Illinois Supreme Court Creates New Law And Shows Why It Is Crucial To Argue In The Alternative
by Melinda S. Kollross
In Dameron v. Mercy Hosp., 2020 IL 125219, the Illinois Supreme Court answered a question of first impression regarding discovery in a medical malpractice case. The Court ruled that a party is permitted to redesignate an expert from an Illinois Supreme Court Rule 213(f) controlled expert subject to full disclosure to a Rule 201(b)(3) consultant not subject to full disclosure if done in a reasonable amount of time before trial and where the expert report has not been disclosed. The Court also demonstrated the “appellate wisdom” of always arguing in the alternative on appeal, instead of just trying to go for the “home run” on the main issue.
Dameron underwent a robotic-assisted hysterectomy that she alleged was negligently performed. Dameron initially disclosed a Dr. Preston as a Rule 213(f ) controlled expert witness who was going to perform a comparison EMG on Dameron and prepare a report of his study and evaluation. About a month later, after Dr. Preston did his study and prepared his report, but before the report was disclosed to defendants, Dameron emailed defendants advising that Dr. Preston was being withdrawn as a 213(f) witness and instead was a nontestifying expert per Rule 201(b)(3). Dameron also moved the trial court to redesignate Dr. Preston as a consultant, but that motion was denied and Dameron was ordered to produce Dr. Preston’s records. Dameron asked for a “friendly contempt” to challenge the order, which was given. The appellate court reversed, and the case came to the Illinois Supreme Court.
The Supreme Court ruled in favor of Dameron that Dr. Preston’s report was not subject to disclosure, addressing several arguments made by defendants.
Dameron Was Not A Treater
The Court gave short shrift to defendants’ contention that Dr. Preston was one of plaintiff’s treating physicians, and thus his report was subject to disclosure when Dameron filed her medical malpractice suit placing her physical condition at issue. According to the Court, nothing was presented showing that plaintiff was referred to Dr. Preston for treatment of her injuries. Simply because Dr. Preston evaluated Dameron and conducted a study of her condition did not ipso facto make him a treater.
Dr. Preston Could Be Redesignated
The Court found that the rules on discovery as well as existing Illinois case law were silent on whether a controlled expert could later be designated as a consultant. But looking at both Illinois law allowing the abandonment of an expert witness and “compelling” federal law, the Court concluded that Dameron was entitled to redesignate Dr. Preston from controlled expert to consultant under these circumstances. First, the redesignation would cause defendants no unfair surprise “at trial” because the trial was almost a year away. Second, the contents of the report were not yet disclosed. This was key to the Court because under federal law, an expert loses the shield from full disclosure once his report is disclosed. And in the absence of the report, defendants could not say that they were looking to have Dr. Preston participate at trial. Further, as noted in the federal law, discovery of the redesignated witness could be obtained by showing exceptional circumstances. The bottom line, according to the Court, was that 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.
The Court further ruled that nothing in Illinois law on work product required the disclosure of Dr. Preston’s report even as just a consulting expert, absent exceptional circumstances. According to the Court, the rules themselves and the Committee Comments demonstrated that discovery of consultants will only be had in “extraordinary cases.” and protected not only a consultant’s opinions in the first instance but also the facts informing the consultant’s opinions, i.e., objective data.
No Alternative Argument Made on “Exceptional Circumstances”
The Court specifically noted that defendants never argued in the alternative that exceptional circumstances existed justifying disclosure of Dr. Preston’s report. According to the Court, defendants made “nothing more than a conclusory statement that they are unable to obtain the same information.” But the Court noted that there were several arguments defendants might have made that could have been considered exceptional circumstances:
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).
Learning Point: The new rule of discovery established is clear, but this case also speaks to good appellate advocacy. Everyone wants to create new law with a favorable Supreme Court decision, such as this one on whether expert witnesses can be redesignated. Some may consider that “hitting the home run”, but that view is short-sighted. Hitting a home run in this case might also mean getting Dr. Preston’s report and evaluation. And one way that might have happened was by making the alternative “exceptional circumstances” argument the Court noted was never made. Some advocates may think that making alternative arguments denigrates their main argument in the eyes of the court. But good, solid alternative arguments may also give a court a favorable option it was looking for—as might have been the case here.