In most states, a witness who is retained to offer expert opinions at trial must prepare a report. The party who retained the expert must disclose the report to the opposing party before trial.

A different rule typically applies to retained experts who will not testify. For example, a lawyer might hire an expert to explain weaknesses in a client’s case. The lawyer will not want to call the expert to present harmful testimony and will not want to disclose the expert’s opinions to an opposing party.

The distinction between testifying and nontestifying experts caused some confusion in an Illinois trial court, where a judge held a lawyer in contempt for refusing to disclose results of an EMG study conducted by an expert. The lawyer had originally designated the expert as a witness who would testify. When the lawyer decided that the expert would serve in a consulting role but not as a witness, the court required the lawyer to disclose the study results anyway. The confusion was resolved on appeal.

Facts of the Case

Alexis Dameron sued a hospital and a number of other parties for medical malpractice. Her complaint alleged that she was injured during surgery due to medical negligence.

In her interrogatory answers, Dameron disclosed David Preston, M.D. as an expert witness who would testify at trial. Dr. Preston performed EMG tests on Dameron but had not prepared a report at the time interrogatory answers were submitted.

Two months later, Dameron filed a motion to change her designation of Dr. Preston from a testifying expert to a nontestifying consultant. The motion requested that Dr. Preston be shielded from discovery pursuant to Illinois’ rules of civil procedure.

The motion explained that Dr. Preston was not a treating physician, that Dameron had not been referred to Dr. Preston by a treating physician, and that Dr. Preston did not treat Dameron’s condition. Rather, he was retained for the purpose of evaluating Dameron’s injuries. The motion alleged that Dr. Preston’s designation as a testifying expert was “inadvertent.”

The trial court denied Dameron’s motion and ordered her to produce Dr. Preston’s test results. Dameron refused, was held in contempt, and was fined $1. The court referred to the order as a “friendly contempt” that would allow Dameron to challenge the correctness of the court’s order in an interlocutory appeal.

Work Product and Expert Reports

Privileges are an exception to the general rule that parties are entitled to obtain evidence in discovery. Broad discovery rules promote the truth-seeking process, while privileges protect the confidentiality of certain information for reasons of public policy.

Illinois’ work-product privilege shields information from discovery when it was prepared in preparation for trial and contains the theories, mental impressions, or litigation plans of the party’s attorney. Illinois extends the work-product privilege to trial consultants who are employed in preparation for litigation or trial, provided that the consultant will not be called as a witness at trial.

The privilege allows a party to refuse disclosure of a consultant’s identity, opinions, and work product. The opposing party can only obtain that information by demonstrating the existence of exceptional circumstances that make it impractical to obtain the same information by other means.

Parties in Illinois are allowed to withdraw witnesses if they give sufficient notice to avoid prejudice to the opposing party. Whether a party can withdraw an expert witness and then redesignate the expert as a consultant to avoid disclosing the expert’s opinions is a question that no earlier Illinois case had decided.

Federal cases generally allow parties to withdraw an expert witness and to designate the expert as nontestimonial, but only if the expert’s report has not already been served on the opposing party. When has been no disclosure of the expert’s opinions and no indication that the party will use those opinions at trial, federal courts allow discovery from the redesignated expert only under exceptional circumstances.

Appellate Decision

The Illinois court decided to follow the federal rule. The court rejected the argument that Dr. Preston’s medical tests made him a treating physician. Dr. Preston did not treat Dameron, but tested her solely for the purpose of consulting.

The court also rejected the argument that disclosing Dr. Preston as a “controlled expert witness” in Dameron’s interrogatory answers constituted a binding judicial admission. The court noted that the disclosure was inadvertent and that the answers were amended to withdraw that designation. In any event, parties are entitled to withdraw witnesses even after disclosing them. At best, the admission would be that Dr. Preston was hired as a controlling expert witness, but that admission would not prevent Dameron from changing her mind about calling Dr. Preston as a witness.

The court disagreed with the argument that designating Dr. Preston as an expert witness waived the right to shield his report from discovery. The discovery rules only require expert reports of testifying witnesses to be disclosed, and Dameron amended her interrogatory answers to make clear that Dr. Preston would not testify.

The court distinguished precedent that required the disclosure of video evidence from which the sound had been extracted to shield a consulting expert’s mental impressions. The court concluded that an EMG study, unlike a video, might expose an expert’s thought process. It is therefore the kind of work product that is protected from discovery.

Finally, the court disagreed that it was fundamentally unfair not to disclose the test results. The fundamental fairness exception in Illinois only applies when a party invokes “the mental-health therapist-patient privilege to exploit or subvert the legal process.” Dr. Preston is not a mental health therapist and there was no evidence that changing his designation from a testifying expert to a consulting expert would exploit or subvert the legal process.