GINA KUBICHECK, Plaintiff-Appellee, v. JEFFREY F. TRAINA, M.D., Defendant-Appellant.
Appeal No. 3-11-0157
APPELLATE COURT OF ILLINOIS THIRD DISTRICT
September 23, 2013
2013 IL App (3d) 110157
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Lytton and Carter concurred in the judgment and opinion.
Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Circuit No. 06-L-397, Honorable Stephen Kouri, Judge, Presiding.
¶ 1 Gina Kubicheck sued Dr. Jeffrey Traina, an orthopedic surgeon, for professional negligence in connection with a surgical procedure that Dr. Traina performed on Kubicheck‘s ankle. The jury returned a verdict for Dr. Traina. Kubicheck filed a posttrial motion for a new trial. The trial court found that Dr. Traina‘s expert witness, Dr. George Holmes, failed to fully disclose information relating to prior testimony that he had given in other cases, thereby impairing Kubicheck‘s counsel‘s ability to impeach Dr. Holmes during cross-examination. Accordingly, the trial court granted Kubicheck a new trial. In response to a motion to clarify
¶ 2 Dr. Traina filed a petition for leave to appeal (PLA) the trial court‘s order granting Kubicheck a new trial under
¶ 3 FACTS
¶ 4 Dr. Traina first treated Kubicheck in June 1995 when she was brought to the emergency room following an automobile accident. Kubicheck had broken her ankle in four places, and there was damage to the cartilage lining the ankle joint. Although she recovered well initially, Kubicheck soon developed some arthritic pain and limitation in the motion of her ankle. Dr. Traina told her that she might need to have surgery in approximately 10 years to resolve the arthritic pain.
¶ 5 Nine years later, Kubicheck returned to Dr. Traina, complaining of ankle pain and stiffness and decreased range of motion of her ankle. Her pain was in the tibiotaler joint, which is where the lower leg bone (tibia) meets the ankle bone (talus). After conservative treatment measures failed to provide lasting relief, Kubicheck chose to undergo tibiotaler fusion surgery. During that procedure, the tibia and the talus are trimmed, and the surfaces of these two bones
¶ 6 Dr. Traina performed the surgery on October 29, 2004. Two X-rays were taken in the operating room after the screws were inserted to confirm that Kubicheck‘s foot was in a natural (i.e., flat) position. Dr. Traina concluded that Kubicheck‘s foot was two degrees from perpendicular at the conclusion of the surgery. In Dr. Traina‘s opinion, this alignment was reasonable and was not an abnormal position for a surgical fusion.
¶ 7 One week after the surgery, Dr. Traina gave Kubicheck a removable fracture boot and instructed her to wear it whenever she was walking or weight-bearing on the foot.
¶ 8 On March 22, 2005, Kubicheck underwent physical therapy. The physical therapy records noted no boot or other protective device on Kubicheck‘s foot. The physical therapist noted that Kubicheck‘s foot was plantar flexed1 25 degrees from perpendicular and fixed in that position. She noted that she had never seen a foot fixed in that position.
¶ 9 On April 6, 2005, Kubicheck saw Dr. Nirain D‘Souza, another orthopedic surgeon. Kubicheck was not wearing any type of protective device on her foot at the time she saw Dr. D‘Souza. Kubicheck could not touch her heel to the ground without hyperextending her knee. Dr. D‘Souza X-rayed Kubicheck‘s foot and concluded that it was plantar flexed approximately 40 degrees from perpendicular.
¶ 10 On April 25, 2005, Dr. D‘Souza performed corrective surgery on Kubicheck‘s ankle. During the surgery, Dr. D‘Souza determined that none of the screws that Dr. Traina had inserted
¶ 11 Kubicheck subsequently filed suit against Dr. Traina, alleging professional negligence. Dr. George Holmes was initially retained by Kubicheck as her expert witness. However, the trial court later issued an agreed order permitting Dr. Holmes to serve as Dr. Traina‘s expert so long as he did not disclose the content of any of his communications with Kubicheck or her counsel. Aside from Dr. Traina himself, Dr. Holmes was the only witness to testify on Dr. Traina‘s behalf.
¶ 12 On November 14, 2006, Kubicheck propounded production requests upon Dr. Traina. One of those requests asked Dr. Traina to produce records for each of his controlled expert witnesses, including “[r]ecords pertaining to the frequency with which the witnesses acted as an expert on behalf of plaintiffs and defendants in litigation during the past five years.” On April 27, 2007, Dr. Traina responded that there were no such records and promised to “seasonably supplement this response in accordance with all Witness Disclosure Deadline Orders and the Illinois Supreme Court Rules.” On June 25, 2009, Dr. Traina disclosed himself and Dr. Holmes as controlled expert witnesses under
¶ 13 On August 19, 2009, the trial court ordered Dr. Traina to supplement his answers to expert discovery requests by September 2, 2009. Dr. Traina failed to comply. On October 9,
¶ 14 On October 22, 2009, Kubicheck noticed Dr. Holmes‘s deposition for November 30, 2009. The deposition notice required Dr. Holmes to produce at his deposition “[a] list of case names and numbers of all cases in which the witness has testified by deposition or in court and [the] names of other lawyers or law firms by whom the witness has been retained as an expert or consulting expert during the past five years.” On November 25, 2009, Dr. Traina submitted a supplemental response to Kubicheck‘s discovery request in which he claimed that there were no records pertaining to how often Dr. Holmes had testified for plaintiffs and defendants. By agreement of the parties, Dr. Holmes‘s deposition was continued to December 7, 2009. The amended notice of deposition required Dr. Holmes to bring the same documents listed in the initial deposition notice.
¶ 15 During his December 7, 2009, deposition, Dr. Holmes did not produce a list of prior cases in which he testified. However, despite Dr. Traina‘s previous contention that no such list existed, Dr. Holmes admitted that such a list existed and insisted on producing the list in lieu of answering questions on the subject.
¶ 16 When Dr. Holmes failed to produce the list after the deposition, Kubicheck‘s counsel sent a letter to Dr. Traina‘s counsel pursuant to
¶ 17 On April 19, 2010, one week before the trial was scheduled to begin, Kubicheck‘s counsel filed a motion to bar Dr. Holmes‘s testimony because of the ongoing discovery violations. In the motion, Kubicheck argued that “at this point, production of the requested materials is too late to be useful to [Kubicheck] at trial, in light of the fact that *** it would be impossible for [Kubicheck‘s] counsel to follow-up and discover Dr. Holmes‘s prior testimony in a meaningful manner for the purpose of proper cross-examination.” Kubicheck‘s counsel e-mailed a copy of the motion to Naylor. Forty-five minutes later, Naylor responded by e-mail, promising to provide the materials the following morning. At 4:38 p.m. on the following day (Tuesday, April 20), Kubicheck‘s counsel sent Naylor an e-mail indicating that he had not yet received the materials. A list of 18 cases was produced 15 minutes later. The parties were scheduled to attend evidence depositions in Illinois and California on April 21, 22, and 23, with trial beginning the following Monday (April 26).
¶ 18 On the second day of trial (April 27), the trial court addressed Kubicheck‘s motion to bar Dr. Holmes‘s testimony. During argument on Kubicheck‘s motion, her counsel said he had conducted his own research into Dr. Holmes‘s history of testifying in other cases and that he was aware of at least one case in which Dr. Holmes had to withdraw and ended up not testifying because of his failure to comply with a similar discovery request. Although the court stated that it was “really troubled by this failure to give the list of cases *** in a timely fashion,” it did not bar Dr. Holmes from testifying. Instead, the court attempted to craft a remedy by giving Kubicheck‘s counsel wide latitude to attack Dr. Holmes‘s credibility during cross-examination by
¶ 19 Two days later, during the fourth day of trial, Dr. Holmes testified that patients often do not heal properly after ankle fusion surgeries for a variety of reasons, and the fact that Kubicheck developed plantar flexion within six months of her surgery did not indicate that Dr. Traina had done anything wrong. He opined that the revision surgery of April 25, 2005, was due to an “unavoidable potential complication” of the initial fusion surgery performed by Dr. Traina and not to any substandard care by Dr. Traina. He also opined that the initial fusion surgery was performed “adequately with good alignment,” and he found no violations of the standard of reasonable care for orthopedic surgeons in Dr. Traina‘s treatment of Kubicheck.2
¶ 21 Kubicheck‘s counsel asked Dr. Holmes about his testimony in some other cases, stating “[w]ell Doctor, I am pleased to say, that without your help I have been able to obtain quite a little bit of your testimony in other cases.” During his cross-examination, Kubicheck was able to establish that Dr. Holmes: (1) testified for defendants 80% of the time; (2) never testified for a plaintiff prior to 1999 and did so only once through 2003; (3) derived 10% to 15% of his income from medical-legal work; (4) testified in a 2002 case that he made as much as 25% of his income as an expert witness; (5) previously characterized a defense verdict for a colleague as a personal victory resulting from his expert testimony; and (6) previously testified that five degrees of plantar fusion was abnormal.
¶ 22 The jury returned a verdict in favor of Dr. Traina.
¶ 24 During the hearing on Kubicheck‘s posttrial motion, the trial court asked Kubicheck‘s counsel if there was “some very significant information out there that came to light to you after the trial and had there been a better disclosure [by Dr. Holmes] you would have had that information.” Kubicheck‘s counsel responded:
“No. And our position is that [Dr. Holmes] should be barred. I mean, our position is that we have never at any point received the truth; that we have never at any point, including at
trial, received the full disclosure. We did find out at trial that there were additional trials [in which Dr. Holmes had previously testified] that I didn‘t have the transcripts for and that weren‘t on [Dr. Holmes‘s] list. It came up that he had testified at multiple trials in the defense of Armen Kelikian. None of those were on the list. I did not have those in my stack either. So we still have this evasiveness to where we just don‘t know what the full list details.”
Kubicheck‘s counsel told the trial court that, through his own efforts after the trial, he determined that Dr. Holmes had been barred from testifying in at least one other case for failing to disclose financial information. He also stated that “it would have been nice to have seen what [Dr. Holmes‘s] opinions on the standard of care were in other cases,” and suggested that such information might have changed the way that he cross-examined Dr. Holmes. He complained that this information was “[not] available to us because [Dr. Holmes] didn‘t produce it.”
¶ 25 On February 18, 2011, the trial court issued a written order granting Kubicheck‘s motion for a new trial. The court noted that “Dr. Holmes was a very persuasive witness, the sole expert witness called by the defense,” and stated that, in its initial pretrial assessment of the issue, the court “did not give sufficient weight to the importance of the information to [Kubicheck].” After noting that there were few Illinois cases on point, the court cited several federal court decisions which explained the importance of disclosing evidence that could establish bias or otherwise help to impeach the credibility of an expert witness. The court acknowledged that these cases were not binding, but it ruled that they “provid[ed] useful guidance” on the issue before the court. The trial court further noted:
“the failure of Dr. Holmes to disclose the list in a timely manner, despite repeated requests by [Kubicheck] to do so, put [Kubicheck] at an unfair disadvantage. *** The disclosure that was provided occurred at a time when [Kubicheck] had as a practical matter no time to utilize the information. The effect was as if no disclosure was made at all. The relief or remedy fashioned by the court was inadequate.
At the time this Court addressed [Kubicheck‘s] Motion to Bar Witness, it did not have specific information as to similar non-disclosure by Dr. Holmes in at least two other cases. It is not necessary to determine whether Dr. Holmes is deliberately attempting to conceal relevant information, is far too busy to be an expert witness in this case, does not have a high regard for court rules, or perhaps has some other explanation. *** [A]t a minimum Dr. Holmes has shown gross disregard for the rules of this Court which are designed to provide a fair procedure. *** In any event, his failure to abide by the rules placed [Kubicheck] at an unfair disadvantage which was not cured by the Court‘s earlier attempted remedy.
Accordingly, with great reluctance and appreciation for the costly nature of the remedy awarded herein, [Kubicheck‘s] Post-Trial Motion for a new trial is allowed.”
¶ 27 ANALYSIS
¶ 28 The trial court granted a new trial as a sanction for Dr. Holmes‘s repeated discovery abuses.
¶ 29 Under the appropriate circumstances, a trial court may order a new trial as a result of a discovery violation committed by the party who prevailed in the initial trial. See, e.g., White v. Garlock Sealing Technologies, LLC, 373 Ill. App. 3d 309, 327-29 (2007); Delvecchio v. General Motors Corp., 255 Ill. App. 3d 189, 203 (1993); Boettcher v. Fournie Farms, Inc., 243 Ill. App. 3d 940, 946-49 (1993); see also Boren v. BOC Group, Inc., 385 Ill. App. 3d 248 (2008) (defendant‘s failure to disclose relevant documents that could have been used to impeach a “key” expert witness, coupled with other prejudicial errors that occurred during the trial, warranted a new trial); Varady, 153 Ill. App. 3d at 1071-72. “Discovery is not a tactical game to be used to obstruct or harass the opposing litigant” (Williams v. A.E. Staley Manufacturing Co., 83 Ill. 2d 559, 564-66 (1981); Boettcher, 243 Ill. App. 3d at 947), and the discovery rules “require full and complete disclosure in order to achieve the ultimate goal of a speedy, efficient, and just resolution of cases” (Boettcher, 243 Ill. App. 3d at 947). ” ‘Fractional disclosure’ ” (or ” ‘half truths’ “) in discovery are “equivalent to outright lies” (Boettcher, 243 Ill. App. 3d at 947) which “have the effect of affirmative concealment, since they imply that there is no information or evidence to be sought” (Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 282 (1982); see also Buehler v. Whalen, 70 Ill. 2d 51, 67-68 (1977)). If a party‘s discovery violations force the opposing party to proceed to trial without having access to the whole truth, a sanction less drastic
¶ 30 A motion for a new trial is within the trial court‘s discretion, and the trial court‘s decision will not be disturbed on appeal absent a clear abuse of that discretion. Delvecchio, 255 Ill. App. 3d at 193-94. Likewise, the imposition of sanctions for failure to comply with discovery rules and orders, and decisions regarding what type of sanction to impose, are matters within the broad discretion of the trial court. Id.; see also Besco, 297 Ill. App. 3d at 782. We may reverse a trial court‘s imposition of a particular sanction only when the record establishes a clear abuse of discretion. Shimanovsky, 181 Ill. 2d at 123; Delvecchio, 255 Ill. App. 3d at 193-94. As the Illinois Supreme Court has noted, this is “the most deferential standard of review available with the exception of no review at all.” (Internal quotation marks omitted.) People v. Coleman, 183 Ill. 2d 366, 387 (1998). A trial court abuses its discretion only when its decision is “arbitrary, fanciful or unreasonable [citation] or where no reasonable person would agree with the position adopted by the trial court.” People v. Becker, 239 Ill. 2d 215, 234 (2010).
¶ 31 To determine if the trial court abused its discretion in imposing sanctions under Rule 219(c), we look to the criteria upon which the trial court relied in determining an appropriate sanction. Shimanovsky, 181 Ill. 2d at 123. “The factors a trial court is to use in determining what sanction, if any, to apply are: (1) the surprise to the adverse party; (2) the prejudicial effect of the proffered testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) the timeliness of the adverse party‘s objection to the testimony or evidence; and (6) the good faith of the party offering the testimony
¶ 32 Applying these factors, we cannot say that the trial court abused its discretion in granting Kubicheck‘s motion for a new trial in this case. All of the relevant factors support the trial court‘s decision. First, Dr. Holmes‘s admission during cross-examination that he had provided testimony in additional cases besides those on the previously produced list surprised Kubicheck. That admission came during the fourth day of trial, months after Dr. Holmes‘s deposition, and far too late for Kubicheck‘s counsel to obtain a complete case list and use the information at trial.4
¶ 33 Second, it would have been reasonable for the trial court to conclude that Kubicheck was prejudiced by Dr. Holmes‘s discovery abuses. Dr. Holmes was a critical witness for the defense. He was the only expert witness, other than Dr. Traina himself, to testify on Dr. Traina‘s behalf. As such, he was the only arguably disinterested expert to testify that Dr. Traina did not violate the standard of care. Accordingly, anything that could impeach Dr. Holmes‘s credibility (such as evidence of a pro-defense bias or evidence that he had given contradictory testimony in previous litigation) was critical to Kubicheck‘s case. Although Dr. Holmes eventually disclosed a partial list of cases in which he had previously testified (after repeatedly failing to do so earlier
¶ 34 Further, by his own admission, the disclosure that Dr. Holmes ultimately made was incomplete. He never disclosed all of the cases in which he had previously testified. Thus, Kubicheck‘s counsel was unable to review all of the relevant trial transcripts prior to trial and unable to determine with certainty whether Dr. Holmes had given any contradictory testimony in a prior case. Although Kubicheck‘s counsel was able to impeach Dr. Holmes with testimony that he had given in some other cases, he was unable to determine the impeachment value of the testimony that was never disclosed.
¶ 35 Moreover, when Kubicheck‘s counsel asked Dr. Holmes about his delay in providing the list of prior cases, Dr. Holmes responded that his first recollection of being asked to provide those documents was “about a week or so ago,” and he testified that, if he had been asked to produce the documents sooner, he would have done so. As noted, this testimony directly contradicted Dr. Holmes‘s December 2009 deposition testimony and it arguably created the false (and prejudicial) impression that Dr. Holmes had made a good-faith attempt to produce all of the relevant information in a timely fashion.
¶ 36 In sum, given the centrality of Dr. Holmes‘s testimony and the importance of his credibility, the trial court could have reasonably concluded that Dr. Holmes‘s failure to make a timely and complete disclosure was prejudicial. It would be unfair to require Kubicheck to make a more definitive showing of prejudice in this case because Dr. Holmes is in control of the relevant information and Kubicheck cannot know the full impact of that information without seeing it. See Delvecchio, 255 Ill. App. 3d at 200 (affirming grant of a new trial as a discovery
¶ 37 The remaining factors also support the trial court‘s ruling. As noted, the nature of the information sought by Kubicheck was relevant to the impeachment of a critically important defense witness (the only arguably disinterested expert to testify for the defense). In addition, Kubicheck‘s counsel‘s efforts to discover and introduce evidence of Dr. Holmes‘s testimony in prior cases were made diligently and in good faith, and counsel raised timely objections to Dr. Holmes‘s repeated failure to produce the information. Although he arguably should have filed a motion to compel production of the information prior to trial, Kubicheck‘s counsel made repeated requests for the information and lodged several timely objections to Dr. Holmes‘s failure to disclose the information. He also obtained two court orders requiring Dr. Traina to supplement his expert disclosures and sent Dr. Traina‘s counsel two Rule 201(k) letters before moving to bar Dr. Holmes‘s expert testimony as a discovery sanction.
¶ 38 Dr. Traina does not dispute that Dr. Holmes unreasonably failed to provide discoverable information in a timely fashion. Nevertheless, he argues that the trial court erred in granting Kubicheck a new trial as a discovery section because: (1) the trial court improperly punished Dr. Traina for discovery violations committed by Dr. Holmes; (2) the trial court imposed a sanction based on discovery violations Dr. Holmes allegedly committed in other cases; and (3) Kubicheck was not prejudiced by Dr. Holmes‘s failure to disclose the information. We address these arguments in turn.
¶ 40 Dr. Traina also argues that the trial court erred by sanctioning him for discovery abuses that Dr. Holmes allegedly committed in other proceedings (i.e., Dr. Holmes‘s failure to disclose
¶ 41 Dr. Traina also argues that the trial court erred in granting Kubicheck a new trial because Kubicheck was not prejudiced by Dr. Holmes‘s discovery violations. In support of this argument, Dr. Traina notes that Kubicheck‘s counsel received a list of cases from Dr. Holmes prior to the start of trial and was able to cross-examine Dr. Holmes about his prior testimony. However, as noted above, Dr. Holmes admitted during cross-examination that the list he produced was incomplete. Moreover, that partial list was produced on the eve of trial, which was too late for Kubicheck‘s counsel to make full use of it. Dr. Traina also argues that, during the trial court‘s hearing on Kubicheck‘s motion for a new trial, Kubicheck‘s counsel effectively conceded that Kubicheck had suffered no prejudice. Specifically, Dr. Traina notes that, when the trial court asked Kubicheck‘s counsel whether there was any specific information that would have been important to his case which he did not receive due to Dr. Holmes‘s discovery violations, counsel admitted that he was not able to identify anything. We do not find this admission dispositive. Although the materials disclosed by Dr. Holmes may not have contained important information
¶ 42 Finally, Kubicheck argues that, if we affirm the trial court‘s order granting a new trial, we should exercise our authority under
¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, we affirm the judgment of the Peoria County circuit court.
¶ 46 Affirmed.