [a]t any time after you commenced representation of Dr. Osborne in the Singleton matter, had you at any time, either orally, in writing, directly, indirectly, discussed with him any aspect of the Brown case? [ARMSTRONG]: No. [COUNSEL FOR APPELLEES]: Does that also include his availability for trial— [ARMSTRONG]: Yes. [COUNSEL FOR APPELLEES]: — in March of the Year 2000? [ARMSTRONG]: Yes, it does. [COUNSEL FOR APPELLEES]: And did you make any effort at any time, either before trial or during trial to find out from Dr. Osborne or his staff or have a member of your staff try to find out information about whether he was actually coming to this trial or not? [ARMSTRONG]: I made no attempt to make any such contact or to determine that at all. ²³⁰ [COUNSEL FOR APPELLEES]: And did you, Mr. Armstrong, do anything, either directly or indirectly, to cause, influence or in any way have Dr. Osborne not be present for trial in the Brown matter in March of the Year 2000? [ARMSTRONG]: I did nothing other than what is reflected in my letter of January 6th, which is to advise him I would not discuss it and leave it up to him to discuss it with Mr. Agbaje. * * * I have had no other oral or written contact about the Brown case with him at all. When asked why Armstrong told the court during the third trial that it was the first time he had heard of Dr. Osborne’s unavailability, Armstrong explained: I had had no contact with [Dr. Osborne] about the appearance at trial.

I assumed that arrangements had been made to bring him back and have him testify at trial. The following testimony is also pertinent: [COUNSEL FOR APPELLEES]: Can you tell me, sir, [w]ere you aware before March of 2000 from your contact with Dr. Osborne that he was not going to be or at least his plans were not to be in town at the time of the trial of the Brown matter? [ARMSTRONG]: I knew that he had plans to be in Panama the week of March 21st, but that doesn’t mean that I knew that he had plans not [to] be in town for the trial. The trial was scheduled for 10 days, and I did not know what arrangements had been made with Mr. Agbaje for his presence. * * * The information that I had had was that he was going to be in Panama the week of March 21st. When counsel indicated that he was going to bring him back, I assumed that other arrangements had been made, and I assumed that they were going to then produce him as they had promised on Thursday, March 23rd. ²³¹ [COUNSEL FOR APPELLEES]: And can you tell me, Mr. Armstrong, [u]p until the discussion that was had before Judge McAuliffe on the morning of March 22, 2000, were you aware in any way, shape or form, through either direct or indirect information of any kind that Dr. Osborne was not going to be in attendance physically and personally at the Brown trial? [ARMSTRONG]: No. Paul Bekman, Esquire, who testified as an expert for Armstrong, opined that Armstrong complied with his “professional and ethical obligations” in regard to Dr. Osborne.

Bekman noted that the propriety of contact between an attorney and an expert for an opposing party “depends upon the facts and the particular circumstances of the case.... ” Bekman opined: “I think [Armstrong] acted totally appropriately when he contacted [Dr. Osborne]....” In Bekman’s view, it was significant that Dr. Osborne had “committed himself to his testimony in June of 1999 ... ”, before Howard Hospital ever retained Armstrong. He also considered it noteworthy that Armstrong had not sought out Dr. Osborne. Additionally, Bekman deemed it significant that Armstrong was never put in the position of having to cross-examine Dr. Osborne. Moreover, Bekman suggested that it was Dr. Osborne who may have had the conflict.

He stated: I believe it is Dr. Osborne’s call here as to whether there is a conflict, and I think that was made very clear in Mr. Armstrong’s letter to him. Let’s say that Mr. Armstrong had met with Dr. Osborne and was going to cross-examine him at the time of trial, and Dr. Osborne, in connection with the Singleton case, gave Mr. Armstrong confidential information about his background; for example, that he had been denied privileges or his privileges had been suspended at a hospital for some conduct. That would be information that Mr. Armstrong would have garnered during the course of his professional relationship with Dr. Osborne which he would not otherwise have ²³² learned, and for him to then take that and use it in the Brown case would be improper, and that is why, under those circumstances, had that situation arose, it would have been improper, but as I have indicated and as the facts in this case have shown, there was no taint because the testimony that was used was the June 1999 testimony, and Mr. Armstrong never cross-examined Dr. Osborne after he was appointed to his representation. On the other hand, Bekman was critical of the failure of appellants’ counsel to subpoena Dr. Osborne.

Although “Mr. Agbaje ... candidly admitted that he did not subpoena Dr. Osborne....,” Bekman said that, by custom and practice, and for the protection of both the lawyer and the doctor, a lawyer should subpoena a physician whose testimony is needed for trial. He explained: [T]he physicians and experts who testify are extremely busy and their calendars are extremely busy, so it’s critical to map out when someone is going to testify during a trial. The court does not want any down time; the court wants to move the case along, and the parties and everyone is entitled to do so. So the specific time and date is going to be determined well in advance because the physician or expert has to make arrangements within their schedule when they can come in.

So you have got to give them as much advance notice as is possible, and they are going to want to know not just a week ahead of time; they’re going to want to know as much as a month or more ahead of time when they’re going to be able to come in. The court carefully considered the circumstances of the case and the evidence. It was “persuaded” that “the so-called Chinese wall was effectively erected; that is, one was put in place immediately ...” by Armstrong. Although the court was satisfied that “no information was exchanged or obtained with respect to the Brown case ...,” it was also mindful of the potential “subliminal effect” of Armstrong’s representation of Dr. Osborne.

The court reasoned: ²³³ The problem ... perhaps transcends [the Chinese wall]. The problem is in the existence of a lawyer/client confidential relationship and its potentially subtle .. . effect on Dr. Osborne’s later testimony.... It is not always possible to fully understand how the representation of an expert in a separate case, by the very lawyer opposing the party who retained the expert in another case, may impact on you whether you want it to impact on you or not. Thus, the court acknowledged a “lingering concern about the representation of the opposing expert even under the circumstances that occurred here.” It also had a “lingering concern about Mr. Armstrong’s obligation, if any, to say something to Mr. Agbaje about this so that if there was a problem that required the court’s attention before the case came to trial, it might have been fully litigated then.... ” Ultimately, however, the court again determined that, in the context of this case, any conflict or impropriety of Armstrong was of no consequence, because it was the conduct of appellants in failing to arrange for Dr. Osborne’s appearance at trial that led to his unavailability.

The court reasoned that there were two possible grounds that would alter the significance of appellants’ failure to arrange for Dr. Osborne’s appearance at trial: [I]f there is harm, there is no foul unless one of two things is present. If Mr. Armstrong procured the absence of Dr. Osborne or counseled Dr. Osborne as to non-availability or non-communication with plaintiff’s counsel, that would be a different matter because that then would affect why Dr. Osborne was not there. The second possibility that could change my mind would be if Mr. Armstrong had some contact with Dr. Osborne apart from normal and appropriate contact dealing with this Brown case before Dr. Osborne’s deposition and testimony became of record. The court was readily satisfied that neither circumstance outlined above occurred.

Therefore, it did not consider it ²³⁴ necessary to determine whether Armstrong committed any ethical violation. The court stated: I find without difficulty that neither of those two contingencies occurred. Mr. Armstrong did not procure the absence of Dr. Osborne nor did he counsel him about nonavailability or non-communication with plaintiffs counsel. Mr. Armstrong, furthermore, had no contact outside of the normal expected contact in this case with Dr. Osborne before Dr. Osborne’s deposition and testimony were taken.

So what I opined at the time I think continues to be true, that I need not determine here whether there was a violation of an ethical standard. I have admitted to having some lingering concern for the reasons I have expressed, but it doesn’t matter in the context of this case. The ruling that I made was a ruling that had to do with whether Dr. Osborne — whether there had been any prudent steps to procure his presence, and actually his deposition was ultimately used. The court also concluded that the use at the third trial of Dr. Osborne’s testimony from the first trial was due solely to appellants’ failure to subpoena Dr. Osborne.

Because that testimony was elicited