The Supreme Court of Illinois recently reviewed a state appellate court decision that permitted a party to avoid disclosure of an expert report by redesignating the expert as a consulting expert rather than a testifying expert. The state supreme court affirmed the lower court’s decision.

Facts of the Case

Alexis Dameron sued Mercy Hospital and other medical defendants for malpractice after her femoral nerves were damaged during robotic surgery. In response to interrogatories, Dameron identified Dr. David Preston as a “controlled” expert witness. Dameron’s interrogatory answer stated that Dr. Preston would be performing certain tests on Dameron and would testify about the rest results.

Dr. Preston conducted the tests and prepared a report. A few weeks later, Dameron notified the defendants by email that she was withdrawing Dr. Preston as a controlled expert and redesignating him as a consulting expert. Dameron also declined to produce Dr. Preston’s report.

The defendants contended that Dr. Preston’s report was discoverable. Dameron filed a motion to designate Dr. Preston as a nontestifying consulting expert. Dameron claimed that Dr. Preston had been inadvertently identified as a controlled expert. The defendants, no doubt suspicious that Dameron was motivated to change the expert’s designation by displeasure with the expert’s opinion about the test results, resisted the motion.

The trial court denied the motion and ordered Dameron to produce Dr. Preston’s report. To create an appealable issue before a final judgment was entered, Dameron refused to comply and the court entered a “friendly” contempt order, which it stayed pending appeal.

Treating Physicians

As is common, Illinois law does not regard treating physicians as expert witnesses. Illinois recognizes that treating physicians use their expertise to provide medical treatment and share that expertise with juries when they testify about the treatment they rendered. They are, however, treated as fact witnesses who are not generally subject to the same rules that apply to retained experts.

The medical records and reports prepared by treating physicians are generally discoverable. Plaintiffs waive physician-patient privilege by starting a lawsuit that places their physical condition in issue.

The defendants argued that Dr. Preston was a treating physician because his testing of Dameron constituted treatment. The supreme court clarified that whether a doctor is a treating physician depends on the relationship between the doctor and patient, not on the substance of any testimony the doctor might give. Doctors who are retained primarily for the purpose of litigation are not treating physicians even if they conduct the same tests that a treating physician might conduct.

Dr. Preston was retained to provide opinions to assist Dameron in litigation. Dameron did not hire Dr. Preston to treat her medical condition. Rather, Dameron’s counsel hired and paid for Dr. Preston. Dameron’s relationship with Dr. Preston was not that of a patient who seeks medical treatment from a physician. The fact that Dr. Preston tested Dameron in order to form an opinion about her condition did not make him a treating physician.

Consulting Experts and Controlled Experts

Illinois law distinguishes between a “controlled” expert witness and an “independent” expert witness. A controlled expert is one who has been retained to give expert testimony. A party or a party’s employee who is identified as a testifying expert is also a controlled expert. An independent expert is any testifying expert who is not a controlled expert.

Illinois law also draws a distinction between a controlled expert and a consulting expert. Illinois defines a consultant as “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.”

Illinois requires litigants to identify testifying experts and to disclose the subject matter of their testimony. Litigants must make a more detailed disclosure of opinions to be offered by controlled experts, including reports they have written. The opinions expressed by consulting experts are privileged unless there are compelling reasons to order their disclosure.

Changing Expert Designations

No procedural rule in Illinois addresses the ability of a litigant to change the designation of an expert from “controlled” to “consulting.” Caselaw allows a party to abandon a previously designated expert if the abandonment does not prejudice or surprise the adverse party at trial.

The supreme court saw no meaningful difference between abandoning an expert and redesignating an expert. Dameron gave notice of the redesignation about a year before trial. The defendants were not surprised at trial by the redesignation. Dameron effectively abandoned a controlled expert, as Illinois caselaw allows.

Since Dameron did not disclose Dr. Preston’s report, the defendants were not prejudiced by reliance on opinions they expected Dameron to present at trial. Following federal precedent, the court concluded that an expert’s opinions cannot be shielded from discovery after the expert’s report is disclosed. When only the expert’s identity has been disclosed, the party who retained the expert is free to abandon a designation of the expert as a trial witness or to redesignate the expert as a consultant.

Work Product

The defendants claimed that Dr. Preston’s report was discoverable because it did not constitute “core work product” under Illinois law. They argued that medical test results are facts, not privileged opinions that would reveal Dameron’s litigation strategy or the mental impressions of her attorney.

The court decided that the language of the Illinois rule governing consultants defeated the defendants’ argument. The rule provides: “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 rule’s reference to “facts or opinions” protects not just work product but generally precludes the discovery of “facts or opinions” from consulting experts.

Examining the history of the Illinois rules and corresponding federal rules, the court decided that the work product privilege and the rule limiting discovery from consulting experts are not coextensive. The policies that support shielding consultants from discovery are not identical to the policies that underlie the work product privilege. Whether a consultant’s test results are characterized as facts or opinions therefore does not determine whether they are discoverable.

The defendants made no showing that they could not obtain comparable test results through an independent medical examination. Accordingly, no exceptional circumstances existed that permitted discovery of Dr. Preston’s test results. The supreme court concluded that the trial court erred by ordering production of Dr. Preston’s report and by holding Dameron in contempt for violating the discovery order.