May 5, 2021

Witness Classification: Expert Consultant v. Controlled Expert Witness

Divorce attorneys frequently engage expert consultants for specialized advice on their cases. For all practical purposes, the key distinction between an expert “consultant” and a “controlled expert witness” is that a consultant does not testify. Also, the identity, opinions, and work product of a non-testifying consultant are confidential and not subject to discovery requests from the opposing party.

While attorneys frequently convert non-testifying consultants into controlled expert witnesses, and then disclose the expert witness, it is unusual when a litigant attempts to convert an already-disclosed controlled expert witness to a consultant, thereby seeking to protect the confidentiality of the expert’s work product and communications.  This is what the Illinois Supreme Court considered in the case of Dameron v. Mercy Hospital and Medical Center, 2020 IL 125219.

 Illuminating issues related to the use of experts and consultants, in Dameron, the Illinois Supreme Court held that a disclosed expert witness may be reclassified as a non-testifying consultant, and that confidentiality will be afforded to the consultant, so long as these conditions are met:

 1) the expert’s report has not been tendered;

 2) the reclassification takes place sufficiently in advance of trial;

 3) the consultant is not the litigant’s treating physician/professional; and

 4) there are no exceptional circumstances that would compel disclosure.  

Moreover, the Court clarified that the protection afforded to the newly-reclassified consultant extends not only to work product, but objective “facts” in the consultant’s file as well.

In Dameron, the petitioner in a medical malpractice case disclosed Dr. Preston as a controlled expert witness to testify concerning an EKG test and other studies he would be performing on petitioner.  Dr. Preston performed the tests on petitioner on June 2, 2017. On July 27, 2017, approximately one year before trial was set to commence, petitioner’s counsel notified the defendant that she was withdrawing Dr. Preston as an expert witness, now considering him to be a non-testifying expert. After the circuit court denied petitioner’s Motion to designate Dr. Preston as a non-testifying consultant, and ordered her to produce Dr. Preston’s records to defendant, the Appellate Court reconsidered the issue of whether Dr. Preston could now be reclassified as a non-testifying expert. 

Holding that petitioner could reclassify Dr. Preston as a non-testifying consultant, the Appellate Court focused on a several factors:

Ability to redesignate:  A party may abandon a previously disclosed expert if sufficient advance notice is provided, i.e., a reasonable amount of time before trial.  Since the petitioner never disclosed Dr. Preston’s report, the Court deemed Dr. Preston “only partially disclosed as an expert witness” and noted that the redesignation did not cause defendants any unfair surprise or prejudice.

Scope of protected information:  The Court held that the scope of protected information after an expert is reclassified to a consultant generally extends to underlying objective facts in the consultant’s file, in addition to the consultant’s opinions.

Exceptional circumstances: The Court clarified that “exceptional     circumstances” that would have permitted defendant to obtain Dr.         Preston’s file are limited. 

Treating Physician:  Since Dr. Preston was retained as an expert in Petitioner’s case; he was not her “treating physician” and therefore her file should not be disclosed. 

Gamesmanship:  In response to an accusation of brinksmanship in reclassifying Dr. Preston the court held that  motivation to conceal damaging information alone is not a sufficient basis to compel production of a consultant’s file.

The Dameron case provides guidance and flexibility to attorneys and litigants who employ experts and consultants. From a practical standpoint, attorneys must give greater consideration to ensuring that there is sufficient time to reclassify an expert who might generate information damaging to a client, and to act prior to the disclosure of that expert’s report.

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