Dameron v. Mercy Hospital & Medical Center

2020 IL 125219
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 125219)
ALEXIS DAMERON, Appellee, v. MERCY HOSPITAL AND
MEDICAL CENTER et al., Appellants.
Opinion filed November 19, 2020.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Anne M. Burke and Justices Kilbride, Karmeier, Theis, and
Michael J. Burke concurred in the judgment and opinion.
Justice Neville took no part in the decision.
OPINION
¶1 Plaintiff, Alexis Dameron, was held in contempt for refusing to comply with
the circuit court of Cook County’s discovery order requiring her to disclose the
report of David Preston, M.D., to defendants, Mercy Hospital and Medical Center;
Cordia Clark-White, M.D.; Alfreda Hampton, M.D.; Natasha Harvey, M.D.; and
Patricia Courtney. Dameron initially disclosed Dr. Preston as a Rule 213(f)(3)
controlled expert witness in her answers to defendants’ interrogatories. Ill. S. Ct. R.
213(f)(3) (eff. Jan. 1, 2007). Dameron subsequently moved to redesignate Dr.
Preston as a Rule 201(b)(3) consultant and shield Dr. Preston’s report, which would
otherwise be discoverable under Rule 213(f)(3), along with any other documents
from a comparison electromyogram (EMG) and/or nerve conduction study (EMG
study) Dr. Preston performed on Dameron. Ill. S. Ct. R. 201(b)(3) (eff. July 1,
2014); R. 213(f)(3) (eff. Jan. 1, 2007). Dameron filed an interlocutory appeal
pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016), and the
appellate court reversed, holding that Dr. Preston could be redesignated as a Rule
201(b)(3) consultant and that Dameron could shield Dr. Preston’s report and EMG
study from discovery. 2019 IL App (1st) 172338, ¶¶ 56-57. We allowed defendants’
petition for leave to appeal. See Ill. S. Ct. R. 315 (eff. July 1, 2018).
¶2 BACKGROUND
¶3 After Dameron underwent a robotic-assisted hysterectomy at Mercy Hospital
and Medical Center, she brought a medical malpractice action against defendants.
Dameron alleged that, due to improper positioning during surgery, she suffered
damage to her femoral nerves.
¶4 During discovery, on May 30, 2017, Dameron filed her answers to defendants’
interrogatories. Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2007). Relevant here, Dameron
disclosed Dr. Preston as a controlled expert witness pursuant to Rule 213(f)(3).
Dameron stated that Dr. Preston would “testify regarding the methods of
performing and results of the comparison electromyogram and/or nerve conduction
studies he will be performing on Alexis Dameron on June 1, 2017.” Dameron
represented that Dr. Preston would “also testify that he reviewed the results of
Alexis Dameron’s November 12, 2013 EMG & NCV tests performed at Mercy
Medical Center.” On June 2, 2017, Dr. Preston performed the EMG study on
Dameron and prepared a report.
¶5 On July 27, 2017, Dameron e-mailed defendants, advising them that she was
withdrawing Dr. Preston as a Rule 213(f)(3) controlled expert witness and
considering him to instead be a nontestifying expert consultant pursuant to Rule
201(b)(3). See id.; Ill. S. Ct. R. 201(b)(3) (eff. July 1, 2014). Dameron also
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informed defendants that she would not be producing any documents from Dr.
Preston’s review of the case or his examination.
¶6 On August 3, 2017, Dameron filed a motion to change Dr. Preston’s designation
from a Rule 213(f)(3) controlled expert witness to an expert consultant under Rule
201(b)(3). Dameron also sought to preclude discovery of facts and opinions known
by Dr. Preston absent a showing of exceptional circumstances by defendants.
Dameron maintained that Dr. Preston was not one of her treating physicians,
explaining in her motion that she was “neither referred to Dr. Preston by any of her
medical providers for treatment” nor provided “with any medical treatment for her
complained-of injuries.” Dameron asserted that her counsel had inadvertently
disclosed Dr. Preston as a testifying expert witness.
¶7 Defendants did not file a written response to plaintiff’s motion. According to
Dameron’s motion, defendants refused to schedule the depositions of her four other
testifying expert witnesses until they received a copy of Dr. Preston’s records.
¶8 On August 4, 2017, the circuit court denied Dameron’s motion to designate Dr.
Preston as a consulting expert and ordered her to produce his records. Dameron
refused to do so. Accordingly, the court found Dameron in contempt and imposed
a $100 fine. On September 6, 2017, the court denied Dameron’s motion for
reconsideration and reduced the fine to $1. In her motion for reconsideration,
Dameron asserted that Dr. Preston was a retained Rule 213(f)(3) expert—not a
treating physician—and that her counsel paid for his time and the EMG study.
Dameron appealed the court’s interlocutory orders denying her motions to
designate Dr. Preston as a consulting expert and for reconsideration.
¶9 The appellate court reversed the circuit court’s denial of Dameron’s motion to
designate Dr. Preston as a consultant and its order directing her to produce Dr.
Preston’s EMG study. 2019 IL App (1st) 172338, ¶¶ 56-57. First, because Illinois
discovery rules and precedent do not address the issue of whether plaintiff could
redesignate Dr. Preston as a consultant whose reports and opinions are shielded
from discovery, the appellate court considered several federal cases. Id. ¶¶ 22-25.
Specifically, the appellate court looked to Davis v. Carmel Clay Schools, No. 1:11-
cv-00771-SEB-MJD, 2013 WL 2159476 (S.D. Ind. May 17, 2013), which in turn
relied on Securities & Exchange Comm’n v. Koenig, 557 F.3d 736 (7th Cir. 2009),
and its progeny for the rule that, once an expert’s report is disclosed to the opposing
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party, the expert no longer enjoys protection from discovery by the opposing party.
2019 IL App (1st) 172338, ¶¶ 23-25. However, the appellate court noted Davis’s
conclusion 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’ ” from discovery, barring exceptional
circumstances. Id. ¶ 25 (quoting Davis, 2013 WL 2159476, at *7). According to
Davis, to fully disclose a testifying expert under Federal Rule of Civil Procedure
26, “ ‘both the disclosure of the name of the expert as well as the expert’s required
report is necessary.’ ” Id. (quoting Davis, 2013 WL 2159476, at *7). Until such
time, “ ‘parties are entitled to change their minds and decide not to use an expert to
testify at trial.’ ” Id. (quoting Davis, 2013 WL 2159476, at *7).
¶ 10 The appellate court concluded that “Dr. Preston’s EMG study was protected by
the consultant’s work product privilege and subject to disclosure only upon a
showing of exceptional circumstances.” Id. ¶ 50.
¶ 11 The appellate court rejected defendants’ arguments that, once Dameron
disclosed Dr. Preston as a testifying expert, they were entitled to the results of the
EMG study. Id. ¶¶ 27-42. Specifically, the court rejected defendants’ assertion that
Dr. Preston was a treating physician and thus Dameron implicitly consented to the
release of any medical information pertaining to her injury placed at issue by virtue
of her bringing the lawsuit. Id. ¶¶ 29, 31-32. Because Dameron was not referred to
Dr. Preston for treatment and Dr. Preston was instead consulted for testimony, the
court held that Dr. Preston was not a treating physician. Id. ¶¶ 28-32 (citing
Cochran v. Great Atlantic & Pacific Tea Co., 203 Ill. App. 3d 935 (1990)).
¶ 12 Next, the appellate court dismissed defendants’ contention that Dameron’s
disclosure of Dr. Preston as an expert witness constituted a binding judicial
admission. Id. ¶¶ 33-37. The court observed that Dameron had represented that the
disclosure was inadvertent, that she had a duty under Rule 213 to supplement or
amend any prior answer to interrogatories when new or additional information
became available (Ill. S. Ct. R. 213(i) (eff. Jan. 1, 2007)), and that she could still
withdraw Dr. Preston as a witness (see Taylor v. Kohli, 162 Ill. 2d 91, 97 (1994)).
2019 IL App (1st) 172338, ¶ 35.
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¶ 13 The appellate court also declined to find that Dameron’s initial disclosure of
Dr. Preston as a testifying expert witness waived any privilege to the EMG study.
2019 IL App (1st) 172338, ¶¶ 39-42.
¶ 14 The appellate court then considered defendants’ argument that, even if Dr.
Preston was a consultant, they were nevertheless entitled to the EMG study because
it contained material and relevant facts. Id. ¶ 44. Defendants relied on Shields v.
Burlington Northern & Santa Fe Ry. Co., 353 Ill. App. 3d 506 (2004), where the
First District held that a consulting expert’s surveillance video showing his testing
on the operation of a machine that injured the plaintiff was discoverable. 2019 IL
App (1st) 172338, ¶¶ 44-46. The Shields court determined that, once the
consultant’s statements that “revealed his thought processes and theories” were
deleted from the video, the video was not work product and thus not privileged
from discovery. Id. ¶ 46.
¶ 15 The instant appellate court panel, however, found cases relating to production
of surveillance tapes factually inapposite and instead relied on Costa v. Dresser
Industries, Inc., 268 Ill. App. 3d 1 (1994). 2019 IL App (1st) 172338, ¶¶ 48-49. In
Costa, the Third District affirmed the circuit court’s order denying the plaintiff’s
request to discover the identity of the defendants’ consulting expert and results from
any testing done upon the decedent’s lung tissue sample. 268 Ill. App. 3d at 7-8.
Because the expert was a consulting expert, his identity, opinions, and work product
could only be discovered upon a showing of exceptional circumstances, which the
plaintiff failed to make. Id. The instant appellate court panel explained that, because
the EMG study was not included in the record on appeal, it could not “conclude
that the material sought from Dr. Preston was of a purely concrete nature *** and
that the production of the EMG study would not expose Dr. Preston’s thought
processes.” 2019 IL App (1st) 172338, ¶ 50. Lastly, the court rejected defendants’
argument that Dameron was attempting to subvert the legal process. Id. ¶ 52.
Accordingly, the court held that defendants were not entitled to Dr. Preston’s EMG
study results, reversed the circuit court’s order, and vacated its finding of contempt.
Id. ¶¶ 53, 56-57.
¶ 16 This court allowed defendants’ joint petition for leave to appeal. Ill. S. Ct.
R. 315 (eff. July 1, 2018).
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¶ 17 ANALYSIS
¶ 18 As this case concerns matters of discovery, we briefly observe several
controlling principles. Illinois recognizes a general duty to disclose. Klaine v.
Southern Illinois Hospital Services, 2016 IL 118217, ¶ 15; Ill. S. Ct. R. 201(b)(1)
(eff. July 1, 2014) (requiring “full disclosure *** [of] any matter relevant to the
subject matter involved in the pending action” except as provided elsewhere in this
court’s rules). Pretrial discovery aims “to enhance the truth-seeking process, to
enable attorneys to better prepare for trial, to eliminate surprise and to promote an
expeditious and final determination of controversies in accordance with the
substantive rights of the parties.” D.C. v. S.A., 178 Ill. 2d 551, 561 (1997).
Privileges, on the other hand, must be strictly construed because they serve interests
beyond truth-seeking. Klaine, 2016 IL 118217, ¶ 15. That being said, privileges are
deemed sufficiently important so as to excuse the general duty to disclose. Id. ¶ 28.
¶ 19 Discovery orders are not final and thus are not normally appealable. Norskog v.
Pfiel, 197 Ill. 2d 60, 69 (2001). However, “a contempt proceeding is an appropriate
method for testing the correctness of a discovery order.” Reda v. Advocate Health
Care, 199 Ill. 2d 47, 54 (2002); see also Norskog, 197 Ill. 2d at 69 (“When an
individual appeals contempt sanctions imposed for violating, or threatening to
violate, a pretrial discovery order, the discovery order is subject to review.”).
Questions of law are subject to de novo review. In re Pension Reform Litigation,
2015 IL 118585, ¶ 43; see also Reda, 199 Ill. 2d at 54 (stating “the applicability of
a statutory evidentiary privilege, and any exceptions thereto, are matters of law
subject to de novo review”).
¶ 20 Treating Physician
¶ 21 We first consider defendants’ argument that Dr. Preston was not an expert but
Dameron’s treating physician. According to defendants, when Dameron filed a
medical malpractice suit and placed her physical condition at issue, she consented
to defendants discovering pertinent medical information contained in Dr. Preston’s
report and EMG study. See Palm v. Holocker, 2018 IL 123152, ¶ 28. In other
words, Dameron waived the physician-patient privilege between her and Dr.
Preston, and thus the report and EMG study are discoverable on this basis.
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¶ 22 Specifically, defendants assert that the appellate court misconstrued the
distinction between a treating physician and an expert witness, as set forth in
Cochran. See 203 Ill. App. 3d 935. Defendants also criticize the court’s reliance on
Cochran because it examined Rule 220, which has been replaced by Rule 213.
Defendants note the significant difference between the disclosure requirements of
Rule 213(f) and Rule 220. Further, defendants assert that the court’s conclusion that
Dr. Preston was not a treating physician conflicts with the fact that he, according to
defendants, “provided medical care to the plaintiff in the form of an examination
and an EMG study.” Defendants criticize the court’s holding, which was that Dr.
Preston was not a treating physician because the record failed to show that he saw
or treated Dameron for her injuries before he conducted the EMG study.
¶ 23 Defendants also point to Rule 215, which provides parties an avenue for
obtaining an independent medical examination, for support. Ill. S. Ct. R. 215 (eff.
Mar. 28, 2011). Pursuant to Rule 215, the objective test results are disclosed
regardless of whether the party seeking a Rule 215 examination decides to call the
examiner at trial. Id. Defendants observe that Rule 215(c) states that “[n]o examiner
under this rule shall be considered a consultant.” Ill. S. Ct. R. 215(c) (eff. Mar. 11,
2011).
¶ 24 We agree with the appellate court that Dr. Preston is not a treating physician.
2019 IL App (1st) 172338, ¶ 32. Cochran explains:
“[W]hether a physician is a treating physician or an expert depends on the
physician’s relationship to the case, not the substance of his testimony. A
testifying expert is one whose relationship with a litigant arose principally
because a litigant retained him to render an opinion at trial. It is the expert’s
relationship to the litigation, not the substance of the testimony, that makes him
a testifying expert. [Citations.] A treating physician is one consulted for
treatment. An expert is consulted for testimony. [Citations.] It is clear that Dr.
Locke was consulted for treatment. He was a physician to whom plaintiff had
been referred for treatment.” 203 Ill. App. 3d at 940-41.
¶ 25 Simply because Dr. Preston evaluated Dameron and conducted an EMG study
does not make Dr. Preston a treating physician. As the appellate court aptly
observed, nothing in the record indicates that Dameron had been referred to Dr.
Preston for treatment or that Dr. Preston had seen or treated Dameron in connection
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with her alleged injuries before he conducted the EMG study. As noted in
Dameron’s motion for reconsideration, counsel paid for both Dr. Preston’s time and
the EMG study. Before Dameron decided to redesignate Dr. Preston as an expert
consultant, Dameron represented in her answers to interrogatories that Dr. Preston
would be called at trial to testify about an EMG study he had not yet conducted.
Accordingly, Dr. Preston was consulted for testimony, and his relationship with
Dameron arose because her counsel retained him for the purpose of providing
testimony. See id.
¶ 26 We reject defendants’ argument that Cochran is somehow not controlling
because it examined Rule 220, which has been replaced by Rule 213. Defendants
do not explain how “the significant difference between the disclosure requirements
of Rule 213(f) and Rule 220” calls Cochran into doubt, and we thus entertain this
undeveloped argument no further.
¶ 27 Ability to Redesignate Dr. Preston as a
Rule 201(b)(3) Consultant
¶ 28 We now address whether a party may change an expert’s designation from a
Rule 213(f)(3) controlled expert witness to a Rule 201(b)(3) expert consultant. See
Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2007); R. 201(b)(3) (eff. July 1, 2014). If an
expert serves as a controlled expert witness pursuant to Rule 213(f)(3), that expert’s
identity and address must be furnished to the other party along with the subject
matter on which the witness will testify, the conclusions and opinions of the witness
and the bases therefor, the qualifications of the witness, and any reports prepared
by the witness about the case. Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2007); see Ill. S.
Ct. R. 213, Committee Comments (rev. June 1, 1995) (paragraph (g)). On the other
hand, if an expert serves as a Rule 201(b)(3) consultant, who will not testify at trial,
“[t]he 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.” Ill. S. Ct. R. 201(b)(3) (eff. July 1, 2014).
¶ 29 Our rules do not expressly permit or prohibit a party from changing a witness’s
designation. As observed by the appellate court, Illinois caselaw is likewise silent
on the precise issue, but this court has recognized that a party may abandon a
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previously disclosed expert witness if that party provides the opposing party clear
notice “at a time where the opposing party is still capable of acting on that
awareness to his benefit,” i.e., “in reasonable time prior to trial.” Taylor, 162 Ill. 2d
at 97-98. Taylor observed that the purpose of Rule 220 1 was “ ‘to permit litigants
to ascertain and rely upon the opinions of experts retained by their adversaries.’ ”
Id. at 98 (quoting Ill. S. Ct. R. 220 (eff. Oct. 1, 1984) (committee comments to
paragraph (d) of the former Rule 220).
¶ 30 Defendants argue that Taylor is distinguishable because the plaintiff sought to
withdraw the expert at issue after the defendant had the opportunity to depose the
expert and learn his opinions. Unlike in Taylor, defendants assert that Dameron is
flouting the mandatory disclosure requirements governing expert discovery by not
turning over Dr. Preston’s opinions and the results of his examination and testing.
See Ill. S. Ct. R. 213, Committee Comments (rev. June 1, 1995) (paragraph (g))
(“upon written interrogatories, a party must state the subject matter to be testified
to, the conclusions, opinions and qualifications of opinion witnesses, and provide
all reports of opinion witnesses” (emphasis added)).
¶ 31 We reject defendants’ argument. Nowhere in Taylor did this court convey that
such disclosure operated as a prerequisite to the plaintiff’s ability to abandon the
expert. Although Dameron seeks to go a step further than abandonment by
redesignating Dr. Preston as a Rule 201(b)(3) consultant, we discern no reason to
prohibit Dameron from doing so. Relevant here, the committee comments to Rule
213 make clear that the purpose of paragraph (f) “is to prevent unfair surprise at
trial, without creating an undue burden on the parties before trial.” Ill. S. Ct. R. 213,
Committee Comments (adopted Mar. 28, 2002) (paragraph (f)). Here, Dameron
alerted defendants of her intention to withdraw Dr. Preston as a testifying expert
and redesignate him as a consultant on July 27, 2017. On July 31, 2017, Dameron
amended and served her Rule 213(f)(3) disclosures upon defendants. Dameron filed
a motion in the circuit court to redesignate Dr. Preston as a consultant on August 3,
2017. Notably, the trial date was scheduled for July 18, 2018. Thus, defendants had
almost a year of advance notice that Dr. Preston would not be testifying as an expert
witness. Accordingly, Dameron’s redesignation would cause defendants no “unfair
surprise at trial.” (Emphasis added.) See id.; see also Sullivan v. Edward Hospital,
1
As mentioned, Rule 220 related to expert witnesses and has been replaced by Rule 213.
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209 Ill. 2d 100, 109 (2004) (“Rule 213 permits litigants to rely on the disclosed
opinions of opposing experts and to construct their trial strategy accordingly.”
(Emphasis added.)).
¶ 32 Further, because Dameron never disclosed Dr. Preston’s report to defendants,
it cannot be said that defendants came to rely upon Dr. Preston being called as a
witness or were prejudiced by his withdrawal. We, like the appellate court below,
find federal case law dealing with Federal Rule of Civil Procedure 26(b)(4)(D) 2
compelling on this point. In Davis, the court held that a witness who, like here, had
been disclosed as a testifying expert but had not yet produced a report could be
redesignated as a consulting expert. 2013 WL 2159476, at *7. Davis relied on the
Seventh Circuit case of Koenig, 557 F.3d at 744, and its progeny for the proposition
that, once an expert’s report is disclosed to the opposing party, that expert may no
longer be shielded from discovery. Davis, 2013 WL 2159476, at *5-7. However,
unlike these prior cases, Davis recognized that the expert’s name had been disclosed
but not the report. 2019 IL App (1st) 172338, ¶ 26. Still, Davis concluded that
“ ‘both the disclosure of the name of the expert as well as the expert’s required
report is necessary to fully disclose a testifying expert under Fed. R. Civ. P. 26
and comply with that Rule. The Court also agrees that parties are entitled to
change their minds and decide not to use an expert to testify at trial. ***
Defendant did not disclose any testimony or expert opinions in the form of a
report from [the expert witness]. Moreover, Plaintiff has shown no reliance
upon Defendant’s expert disclosure *** that would result in any prejudice to
Plaintiff. As a result, the only means by which Plaintiff is entitled to conduct
discovery of [the redesignated expert witness] is the ‘exceptional
circumstances’ exception of Rule 26(b)(4)(D).’ ” Id. ¶ 25 (quoting Davis, 2013
WL 2159476, at *7).
Again, we note that defendants had almost a year of advance notice that Dr. Preston
would not be testifying as an expert witness. Defendants could not have come to
2
Federal Rule of Civil Procedure 26(b)(4)(D) is the corresponding federal discovery provision
to Illinois Supreme Court Rule 201(b)(3) (eff. July 1, 2014). See Ill. S. Ct. R. 201, Committee
Comments (rev. June 1, 1995) (paragraph (b)) (referencing Federal Rule of Civil Procedure
26(b)(4)(B), which has now been renumbered to Federal Rule of Civil Procedure 26(b)(4)(D) (eff.
Dec. 1, 2010)); San Román v. Children’s Heart Center, Ltd., 2010 IL App (1st) 091217, ¶ 23.
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meaningfully rely on Dr. Preston’s participation at trial as an expert witness;
defendants never received Dr. Preston’s report.
¶ 33 We add that defendants do not offer any reasoning to justify a rule whereby a
party is irrevocably bound by its initial Rule 213(f) answers to interrogatories. Such
a hard-and-fast rule would strain parties’ obligation to supplement or amend prior
answers to interrogatories whenever new or additional information becomes
available. See Ill. S. Ct. R. 213(i) (eff. Jan. 1, 2007); see also 2019 IL App (1st)
172338, ¶ 35 (noting also that Dameron would still have been entitled to abandon
Dr. Preston as a witness after disclosing him as a testifying expert witness). Further,
as noted in Davis, a party should be able to change its mind regarding who it
presents as an expert witness where the requisite Rule 213(f)(3) report has not yet
been disclosed. 3 See also Ross v. Burlington Northern R.R. Co., 136 F.R.D. 638,
638-39 (N.D. Ill. 1991) (“Although plaintiff may have originally designated the
witness as a testifying expert, plaintiff has the prerogative of changing his mind.
Since plaintiff changed his mind before any expert testimony was given in this case,
the witness never actually acted as a testifying expert witness.”).
¶ 34 Because Dr. Preston was only partially disclosed as an expert witness,
Dameron’s timely redesignation of Dr. Preston as an expert consultant does not run
afoul of our rules, offend the aims of discovery, or cause defendants unfair surprise.
Thus, Dameron’s redesignation of Dr. Preston is permissible.
¶ 35 Work Product
¶ 36 As mentioned, defendants maintain that, even if Dr. Preston can be redesignated
as a Rule 201(b)(3) consultant whose report is shielded from discovery absent
exceptional circumstances, Dameron must still turn over Dr. Preston’s report and
test results consisting of objective data that is not “core work product.” Defendants
direct our attention to Illinois Supreme Court Rule 201(b)(1) (eff. July 1, 2014),
which provides:
3
For these same reasons, we likewise decline to adopt defendants’ argument, set forth in their
reply brief, that Dameron’s disclosure constituted a binding judicial admission that Dr. Preston is a
controlled expert witness under Rule 213(f)(3).
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“(1) Full Disclosure Required. Except as provided in these rules, a party
may obtain by discovery full disclosure regarding any matter relevant to the
subject matter involved in the pending action, whether it relates to the claim or
defense of the party seeking disclosure or of any other party, including the
existence, description, nature, custody, condition, and location of any
documents or tangible things, and the identity and location of persons having
knowledge of relevant facts. The word ‘documents,’ as used in Part E of Article
II, includes, but is not limited to, papers, photographs, films, recordings,
memoranda, books, records, accounts, communications and electronically
stored information as defined in Rule 201(b)(4).”
¶ 37 Defendants assert that “Rule 201(b)(3) provides a narrow exception to Rule
201’s ‘full disclosure requirement’ ” in that it protects only opinion or core work
product that is generated in preparation for trial and reveals the consultant’s mental
impressions, opinions, or strategy. Essentially, defendants contend that any
objective factual information generated in the course of a medical test is devoid of
any conceptual input. Discovery of this relevant information, according to
defendants, would not run afoul of the work product doctrine. For this proposition,
defendants cite several cases. See Waste Management, Inc. v. International Surplus
Lines Insurance Co., 144 Ill. 2d 178, 196 (1991) (noting that Rule 201(b)(2)
protects only “[o]pinion or ‘core’ work product, which consists of materials
generated in preparation for litigation which reveal the mental impressions,
opinions, or trial strategy of an attorney”); Monier v. Chamberlain, 35 Ill. 2d 351,
360 (1966) (stating that “[o]ther material, not disclosing such conceptual data but
containing relevant and material evidentiary details must, under our discovery
rules, remain subject to the truth-seeking processes thereof”); Stimpert v. Abdnour,
24 Ill. 2d 26, 31 (1962) (observing that the work product “rule does not protect
material and relevant evidentiary facts from the truth-seeking processes of
discovery”). In line with this argument, defendants try to distinguish Davis on the
basis that that case did not hold that the defendants therein were allowed to conceal
the objective evidence relied upon by the expert. Instead, defendants assert that
Davis concerned only the discoverability of the withdrawn expert’s opinions.
¶ 38 Defendants rely on two appellate court cases—Shields and Neuswanger—to
support their argument that they are entitled to the factual information in the report
and EMG study. See Shields, 353 Ill. App. 3d 506; Neuswanger v. Ikegai America
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Corp., 221 Ill. App. 3d 280 (1991). In both cases, the appellate court determined
that videotapes made by a consulting expert did not constitute work product and
thus were subject to disclosure. Shields, 353 Ill. App. 3d at 512 (concluding that
“[b]ecause surveillance videotapes constitute substantive evidence and not work
product within the meaning of discovery rules, we find that the trial court correctly
ordered Burlington to produce any surveillance videotapes of plaintiff”);
Neuswanger, 221 Ill. App. 3d at 286 (holding that “the truth-seeking interest in a
civil case is sufficiently compelling to require disclosure of [the] consulting
expert’s videotaped field investigation without a showing of exceptional
circumstances”).
¶ 39 Also, according to defendants, no affidavit, privilege log, or in camera
inspection suggests that Dr. Preston’s report contains “opinion” or “core” work
product. Defendants assert that the appellate court erred by shifting Dameron’s
burden of establishing that the report and study were privileged to defendants by
holding that defendants failed to demonstrate exceptional circumstances.
¶ 40 We determine that the issue of whether defendants are entitled to the
information in Dr. Preston’s report and study is answered by our rules. Rule
201(b)(3), “Consultant,” 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
impracticable for the party seeking discovery to obtain facts or opinions on the
same subject matter by other means.” (Emphasis added.) Ill. S. Ct. R. 201(b)(3)
(eff. July 1, 2014).
Rule 201(b)(3) speaks not only to a consultant’s work product but also his or her
identity and opinions. Id. Thus, framing the analysis as considering whether the
information sought by defendants is “work product” is inexact. See Midwesco-
Paschen Joint Venture for the Viking Projects v. Imo Industries, Inc., 265 Ill. App.
3d 654, 667 (1994) (noting that Neuswanger “held that the work product doctrine
should be interpreted in the same manner for consulting experts as it is for attorneys
as set forth in Rule 201(b)(2)”); Ill. S. Ct. R. 201, Committee Comments (rev. June
1, 1995) (paragraph (b)) (explaining that Federal Rule of Civil Procedure
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26(b)(4)(B) is the corresponding federal rule); see also Fed. R. Civ. P. 26(b)(4)(B),
Notes of Advisory Committee on Rules—1970 Amendment (“These new
provisions of subdivision (b)(4)” “reject as ill-considered the decisions which have
sought to bring expert information within the work-product doctrine.”). 4
¶ 41 Rule 201(b)(3)’s definition of exceptional circumstances demonstrates that the
rule protects more than ordinary work product. Exceptional circumstances are
shown where “it is impracticable for the party seeking discovery to obtain facts or
opinions on the same subject matter by other means.” (Emphasis added.) Ill. S. Ct.
R. 201(b)(3) (eff. July 1, 2014). If defendants were entitled to the underlying facts
in the first instance, an inability to obtain facts on the same subject would never be
a situation that would come to fruition.
¶ 42 Looking further, the committee comments to Rule 201(b)(3) emphasize the
great level of protection the rule is meant to afford:
“Discovery of consultants as provided by Rule 201(b)(3) will be proper only
in extraordinary cases. In general terms, the ‘exceptional circumstances’
provision is designed to permit discovery of consultants only when it is
‘impracticable’ for a party to otherwise obtain facts or opinions on the same
subject. Discovery under the corresponding Federal provision, Rule 26(b)(4)(B)
of the Federal Rules of Civil Procedure, has generally been understood as being
appropriate, for example, in cases in which an item of physical evidence is no
longer available because of destructive testing and the adversary’s consultant
is the only source of information about the item, or in cases in which all of the
experts in a field have been retained by other parties and it is not possible for
the party seeking discovery to obtain his or her own expert.” (Emphases added.)
Ill. S. Ct. R. 201, Committee Comments (rev. June 1, 1995) (paragraph (b)).
¶ 43 First, the committee comments observe that discovery of consultants will only
be had in “extraordinary cases.” Id. Second, the comments reiterate that the rule
contemplates protection of not only a consultant’s opinions in the first instance but
also the facts informing the consultant’s opinions, i.e., objective data. Id. Third, as
4
The committee comments were revised June 1, 1995. This committee comment references
Federal Rule of Civil Procedure 26(b)(4)(B). However, following a 2010 amendment, Federal Rule
of Civil Procedure 26(b)(4)(B) was renumbered as Federal Rule of Civil Procedure 26(b)(4)(D) (eff.
Dec. 1, 2010). The substance of the rule was not altered.
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mentioned, the comments specifically point to the rule’s federal counterpart,
Federal Rule of Civil Procedure 26(b)(4)(D). Id. Federal Rule of Civil Procedure
26(b)(4)(D) provides:
“(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may
not, by interrogatories or deposition, discover facts known or opinions held by
an expert who has been retained or specially employed by another party in
anticipation of litigation or to prepare for trial and who is not expected to be
called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the same subject
by other means.”
The examples of exceptional circumstances cited by the committee comments to
Rule 201(b)(3) demonstrate that Rule 201(b)(3) contemplates an interpretation
more in line with federal law. See Ill. S. Ct. R. 201, Committee Comments (rev.
June 1, 1995) (paragraph (b)). According to the committee, where an item of
physical evidence would no longer be available due to destructive testing and a
party could not obtain information about the destroyed item from any other source
but the adversary’s consultant who performed the destructive testing, exceptional
circumstances exist to justify discovery of the information. Id.
¶ 44 Multiple policy considerations exist for protecting the information:
“ ‘(1) the interest in allowing counsel to obtain the expert advice they need in
order [to] properly evaluate and present their client’s positions without fear . . .;
(2) the view that each side should prepare its own case at its own expense;
(3) the concern that it would be unfair to the expert to compel its testimony and
also the concern that experts might become unwilling to serve as consultants if
they suspected their testimony would be compelled; and (4) the risk of prejudice
to the party who retained the expert as a result of the mere fact of retention.’ ”
Eidos Display, LLC v. Chunghwa Picture Tubes, Ltd., 296 F.R.D. 3, 6 (D.D.C.
2013) (quoting United States ex rel. Westrick v. Second Chance Body Armor,
Inc., 288 F.R.D. 222, 227-28 (D.D.C. 2012)).
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¶ 45 Accordingly, we hold that defendants are not entitled to Dr. Preston’s report or
the results of the EMG study without a showing of exceptional circumstances.
Defendants strenuously assert that the information they seek is concrete factual
data. Defendants, therefore, are requesting disclosure of what is expressly protected
by the consultant’s privilege provided in Rule 201(b)(3). See also Appleton Papers,
Inc. v. Environmental Protection Agency, 702 F.3d 1018, 1024 (7th Cir. 2012)
(observing that Rule 26(b)(4)(D) “shows that facts and opinions alike are protected
and therefore not separable”). To the extent that Neuswanger and Shields employed
the wrong analysis, they are hereby overruled.
¶ 46 Nor are we persuaded by defendants’ argument that “the appellate court’s
finding that Dr. Preston’s report was not discoverable—even though plaintiff failed
to include it in the record—erroneously shifted the burden of proof of claiming a
privilege to the party requesting an otherwise discoverable document.” See Klaine,
2016 IL 118217, ¶ 15; Krupp v. Chicago Transit Authority, 8 Ill. 2d 37, 42 (1956)
(“[O]ne who claims to be exempt by reason of privilege from the general rule which
compels all persons to disclose the truth has the burden of showing the facts which
give rise to the privilege.”). First, for the reasons we have explained, the report and
study are not “otherwise discoverable” but are “discoverable only upon a showing
of exceptional circumstances.” Dameron filed a motion to designate Dr. Preston as
a nontestifying expert consultant under Rule 201(b)(3) and to preclude discovery
of facts and opinions known by him absent a showing of exceptional circumstances
by defendants. Second, after noting that Dr. Preston was retained “to evaluate the
nature and extent of Ms. Dameron’s injuries and perform a comparison
electromyogram and/or nerve conduction study on her,” Dameron explained in her
motion that she considered all the facts and opinions known by Dr. Preston to be
privileged because he would not be testifying at trial. Thus, we are not sure what
more Dameron need have shown to properly assert the privilege. 5 Because the
documents at issue are privileged—and not subject to an ordinary work product
analysis, which would separate conceptual data from factual data—defendants’
5
We do not fault Dameron for not yet listing the documents at issue in a privilege log, in accord
with Illinois Supreme Court Rule 201(n) (eff. July 1, 2014), where she first sought the circuit court’s
permission to redesignate Dr. Preston. Similarly, that Dameron represented that Dr. Preston was not
going to be called as an expert witness is a fact supporting the privilege.
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criticism that Dameron failed to include the report and study in the record on appeal
is a moot point.
¶ 47 The appellate court also properly determined that defendants must first show
exceptional circumstances to obtain Dr. Preston’s report or the EMG study. 2019
IL App (1st) 172338, ¶ 50. Defendants chose not to argue in the alternative that
exceptional circumstances exist. Defendants do, however, assert that Dr. Preston’s
examination and diagnostic study of Dameron “produced factual data directly
related to plaintiff’s alleged injuries—data that defendants cannot obtain other than
from plaintiff, the only party with access to Dr. Preston’s test results.” Defendants
criticize the appellate court’s statement that,
“[i]n the absence of the EMG study from the record on appeal, we cannot
conclude that the material sought from Dr. Preston was of a purely concrete
nature, as was the case in Shields and Neuswanger, and the production of the
EMG study would not expose Dr. Preston’s thought processes.” Id.
¶ 48 On this point, we deviate from the appellate court’s analysis. Again, the issue
is not whether the information is of a concrete or conceptual nature but whether “it
is impracticable for the party seeking discovery to obtain facts or opinions on the
same subject matter by other means.” Ill. S. Ct. R. 201(b)(3) (eff. July 1, 2014).
Defendants do not contend, for example, that the results of Dr. Preston’s EMG
study would not be replicable if the same study were conducted by a different
doctor. See, e.g., Costa, 268 Ill. App. 3d at 8 (explaining that the plaintiff failed to
demonstrate exceptional circumstances where she did not show it was
impracticable to obtain opinions on what disease process caused her husband’s
death, she could do any testing she wished, there was enough tissue sample for
testing, and she did not show that the tissue sample defendants received was
unique); see also Ill. S. Ct. R. 215 (eff. Mar. 28, 2011) (stating that, if a court grants
a party’s request to order a party to submit to a physical examination by a licensed
professional where the physical condition is at issue, that party will receive a
written report of the examination along with the examiner’s findings, test results,
and the examiner’s diagnosis and conclusions); see also In re ‘Agent Orange’
Product Liability Litigation, 105 F.R.D. 577, 581 (E.D.N.Y. 1985) (finding
exceptional circumstances existed where certain information possessed by
nontestifying experts could not be readily obtained from other sources). Defendants
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also do not contend that Dameron’s Rule 213 testifying experts are relying on Dr.
Preston’s report or study to form their opinions. Essentially, defendants present us
with nothing more than a conclusory statement that they are unable to obtain the
same information. Accordingly, we do not find that exceptional circumstances have
been demonstrated.
¶ 49 Finally, defendants complain that the appellate court’s holding promotes
impermissible gamesmanship. See Sullivan, 209 Ill. 2d at 109-10 (finding the
plaintiff committed a discovery violation by not disclosing all of her expert
witness’s opinions in her Rule 213 disclosure); Boatmen’s National Bank of
Belleville v. Martin, 155 Ill. 2d 305, 325 (1993) (“We strenuously disapprove of
strategies which are purposefully designed to circumvent our discovery rules
***.”). Defendants make much of the fact that Dameron attempted to redesignate
Dr. Preston as a consultant only after Dr. Preston conducted his examination and
completed his report.
¶ 50 We decline to speculate as to Dameron’s motive in redesignating Dr. Preston
as a consulting expert. Regardless, even if the report and results are detrimental to
Dameron’s position and she is trying to conceal this information, defendants can
attempt to show that exceptional circumstances warrant disclosure of the
information or request an independent examination pursuant to Rule 215. See Ill.
S. Ct. R. 215 (eff. Mar. 28, 2011). This is exactly the procedure already
contemplated by our rules.
¶ 51 CONCLUSION
¶ 52 Defendants are not entitled to Dr. Preston’s report and EMG study on the basis
that Dr. Preston served as Dameron’s treating physician; Dr. Preston was consulted
for the purpose of providing testimony. A party is permitted to redesignate an expert
from a Rule 213(f) controlled expert witness to a Rule 201(b)(3) consultant in a
reasonable amount of time before trial and where a report has not yet been
disclosed. Here, Dameron properly withdrew Dr. Preston as a Rule 213(f)
controlled expert witness almost a year before trial and redesignated him as a Rule
201(b)(3) consultant. Because Dr. Preston was properly redesignated as a Rule
201(b)(3) consultant, Dameron was not required to turn over the concrete factual
data contained in Dr. Preston’s report and EMG study. Rule 201(b)(3) protects not
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only conceptual data but also factual information. Defendants made no attempt to
show exceptional circumstances warranted disclosure of the data contained in the
report and study.
¶ 53 For these reasons, we affirm the appellate court’s decision reversing the circuit
court’s order denying Dameron’s motion to redesignate Dr. Preston as a Rule
201(b)(3) consultant and ordering her to produce Dr. Preston’s EMG study.
Likewise, the contempt finding and $1 fine imposed against Dameron are vacated,
and we remand the cause to the circuit court.
¶ 54 Appellate court judgment affirmed.
¶ 55 Circuit court order vacated.
¶ 56 Cause remanded.
¶ 57 JUSTICE NEVILLE took no part in the consideration or decision of this case.
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