Most of the attorneys who contact us are looking for a testifying expert. Presumably that’s because many experts won’t testify (for all kinds of reasons), but are willing to assist attorneys in understanding and preparing cases for litigation, which makes finding consultants easier for attorneys than finding testifiers. Nevertheless, sometimes attorneys do need our help obtaining a consulting expert, and sometimes they even want one of each.
For 15+ years we’ve been providing both kinds of experts to our clients. In all that time, we’ve never had an attorney/client change the designation of a retained expert witness to consultant after the case review was completed. So our assumption has been that, once an attorney has designated as a testifying expert, that’s that.
As it turns out, that is not the case – at least, not in the federal district courts within the Seventh Circuit, and not in the Illinois state courts. In a case of first impression, the Illinois Supreme Court recently agreed with U.S. Seventh Circuit Court of Appeals that “once an expert’s report is disclosed to the opposing party, the expert no longer enjoys protection from discovery by the opposing party….[However], prior to producing the expert report…a party can change a testifying expert to a non-testimonial expert without losing the protections from discovery, barring exceptional circumstances.” Dameron v. Mercy Hospital and Medical Center, 2020 IL 125219 (11/19/2020) (citations and internal quotation marks omitted).
The plaintiff in Dameron claimed that she had sustained a femoral nerve injury due to malpositioning during surgery. The defendants’ interrogatories included (as is quite common) a request for the identity of the plaintiff’s expert witnesses and the subject matter of their anticipated testimony. The plaintiff’s answer stated that a Dr. Preston would testify concerning the results of an electromyogram he was scheduled to perform on the plaintiff and concerning his review of a previous EMG performed at the defendant hospital. A couple of months later, “Dameron filed a motion to change Dr. Preston’s designation from [an]…expert witness to an expert consultant….Dameron also sought to preclude discovery of facts and opinions known by Dr. Preston absent a showing of exceptional circumstances by defendants.” The trial judge denied the motion, ordered the plaintiff to produce Dr. Preston’s report, and held her in contempt when she refused to. The intermediate appellate court reversed, holding that, until experts’ reports are filed at the time required by a scheduling order, “parties are entitled to change their minds and decide not to use an expert to testify at trial” (internal quotation marks omitted). The Illinois Supreme Court affirmed.
The defendants raised so many arguments on appeal that it took 14 pages for the supreme court to deal with them all. Their most surprising contention was that Dr. Preston was actually a treating physician, which would (if true) have made his examination results discoverable. This would seem to be a difficult argument to make with a straight face, since Dr. Preston had been engaged by and paid by the plaintiff’s attorney, and the court gave it short shrift. The court also pointed out, in response to several of the defendants’ arguments, that the redesignation of Dr. Preston as a consultant had taken place a year before the scheduled trial, and consequently the defendants had suffered no prejudicial reliance on his anticipated appearance at trial. Finally, after rejecting all of the defendants’ substantive objections to the redesignation, the court addressed their policy argument:
Finally, defendants complain that the appellate court’s holding promotes impermissible gamesmanship. Defendants make much of the fact that Dameron attempted to redesignate Dr. Preston as a consultant only after Dr. Preston conducted his examination and completed his report. We decline to speculate as to Dameron’s motive in redesignating Dr. Preston as a consulting expert. Regardless, even if the report and results are detrimental to Dameron’s position and she is trying to conceal this information, defendants can attempt to show that exceptional circumstances warrant disclosure of the information or request an independent examination….(Citations omitted; emphasis added.)
Indeed, getting their own IME, which the defendants were certainly entitled to, would be a complete remedy to whatever they lost by being denied access to Dr. Preston’s exam results.
I don’t know if there’s controlling precedent on this issue on any of the other federal circuits, let alone the other 49 states – after all, there was no controlling precedent in Illinois until the Dameron opinion was released 12 days ago. The redesignation of an expert from testifying to consulting may be a rare event, but clearly it can and does happen. Therefore, it would behoove all litigators to look for relevant case law in their jurisdiction. And if there isn’t any, we suggest that you keep a link to this blog post handy, just in case.