Illinois Appellate Court Reverses Decision that Party Can Change a Testifying Expert to a Non-testimonial Expert

In August 2013, Alexis Dameron underwent surgery at Mercy Hospital and Medical Center where she claimed to have sustained injuries due to medical negligence. She filed a medical malpractice case against Mercy and various employees at the hospital on Nov. 6, 2014.

During discovery, she disclosed that Dr. David Preston would be testifying as an expert witness, presenting evidence drawn from an electromyogram and EMG study yet to be performed. The EMG was to take place on June 1, 2017, but Dr. Preston’s report was not included in the record.

Dameron moved to designate Dr. Preston a “nontestifying expert consultant,” stating that Dr. Preston’s designation as a testifying expert witness had been “inadvertent.”

Dameron, therefore, argued that because Dr. Preston was a non-testifying expert consultant, his opinions were privileged and immune from discovery absent a showing of exceptional circumstances.

On Aug. 4, 2017, the trial court denied Dameron’s motion and ordered her to produce Dr. Preston’s records of the EMG study. She refused, and the trial court found her in contempt of court, charging her a $100 fine, which was later reduced to $1. She appealed.

On appeal, Dameron argued that she was permitted to redesignate a testifying expert as a consultant with opinions and work product privileges from disclosure. She noted that Illinois allows a party to withdraw an expert witness with clear and sufficient notice, which she gave. Mercy argued that the hospital was entitled to examine the results of Dr. Preston’s EMG study.

The Illinois Appellate Court reviewing this case acknowledged that the Illinois Supreme Court rules do not explicitly cover the situation, but found “sufficient similarities between our discovery rules and federal discovery rules so as to render federal case law on this issue instructive and the federal court’s reasoning persuasive, though not precedential.”

The appellate court acknowledged the federal holding that “[a] witness identified as a testimonial expert is available to either side; such a person can’t be transformed after the report has been disclosed, and a deposition conducted, to the status of a trial-preparation expert whose identity and views may be concealed.”

However, the appellate court emphasized that this did not specify whether it applied to situations where the expert’s name, but not their report, had been disclosed.

The appeals panel found that the Seventh United States of Court of Appeals in Chicago ruled that “it is clear that prior to producing the expert report, courts [have found] that a party can change a testifying expert to a non-testimonial expert without losing the protections” of privilege, because both the name and the report must be submitted before the expert is considered “fully disclosed.”

Because Dr. Preston was never Dameron’s treating physician, and because his testimony was never submitted and was therefore not a judicial admission, the appellate court found no reasonable waiver of the privilege that goes with being a non-testifying consultant. The appellate court noted that it did not violate fundamental fairness. Accordingly, the appeals panel reversed the trial court’s order denying Dameron’s motion, vacated the contempt finding and sent the case back for further proceedings.

Alexis Dameron v. Mercy Hospital and Medical Center, et al., 2019 IL App (1st) 172338 (March 15, 2019).

Kreisman Law Offices has been handling medical negligence lawsuits, wrongful death cases, birth injury cases, birth trauma injury lawsuits and nursing home abuse and negligence cases for individuals, families and loved ones who have been injured, harmed or have died by the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Long Grove, Arlington Heights, Winfield, Westchester, Tinley Park, Orland Park, Deerfield, Antioch, Richton Park, Rosemont, Calumet City, Chicago (Lawndale, Gresham, Humboldt Park, Pilsen, Pill Hill, Back of the Yards, Rogers Park, Lakeview), Morton Grove, Geneva, Evergreen Park, Inverness and Kenilworth, Ill.