2020 IL 125219
Ill.2020Background
- Plaintiff Alexis Dameron sued Mercy Hospital and several physicians for femoral nerve injury after a robotic-assisted hysterectomy.
- Dameron initially identified David Preston, M.D., as a Rule 213(f)(3) controlled (testifying) expert and disclosed he would perform a comparison EMG/nerve conduction study; Dr. Preston performed the EMG on June 2, 2017 and prepared a report.
- Dameron then sought to redesignate Dr. Preston as a Rule 201(b)(3) non‑testifying consultant and refused to produce his report and EMG results; the circuit court ordered production and found Dameron in contempt.
- The appellate court reversed, concluding the consultant work‑product/privilege protected the EMG report and results absent exceptional circumstances and that redesignation was permissible because the expert’s report had not been produced.
- The Illinois Supreme Court affirmed: Dr. Preston was not a treating physician; a party may redesignate a disclosed expert as a consultant before the expert’s report is produced and with reasonable pretrial notice; Rule 201(b)(3) protects both opinions and objective data of a consultant; defendants failed to show exceptional circumstances to overcome the protection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Preston was a treating physician | Preston was retained for testimony, not treatment | Preston performed an examination/EMG and thus is a treating physician whose records are discoverable | Dr. Preston was not a treating physician; he was retained for testimony |
| Whether plaintiff could redesignate a disclosed expert from Rule 213(f)(3) to Rule 201(b)(3) after disclosure of the expert’s name but before producing a report | Permissible if done in reasonable time before trial and report not produced; defendants had ample notice | Initial disclosure irrevocably binds the party to call the expert and produce reports | Redesignation permitted where the expert’s report was not produced and redesignation occurred with reasonable pretrial notice |
| Whether Rule 201(b)(3) protects the consultant’s factual test results (EMG) as well as opinions/work product | Consultant protection covers identity, opinions, and work product, including objective data, discoverable only on exceptional circumstances | Objective factual test results are not core work product and must be produced | Rule 201(b)(3) protects both opinions and underlying factual data of a consultant; disclosure requires exceptional circumstances |
| Whether defendants showed exceptional circumstances to obtain Dr. Preston’s report and EMG | No exceptional circumstances; defendants could obtain comparable testing or seek Rule 215 exam | The EMG produced unique factual data available only from plaintiff and thus defendants need the report | Defendants did not demonstrate exceptional circumstances; production not required |
Key Cases Cited
- Cochran v. Great Atlantic & Pacific Tea Co., 203 Ill. App. 3d 935 (1990) (distinguishes treating physician from testifying expert based on relationship and purpose)
- Taylor v. Kohli, 162 Ill. 2d 91 (1994) (party may abandon a disclosed expert with timely notice prior to trial)
- Koenig v. Securities & Exchange Comm’n, 557 F.3d 736 (7th Cir. 2009) (federal discussion of discoverability of experts and limits once reports are produced)
- Costa v. Dresser Indus., Inc., 268 Ill. App. 3d 1 (1994) (consulting expert identity/opinions/test results discoverable only upon exceptional circumstances)
- Shields v. Burlington N. & Santa Fe Ry. Co., 353 Ill. App. 3d 506 (2004) (surveillance videotape held discoverable; court later distinguishes/limits its application here)
- Neuswanger v. Ikegai Am. Corp., 221 Ill. App. 3d 280 (1991) (consultant’s videotaped field investigation ordered produced; court’s scope narrowed by this decision)
- Appleton Papers, Inc. v. Envtl. Protection Agency, 702 F.3d 1018 (7th Cir. 2012) (noting federal rule protects facts and opinions of consulting experts)
- Waste Mgmt., Inc. v. Int’l Surplus Lines Ins. Co., 144 Ill. 2d 178 (1991) (distinguishes opinion/core work product from ordinary evidentiary facts)
- Sullivan v. Edward Hosp., 209 Ill. 2d 100 (2004) (discusses discovery obligations for expert disclosures)