In a case of first impression, the Appellate Court of Illinois allows counsel to withdraw previously disclosed testifying expert

ABSTRACT: The Illinois Appellate Court, First District, held that a party may timely withdraw a previously disclosed testifying expert and redesignate said expert as a Rule 201(b)(3) consultant entitled to the consultant's privilege against disclosure absent exceptional circumstances.

In a case of first impression, the Illinois Appellate Court, First District, applying federal law principles, held that a party who discloses a testifying expert may later redesignate that witness as a consultant whose opinions and work product are privileged and protected from discovery absent a showing of exceptional circumstances.

In Dameron v. Mercy Hospital and Medical Center, plaintiff Alexis Dameron disclosed Dr. David Preston in her interrogatory answers as a testifying expert witness on May 30, 2017.  She further disclosed, pursuant to the applicable rules, that Dr. Preston would provide testimony regarding the results of testing he was to perform on Ms. Dameron on June 1, 2017.  Dr. Preston did perform tests of the Plaintiff and later prepared a report in which he discussed his findings and opinions, but the report was never disclosed, despite Illinois Supreme Court Rule 213(f)(3) requiring disclosure of “any” reports prepared by a controlled expert about the case. 

Almost two months later, on July 27, 2017, Ms. Dameron notified opposing counsel that she had “inadvertently” disclosed Dr. Preston as a testifying expert and amended her discovery answers excluding Dr. Preston as a testifying expert. 

On August 3, 2017, shortly after notifying opposing counsel of the inadvertent disclosure, Ms. Dameron filed a motion to designate Dr. Preston as a non-testifying expert consultant pursuant to Illinois Supreme Court Rule 201(b)(3), which states as follows:

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 circuit court denied Ms. Dameron’s motion to redesignate Dr. Preston and ordered Plaintiff to produce Dr. Preston’s records and report regarding the testing he performed.  Plaintiff refused, and the trial court found her in contempt, imposing a $100 fine. Plaintiff filed a motion to reconsider, which was likewise denied by the trial court, but reduced the fine to $1.  Plaintiff then appealed the matter to the Appellate Court for the First Circuit.

The Appellate Court ultimately reversed the circuit court’s decision and held, as a matter of first impression, that where a previously disclosed testifying expert is timely withdrawn prior to disclosing his or her report in discovery, the expert may be redesignated as a Rule 201(b)(3) consultant and entitled to the consultant’s privilege against disclosure, absent exceptional circumstances.

Given it was a matter of first impression, the Appellate Court found sufficient similarities between Illinois and federal discovery rules and rendered federal case law on this issue persuasive.  Federal case law supported the contention that both the disclosure of the expert as well as the expert’s required report is necessary to fully disclose a testifying expert under Federal Rule of Civil Procedure 26.  In this case, Ms. Dameron had only disclosed Dr. Preston’s identity, but had not disclosed or identified his report because at the time she filed her answers to interrogatories, Dr. Preston had not yet conducted his testing. 

Defendants made several arguments in an attempt to gain access to Dr. Preston’s examination results.  They argued that Dr. Preston was a treating physician and, consequently, Plaintiff waived any right to withhold the results.  The Appellate Court disagreed and found Dr. Preston was hired to testify, not to treat.  They also argued that Ms. Dameron’s disclosure of Dr. Preston was a judicial admission, but the court disagreed arguing Plaintiff was permitted to withdraw Dr. Preston as a witness and/or supplement her discovery answers. 

Defendants further argued that because Dr. Preston was initially disclosed as a testifying expert, Plaintiff waived any privilege to Dr. Preston’s report.  However, the court stated that the rules only required Plaintiff to turn over a report if Dr. Preston was going to testify at trial.   Defendants also argued that they were entitled to the report because it contained relevant facts, but the court disagreed and found that Dr. Preston’s report was protected by the consultant’s work product privilege only subject to discovery upon showing of exceptional circumstances.

Finally, Defendants argued that Plaintiff was attempting to subvert the legal process.  The timeline of these events does appear to be highly suspicious in that the motion to redesignate Dr. Preston was filed after he presumably drafted his report and almost two months after disclosure.  One may assume that Dr. Preston’s report was unfavorable to Plaintiff and, consequently, prompted her to withdraw Dr. Preston as an expert.  Nevertheless, the court found that Defendants failed to identify any evidence to support their claim of Plaintiff’s subversion of the legal process.

The Appellate Court ultimately held 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 Rule 201(b)(3) consultant and entitled to the consultant’s privilege against disclosure, absent exceptional circumstances.  The court found no exceptional circumstances in this case.

The implications of this case are significant, and this is probably not the end of the story, as this issue will likely be relitigated in the future should parties employ this as a tactical litigation strategy.