2019 IL App (1st) 172338
Ill. App. Ct.2019Background
- Alexis Dameron sued Mercy Hospital and several doctors for medical malpractice after an August 2013 surgery.
- Dameron disclosed Dr. David Preston as a testifying expert in interrogatory answers and scheduled him to perform an EMG on June 1, 2017; Dr. Preston later prepared an EMG report.
- After disclosure of his identity but before producing any expert report, Dameron sought to withdraw Preston as a testifying expert and redesignate him as a Rule 201(b)(3) nontestifying consultant, asserting the earlier disclosure was inadvertent.
- The trial court denied the motion, ordered production of Preston’s EMG records, and found Dameron in contempt (fine reduced to $1 on reconsideration).
- Dameron appealed interlocutorily, arguing that because no expert report had been produced, she could redesignate Preston as a consultant and invoke the consultant/work-product privilege absent exceptional circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a party who disclosed an expert’s identity but did not produce the expert report can later redesignate that expert as a Rule 201(b)(3) consultant and shield the expert’s report from discovery absent exceptional circumstances | Dameron: disclosure of the expert’s name alone is not a full testimonial disclosure; because no report was produced, she timely withdrew the expert and may assert the consultant privilege | Defendants: once an expert is disclosed as testifying, the opposing party is entitled to the expert’s work product (EMG results); disclosure operated as a waiver or judicial admission | Court: Where an expert’s identity was disclosed but no report was produced before withdrawal, the party may redesignate the expert as a Rule 201(b)(3) consultant and invoke the consultant privilege unless the opponent shows exceptional circumstances; trial court’s order and contempt vacated |
Key Cases Cited
- Taylor v. Kohli, 162 Ill. 2d 91 (Ill. 1994) (a party may withdraw an expert so long as opposing party gets clear, sufficient notice)
- D.C. v. S.A., 178 Ill. 2d 551 (Ill. 1997) (privileges are narrowly construed; discovery aims to promote truth-seeking)
- Harris v. One Hope United, Inc., 2015 IL 117200 (Ill. 2015) (applicability of discovery privileges is reviewed de novo)
- Securities & Exchange Comm’n v. Koenig, 557 F.3d 736 (7th Cir. 2009) (once an expert report is disclosed and deposition conducted, the expert cannot be retroactively converted to protected trial-preparation-only status)
- Shields v. Burlington N. & Santa Fe Ry. Co., 353 Ill. App. 3d 506 (Ill. App. Ct. 2004) (distinguishing discoverability of consultant-produced physical evidence like surveillance tape from protected mental impressions)
- Costa v. Dresser Indus., Inc., 268 Ill. App. 3d 1 (Ill. App. Ct. 1994) (consultant’s identity, opinions, and work product are discoverable only upon showing exceptional circumstances)