Illinois Supreme Court Allows Plaintiff to Redesignate a 213(f)(3) Controlled Expert to 201(b)(3) Consultant During Discovery

When defending a client, it is critical to gather information about the plaintiff’s
experts in order to identify weaknesses in the case and determine a winning strategy. This is especially true in medical malpractice lawsuits, where many outcomes are driven by expert opinion and testimony. With this in mind, defense counsel should become familiar with a 2020 Illinois Supreme Court decision dealing with an issue of first impression that allowed a plaintiff to redesignate a Rule 213(f)(3) controlled expert to a Rule 201(b)(3) consultant. In this particular case, the redesignation caused a physician’s report and opinions to be non-discoverable material by the defense unless the defense could show the existence of exceptional circumstances.

Background: Controlled Expert Versus Consultant

In Illinois, a “controlled expert” is “a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert.” Ill. S. Ct. R. 213(f)(3). This Supreme Court Rule requires a party to identify the following for each controlled expert:

“(i) the subject matter on which the witness will testify;

(ii) the conclusions and opinions of the witness and the bases therefor;

(iii) the qualifications of the witness; and

(iv) any reports prepared by the witness about the case.” Id.

On the other hand, if a party is designated as a consultant, its “identity, opinions, and work product . . . 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.” Ill. S. Ct. R. 201(b)(3). For a person to be considered a consultant, he or she must have “been retained or specially employed in anticipation of litigation or preparation for trial but who is not to be called at trial.” Id.

 The Case

In Dameron v. Mercy Hospital & Medical Center, the plaintiff, Alexis Dameron, filed a complaint against defendants after she allegedly sustained nerve damage from a procedure performed at Mercy Hospital and Medical Center. Dameron v. Mercy Hosp. & Med. Ctr., 2020 IL 125219, ¶ 3. In her discovery responses to defendants, the plaintiff named Dr. David Preston as a Rule 213(f)(3) controlled expert who would testify about “the methods of performing and results of the comparison electromyogram [EMG] and/or nerve conduction studies he [would] be performing on Alexis Dameron.” Id. at ¶ 4. Dr. Preston thereafter performed the EMG study on plaintiff and prepared a report. Id.

Roughly two months after the plaintiff first disclosed the identity of Dr. Preston in her discovery responses, she filed a motion to redesignate Dr. Preston as a consultant pursuant to Rule 201(b)(3), which would thus preclude discovery of “facts and opinions” known by him. Id. at ¶ 6. The circuit court denied the plaintiff’s motion and found plaintiff in contempt when she refused to produce Dr. Preston’s records. Id. at ¶ 8.

On appeal, the appellate court reversed the circuit court’s denial of plaintiff’s motion to redesignate Dr. Preston as a consultant and held that defendants were not entitled to the EMG study. Id. at ¶¶ 9-10. The Illinois Supreme Court allowed defendants’ petition for leave to appeal. Id. at ¶ 16.

The Opinion

 In its decision, the Illinois Supreme Court held that the plaintiff was allowed to redesignate Dr. Preston from a controlled expert to a consultant. Therefore, defendants were not entitled to Dr. Preston’s EMG report. Id. at ¶ 52.

Specifically, the court found it significant that the plaintiff gave defendants notice of the redesignation approximately one year prior to the trial date. The court opined that that timeframe prevented the redesignation from being an unfair surprise or creating an undue burden at trial. Id. ¶ at 31. Moreover, plaintiff had not yet disclosed Dr. Preston’s EMG report to defendants, so defendants did not rely upon and were not prejudiced by Dr. Preston’s redesignation. Id. ¶ at 32.

The court noted that a “hard-and-fast rule” that bound a party to its initial Rule 213(f) disclosures would create issues with parties’ obligations to supplement and amend their interrogatories. Id. ¶ at 33. The court also held that because Dr. Preston was redesignated as a consultant, applying Rule 201(b)(3) meant his opinions and report were only discoverable upon a showing of exceptional circumstances, which defendants failed to show. Id. ¶¶ at 40-45, 52.

Lastly, defendants argued that the appellate court’s decision would promote impermissible gamesmanship. See id. at ¶ 49. The court, however, was unpersuaded by this argument and noted it would not speculate as to plaintiff’s motive. Id. at ¶ 50. It further stated that even if plaintiff was trying to conceal detrimental information, defendants could still either: (1) attempt to show exceptional circumstances, or (2) obtain the information by requesting an independent examination of plaintiff. Id. at ¶ 50. Thus, the court concluded that “[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.” Id. at ¶ 52.

The Takeaway

 It is clear that under certain circumstances, Dameron permits parties to redesignate a Rule 213(f)(3) controlled expert to a Rule 201(b)(3) consultant. In effect, plaintiffs can shield unfavorable information from the defense by redesignating an expert who has prepared unfavorable opinions or reports. If a defendant is faced with such a situation, defense counsel should attempt to distinguish its case from Dameron if: (1) trial is sooner than one year away from the time the defendant is notified of plaintiff’s intent to redesignate a controlled expert to a consultant, and/or (2) the controlled expert’s opinions and/or reports have already been disclosed to and relied upon on by the defense prior to the plaintiff’s motion to redesignate.

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Kerri Forsythe

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