ALEXIS DAMERON, Appellee, v. MERCY HOSPITAL AND MEDICAL CENTER et al., Appellants.
(Docket No. 125219)
SUPREME COURT OF THE STATE OF ILLINOIS
November 19, 2020
2020 IL 125219
Chief Justice Anne M. Burke and Justices Kilbride, Karmeier, Theis, and Michael J. Burke concurred in the judgment and opinion.
Justice Neville took no part in the decision.
OPINION
¶ 1 Plaintiff, Alexis Dameron, was held in contempt for refusing to comply with the circuit court of Cook County‘s discovery order requiring her to disclose the report of David Preston, M.D., to defendants, Mercy Hospital and Medical Center; Cordia Clark-White, M.D.; Alfreda Hampton, M.D.; Natasha Harvey, M.D.; and Patricia Courtney. Dameron initially disclosed Dr. Preston as a
¶ 2 BACKGROUND
¶ 3 After Dameron underwent a robotic-assisted hysterectomy at Mercy Hospital and Medical Center, she brought a medical malpractice action against defendants. Dameron alleged that, due to improper positioning during surgery, she suffered damage to her femoral nerves.
¶ 4 During discovery, on May 30, 2017, Dameron filed her answers to defendants’ interrogatories.
¶ 5 On July 27, 2017, Dameron e-mailed defendants, advising them that she was withdrawing Dr. Preston as a
¶ 6 On August 3, 2017, Dameron filed a motion to change Dr. Preston‘s designation from a
¶ 7 Defendants did not file a written response to plaintiff‘s motion. According to Dameron‘s motion, defendants refused to schedule the depositions of her four other testifying expert witnesses until they received a copy of Dr. Preston‘s records.
¶ 8 On August 4, 2017, the circuit court denied Dameron‘s motion to designate Dr. Preston as a consulting expert and ordered her to produce his records. Dameron refused to do so. Accordingly, the court found Dameron in contempt and imposed a $100 fine. On September 6, 2017, the court denied Dameron‘s motion for reconsideration and reduced the fine to $1. In her motion for reconsideration, Dameron asserted that Dr. Preston was a retained
¶ 10 The appellate court concluded 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.” Id. ¶ 50.
¶ 11 The appellate court rejected defendants’ arguments that, once Dameron disclosed Dr. Preston as a testifying expert, they were entitled to the results of the EMG study. Id. ¶¶ 27-42. Specifically, the court rejected defendants’ assertion that Dr. Preston was a treating physician and thus Dameron implicitly consented to the release of any medical information pertaining to her injury placed at issue by virtue of her bringing the lawsuit. Id. ¶¶ 29, 31-32. Because Dameron was not referred to Dr. Preston for treatment and Dr. Preston was instead consulted for testimony, the court held that Dr. Preston was not a treating physician. Id. ¶¶ 28-32 (citing Cochran v. Great Atlantic & Pacific Tea Co., 203 Ill. App. 3d 935 (1990)).
¶ 12 Next, the appellate court dismissed defendants’ contention that Dameron‘s disclosure of Dr. Preston as an expert witness constituted a binding judicial admission. Id. ¶¶ 33-37. The court observed that Dameron had represented that the disclosure was inadvertent, that she had a duty under
¶ 13 The appellate court also declined to find that Dameron‘s initial disclosure of Dr. Preston as a testifying expert witness waived any privilege to the EMG study. 2019 IL App (1st) 172338, ¶¶ 39-42.
¶ 14 The appellate court then considered defendants’ argument that, even if Dr. Preston was a consultant, they were nevertheless
¶ 15 The instant appellate court panel, however, found cases relating to production of surveillance tapes factually inapposite and instead relied on Costa v. Dresser Industries, Inc., 268 Ill. App. 3d 1 (1994). 2019 IL App (1st) 172338, ¶¶ 48-49. In Costa, the Third District affirmed the circuit court‘s order denying the plaintiff‘s request to discover the identity of the defendants’ consulting expert and results from any testing done upon the decedent‘s lung tissue sample. 268 Ill. App. 3d at 7-8. Because the expert was a consulting expert, his identity, opinions, and work product could only be discovered upon a showing of exceptional circumstances, which the plaintiff failed to make. Id. The instant appellate court panel explained that, because the EMG study was not included in the record on appeal, it could not “conclude that the material sought from Dr. Preston was of a purely concrete nature *** and that the production of the EMG study would not expose Dr. Preston‘s thought processes.” 2019 IL App (1st) 172338, ¶ 50. Lastly, the court rejected defendants’ argument that Dameron was attempting to subvert the legal process. Id. ¶ 52. Accordingly, the court held that defendants were not entitled to Dr. Preston‘s EMG study results, reversed the circuit court‘s order, and vacated its finding of contempt. Id. ¶¶ 53, 56-57.
¶ 16 This court allowed defendants’ joint petition for leave to appeal.
¶ 17 ANALYSIS
¶ 18 As this case concerns matters of discovery, we briefly observe several controlling principles. Illinois recognizes a general duty to disclose. Klaine v. Southern Illinois Hospital Services, 2016 IL 118217, ¶ 15;
¶ 19 Discovery orders are not final and thus are not normally appealable. Norskog v. Pfiel, 197 Ill. 2d 60, 69 (2001). However, “a contempt proceeding is an appropriate method for testing the correctness of a discovery order.” Reda v. Advocate Health Care, 199 Ill. 2d 47, 54 (2002); see
¶ 20 Treating Physician
¶ 21 We first consider defendants’ argument that Dr. Preston was not an expert but Dameron‘s treating physician. According to defendants, when Dameron filed a medical malpractice suit and placed her physical condition at issue, she consented to defendants discovering pertinent medical information contained in Dr. Preston‘s report and EMG study. See Palm v. Holocker, 2018 IL 123152, ¶ 28. In other words, Dameron waived the physician-patient privilege between her and Dr. Preston, and thus the report and EMG study are discoverable on this basis.
¶ 22 Specifically, defendants assert that the appellate court misconstrued the distinction between a treating physician and an expert witness, as set forth in Cochran. See 203 Ill. App. 3d 935. Defendants also criticize the court‘s reliance on Cochran because it examined
¶ 23 Defendants also point to
¶ 24 We agree with the appellate court that Dr. Preston is not a treating physician. 2019 IL App (1st) 172338, ¶ 32. Cochran explains:
“[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. A testifying expert is one whose relationship with a litigant arose principally because a litigant retained him to render an opinion at trial. It is the expert‘s relationship to the litigation, not the substance of the testimony, that makes him a testifying expert. [Citations.] A treating physician is one consulted for treatment. An expert is consulted for testimony. [Citations.] It is clear that Dr. Locke was consulted for treatment. He was a physician to whom plaintiff had been referred for treatment.” 203 Ill. App. 3d at 940-41.
¶ 25 Simply because Dr. Preston evaluated Dameron and conducted an EMG study does not make Dr. Preston a treating physician. As the appellate court aptly observed, nothing in the record indicates
¶ 26 We reject defendants’ argument that Cochran is somehow not controlling because it examined
¶ 27 Ability to Redesignate Dr. Preston as a Rule 201(b)(3) Consultant
¶ 28 We now address whether a party may change an expert‘s designation from a
¶ 29 Our rules do not expressly permit or prohibit a party from changing a witness‘s designation. As observed by the appellate court, Illinois caselaw is likewise silent on the precise issue, but this court has recognized that a party may abandon a previously disclosed expert witness if that party provides the opposing party clear notice “at a time where the opposing party is still capable of acting on that awareness to his benefit,” i.e., “in reasonable time prior to trial.” Taylor, 162 Ill. 2d at 97-98. Taylor observed that the purpose of
¶ 30 Defendants argue that Taylor is distinguishable because the plaintiff sought to withdraw the expert at issue after the defendant had the opportunity to depose the expert and learn his opinions. Unlike in Taylor, defendants assert that Dameron is flouting the mandatory disclosure requirements governing expert discovery by not turning over Dr. Preston‘s opinions and the results of his examination and testing. See
¶ 31 We reject defendants’ argument. Nowhere in Taylor did this court convey that such disclosure operated as a prerequisite to the plaintiff‘s ability to abandon the expert. Although Dameron seeks to go a step further than abandonment by redesignating Dr. Preston as a
¶ 32 Further, because Dameron never disclosed Dr. Preston‘s report to defendants, it cannot be said that defendants came to rely upon Dr. Preston being called as a witness or were prejudiced by his withdrawal. We, like the appellate court below, find federal case law dealing with
” ‘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 of Rule 26(b)(4)(D) .’ ” Id. ¶ 25 (quoting Davis, 2013 WL 2159476, at *7).
Again, we note that defendants had almost a year of advance notice that Dr. Preston would not be testifying as an expert witness. Defendants could not have come to meaningfully rely on Dr. Preston‘s participation at trial as an expert witness; defendants never received Dr. Preston‘s report.
¶ 33 We add that defendants do not offer any reasoning to justify a rule whereby a party is irrevocably bound by its initial
¶ 34 Because Dr. Preston was only partially disclosed as an expert witness, Dameron‘s timely redesignation of Dr. Preston as an expert consultant does not run afoul of our rules, offend the aims of discovery, or cause defendants unfair surprise. Thus, Dameron‘s redesignation of Dr. Preston is permissible.
¶ 35 Work Product
¶ 36 As mentioned, defendants maintain that, even if Dr. Preston can be redesignated as a
“(1) Full Disclosure Required. Except as provided in these rules, a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts. The word ‘documents,’ as used in Part E of Article II, includes, but is not limited to, papers, photographs, films, recordings, memoranda, books, records, accounts, communications and electronically stored information as defined in
Rule 201(b)(4) .”
¶ 37 Defendants assert that ”
¶ 38 Defendants rely on two appellate court cases—Shields and Neuswanger—to support their argument that they are entitled to the factual information in the report and EMG study. See Shields, 353 Ill. App. 3d 506; Neuswanger v. Ikegai America Corp., 221 Ill. App. 3d 280 (1991). In both cases, the appellate court determined that videotapes made by a consulting expert did not constitute work product and thus were subject to disclosure. Shields, 353 Ill. App. 3d at 512 (concluding that “[b]ecause surveillance videotapes constitute substantive evidence and not work product within the meaning of discovery rules, we find that the trial court correctly ordered Burlington to produce any surveillance videotapes of plaintiff“); Neuswanger, 221 Ill. App. 3d at 286 (holding that “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“).
¶ 39 Also, according to defendants, no affidavit, privilege log, or in camera inspection suggests that Dr. Preston‘s report contains “opinion” or “core” work product. Defendants assert that the appellate court erred by shifting Dameron‘s burden of establishing that the report and study were privileged to defendants by holding that defendants failed to demonstrate exceptional circumstances.
¶ 40 We determine that the issue of whether defendants are entitled to the information in Dr. Preston‘s report and study is answered by our rules.
“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 impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means.” (Emphasis added.)
Ill. S. Ct. R. 201(b)(3) (eff. July 1, 2014).
¶ 41
¶ 42 Looking further, the committee comments to
“Discovery of consultants as provided by
Rule 201(b)(3) will be proper only in extraordinary cases. In general terms, the ‘exceptional circumstances’ provision is designed to permit discovery of consultants only when it is ‘impracticable’ for a party to otherwise obtain facts or opinions on the same subject. Discovery under the corresponding Federal provision,Rule 26(b)(4)(B) of theFederal Rules of Civil Procedure , has generally been understood as being appropriate, for example, in cases in which an item of physical evidence is no longer available because of destructive testing and the adversary‘s consultant is the only source of information about the item, or in cases in which all of the experts in a field have been retained by other parties and it is not possible for the party seeking discovery to obtain his or her own expert.” (Emphases added.)Ill. S. Ct. R. 201 , Committee Comments (rev. June 1, 1995) (paragraph (b)).
¶ 43 First, the committee comments observe that discovery of consultants will only be had in “extraordinary cases.” Id. Second, the comments reiterate that the rule contemplates protection of not only a consultant‘s opinions in the first instance but also the facts informing the consultant‘s opinions, i.e., objective data. Id. Third, as mentioned, the comments specifically point to the rule‘s federal counterpart,
“(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially
employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only: (i) as provided in
Rule 35(b) ; or(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.”
The examples of exceptional circumstances cited by the committee comments to
¶ 44 Multiple policy considerations exist for protecting the information:
” ‘(1) the interest in allowing counsel to obtain the expert advice they need in order [to] properly evaluate and present their client‘s positions without fear . . .; (2) the view that each side should prepare its own case at its own expense; (3) the concern that it would be unfair to the expert to compel its testimony and also the concern that experts might become unwilling to serve as consultants if they suspected their testimony would be compelled; and (4) the risk of prejudice to the party who retained the expert as a result of the mere fact of retention. ’ ” Eidos Display, LLC v. Chunghwa Picture Tubes, Ltd., 296 F.R.D. 3, 6 (D.D.C. 2013) (quoting United States ex rel. Westrick v. Second Chance Body Armor, Inc., 288 F.R.D. 222, 227-28 (D.D.C. 2012)).
¶ 45 Accordingly, we hold that defendants are not entitled to Dr. Preston‘s report or the results of the EMG study without a showing of exceptional circumstances. Defendants strenuously assert that the information they seek is concrete factual data. Defendants, therefore, are requesting disclosure of what is expressly protected by the consultant‘s privilege provided in
¶ 46 Nor are we persuaded by defendants’ argument that “the appellate court‘s finding that Dr. Preston‘s report was not discoverable—even though plaintiff failed to include it in the record—erroneously shifted the burden of proof of claiming a privilege to the party requesting an otherwise discoverable document.” See Klaine, 2016 IL 118217, ¶ 15; Krupp v. Chicago Transit Authority, 8 Ill. 2d 37, 42 (1956) (“[O]ne who claims to be exempt by reason of privilege from the general rule which compels all persons to disclose the truth has the burden of showing the facts which give rise to the privilege.“). First, for the reasons we have explained, the report and study are not “otherwise discoverable” but are “discoverable only upon a showing of exceptional circumstances.” Dameron filed a motion to designate Dr. Preston as a nontestifying expert consultant under
criticism that Dameron failed to include the report and study in the record on appeal is a moot point.
¶ 47 The appellate court also properly determined that defendants must first show exceptional circumstances to obtain Dr. Preston‘s report or the EMG study. 2019 IL App (1st) 172338, ¶ 50. Defendants chose not to argue in the alternative that exceptional circumstances exist. Defendants do, however, assert that Dr. Preston‘s examination and diagnostic study of Dameron “produced factual data directly related to plaintiff‘s alleged injuries—data that defendants cannot obtain other than from plaintiff, the only party with access to Dr. Preston‘s test results.” Defendants criticize the appellate court‘s statement that,
“[i]n 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 the production of the EMG study would not expose Dr. Preston‘s thought processes.” Id.
¶ 48 On this point, we deviate from the appellate court‘s analysis. Again, the issue is not whether the information is of a concrete or conceptual nature but whether “it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means.”
¶ 49 Finally, defendants complain that the appellate court‘s holding promotes impermissible gamesmanship. See Sullivan, 209 Ill. 2d at 109-10 (finding the plaintiff committed a discovery violation by not disclosing all of her expert witness‘s opinions in her
¶ 50 We decline to speculate as to Dameron‘s motive in redesignating Dr. Preston as a consulting expert. Regardless, even if the report and results are detrimental to Dameron‘s position and she is trying to conceal this information, defendants can attempt to show that exceptional circumstances warrant disclosure of the information or request an independent examination pursuant to
¶ 51 CONCLUSION
¶ 52 Defendants are not entitled to Dr. Preston‘s report and EMG study on the basis that Dr. Preston served as Dameron‘s treating physician; Dr. Preston was consulted for the purpose of providing testimony. A party is permitted to redesignate an expert from a
¶ 53 For these reasons, we affirm the appellate court‘s decision reversing the circuit court‘s order denying Dameron‘s motion to redesignate Dr. Preston as a
¶ 54 Appellate court judgment affirmed.
¶ 55 Circuit court order vacated.
¶ 56 Cause remanded.
¶ 57 JUSTICE NEVILLE took no part in the consideration or decision of this case.