Illinois First District Appellate Court
A Cook County circuit judge was wrong to hold a woman suing Mercy Hospital in contempt when she tried to change her expert witness to a non-testifying consultant, a state appeals panel has ruled.
Alexis Dameron is suing Mercy Hospital and members of the medical staff for medical malpractice, claiming she suffered injuries due to negligence in a 2013 surgery. In 2017, Dameron disclosed through discovery that Dr. David Preston would be called as a testifying expert witness. Preston was not Dameron’s treating physician, but examined her and conducted a nerve study for the purposes of her lawsuit. The exam did not happen until after the discovery disclosure, according to court documents.
Two months later, without disclosing Preston’s report on the study, Dameron sought to designate Preston as a non-testifying expert consultant. She claimed her attorney had never intended to call him as an expert witness and the earlier disclosure was “inadvertent.”
Ill. First District Appellate Justice Shelvin Hall | Youtube screenshot
Cook County Circuit Judge William E. Gomolinski denied Dameron’s motion and ordered her to release Preston’s report to the defendants. Dameron refused, arguing that because Preston would not testify, his opinions were privileged. Gomolinski found her in contempt.
The issue went to the Illinois First District Appellate Court. Justice Shelvin Hall authored the court's opinion. Justices Mary Rochford and Thomas Hoffman concurred.
Hall said the question at hand – whether a person first identified as an expert witness can be not only withdrawn, but redesignated to a privileged status – is not addressed by Illinois rules of discovery, and neither side cited any Illinois precedent on the issue.
Without state precedent to rely upon, the court turned to federal case law. Federal rules of discovery prohibit changing an expert witness, whose opinions are available to either side, to a consultant once the expert’s report has been filed and deposition conducted. But justices noted that Preston’s report had not yet been disclosed and he had not been deposed when she filed her motion to redesignate him.
Mercy claims it is entitled to the results of Preston’s examination because he was one of Dameron’s treating physicians. When filing a lawsuit claiming physical injury, a plaintiff implicitly consents to his or her treating physician releasing information related to the injury, the hospital said.
The justices, however, said Preston had never seen or treated Dameron before conducting the nerve study, and that he had been retained specifically to provide background for her lawsuit, placing him firmly in the category of expert consultant, not treating physician.
Failing on that count, the hospital argued Dameron’s disclosure of Preston as an expert witness is binding as judicial admission, preventing it from being withdrawn. It went on to say that the disclosure waived any privilege over Preston’s opinions.
Justices struck down those arguments as well, saying Dameron has the right to withdraw a witness even after disclosing him. Law requires parties to provide the subject matter and opinions of all witnesses who will testify at trial, Hall wrote, but Mercy is not entitled to Preston’s report if he is not going to testify. The only way to force release of the report would be for the hospital to show exceptional circumstances indicating there are material facts in the report that cannot be obtained in any other way.
Finding no reason Preston cannot be redesignated from expert witness to non-testifying consultant, the justices reversed the circuit court’s denial of Dameron’s motion and vacated the contempt finding. The case was remanded to the circuit court for further proceedings.
According to Cook County court records, Dameron has been represented by attorneys with the Karamanis Law Group, of Chicago.
Mercy has been defended by attorneys with Donohue Brown Mathewson & Smyth, of Chicago.