Dameron v. Mercy Hosp. & Med. Ctr.

• Decision Date: 19 November 2020
• Docket Number: Docket No. 125219
• Citation: 181 N.E.3d 833,2020 IL 125219,450 Ill.Dec. 481
• Parties: Alexis DAMERON, Appellee, v. MERCY HOSPITAL AND MEDICAL CENTER et al., Appellants.
• Court: Illinois Supreme Court

2020 IL 125219
181 N.E.3d 833
450 Ill.Dec. 481

Alexis DAMERON, Appellee,
v.
MERCY HOSPITAL AND MEDICAL CENTER et al., Appellants.

Docket No. 125219

Supreme Court of Illinois.

Opinion filed November 19, 2020.

181 N.E.3d 835

Richard H. Donohue, Karen Kies DeGrand, and Meagan P. VanderWeele, of Donohue Brown Mathewson & Smyth LLC, and Robert Marc Chemers, John V. Smith II, Matthew A. Reddy, and Paula K. Villela, of Pretzel & Stouffer, Chtrd., both of Chicago, for appellants.

James A. Karamanis and Emily A. Herbick, of Barney & Karamanis, LLP, of Chicago, for appellee.

Michael Resis and Mghnon Martin, of SmithAmundsen LLC, of Chicago, for amicus curiae Illinois Association of Defense Trial Counsel.

Chief Justice Anne M. Burke and Justices Kilbride, Karmeier, Theis, and Michael J. Burke concurred in the judgment and opinion.

OPINION

JUSTICE GARMAN delivered the judgment of the court, with opinion.

450 Ill.Dec. 483

¶ 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).

181 N.E.3d 836

450 Ill.Dec. 484

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, 437 Ill.Dec. 703, 145 N.E.3d 1. 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 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.

181 N.E.3d 837

450 Ill.Dec. 485

¶ 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, 437 Ill.Dec. 703, 145 N.E.3d 1. 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 party, the expert no longer enjoys protection from discovery by the opposing party. 2019 IL App (1st) 172338, ¶¶ 23-25, 437 Ill.Dec. 703, 145 N.E.3d 1. 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, 148 Ill.Dec. 923, 561 N.E.2d 229 (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, 204 Ill.Dec. 766, 642 N.E.2d 467 (1994) ). 2019 IL App (1st) 172338, ¶ 35, 437 Ill.Dec. 703, 145 N.E.3d 1.

¶ 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)...