Illinois Supreme Court Affirms Appellate Court Reversing Trial Court’s Refusal to Allow Plaintiff to Redesignate a Controlled Expert Witness to Consultant

Alexis Dameron was held in contempt for refusing to comply with the Circuit Court of Cook County’s discovery order. Under the order, she was required to disclose the report of Dr. David Preston to the defendants Mercy Hospital & Medical Center and several physicians who were defendants in this lawsuit.

Dameron initially disclosed Dr. Preston as an Illinois Supreme Court Rule 213(f)(3) controlled expert witness in her answers to defendants’ interrogatories. She subsequently moved to
redesignate Dr. Preston as a Rule 201(b)(3) consultant and thus shield Dr. Preston’s report, which would otherwise be discoverable under Rule 213(f)(3), along with any other documents from a comparison electromyogram (EMG) and/or nerve conduction study (EMG study) Dr. Preston performed on Dameron.

The plaintiff, Dameron, filed an interlocutory appeal pursuant to Illinois Supreme Court Rule 305(b)(5) and the appellate court reversed, holding that Dr. Preston could be redesignated as a Rule 201(b)(3) consultant and that Dameron could shield Dr. Preston’s report and EMG study from discovery. The Illinois Supreme Court allowed the defendants’ petition for leave to appeal.

After Dameron underwent a robotic-assisted hysterectomy at Mercy Hospital, she brought a medical malpractice lawsuit against the defendants. Dameron alleged that, due to improper positioning during surgery, she suffered damage to her femoral nerves.

During discovery, on May 30, 2017, Dameron filed her answers to defendants’ interrogatories. Relevant here, Dameron disclosed Dr. Preston as a controlled expert witness pursuant to Rule 213(f)(3). She stated that Dr. Preston would “testify regarding the methods of performing and results of the comparison of the electromyogram and/or nerve conduction studies he will be performing on Alexis Dameron on June 1, 2017.” Dameron represented that Dr. Preston would “also testify that he reviewed the results of Dameron’s Nov. 12, 2013 EMG & NCV tests performed at Mercy Medical Center.” On June 2, 2017, Dr. Preston performed the EMG study on Dameron and prepared a report.

On July 27, 2017, Dameron e-mailed defendants, advising them that she was withdrawing Dr. Preston as a Rule 213(f)(3) controlled expert witness and considering him to instead be a nontestifying expert consultant pursuant to Rule 201(b)(3).

Dameron also informed the defendants that she would not be producing any documents from Dr. Preston’s review of the case or his examination.

On Aug. 3, 2017, Dameron filed a motion to change Dr. Preston’s designation from a Rule 213(f)(3) controlled expert witness to an expert consultant under Rule 201(b)(3). Dameron also sought to preclude discovery of facts and opinions known by Dr. Preston absent a showing of exceptional circumstances by defendants. Dameron maintained that Dr. Preston was not one of her treating physicians, explaining in her motion that she was “neither referred to Dr. Preston by any of her medical providers for treatment” nor provided “with any medical treatments for her complained-of-injuries.” Dameron asserted that her counsel had inadvertently disclosed Dr. Preston as a testifying expert witness.

Defendants did not file a written response to plaintiff’s motion. According to Dameron’s motion, the defendants refused to schedule the depositions of her four other testifying expert witnesses until they received a copy of Dr. Preston’s records.

On Aug. 4, 2017, the Cook County circuit court judge 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 Sept. 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 Rule 213(f)(3) expert, not a treating physician, and that her counsel paid for his time and the EMG study. Dameron appealed the court’s interlocutory orders denying her motions to designate Dr. Preston as a consulting expert and for consideration.

The Illinois Appellate Court reversed the circuit court’s denial of Dameron’s motion to designate Dr. Preston as a consultant and its order directing her to produce Dr. Preston’s EMG study.

The Illinois Supreme Court affirming the Illinois Appellate Court’s decision reversing the denial of the Dameron motion stated that defendants are not entitled to a physician’s report and EMG study on the basis that he served as plaintiff’s treating physician, as he was consulted for purposes of providing testimony. This disclosure and withdrawal motion were made more than a year before the trial was intended to go forward. A party is permitted to redesignate an expert from a controlled expert to a consultant in a reasonable amount of time before trial and where a report has not been disclosed.

Illinois discovery rules and precedent do not address the issue of whether plaintiff could redesignate Dr. Preston as a consultant whose reports and opinions are shielded from discovery. The appellate court considered several federal cases in reaching its decision. Simply because Dr. Preston evaluated Dameron and conducted an EMG study does not make Dr. Preston a treating physician. As the appellate court appellee observed, nothing in the record indicates that Dameron had been referred to Dr. Preston for treatment or that Dr. Preston had seen or treated Dameron in connection with her alleged injuries because he conducted the EMG study.

As noted in Dameron’s motion for reconsideration, counsel paid for both Dr. Preston’s time and the EMG study. Before Dameron decided to redesignate Dr. Preston as an expert consultant, Dameron represented in her answers to interrogatories that Dr. Preston would be called at trial to testify about the EMG study he had not yet conducted. Accordingly, Dr. Preston was consulted for testimony, and his relationship with Dameron arose because her counsel retained him for the purpose of providing testimony. See Cochran v. Great Atlantic & Pacific Tea Company, 203 Ill.App.3d 935 (1990).

The Illinois Supreme Court stated that its 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 v. Kohli, 162 Ill.2d 91, 97 (1994).

The court added that there was no reason to prohibit Dameron from changing her designation of an expert to a consultant. The court said that relevant here, the committee comments to Rule 213 made clear that the purpose of paragraph (f) “is to prevent unfair surprise at trial, without creating an undue burden on the parties before trial.” Ill.S.Ct.R. 2013 Committee Comments (adopted March 28, 2002) (paragraph (f)). Here, Dameron alerted defendants of her intention to withdraw Dr. Preston as a testifying expert and redesignate him as a consultant on July 27, 2017. On July 31, 2017, Dameron amended and served Rule 213(f)(3) disclosures upon defendants. Dameron filed a motion in the circuit court to redesignate Dr. Preston as a consultant on Aug. 3, 2017. Notably, the trial date was scheduled for July 18, 2018. Thus, defendants had almost a year advance notice that Dr. Preston would not be testifying as an expert witness.

Accordingly, Dameron’s redesignation would cause defendants no “unfair surprise at trial.” See Id.; see also Sullivan v. Edward Hospital, 209 Ill.2d 100, 109 (2004). “Rule 213 permits litigants to rely on the disclosed opinions of opposing experts and to construct their trial strategy accordingly.” (Emphasis added.)

For the reasons stated, the Illinois Supreme Court affirmed the Illinois Appellate Court’s decision reversing the circuit court’s order denying Dameron’s motion to redesignate Dr. Preston as a Rule 201(b)(3) consultant and ordering her to produce Dr. Preston’s EMG study. Likewise, the contempt finding and $1 fine imposed against Dameron were vacated. The case is remanded back to the circuit court for further disposition.

Dameron v. Mercy Hospital & Medical Center, 2020 IL 125219 (Nov. 19, 2020).

Kreisman Law Offices has been handling Illinois jury trials, medical malpractice lawsuits, obstetric negligence lawsuits, labor and delivery negligence cases, surgery negligence lawsuits, and traumatic brain injury lawsuits for individuals, families, and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Glenview, Glencoe, Gurnee, Crystal Lake, Cary, Joliet, Waukegan, Zion, Lake Forest, Lake Zurich, Inverness, Lemont, Chicago (Little Village, Little Italy, Greek Town, Chinatown, Near North, Old Town Triangle, Ravenswood Manor, Wrigleyville, Hyde Park, Austin, Lawndale, South Shore, South Chicago, Calumet Heights), Long Grove, Wheaton, Elgin, St. Charles, Geneva, Clarendon Hills, Crestwood, University Park, Blue Island, South Holland, Hoffman Estates, Mundelein, Matteson, Lansing, Morton Grove, Niles and Des Plaines, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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