The issue decided by the Appellate Court of Illinois First District (“Illinois Appellate Court”) in its opinion dated March 15, 2019 was 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.
The Illinois medical malpractice complaint alleged that in August 2013, the plaintiff underwent a surgical procedure at the defendant hospital during which she sustained injuries due to the negligence of the defendants. The plaintiff initially designated a testifying expert witness who would be testifying as to the results of a test he would perform on the plaintiff on June 1, 2017. On that date, the expert examined the plaintiff and conducted a comparison electromyogram (EMG) and/or nerve conduction study (EMG study) on the plaintiff. Thereafter, the expert prepared a report in which he discussed his findings and opinions.
The plaintiff filed a motion to designate the expert as a nontestifying expert consultant pursuant to Illinois Supreme Court Rule 201(b)(3) (eff. May 29, 2014) and to preclude discovery of facts and opinions known by the expert, absent a showing of exceptional circumstances by the defendants. The defendants sought discovery of the expert’s report. The plaintiff stated that the expert 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. The expert was not one of the plaintiff’s treating physicians, he had not been referred to her by any of her treating physicians, and the expert did not provide the plaintiff with any medical treatment for her complained-of injuries.
The plaintiff stated that the disclosure of the expert as a testifying expert witness was “inadvertent” and later advised the defendants’ attorneys that she was withdrawing the expert as a testifying expert witness. The trial court denied the plaintiff’s motion to designate the expert as a consulting expert and ordered the plaintiff to produce the expert’s records regarding the EMG study on the plaintiff. The plaintiff refused to produce the expert’s records, the trial court found the plaintiff in contempt, and the plaintiff subsequently filed an interlocutory appeal.
The Illinois Appellate Court stated that 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. In contrast, privileges are not designed to promote the truth-seeking process; rather, they serve some outside interest by protecting certain matters from discovery. As such, privileges are an exception to the rule that the public has a right to every person’s evidence. Privileges are not to be lightly created or expansively construed, for they are in derogation of the search for the truth.
Illinois Supreme Court Rule 201(b)(3)
Illinois Supreme Court Rule 201(b)(3) (eff. May 29, 2014) provides: “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.”
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. The Illinois Appellate Court stated that in the present case, however, the plaintiff does not merely seek to withdraw the expert 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 Rule 201(b)(3).
The Illinois Appellate Court concluded that the plaintiff’s expert was not one of the plaintiff’s treating physicians and therefore the defendants are not entitled to the results of the EMG study on that basis: there is nothing in the record indicating that the plaintiff had been referred to the expert for treatment or that the expert had, prior to that date, seen or treated the plaintiff in connection with her alleged injuries – the expert’s relationship to the case was that of an expert who had been consulted for testimony, not for treatment.
The defendants argued that because the expert was initially disclosed as a testifying expert witness, the plaintiff waived any privilege to the EMG study. The Illinois Appellate Court stated that the plaintiff would be required to turn over the expert’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.
The Illinois Appellate Court stated that in the absence of the EMG study from the record on appeal, it could not conclude that the material sought from the expert was of a purely concrete nature, concluding that the EMG study was protected by the consultant’s work product privilege and subject to disclosure only upon a showing of exceptional circumstances.
The Illinois Appellate Court held: “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 Rule 201(b)(3) consultant and entitled to the consultant’s privilege against disclosure, absent exceptional circumstances.”
Source Dameron v. Mercy Hospital and Medical Center, 2019 IL App (1st) 172338.
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