Dameron v. Mercy Hosp. & Med. Ctr.

2019 IL App (1st) 172338

145 N.E.3d 1

437 Ill.Dec. 703

Alexis DAMERON, Plaintiff-Appellant,

v.MERCY HOSPITAL AND MEDICAL CENTER, an Illinois Not-For-Profit Corporation, Individually and By and Through Its Agents, Servants and/or Employees; Cordia Clark-White, M.D., Individually and as Agent, Servant and Employee of Mercy Hospital and Medical Center; Alfreda Hampton, M.D., Individually and as Agent, Servant and/or Employee of Mercy Hospital; Natasha Harvey, M.D., Individually and as Agent, Servant and Employee of Mercy Hospital; Erica Taylor, M.D., Individually and as Agent, Servant and/or Employee of Mercy Hospital; Patricia Courtney, Individually and as Agent, Servant and/or Employee of Mercy Hospital; Mary Cahill, Individually and as Agent, Servant and/or Employee of Mercy Hospital; Genevieve Lanning, Individually and as Agent, Servant and/or Employee of Mercy Hospital; and Jaylen Shearer, Individually and as Agent, Servant and/or Employee of Mercy Hospital, Defendants

(Mercy Hospital and Medical Center; Cordia Clark-White, M.D.; Alfreda Hampton, M.D.; Natasha Harvey, M.D.; and Patricia Courtney, Defendants-Appellees).

No. 1-17-2338

Appellate Court of Illinois, First District, Fifth Division.

Filed March 15, 2019

Rehearing denied July 26, 2019

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

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

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

¶ 1 This is an interlocutory appeal pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016). The plaintiff, Alexis Dameron, was held in contempt¹ for refusing to comply with a discovery order of the circuit court of Cook County. The order at issue required the plaintiff to disclose to the defendants the report of a nontestifying medical expert.

¶ 2 On appeal, plaintiff contends that the trial court erred when it denied her motion to redesignate her expert witness a consultant and ordered her to produce the expert witness' report.

¶ 3 BACKGROUND

¶ 4 On November 6, 2014, the plaintiff filed a medical malpractice complaint against the defendants, Mercy Hospital and Medical Center, Cordia Clark-White, M.D., Alfreda Hampton, M.D., Natasha Harvey, M.D. and Patricia Courtney.² The plaintiff alleged that in August 2013, she underwent a surgical procedure at Mercy Hospital during which she sustained injuries due to the negligence of the defendants. The defendants filed their appearances and answers to the complaint. Thereafter the parties conducted discovery.

¶ 5 On May 30, 2017, the plaintiff filed her answers to interrogatories. Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2007). In her answers, the plaintiff disclosed David Preston, M.D., as a testifying expert witness. She further disclosed that Dr. Preston would be testifying as to the results of a test he would perform on the plaintiff on June 1, 2017. On that date, Dr. Preston examined the plaintiff and conducted a comparison electromyogram (EMG) and/or nerve conduction study (EMG study) on the plaintiff. Thereafter, Dr. Preston prepared a report in which he discussed his findings and opinions. Dr. Preston's report is not in the record on appeal.

¶ 6 On August 3, 2017, the plaintiff filed a motion to designate Dr. Preston a nontestifying expert consultant pursuant to Illinois Supreme Court Rule 201(b)(3) (eff. May 29, 2014) and to preclude discovery of facts and opinions known by Dr. Preston, absent a showing of exceptional circumstances by the defendants. In support of her motion, the plaintiff alleged the following facts.

¶ 7 Dr. Preston had been retained to assist the plaintiff's attorney by evaluating the nature and extent of the plaintiff's injuries and to perform the EMG study on her. Dr. Preston was not one of the plaintiff's treating physicians, he had not been referred to her by any of her treating physicians, and the doctor did not provide the plaintiff with any medical treatment for her complained-of injuries. The May 30, 2017, disclosure of Dr. Preston as a testifying expert witness was "inadvertent" and that on July 27, 2017, the plaintiff's attorney notified the defendant's attorneys that she was withdrawing Dr. Preston as a testifying expert witness. The plaintiff's attorney informed defendants' attorneys that because Dr. Preston would not be testifying, his opinions were privileged from discovery pursuant to Rule 201(b)(3). On July 31, 2017, the plaintiff's attorney served her amended answers to discovery which contained no mention of Dr. Preston as a testifying expert witness.

¶ 8 The plaintiff further alleged that on July 27, 2017, the trial court had ordered the plaintiff's attorney to provide deposition dates for her expert witnesses. However, the defendants refused to schedule those depositions until Dr. Preston's records of the EMG study were disclosed to them. Since the defendants' attorneys failed to show that the facts and opinions known to Dr. Preston could not be obtained by other means, pursuant to Rule 201(b)(3), the plaintiff alleged that she was not required to disclose them to the defendants. The defendants did not respond in writing to the plaintiff's motion.

¶ 9 On August 4, 2017, following argument by the parties, the trial court denied the plaintiff's motion to designate Dr. Preston as a consulting expert and ordered the plaintiff to produce Dr. Preston's records regarding the EMG study on the plaintiff. The plaintiff refused to produce Dr. Preston's records. The trial court found the plaintiff in contempt and imposed a $ 100 fine. The plaintiff filed a motion to reconsider the court's August 4, 2017, order. On September 6, 2017, the trial court denied the plaintiff's motion for reconsideration but reduced the fine for contempt to $ 1.

¶ 10 On September 19, 2017, the plaintiff filed her notice of interlocutory appeal from the trial court's orders of August 4, 2017, and September 6, 2017.

¶ 11 ANALYSIS

¶ 12 We are asked to determine whether a party who has disclosed a witness as a testifying expert may thereafter redesignate that witness as a consultant whose opinions and work product are privileged from discovery unless there is a showing of exceptional circumstances by the opposing party.

¶ 13 I. Standard of Review

¶ 14 The applicability of a discovery privilege is a matter of law which we review de novo . Harris , 2015 IL 117200, ¶ 13, 390 Ill.Dec. 151, 28 N.E.3d 804.

¶ 15 II. Rules and Principles Governing Pretrial Discovery

¶ 16 The objectives of pretrial discovery are to allow better preparation for trial, the elimination of surprise and to promote the 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, 227 Ill.Dec. 550, 687 N.E.2d 1032 (1997). In contrast, privileges are not designed to promote the truth-seeking process; rather, they serve some outside interest by protecting certain matters from discovery. D.C. , 178 Ill. 2d at 561-62, 227 Ill.Dec. 550, 687 N.E.2d 1032. As such, privileges are an exception to the rule that the public has a right to every person's evidence. D.C. , 178 Ill. 2d at 562, 227 Ill.Dec. 550, 687 N.E.2d 1032. "Privileges are not to be lightly created or expansively construed, for they are in derogation of the search for the truth." D.C. , 178 Ill. 2d at 562, 227 Ill.Dec. 550, 687 N.E.2d 1032.

¶ 17 Illinois Supreme Court Rule 201(b)(1) (eff. May 29, 2014) provides in pertinent part that "[e]xcept 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." Illinois Supreme Court Rule 201(b)(2) (eff. May 29, 2014) provides in pertinent part that "[m]aterial prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party's attorney." Illinois Supreme Court Rule 201(b)(3) (eff. May 29, 2014) 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 impractical for the party seeking discovery to obtain facts or opinions on the same subject matter by other means."

¶ 18 III. Discussion

¶ 19 We begin by observing that in Illinois, a party may withdraw an expert witness so long as the opposing party is given clear and sufficient notice allowing it to take the necessary action in light of the abandonment of the witness. Taylor v. Kohli , 162 Ill. 2d 91, 97, 204 Ill.Dec. 766, 642 N.E.2d 467 (1994). However, the plaintiff does not merely seek to withdraw Dr. Preston as a testifying expert witness but to redesignate him as a nontestifying consultant whose reports and opinions are protected from discovery by the defendants pursuant to the privilege set forth in Rule 201(b)(3).

¶ 20 The issue in this case is not addressed in our discovery rules. Neither party has directed us to Illinois cases addressing this precise issue. In the absence of Illinois authority, the plaintiff relies on federal case law interpreting the federal rules corresponding to our rules governing discovery.

¶ 21 The defendants point out that several of these decisions are unpublished orders and that such orders have no precedential value in Illinois courts. Board of Education of Springfield School District No. 186 v. Attorney General , 2017 IL 120343, ¶ 54, 413 Ill.Dec. 20, 77 N.E.3d 625. However, our supreme court went on to say, "the district court's reasoning is of interest." Board of Education of Springfield School District No. 186 v. Attorney General of...