The Supreme Court of the State of Illinois (“Illinois Supreme Court”) discussed the differences between a treating expert and a consulting expert with regard to discovery disclosures in Illinois medical malpractice cases in its opinion filed on November 19, 2020, stating, in part:
“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 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.”
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). On the other hand, if an expert serves as a Rule 201(b)(3) consultant, who will not testify 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.
With regard to 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, the Illinois Supreme Court stated, “Our rules do not expressly permit or prohibit a party from changing a witness’s designation … Illinois caselaw is likewise silent on the precise issue, but this court has recognized that a party may abandon a 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.””
In the case it was deciding, the Illinois Supreme Court stated, “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 … 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 … 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.”
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).
In the case it was deciding, the Illinois Supreme Court held: “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) … 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” … 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.”
The Illinois Supreme Court concluded: “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 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.”
Source Dameron v. Mercy Hospital and Medical Center, 2020 IL 125219.
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