ALEXIS DAMERON, Plaintiff-Appellant, v. MERCY HOSPITAL AND MEDICAL CENTER, an Illinois Not-For-Profit Corporation, Individually and By and Through Its Agents, Servants and/or Employees; CORDIA CLARK-WHITE, M.D., Individually and as Agent, Servant and Employee of Mercy Hospital and Medical Center; ALFREDA HAMPTON, M.D., Individually and as Agent, Servant and/or Employee of Mercy Hospital; NATASHA HARVEY, M.D., Individually and as Agent, Servant and Employee of Mercy Hospital; ERICA TAYLOR, M.D., Individually and as Agent, Servant and/or Employee of Mercy Hospital; PATRICIA COURTNEY, Individually and as Agent, Servant and/or Employee of Mercy Hospital; MARY CAHILL, Individually and as Agent, Servant and/or Employee of Mercy Hospital; GENEVIEVE LANNING, Individually and as Agent, Servant and/or Employee of Mercy Hospital; and JAYLEN SHEARER, Individually and as Agent, Servant and/or Employee of Mercy Hospital, Defendants (Mercy Hospital and Medical Center; Cordia Clark-White, M.D.; Alfreda Hampton, M.D.; Natasha Harvey, M.D.; and Patricia Courtney, Defendants-Appellees).
No. 1-17-2338
Appellate Court of Illinois, First District, Fifth Division
March 15, 2019
2019 IL App (1st) 172338
Appeal from the Circuit Court of Cook County. No. 2014 L 11533. Honorable William E. Gomolinski, Judge Presiding.
OPINION
¶ 1 This is an interlocutory appeal pursuant to
¶ 2 On appeal, plaintiff contends that the trial court erred when it denied her motion to redesignate her expert witness a consultant and ordered her to produce the expert witness’ report.
¶ 3 BACKGROUND
¶ 4 On November 6, 2014, the plaintiff filed a medical malpractice complaint against the defendants, Mercy Hospital and Medical Center, Cordia Clark-White, M.D., Alfreda Hampton, M.D., Natasha Harvey, M.D. and Patricia Courtney.2 The plaintiff alleged that in August 2013, she underwent a surgical procedure at Mercy Hospital during which she sustained injuries due to the negligence of the defendants. The defendants filed their appearances and answers to the complaint. Thereafter the parties conducted discovery.
¶ 5 On May 30, 2017, the plaintiff filed her answers to interrogatories.
¶ 6 On August 3, 2017, the plaintiff filed a motion to designate Dr. Preston a nontestifying expert consultant pursuant to
¶ 7 Dr. Preston had been retained to assist the plaintiff‘s attorney by evaluating the nature and extent of the plaintiff‘s injuries and to perform the EMG study on her. Dr. Preston was not one of the plaintiff‘s treating physicians, he had not been referred to her by any of her treating physicians, and the doctor did not provide the plaintiff with any medical treatment for her complained-of injuries. The May 30, 2017, disclosure of Dr. Preston as a testifying expert witness was “inadvertent” and that on July 27, 2017, the plaintiff‘s attorney notified the defendant‘s attorneys that she was withdrawing Dr. Preston as a testifying expert witness. The plaintiff‘s attorney informed defendants’ attorneys that because Dr. Preston would not be testifying, his opinions were privileged from discovery pursuant to
¶ 8 The plaintiff further alleged that on July 27, 2017, the trial court had ordered the plaintiff‘s attorney to provide deposition dates for her expert witnesses. However, the defendants refused to schedule those depositions until Dr. Preston‘s records of the EMG study were disclosed to them. Since the defendants’ attorneys failed to show that the facts and opinions known to Dr. Preston could not be obtained by other means, pursuant to
¶ 9 On August 4, 2017, following argument by the parties, the trial court denied the plaintiff‘s motion to designate Dr. Preston as a consulting expert and ordered the plaintiff to produce Dr. Preston‘s records regarding the EMG study on the plaintiff. The plaintiff refused to produce Dr. Preston‘s records. The trial court found the plaintiff in contempt and imposed a $100 fine. The plaintiff filed a motion to reconsider the court‘s August 4, 2017, order. On September 6, 2017, the trial court denied the plaintiff‘s motion for reconsideration but reduced the fine for contempt to $1.
¶ 10 On September 19, 2017, the plaintiff filed her notice of interlocutory appeal from the trial court‘s orders of August 4, 2017, and September 6, 2017.
¶ 11 ANALYSIS
¶ 12 We are asked to determine whether a party who has disclosed a witness as a testifying expert may thereafter redesignate that witness as a consultant whose opinions and work product are privileged from discovery unless there is a showing of exceptional circumstances by the opposing party.
¶ 13 I. Standard of Review
¶ 14 The applicability of a discovery privilege is a matter of law which we
¶ 15 II. Rules and Principles Governing Pretrial Discovery
¶ 16 The objectives of pretrial discovery are to allow better preparation for trial, the elimination of surprise and to promote the expeditious and final determination of controversies in accordance with the substantive rights of the parties. D.C. v. S.A., 178 Ill. 2d 551, 561 (1997). In contrast, privileges are not designed to promote the truth-seeking process; rather, they serve some outside interest by protecting certain matters from discovery. D.C., 178 Ill. 2d at 561-62. As such, privileges are an exception to the rule that the public has a right to every person‘s evidence. D.C., 178 Ill. 2d at 562. “Privileges are not to be lightly created or expansively construed, for they are in derogation of the search for the truth.” D.C., 178 Ill. 2d at 562.
¶ 17
“A consultant is a person who has been retained or specially employed in anticipation of litigation or preparation for trial but who is not to be called at trial. The identity, opinions, and work product of a consultant are discoverable only upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject matter by other means.”
¶ 18 III. Discussion
¶ 19 We begin by observing that in Illinois, a party may withdraw an expert witness so long as the opposing party is given clear and sufficient notice allowing it to take the necessary action in light of the abandonment of the witness. Taylor v. Kohli, 162 Ill. 2d 91, 97 (1994). However, the plaintiff does not merely seek to withdraw Dr. Preston as a testifying expert witness but to redesignate him as a nontestifying consultant whose reports and opinions are protected from discovery by the defendants pursuant to the privilege set forth in
¶ 20 The issue in this case is not addressed in our discovery rules. Neither party has directed us to Illinois cases addressing this precise issue. In the absence of Illinois authority, the plaintiff relies on federal case law interpreting the federal rules corresponding to our rules governing discovery.
¶ 21 The defendants point out that several of these decisions are unpublished orders and that such orders have no precedential value in Illinois courts. Board of Education of Springfield School District No. 186 v. Attorney General, 2017 IL 120343, ¶ 54. However, our supreme court went on to say, “the district court‘s reasoning is of interest.” Board of Education of Springfield School District No. 186, 2017 IL 120343, ¶ 55. Moreover, where there are similarities between provisions of our Code of Civil Procedure (Code) (
¶ 22 Since Illinois discovery rules and prior decisions have not addressed this precise issue, we find sufficient similarities between our discovery rules and federal discovery rules so as to render federal case law on this issue instructive and the federal courts’ reasoning persuasive, though not precedential. While the term “consultant,” is not used, the Federal Rules of Civil Procedure similarly distinguish between an expert whose opinions may be presented at trial and an expert employed only for trial preparation and not expected to testify. San Romάn v. Children‘s Heart Center, Ltd, 2010 IL App (1st) 091217, ¶ 23;
¶ 23 Prior to 2009, the majority of federal courts decisions took the view that a party could change its mind and change the designation of an expert witness, in which case that expert could not be subject to discovery absent a showing of exceptional circumstances. Davis v. Carmel Clay Schools, No. 1:11-cv-00771-SEB-MJD, 2013 WL 2159476, at *3 (S.D. Ind. May 17, 2013); see Ross v. Burlington Northern R.R. Co., 136 F.R.D. 638, 639 (N.D. Ill. 1991); Sunrise Opportunities, Inc. v. Regier, No. 05 C 2825, 2006 WL 581150, at *1 (N.D. Ill. March 7, 2006). But see House v. Combined Insurance Co. of America, 168 F.R.D. 236, 245 (N.D. Iowa 1996) (the opposing party could depose and use an expert at trial, who had been previously disclosed but subsequently withdrawn as a witness).4
¶ 24 In 2009, the Seventh Circuit Court of Appeals recognized that “[a] witness identified as a testimonial expert is available to either side; such a person can‘t be transformed after the report has been disclosed, and a deposition conducted, to the status of a trial-preparation expert whose identity and views may be concealed.” Securities & Exchange Comm‘n v. Koenig, 557 F.3d 736, 744 (7th Cir. 2009) (citing
¶ 25 In Davis, the issue was “whether a witness who was identified as a testifying expert, but never produced a report or provided testimony, can be re-designated as a non-testifying or consulting expert to be shielded from discovery.” Davis, 2013 WL 2159476, at *2. The issue before it required the district court to determine what constituted the “designation” of an expert witness. The court observed that in the Seventh Circuit, Koenig and its progeny dictated that once the expert‘s report
“both the disclosure of the name of the expert as well as the expert‘s required report is necessary to fully disclose a testifying expert under
Fed R. Civ. P. 26 and comply with that Rule. The Court also agrees that parties are entitled to change their minds and decide not to use an expert to testify at trial. *** Defendant did not disclose any testimony or expert opinions in the form of a report from [the expert witness]. Moreover, Plaintiff has shown no reliance upon Defendant‘s expert disclosure *** that would result in any prejudice to Plaintiff. As a result, the only means by which Plaintiff is entitled to conduct discovery of [the redesignated expert witness] is the ‘exceptional circumstances’ exception ofRule 26(b)(4)(D) .” (Emphasis omitted.) Davis, 2013 WL 2159476, at *7.
¶ 26
¶ 27 The defendants raise several arguments in support of their contention that once the plaintiff disclosed Dr. Preston as a testifying expert, they were entitled to the results of the EMG study. We address each argument in turn.
¶ 28 A. Treating Physician
¶ 29 The defendants maintain that Dr. Preston was one of the plaintiff‘s treating physicians since he examined her and conducted the EMG study to assess the health of her muscles and nerve cells. They point out that by filing suit a plaintiff implicitly consents to his physician releasing any medical information related to his physical or mental condition that the patient had placed at issue in the lawsuit. Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 591 (1986). The defendants reason that since Dr. Preston was a treating physician, the plaintiff has waived any right to withhold the results of Dr. Preston‘s June 1, 2017, EMG study from the defendants.
¶ 30 “[W]hether a physician is a treating physician or an expert depends on the physician‘s relationship to the case, not the substance of his testimony.” Cochran v. Great Atlantic & Pacific Tea Co. 203 Ill. App. 3d 935, 940 (1990). Simply put, a treating physician is one consulted for treatment, and an expert is one consulted for testimony. Cochran, 203 Ill. App. 3d at 941. In Cochran, after suffering a fall, the plaintiff saw Dr. Thomas Griffith, who in the course of treating the plaintiff referred her to Dr. G. Richard Locke, a radiologist for diagnostic X-rays and a CT scan. The reviewing court determined that Dr. Locke was a treating physician, i.e. “[h]e was a physician to whom plaintiff had been referred for treatment.” Cochran, 203 Ill. App. 3d at 941.
¶ 31 The opposite is true in the present case. In her answers to discovery,
¶ 32 We conclude that Dr. Preston was not one of the plaintiff‘s treating physicians. Therefore, the defendants are not entitled to the results of the EMG study on that basis.
¶ 33 B. Judicial Admission
¶ 34 The defendants argue that the plaintiff‘s disclosure of Dr. Preston as her expert witness is binding as a judicial admission. “Judicial admissions are defined as deliberate, clear, unequivocal statements by a party about a concrete fact within that party‘s knowledge.” In re Estate of Rennick, 181 Ill. 2d 395, 406 (1998). Judicial admissions are not evidence but have the effect of withdrawing a fact from contention. Brummet v. Farel, 217 Ill. App. 3d 264, 267 (1991). In general, answers to interrogatories may be treated as judicial admissions. Brummet, 217 Ill. App. 3d at 267. A judicial admission may not be controverted or explained. Abruzzo v. City of Park Ridge, 2013 IL App (1st) 122360, ¶ 36. However, the general rule is inapplicable when the party‘s testimony is inadvertent, or uncertain, or amounts to an estimate or opinion rather than a statement of concrete fact. Brummet, 217 Ill. App. 3d at 267.
¶ 35 The plaintiff‘s disclosure of Dr. Preston as an expert witness in her answer to interrogatories did not constitute a judicial admission. First, in her motion to redesignate Dr. Preston as a consultant, the plaintiff maintained that the disclosure was inadvertent. Second, Rule 213 places a duty on the party answering the interrogatories to supplement or amend any prior answer whenever new or additional information becomes available.
¶ 36 In Abruzzo, the reviewing court held that a statement in the defendant‘s reply brief in response to its motion to dismiss was a judicial admission. The court determined that stating the emergency personnel left without rendering medical treatment went beyond accepting the allegations in the complaint as true for purposes of the motion to dismiss and was an equivocal assertion of fact constituting a judicial admission. Abruzzo, 2013 IL App (1st) 122360, ¶ 49. Therefore, even if the plaintiff‘s disclosure was a binding admission of fact, it only prevented her from denying that Dr. Preston was originally hired as an expert witness rather than as a consultant.
¶ 37 Accordingly, the plaintiff‘s disclosure of Dr. Preston was not a judicial admission.
¶ 38 C. Waiver
¶ 39 The defendants argue that because Dr. Preston was initially disclosed as a testifying expert witness, the plaintiff waived any privilege to the EMG study. See
¶ 40 We note that
“The information disclosed in answer to a
Rule 213(f) interrogatory, or in a discovery deposition, limits the testimony that can be given by a witness on direct examination at trial.”
Construing sections (f) and (g) of Rule 213 together, the plaintiff would be required to turn over Dr. Preston‘s reports of the EMG study only if he were going to testify at trial, and if he testified, his testimony would be limited to his disclosures. As the plaintiff has withdrawn him as a witness, his report and opinions are not subject to discovery. Therefore, the committee comments to
¶ 41 The defendants’ reliance on Dalen v. Ozite Corp., 230 Ill. App. 3d 18 (1992), is misplaced. In that case, the reviewing court addressed whether Ozite Corporation (Ozite) waived any privilege regarding the confidentiality of a memorandum prepared for Ozite by its attorney when it allowed Dalen‘s attorney to review its files. The court rejected Ozite‘s claim that it did not have time to purge the files and that the disclosure of the memorandum was inadvertent. The court determined Ozite and its counsel‘s conduct was completely inconsistent with their claim of confidentiality. Under the balancing test set forth in Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., 132 F.R.D. 204 (N.D. Ind. 1990), the court determined that by allowing Dalen free access to its files after Dalen made numerous requests for them, Ozite waived the protection of the work product doctrine. Dalen, 230 Ill. App. 3d at 29. In contrast, in the present case, Dr. Preston‘s report had not been disclosed to the defendants since it was not even in existence at the time the plaintiff disclosed him as her controlled expert witness.
¶ 42 Therefore the plaintiff did not waive the consultant‘s privilege by disclosing Dr. Preston as her testifying expert witness.
¶ 43 D. Shields v. Burlington Northern & Santa Fe Ry. Co.
¶ 44 The defendants argue that, even if Dr. Preston was considered a “consultant,” they are still entitled to his EMG study since they allege it contains material and relevant facts. In support, they rely on Shields v. Burlington Northern & Santa Fe Ry. Co., 353 Ill. App. 3d 506 (2004), in which the reviewing court considered the applicability and scope of the work-product privilege of
¶ 45 In Shields, the plaintiff sought production of a surveillance video taken of the plaintiff since he had incurred his injuries and that was in the possession of the defendant. The defendant refused to produce the video, arguing that the video was work product and not discoverable until the defendant determined to use it at trial. The trial court found the defendant‘s attorney in contempt. Shields, 353 Ill. App. 3d at 507-08.
¶ 46 On review of the contempt finding, the appellate court observed that Illinois law supported the production of surveillance tapes because the work product
” ‘[W]here the material gathered or produced by an attorney or expert is of a more concrete nature *** and does not expose the attorney‘s or expert‘s mental processes, it serves the judicial process and [it] is not unfair to require the parties to mutually share such material and analyze it prior to trial.
* * *
In our opinion, the truth-seeking interest in a civil case is sufficiently compelling to require disclosure of [the] consulting expert‘s videotaped field investigation without a showing of exceptional circumstances.’ ” Shields, 353 Ill. App. 3d at 509-10 (quoting Neuswanger, 221 Ill. App. 3d at 285-86).
When any protected conceptual data was deleted, the videotape would not constitute ” ‘work product’ within the meaning of discovery rules.” Shields, 353 Ill. App. 3d at 510.
¶ 47 The court in Shields distinguished Wiker v. Pieprzyca-Berkes, 314 Ill. App. 3d 421 (2000), where the defendant refused to produce any surveillance video of the plaintiff who sought damages for injuries suffered in an auto collision. On appeal from a verdict in favor of the defendant, the appellate court found that the failure to produce the video did not require reversal of the verdict since ” ‘the person hired to make the surveillance video qualifies as a consultant under [
¶ 48 The cases relating to production of surveillance tapes are factually in apposite. The dispute in the present case does not involve a surveillance video of the plaintiff. Moreover, a surveillance video by its nature records factual information in the form of images, which is distinct from an expert‘s mental processes.
¶ 49 We find the decision in Costa v. Dresser Industries, Inc., 268 Ill. App. 3d 1 (1994), to be more relevant. In Costa, the parties agreed to joint testing of tissue samples from the decedent‘s lungs. Following the testing, the plaintiff was ordered to turn over slides and other material to the defendants that were then inspected and/or tested by the defendants’ expert. The trial court denied the plaintiff‘s request for the
¶ 50 In the present case, the trial court ordered the plaintiff‘s attorney to produce “Dr. Preston‘s records regarding his June 1, 2017 comparison EMG study” on the plaintiff. In the absence of the EMG study from the record on appeal, we cannot conclude that the material sought from Dr. Preston was of a purely concrete nature, as was the case in Shields and Neuswanger, and that the production of the EMG study would not expose Dr. Preston‘s thought processes. We find the tissue testing results in Costa more comparable to the EMG comparison study than the surveillance videotapes in Shields and Neuswanger. The decision in Costa supports our conclusion that Dr. Preston‘s EMG study was protected by the consultant‘s work product privilege and subject to disclosure only upon a showing of exceptional circumstances.
¶ 51 E. Fundamental Fairness Exception
¶ 52 Finally, the defendants maintain that the plaintiff is using the consultant‘s privilege to subvert the legal process. They liken the situation in the present case to the one presented in Deprizio v. MacNeal Memorial Hospital Ass‘n, 2014 IL App (1st) 123206. In that case, the reviewing court rejected the defendants’ claim that the “fundamental fairness exception” required disclosure of the plaintiff‘s mental health records. Deprizio, 2014 IL App (1st) 123206, ¶ 30. The court noted that “the exception was narrow and only applied to circumstances where ‘plaintiffs are invoking the mental-health therapist-patient privilege to exploit or subvert the legal process.’ ” Deprizio, 2014 IL App (1st) 123206, ¶ 31 (quoting Reda v. Advocate Health Care, 199 Ill. 2d 47, 61 (2002)). Since the present case does not involve mental health records, the exception does not apply. Moreover, other than the fact of withdrawal of Dr. Preston and redesignating him as a
¶ 53 After careful consideration, we reject the defendants’ arguments that they are entitled to the results of Dr. Preston‘s June 1, 2017, EMG study on the plaintiff.
¶ 54 CONCLUSION
¶ 55 Persuaded by the analysis of the federal courts in the decisions discussed above, we hold that where a previously disclosed testifying expert witness has been timely withdrawn prior to disclosing his or her report in discovery, the expert may be redesignated a
¶ 56 We reverse the trial court‘s order denying the plaintiff‘s motion to redesignate Dr. Preston as a
¶ 57 Reversed in part and vacated in part; cause remanded.