Expert Witness Redesignation and Scope of Consultant Work Product in Illinois
In Dameron v. Mercy Hospital & Medical Center, 2020 IL 125219, the Illinois Supreme Court addressed whether a party may properly change an expert’s designation from a Supreme Court Rule 213(f)(3) controlled expert witness to a Rule 201(b)(3) expert consultant. Prior to Dameron, the Illinois Supreme Court Rules and caselaw were silent on the issue of expert witness redesignation. The Dameron court held that a party may redesignate their expert witness as an expert consultant if adequate notice is provided and the expert’s report has not been disclosed. Dameron also held that Rule 201(b)(3) protects both a consultant’s conceptual data and factual information from discovery, absent a showing of exceptional circumstances.
Factual and Procedural Background
In Dameron, the plaintiff’s medical malpractice claims arose from alleged injuries suffered during robotic-assisted surgery performed at Mercy Hospital & Medical Center. 2020 IL 125219 at ¶3. In support of her case, the plaintiff hired an expert to perform electromyogram (EMG) and nerve conduction velocity (NCV) studies and to create a report comparing his findings to those tests performed by the defendants. 2020 IL 125219 at ¶4.
On May 30, 2017, in response to the defendants’ interrogatories, the plaintiff disclosed the expert as a controlled expert witness, pursuant to Illinois S.Ct. Rule 213(f)(3). Specifically, the plaintiff disclosed that the expert would testify regarding the EMG and NVC tests performed by the defendants and the results of his comparison study. Id.
One month later, the plaintiff notified the defendants that she was withdrawing the expert as a Rule 213(f)(3) controlled expert witness and would not produce his report or test results. 2020 IL 125219 at ¶5. On August 3, 2017, the plaintiff moved to redesignate the expert as a nontestifying expert consultant under Rule 201(b)(3). 2020 IL 125219 at ¶6. In support of her motion, the plaintiff stated that her counsel had inadvertently designated the expert as a testifying expert witness and argued his reports were precluded from discovery absent a showing of exceptional circumstances. Id. The plaintiff further noted that the expert “was not one of her treating physicians [and] ‘she was neither referred to [him] by any of her medical providers for treatment’ nor provided ‘with any medical treatment for her complained-of injuries.’ ” Id.
The circuit court denied the plaintiff’s motion to withdraw the expert as a controlled expert, as well as her subsequent motion for reconsideration, ordering the expert’s reports to be produced. 2020 IL 125219 at ¶8. On appeal, the appellate court reversed the denial of the motions and held “[the expert’s] EMG study was protected by the consultant’s work-product privilege and subject to disclosure only upon a showing of exceptional circumstances.” 2020 IL 125219 at ¶10, quoting Dameron v. Mercy Hospital & Medical Center, 2019 IL App (1st) 172338, ¶50, 145 N.E.3d 1, 437 Ill.Dec. 703. The defendants appealed to the Illinois Supreme Court.
The Illinois Supreme Court’s Ruling
In a unanimous opinion delivered by Justice Garman, the Illinois Supreme Court affirmed the appellate court’s decision reversing the lower court’s orders denying redesignation and compelling production of the expert’s study.
First, the Supreme Court held that a party may redesignate a Rule 213(f) controlled expert witness as a Rule 201(b)(3) consultant “in a reasonable amount of time before trial and where a report has not yet been disclosed.” 2020 IL 125219 at ¶52. It also held that “Rule 201(b)(3) protects not only conceptual data but also factual information” and, absent a showing of exceptional circumstances, such information is precluded from discovery. Id.
Redesignation of an Expert Witness
The Dameron court first found that the plaintiff properly changed the expert’s designation from a Rule 213(f)(3) controlled expert witness to a Rule 201(b)(3) consultant. Illinois S.Ct. Rule 213(f)(3) states:
Identity and Testimony of Witnesses. Upon written interrogatory, a party must furnish the identities and addresses of witnesses who will testify at trial and must provide the following information:
* * *
(3) Controlled Expert Witnesses. A “controlled expert witness” is a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.
Rule 201(b)(3) provides:
Consultant. 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.
The court’s analysis began by noting that the Illinois Supreme Court Rules and Illinois caselaw are silent on the issue of expert witness redesignation. 2020 IL 125219 at ¶29. But the court found instructive its prior decision in Taylor v. Kohli, 162 Ill.2d 91, 642 N.E.2d 467, 204 Ill.Dec. 766 (1994). In Taylor, the court held that a party may abandon a previously disclosed expert witness if that party provides notice “at a time where the opposing party is still capable of acting on that awareness to his benefit . . . in reasonable time prior to trial.” 642 N.E.2d at 469 – 470. The defendants attempted to distinguish Taylor because in that case, unlike the present case, the party opposing expert abandonment had the opportunity to depose the expert and learn his opinions. 2020 IL 125219 at ¶30. The Dameron court rejected this argument,finding the clear purpose of Rule 213(f) “is to prevent unfair surprise at trial, without creating an undue burden on the parties before trial.” 2020 IL 125219 at ¶31, citing Committee Comments, Rule 213(f) (Mar. 28, 2002). In the instant case, the plaintiff moved to redesignate the expert as a consultant nearly one year in advance of trial. 2020 IL 125219 at ¶31. Thus, the court held the plaintiff’s redesignation of its expert would cause no unfair surprise at trial. Id.
The court next determined that withdrawal of the expert as a testifying expert witness would not prejudice the defendants. 2020 IL 125219 at ¶32. The court looked to decisions interpreting the similar federal rules in light of scant state authorities. See Federal Rule of Civil Procedure 26(b)(4)(D). When an expert witness and corresponding report have been disclosed, the court noted, the expert may no longer be shielded from discovery by virtue of the nondisclosing party’s reliance on the disclosure. 2020 IL 125219 at ¶32, citing Davis v. Carmel Clay Schools, No. 1:11-cv-00771-SEB-MJD, 2013 WL 2159476 (S.D.Ind. May 17, 2013). Accordingly, because the plaintiff withdrew the expert as a testifying witness almost a year before trial and never produced his report, the court held that the defendant “could not have come to meaningfully rely on [his] participation at trial as an expert witness.” 2020 IL 125219 at ¶32. “Because [the expert] was only partially disclosed as an expert witness, Dameron’s timely redesignation of [the expert] as an expert consultant does not run afoul of our rules, offend the aims of discovery, or cause defendants unfair surprise.” 2020 IL 125219 at ¶34.
Consultant Work-Product Privilege
Apart from the issue of redesignation, the defendants argued that the expert’s report and test results should not be shielded from discovery because they reflect objective factual information, not “opinion or core work product” otherwise protected by Rule 201(b)(3). 2020 IL 125219 at ¶37. In support of their argument that they were entitled to the expert’s report and EMG study, the defendants looked to Illinois appellate decisions Shields v. Burlington Northern & Santa Fe Ry., 353 Ill.App.3d 506, 818 N.E.2d 851, 288 Ill.Dec. 916 (1st Dist. 2004), and Neuswanger v. Ikegai America Corp., 221 Ill.App.3d 280, 582 N.E.2d 192, 163 Ill.Dec. 926 (3d Dist. 1991). 2020 IL 125219 at ¶38. The Shields and Neuswanger courts held videotapes created by a consulting expert were not shielded from discovery because they constituted substantive evidence, not work product. Id., citing Shields, supra, 818 N.E.2d at 856; Neuswanger, supra, 582 N.E.2d at 196.
Similar to Shields and Neuswanger, the defendants argued the expert’s report and findings were not opinion or core work product but rather “objective factual information generated in the course of a medical test . . . devoid of any conceptual input.” 2020 IL 125219 at ¶37. Accordingly, they argued his report and study should be disclosed pursuant to Rule 201(b)(1) (“a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action”). The Dameron court disagreed.
In rejecting the defendants’ argument, the court looked to the text of S.Ct. Rule 201(b)(3), concluding that it protects more than ordinary work product. 2020 IL 125219 at ¶41. Specifically, the Rule prohibits discovery of a consultant’s “identity, opinion, [or] work product” unless the compelling party can demonstrate “exceptional circumstances,” i.e., when “it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means.” [Emphasis added by Dameron court.] 2020 IL 125219 at ¶41, citing S.Ct. Rule 201(b)(3). In light of the Rule’s definition of “exceptional circumstances,” the court observed that “[i]f defendants were entitled to the underlying facts in the first instance, an inability to obtain facts on the same subject would never be a situation that would come to fruition.” 2020 IL 125219 at ¶41. Thus, the court held Rule 201(b)(3) protects “not only a consultant’s opinions in the first instance but also the facts informing the consultant’s opinions, i.e., objective data.” 2020 IL 125219 at ¶43, citing Committee Comments, Rule 201(b) (rev. June 1, 1995). See also 2020 IL 125219 at ¶45 (“To the extent that Neuswanger and Shields employed the wrong analysis, they are hereby overruled.”)
Having determined the expert’s report and study were protected by Rule 201(b)(3), the court next turned to whether the defendants showed “exceptional circumstances” warranting their disclosure. The court held they did not.
Again, the court looked to the text and committee comments for Rule 201(b)(3). The court first noted: “where an item of physical evidence would no longer be available due to destructive testing and a party could not obtain information about the destroyed item from any other source but the adversary’s consultant who performed the destructive testing, exceptional circumstances exist to justify discovery of the information.” 2020 IL 125219 at ¶43, citing Committee Comments, Rule 201(b) (June 1, 1995). Contrary to the defendants’ position, “the issue is not whether the information [sought by the defendants] 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.’ ” 2020 IL 125219 at ¶48, quoting S.Ct. Rule 201(b)(3).
Although the defendants argued only the plaintiff’s expert could produce his examination and study of the plaintiff, they did not contend the report and study could not be replicable by another doctor. Thus, the court held the defendants’ “conclusory statement that they are unable to obtain the same information” insufficient to demonstrate “exceptional circumstances” under Rule 201(b)(3). Id.
Effect of the Case
Dameron fills a gap otherwise left open in prior Illinois rules and caselaw regarding redesignation of expert witnesses, and it brings Illinois in step with federal precedent on the issue. Dameron further clarifies (and expands) the scope of S.Ct. Rule 201(b)(3)’s work-product privilege.
Moving forward under Dameron, litigants may redesignate a Rule 213(f) controlled expert witness as a Rule 201(b)(3) consultant “in a reasonable amount of time before trial and where a report has not yet been disclosed.” 2020 IL 125219 at ¶52. Moreover, it is now clear Rule 201(b)(3) shields from discovery both a consultant’s conceptual data and concrete factual data relied on, absent a showing of exceptional circumstances.
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