2013 I LApp (3d) 110157 Opinion filed September 23, 2013

I N THE APPEL LATE COURT OF I L L I NOI S THI RD DI STRI CT A.D., 2013 GI NA KUB I CHECK, ) Appea l from the Circuit Court ) of the 10th Judi cial Circuit, Plaintiff-Appellee , ) Peoria County , I llinois , ) v. ) Appea l No. 3-11-0157 ) Circuit No. 06-L -397 ) J EFF REY F. TRAI

NA, M.D., ) Honora ble ) Stephen Kouri, Def endant- Appellant. ) J udg e, Presiding
.
J USTI CE HOL DRI DGE de livered the judgme nt of the cour t, with opinion. J ustices Ly

tton and Carter

concur red in the judg ment and opinion.

______________________________________________________________________________ OP INION ¶ 1 Gina Kubiche ck sued D r. Jeffre y Traina , an orthope dic surg eon, for profe ssional neg lige nce in c onnection with a surg ical proc edure that Dr. Tr aina pe rfor med on Kubiche ck' s ankle. The jury

returne d a ver dict for Dr . Traina . Kubichec k filed a posttrial motion for a new trial. The tria l court found that Dr . Traina ' s expert witness, Dr. Ge org e Holmes, fa iled to fully disclose information re lating to pr ior testimony that he had g iven in other c ases, ther eby impairingKubichec k' s counsel' s ability to impeach Dr . Holmes duringcross-e x amination. Acc ording ly , the trial cour t gr anted Kubic heck a

new tria l. In response to a motion to clarifylater f

iled by Dr. Tr aina, the tr ial court issued a n order stating that Dr. Holmes would not be barr ed fr om testifying dur ing the retria l. ¶ 2 Dr. T raina

filed a pe tition for leave to a ppeal ( PL A) the tria l court' s order g ranting Kubichec k a new

trial under I llinois Supreme Court Rule 306 (e ff. F eb. 16, 2011). This c ourt enter ed an or der de nying D r. Tra ina' s PL A. Kubicheck v. Traina , 3-11-0157 ( Sept. 7, 2011). Ex erc ising its supervisory authority , the I llinois Supreme Court subseque ntly order ed this court to vacate its order de nying D r. Tra ina' s PL A and to hea r the a ppeal on the me rits. Kubicheck v. Traina , No. 113130 (Jan. 25, 2012). In this appeal, Dr . Traina asks us to reve rse the tr ial court' s order g rantingKubichec k a new trial as a disc overy

sanction. ¶ 3 FACTS ¶ 4 Dr. T raina

first treated Kubiche ck in June 1995 whe n she wa s broug ht to the emerg ency room followingan automobile ac cident. Kubiche ck had br oken her ankle in four

place s, and there was damag e to the ca rtilag e lining the ankle joint. Although she rec overe d well initially , Kubichec k soon develope d some arthr itic pain and limitation in t he motion of her a nkle. Dr. Traina told her that she mig ht need to have surg ery in approxim ately

10 y ear s to resolve the arthritic pa in. ¶ 5 Nine year s later, Kubic heck r eturne d to Dr. Tra ina, complainingof ankle pain and stiffness and de cre ased r ang e of motion of her ankle. He r pain wa s in the tibiot aler joint, which is where the lower

legbone (tibia) me ets the ankle bone (ta lus). After conser vative tre atment
measure s failed to provide lasting r elief, K ubichec k chose to unde rg o tibiotaler fusion surg ery . Duringthat proce dure, the tibia and the talus ar e trimmed, and the surfa ces of these two bone s

2are mated and sc rew ed tog ether , leavingthe foot per pendicular

to the lower le gand flat to the g round. ¶ 6 Dr. T raina

perf ormed the sur g ery

on October

29, 2004. Two X-r ay s were taken in the operating r oom after

the scre ws wer e inserte d to confirm that Kubiche ck' s foot was in a natural ( i.e. , flat) position. Dr. Tra ina conc luded that Kubiche ck' s foot was two de gree s from perpe ndicular at the conclusion of the sur g ery . In Dr. Tr aina' s opinion, thi s alignment was
rea sonable a

nd was not an a

bnormal position for a surg ical fusion. ¶ 7 One wee k afte r the surg ery , Dr. Tr aina g ave K ubichec k a re movable fr actur e boot and instructed her

to wear it wheneve r she wa s walkingor we ight- bearing on the foot. ¶ 8 On Mar ch 22, 2005, Kubiche ck under went phy sical thera

py . The phy sical thera

py
rec ords noted no boot or other protec tive device on Kubichec k' s foot. The phy sical thera pist noted that Kubiche ck' s foot was planta r flexed 25 degree s from per pendicular

and fixed in that 1 position. S he noted that she had neve r see n a foot fixed in that positi on. ¶ 9 On Apr il 6, 2005, Kubicheck sa w Dr. N irain D' Souz a, anothe r orthopedic surg eon. Kubichec k was not we aringany ty pe of pr otective de vice on he r foot at the time she saw Dr
. D' Souz a. Kubiche ck could not touch he r hee l to the gr ound without hy pere x tendingher kne e. Dr. D' Souz a X- rayed Kubiche ck' s foot and conc luded that it was plantar flexed approximately

40 degree s from per

pendicular
. ¶ 10 On Apr il 25, 2005, Dr. D' Souz a per formed c orre ctive surg ery on Kubichec k' s ankle. Duringthe surg ery , Dr. D' Souz a dete rmined that none of the scre ws that Dr. Tr aina ha d inserted
"Plantar flexion" occ urs when the foot is slanted in a downwa rd position, with the toes 1 pointing towar d the sole of the f oot. 3into Kubicheck' s ankle ha d penetr ated he r subtaler joint. Kubicheck' s ankle did not hea l. On October 7, 2005, Dr. D' Souz a per formed a second c orre ctive surg ery to insert an interna l bone stimul ator. The proce dure involved the remova l and replace ment of the ha rdwa re in Kubic heck' s ankle. A subse quent X-r ay reve aled that one of the scr ews implanted by Dr. D' Souz a had penetr ated Kubic heck' s subtaler joint. Acc ording ly , Dr. D' Souz a per formed a third corr ective surg ery (a subtale r fusion) on Ma rch 10, 2006. ¶ 11 Kubiche ck subseque ntly filed suit ag ainst Dr. Tra ina, alleg ing pr ofessional ne g lige nce. Dr. Ge org e Holmes wa s initi ally reta ined by

Kubichec k as her

expert witness. Howeve r, the trial court late r issued an a g ree d order permitting D r. Holmes to serveas Dr. T raina ' s expert so long a s he did not disclose the conte nt of any of his communications with Kubichec k or her counsel. Aside fr om Dr. Tra ina himself, Dr. H olmes was the only witness to testify

on Dr. Tr aina' s behalf. ¶ 12 On Nove mber 14, 2006, Kubic heck pr opounded produc tion requests upon Dr. T raina
. One of those reque sts asked Dr. T raina to produce rec ords for e ach of his controlled expert witnesses, including"[r]ecords pe rtainingto the fre quency with which the witnesses a cted a s an expert on behalf of

plaintiffs and de fenda

nts in li tigation during the past five year s." O n April 27, 2007, Dr. Tr aina r esponded that there w ere no such re cords a nd promised to "se asonably supplement this response in ac corda nce w ith all W itness Disclosure De adline Or ders a nd the I llinois Supreme Court Rules." On J une 25, 2009, Dr . Traina disclosed himself and Dr . Holmes as controlled e x pert witnesse s under I llinois Supreme Court Rule 213(f) (3) ( eff . J an. 1, 2007). Howeve r, he did not supplement his response s to Kubichec k' s production re quests. ¶ 13 On August 19, 2009, the trial court orde red D r. Tra ina to supplement his answer s to expert discovery

reque sts by

September 2, 2009. D r. Tra ina fa iled to comply . On Octobe r 9,

42009, the trial cour t ag ain orde red D r. Tra ina to comply with Kubichec k' s expert discovery reque sts, but he ag ain fa iled to comply
. ¶ 14 On Oc tober 22, 2009, Kubic heck notice d Dr. Holmes' s deposition for Novembe r 30, 2009. The de position not ice r equire d Dr. Holmes to produc e at his deposition "[a] listof ca se
names a nd numbers of a ll cases in which the witness has testified by deposition or in court and [t he] names of other

lawyers or

law firms by

whom the witness has be en re tained as a n expert or consulting e x pert duringthe past five year s." O n November 25, 2009, Dr. Tr aina submitted a supplemental re sponse to Kubichec k' s discovery reque st in which he cla imed that there wer e no
rec ords per

taining to how of

ten Dr. H olmes had testified for plaintiffs and de fenda

nts. By agree ment of the pa

rties, Dr. H olmes' s deposition was continued to De cembe r 7, 2009. The amende d notice of de position required Dr . Holmes to bringthe same doc uments listed in the initial depositi on notice. ¶ 15 Duringhis Dece mber 7, 2009, de position, Dr. Holmes did not produce a list of prior
case s in which he testified. H oweve r, despite Dr . Traina ' s previous conte ntion that no such list exis ted, Dr. H olmes admitted that such a list exi sted and insisted on producingthe list in l ieu of
answe ringquestions on the subject. ¶ 16 When Dr. Holmes f ailed to produc e the list after the deposition, Kubichec k' s counsel sent a letter

to Dr. Tra ina' s counsel pursua nt to I llinois Supreme Court Rule 201(k) ( I ll. S. C t. R. 201(k) ( eff

. J uly 1, 2002)) a sking that the list be provided. A sec ond Rule 201(k) letter was sent on Marc h 19, 2010. After the sec ond letter, de fense counsel Patricia Nay lor told Kubichec k' s counsel that she w as trying to obtain the list from Dr . Holmes, and she r epeatedly promised to

5produce the mater ial. She indicated that he r off ice ha d been in a lmost daily contac t with Dr. Holmes. Howe ver, the list was not produced. ¶ 17 On Apr il 19, 2010, one wee k befor e the tria l was sche duled to beg in, Kubichec k' s counsel filed a

motion to bar Dr. Holmes' s testimony beca use of the ong oing disc overy violations. I n the motion, Kubicheck a rgued that " at this point, production of the reque sted materia ls is too l ate to be use ful to [Kubicheck] at trial, in light of the f act that *** it would be impossibl e for

[Kubicheck' s] counsel to follow-up and discover Dr. Holmes' s prior testimony in a meaning ful manner

for the pur

pose of pr oper c ross-examination." Kubic heck' s counsel e- mailed a copy of the motion to Naylor. For ty -five minutes late r, Na

ylor responde d by

e-ma il, promising to provide the mate rials the followingmorning . At 4:38 p.m. on the following da y (Tuesda y , April 20), Kubiche ck' s counsel sent Na ylor an e -mail indicatingthat he had not yet re ceive d the materia ls. A list of 18 cases wa s produce d 15 minutes later. The parties we re sc heduled to attend evide nce de positions i n I llinois and California on April 21, 22, and 23, with trial beg inning the f

ollowing Monda

y (April 26). ¶ 18 On the se cond day of trial (A

pril 27), the trial c ourt addre ssed Kubiche ck' s motion t o bar Dr. Holmes' s testimony . Duringargument on Kubichec k' s motion, her counsel said he had conducte d his own rese arc h into Dr. Holmes' s history of testifying in other

case s and that he w as
awa re of at least one case in which Dr. H omes had to withdraw and ende d up not testifying beca use of his fa ilure to comply with a similar discovery

reque st. Although the c ourt stated that it was " rea lly

troubled by

this failure to g ive the list of case s *** in a timely fashion," it did not bar D r. Holmes fr om testifying. I nstead, the c ourt attempted to cr aft a reme dy by g iving Kubichec k' s counsel wide latitude to attack Dr . Holmes' s cre dibilit y duringcross-e x amination by
6showingthat Dr. Holmes ha d withheld information about the c ases in which he had pre viously

testified. ¶ 19 Two da

y s later, dur ing the fourth day of trial, Dr . Holmes testified that patients ofte n do not heal prope rly

afte r ankle fusion surg erie s for a varie ty of re asons, and the f

act that Kubic heck develope d plantar f

lexi on within six months of her surg ery did not indicate that Dr. Tr aina ha d done any thing wr ong . He opined that the revision surg ery of April 25, 2005, wa s due to an "una voidable potential complication" of the initial fusion surge ry perf ormed by Dr. Tr aina a

nd not to any substandard c are by

Dr. Tr aina. He also opined that the initial fusion surg ery was perf ormed " adequately

with good a lignment," and he f ound no violations of the standard of
rea sonable c are for or

thopedic surg eons in Dr. Tr aina' s treatment of Kubichec k. 2 The pa rties' witnesses off

ere d conflictingtestimony on this iss ue. Dr s. Holmes and 2 Traina testified that the X- ray s taken immediately afte r Dr. T raina

perf ormed the initial tibiotaler fusion surg ery

on October

29, 2004, showed that Kubic heck' s foot was two de g ree s from perpe ndicular at the conclusion of the sur g ery . Dr. Holmes testified that this alignment wa s
rea sonable a

nd was not an a

bnormal position for a surg ical fusion. Dr . Traina testified that, when he re moved Kubiche ck' s cast one w eek a fter the surg ery , the incisions were healingwell, there
wer e no proble ms with the angulation of the fusion site, and he r foot alignment looked fine. D r. D' Souz a testified that the intra operative X-ra y s showed less than f

ive degree s of plantar

flexion and g ood alig nment, and that zero to five de g ree s of plantar flexion i s considere d the position of choice for wome n who wish to wea r a f ashionable shoe . Howeve r, base d on his ex amination of Kubichec k in April of 2005, Dr. D ' Souz a opined that the a nkle fusion surg ery

perf ormed by Dr. Traina in October

2004 was be low the standar d of ca re. K ubichec k' s expert, Dr. Tye Ouzounian, 7¶ 20 Kubiche ck' s counsel' s cross-e x amination of Dr. H olmes spans 37 pag es of the tr ial

transcr ipt, 27 of which conc ern D r. Holmes' s testimony in other ca ses. When Kubichec k' s counsel a sked Dr. H olmes about his delay in providing the list of prior case s, Dr. Holmes responde d that his first rec ollection of beingasked to provide those documents wa s "a bout a
wee k or so ag o" a

nd that if he ha d been a sked to produce the documents sooner , he would have done so. Dr. H olmes admitted that the list of prior ca ses that was pr oduced to de fense counsel did not include any

video deposition testimony and did not include all of the trials wher ein Dr. Holmes had testified live. ¶ 21 Kubiche ck' s counsel aske d Dr. Holmes a bout his testim ony

in some other ca ses, stating "[w]ell Doctor, I

am please d to say , that without y our help I have be en able to obtain quite a little bit of y our testimony

in other ca ses." Duringhis cross-e x amination, Kubichec k was a ble to establish that Dr. Holmes: (1) testified for de fenda nts 80% of the time; (2) ne ver te stified for a plaintiff prior to 1999 and did so only once thr oug h 2003; (3) derived 10% to 15% of his income from medica l-leg al work; (4) testified in a 2002 ca se that he ma de as muc h as 25% of his income
as an e x pert witness; (5) previously char acte rized a def

ense ve rdict for

a collea gue as a

persona l victory resultingfrom his expert testimony ; and (6) pr eviously testified that five de g ree s of plantar f usion was abnor

mal. ¶ 22 The jur

y returne d a ver dict in favor of Dr. Tr aina.

agree d that a slant of f

ive degree s or less from pe rpendic ular is within the standard of car e. Howeve r, Dr. O uzounian testified that he could not tell from Dr . Traina ' s intraoper ative X- ray s whether Kubichec k' s foot was we ll aligne d at the conc lusion of her surg ery . 8¶ 23 Kubiche ck filed a posttrial motion, arguing that he was e ntitled to a new trial be cause of Dr. Holmes' s delay

in producingthe list of case s in which he ha d previously testified. Kubichec k' s counsel pre sented a n aff idavit from an attorney

who had de posed Dr. H olmes in a prior Will C ounty

case and other

evidenc e sug g estingthat Dr. Holmes ha d eng ag ed in similar stonewallingtactics in at lea st two prior ca ses. For example, the Wil l County attorney stated that, duringa deposition, Dr. Holmes ha d promised to produce a list of case s in which he ha d previously

testified, fa iled to produce the list, and then claimed that he was una war e of the attorney' s reque sts for it when he w as aske d about the matter at trial. Kubiche ck cited se vera l fede ral c ourt dec isions in which courts barr ed the testimony of a r etained e x pert who f ailed to comply with a discover

y reque st for the e x pert' s testimonial his tory . She also cited the I llinois Supreme Court' s decision in Sears v. Rutishauser , 102 I ll. 2d 402 (1984), which he ld that it is
reve rsible er

ror to pre clude a

party from prope rly

cross-e x amining his oppone nt's r etained e x pert on issues of cr edibility

and bias. B ased on the se ca ses, Kubiche ck argued that she w as entitled to
a new trial " wher ein the testimony of Dr. H olmes is barre d as a sa nction for his non-c ompliance with repe ated discove ry

reque sts, deposition questions , and cour t orders." ¶ 24 Duringthe hea

ringon Kubichec k' s posttrial moti on, the trial cour t asked Kubic heck' s counsel if ther e wa s "some ve ry signific ant information out there that came to light to you afte r the trial and ha d there been a better disclosure [by

Dr. Holmes] y ou would have ha d that information." Kubichec k' s counsel re sponded:

"N o. And our position is that [ Dr. Holmes] should be barr ed. I mean, our

position i s that we have neve r at a ny point
rec eived the tr

uth; that we have never

at any point, including at
9trial, rec eived the f ull disclosure. We did find out at trial that there
wer e additional trials [in which Dr. Holmes ha d previously testified] that Ididn't have the tra nscripts for a

nd that wer en' t on [Dr. Holmes' s] l ist. I t came up that he had testified a t multi ple trials in the defe nse of Ar men Kelikian. None of those we re on the list. Idid not have those in my stack e ither. So we still have this evasive ness to wher e we just don't know what the full list details." Kubichec k' s counsel told the trial cour t that, throug h his own eff orts afte r the trial, he deter mined that Dr. Holmes ha d been ba rre d from testify

ing in a t least one other

case for f ailing to disclose financ ial information. He a lso stated that "it would have been nic e to have seen what [Dr. Holmes' s] opi nions on the standard of car e we re in other

case s," a nd sug g ested that such information might have cha ng ed the wa

y that he cr oss-examined Dr. Holmes. He complained that this information was " [not ] available to us beca use [Dr. Holmes] didn't produce it." ¶ 25 On F ebrua

ry 18, 2011, the trial cour

t issued a written orde r grantingKubichec k' s motion for a new tria l. The cour

t noted that "D r. Holmes wa s a ver y persua sive witness, the sole expert witness called by

the def ense," and stated that, in its initial pretrial assessment of the issue, the court " did not give suf

ficient we ight to the importanc e of the information to [Kubicheck]." Af ter noting that ther e we re f

ew I llinois case s on point, the court cited se vera l fede ral c ourt dec isions which explained the importanc e of disclosingevidenc e that could e stablish bias or otherwise he lp to impeach the c redibility of an e x pert witness. The court a cknowledg ed that these case s were not binding, but it ruled that they "pr ovid[ ed] useful guidance " on the issue befor e the c ourt. The trial court f

urther note d:
10"the failure of Dr. H olmes to disclose the list in a tim ely manner , despite re peate d reque sts by [Kubicheck] to do so, put [ Kubichec k] at an unf air disadva

ntag e. *** The disclosure that wa s provided
occur red a t a time when [Kubichec k] had as a pra ctical matter no time to util ize the information. The e ffe ct was a s if no disclosure was made at all. The r elief or reme dy fashioned by

the cour t was inadequate. At the time this Court addressed [Kubichec k' s] M otion to Ba r Witness, itdid not have spec ific informa tion as to simi lar non-disclosure by

Dr. Holmes in at lea st two other ca ses. It is not
nece ssary to determine whether

Dr. Holmes is deliber ately attempting to c oncea l releva nt information, is far too busy to be an expert witness in this case, does not have a hig h reg ard f or cour t rules, or pe rhaps ha s some other e x planation. *** [A] t a minimum Dr. Holmes ha s shown g ross disreg ard f or the rule s of this Court which ar e designed to provide a fair pr ocedur e. *** In any event, his failure to a

bide by the rules plac ed [Kubichec k] at an unfair disadvantag e which w as not cure d by the Court' s ear lier attempted
reme dy
. Acc ording ly , with gr eat r eluctanc e and a pprec iation for the costly nature of the re medy

awa rded he rein, [Kubichec k' s] Post-Trial Motion for a ne w trial is allowed."
11¶ 26 Dr. T raina filed a pe tition for leave to a ppeal the tr ial court' s order g rantingKubichec k a new tria l under I llinois Supreme Court Rule 306, which this court de nied. Kubicheck v. Traina , 3-11-0157 ( Sept. 7, 2011). The supre me cour t subsequently

issued a super

visory order direc ting this Court t o vacate its denial of Dr . Traina ' s PL A and he ar the appea l on the merits. Kubicheck v. Traina , No. 113130 (Jan. 25, 2012). ¶ 27 ANALYSI S ¶ 28 The tr ial court grante d a new trial as a sa

nction for Dr . Holmes' s repe ated discove ry abuses. I llinois Supreme Court Rule 219(c ) authorizes a tria l court to enter any order that is "just" to remedy

a par ty ' s unrea sonable fa ilure to comply with the supreme c ourt' s discovery rules or with an orde r issued under those rules. I ll. S. C t. R. 219(c) (e ff. July 1, 2002). A "

just" orde r 3 of sanc tions under Rule 219(c) is one which, " to the degree possible, insures both discovery and a trial on the me rits." Shimanovsky v. Ge neral Motors Corp. , 181 I ll. 2d 112, 123 (1998). "When imposingsanctions, the cour t's pur pose is to coer ce c ompliance with discove ry rules and
The trial c ourt did not ex plicitly state that it was grantinga new trial under Rule 219( c). 3 Howeve r, it clea

rly g rante d a new

trial as a sa

nction for Dr . Holmes' s discovery abuses. I n so ruling , it cited Varady v. G uardian Co. , 153 I ll. App. 3d 1062, 1071-72 (1987), a case addre ssing sanctions under

Rule 219(c) . Thus, it is proper to assume that the tria l court re lied upon Rule 219(c) . Reg ardle ss, we re view the tria l court' s judgme nt, not its rationale , and we may aff irm on any basis that the re cord suppor ts. People v . Ree d , 361 I ll. App. 3d 995, 1000 (2005). Acc ording ly , if it would not have bee n an abuse of discre tion for the trial c ourt to g rant a new trial as a sa

nction under Rule 219( c), w e may aff irm the court' s judgme nt even if the court did not rely on that rule. See Leonardi v. Loyola University of Chicago , 168 I ll. 2d 83, 97 (1995). 12order s, not to punish t he dilatory party ." Id. ; see a lso Besco v . Henslee , Monek &Henslee , 297 I ll. App. 3d 778, 782 (1998) (" the purpose of Supreme Court Rule 219(c ) is to advanc e the discovery proce ss and enc ourag e a tr ial on the merits," not to punish t he off endingparty , and "judg es may

not impose sanctions that are intended primarily as punishment")
. ¶ 29 Unde r the a

ppropriate circ umstances, a trial court may

order a new trial as a r esult of a discovery violation committ ed by

the par ty who pre vailed in the initial trial. See, e.g. , W hite v. Garlock Se aling Technologies, LL C , 373 I ll. App. 3d 309, 327-29 (2007); Delve cchio v . Gene ral Motors Corp. , 255 I ll. App. 3d 189, 203 (1993); Boettche r v. Fournie Farms, I nc. , 243 I ll. App. 3d 940, 946-49 (1993) ; see a lso Boren v. B OC Group, Inc. , 385 I ll. App. 3d 248 (2008) (def endant' s failure to disclose rele vant documents that c ould have be en used to impea ch a " key " expert witness, coupled with other pr ejudicial er rors that oc curr ed duringthe trial, wa rra nted a new tria l); Varady , 153 I ll. App. 3d at 1071-72. " Discover y is not a tactica l ga

me to be used to obstruct or ha

rass the opposinglitigant" ( W illiams v. A.E. Staley Manufacturing Co. , 83 I ll. 2d 559, 564-66 (1981) ; Boettche r , 243 I ll. App. 3d at 947)), a nd the discover

y rules " require full and complete disclosure in order to a chieve the ultimate g oal of a speedy , eff

icient, and just resolution of ca ses" (

Boettche r , 243 I ll. App. 3d at 947). " ' Fr actional disclosure ' " ( or " ' half truths' " ) in discover

y are "e quivalent to outrig ht lies" ( Boettche r , 243 I ll. App. 3d at 947) which "ha ve the e ffe ct of a ffirmative conce alment, since the y imply that there is no information or evidenc e to be sought" ( Ostendorf v. Inte rnational Harvester Co. , 89 I ll. 2d 273, 282 (1982); see also Buehler v . W

halen , 70 I ll. 2d 51, 67-68 (1977)). I f a pa rty ' s discovery

violations force the opposing pa

rty to proce ed to trial without havingacc ess to the whole truth, a sanction less dra stic

13than g rantinga new trial, such as a

n order of conte mpt ag ainst the nondisclosing pa rty , may be inadequate. Boettche r , 243 I ll. App. 3d at 947. ¶ 30 A motion for a

new tria l is withi n the trial cour t's discr etion, and the tria l court' s decision will not be disturbed on appea l absent a c lear abuse of that discretion. Delve cchio , 255 I ll. App. 3d at 193-94. L ikewise, the imposition of sanctions for f ailure to c omply

with discovery

rules and orde rs, and de cisions reg ardingwhat ty pe of sa nction to impose, are matters within the broad discretion of the trial court. Id. ; see a lso Besco , 297 I ll. App. 3d at 782. We may reve rse a trial court' s imposit ion of a pa rticular sa nction only

when the r ecord establishes a c lear abuse of discretion. Shimanovsky , 181 I ll. 2d at 123; Delve cchio , 255 I ll. App. 3d at 193-94. As the I llinois Supreme Court has noted, this is "the most defer ential standar d of re view ava ilable with the exception of no re view at a ll." (Interna l quotation marks omitted.) People v . Coleman , 183 I ll. 2d 366, 387 (1998). A trial c ourt abuses its discre tion only when its dec ision is "arbitra ry , fanc iful or unre asonable [citation] or whe re no r easona ble per son would agree with the position adopted by

the trial cour

t." People v . Bec ker , 239 I ll. 2d 215, 234 (2010). ¶ 31 To dete rmine if the tria l court abuse d its discretion in imposi ngsanctions under Rule 219(c) , we look to the cr iteria upon whic h the trial cour t relied in dete rmining a

n appropr iate sanction. Shimanovsky , 181 I ll. 2d at 123. " The fa ctors a tr ial court is to use in deter mining what sanc tion, if any , to apply are : (1) the surpr ise to the adve rse pa rty ; (2) the pr ejudicial ef

fec t of the prof

fer ed testimony

or evide nce; ( 3) the nature of the testimony or evide nce; ( 4) the diligenc e of the adver se par ty in seekingdiscovery ; (5) the timeliness of the a dverse party' s objection to the testimony or evide nce; a

nd (6) the g ood faith of the pa rty offe ringthe testimony

14or evide nce." Id. at 124; Besco , 297 I ll. App. 3d at 783. "O f these f actor s, no single f

actor is deter minative." Shimanovsky , 181 I ll. 2d at 124. ¶ 32 Applying the se fa ctors, we cannot sa y that the trial cour

t abused its discretion in g ranting Kubichec k' s motion for a newtrial in this case. All of the r eleva nt fac tors support the trial cour t's decision. F irst, Dr. Holmes' s admission during c ross-examination that he had pr ovided testimony in additional case s besides those on the pr eviously produce d list surprised Kubichec k. That admission came dur ing the fourth day of trial, months after

Dr. Holmes' s deposition, and far too late for Kubichec k' s counsel to obtain a c omplete ca se list and use the infor mation at trial. 4 ¶ 33 Second, it would have been r easona ble for the trial court to conc lude that Kubiche ck was pre judiced by

Dr. Holmes' s discovery

abuses. Dr . Holmes was a critica l witness for the defe nse. He was the only expert witness, other than Dr . Traina himself, to testify

on Dr. Tr aina' s behalf . As such, he w as the only arguably disinterested e x pert to testify that Dr. Tr aina did not violate the standa

rd of c are . Acc ording ly , any thing that c ould impeach Dr . Holmes' s cre dibilit y (such a s evidenc e of a

pro-de fense bias or evide nce that he had g iven contra dictory testimony

in previous litigation) was cr itical to Kubichec k' s case . Although D r. Holmes eve ntually disclosed a par tial listof ca ses in which he ha d previously testified (a fter r epeatedly failingto do so earlier

Moreove r, Kubiche ck' s counsel wa s cer tainly surprised by

Dr. Holmes' s assertion 4 duringcross-e x amination that his first rec ollection of being asked to provide a list of his prior testimony was " about a we ek or so a g o," a nd that he would have produce d the documents sooner if he ha d been a sked to do so. That statement dire ctly contra dicted stateme nts Dr. Holmes made under oath duringhis Dece mber 2009 de position. 15despite prior discove ry reque sts and court orde rs), this disclosure c ame on the e ve of tria l, giving Kubichec k' s counsel limited time to obtain and reviewthe re levant trial tra nscripts. ¶ 34 F urther, by

his own admission, the disclosure that Dr. H olmes ultim ately made wa s incomplete. He never

disclosed all of the c ases in which he had pre viously testified. Thus, Kubichec k' s counsel wa s unable to re view all of the rele vant trial transc ripts prior to trial and unable to dete rmine with ce rtainty whether Dr. Holmes ha d g iven any contra dictory

testimony

in a prior c ase. A lthough Kubic heck' s counsel wa s able to impeac h Dr. Holmes with testimony that he had g iven in some other c ases, he was una ble to deter

mine the impeac hment value of the testimony that was ne ver disclose d. ¶ 35 More over, when Kubiche ck' s counsel aske d Dr. Holmes a bout his delay

in providing the list of prior case s, Dr. Holmes re sponded that his first rec ollection of beingasked to provide those documents wa s "a

bout a wee k or so ag o," a nd he testified that, if he had bee n asked to produce the documents sooner , he would have done so. As noted, this testimony direc tly contra dicted Dr . Holmes' s Dec ember 2009 deposition testimony and it arguably

cre ated the f

alse (and pr ejudicial) impre ssion that Dr. Holmes had made a g ood-fa ith attempt to produce a ll of the rele vant information in a timely fashion. ¶ 36 In sum, give n the ce ntrality of Dr. H olmes' s testimony and the importanc e of his
cre dibilit y , the trial cour

t could have r easona

bly conclude d that Dr. Holmes' s failure to make a timely and complete disclosure wa s prejudicial. It would be unfa ir to require Kubichec k to make
a more definitive showingof pre judice in this case be cause Dr. Holmes is in control of the rele vant information and K ubichec k cannot know the full impact of that informa tion without seeingit. See Delve cchio , 255 I ll. App. 3d at 200 (af firmingg rant of a

new tria l as a discove ry
16sanction whe re de fenda nt automobile manufac turer imprope rly failed to disclose infor

mation about similar complaints made by other individuals involved in car acc idents, rea soning that "

' [s] ince plaintiff w as denie d [an] opportunity to investigate these c omplaints prior to trial, no one will ever knowtheir ef

fec t unless a new tr ial is gr anted' ")
. ¶ 37 The r emainingfac tors also support the trial cour t's r uling. As note d, the nature of the information soug ht by

Kubichec k was re levant to the impeac hment of a c ritically important defe nse witness (the only arguably disinterested e x pert to testify for the de fense ). In addition, Kubichec k' s counsel' s eff orts to discover a

nd introduce e vidence of Dr. H olmes' s testimony in prior ca ses wer e made diligently and in g ood faith, and c ounsel raise d timely objections to Dr. Holmes' s repe ated f

ailure to produc e the infor mation. Although he arg

uably should have filed a motion to compel production of the information prior to trial, Kubichec k' s counsel made repe ated reque sts for the information and lodge d sever al timely objections to Dr. Holmes' s failure to disclose the information. He also obtained two c ourt order s requiringDr. Tr aina to supplement his ex pert disclosure s and sent Dr . Traina ' s counsel two Rule 201(k) letters bef ore movingto bar Dr. Holmes' s expert testimony as a discove ry

sanction. ¶ 38 Dr. T raina

does not dispute that Dr. Holmes unr easona bly failed to provide discovera ble information in a timely

fashion. Ne verthe less, he argues that the trial c ourt err ed in g ranting Kubichec k a new

trial as a disc overy

section bec ause: (1) the trial cour t improperly

punished Dr. Traina for discove ry

violations commit ted by

Dr. Holmes; (2) the trial cour t imposed a sanction based on discove ry

violations Dr. Holmes alleg edly committed in other ca ses; and (3) Kubichec k was not pre

judiced by

Dr. Home s' s failure to disclose the information. We addr ess these arguments in turn.
17¶ 39 Dr. T raina argues that the trial c ourt err ed by sanctioninghim for discover y violations committed by

Dr. Holmes. Spec ifically , Dr. Tr aina notes that Rule 219(c) a pplies only

to discovery abuses c ommitt ed by

"a party , or any

person at the instance of

or in collusion with a party " ( I ll. S. C t. R. 219(c) (e ff. July 1, 2002)), a

nd that the discover

y violation in thi s case was committed by Dr. Holmes , not by Dr. Tr aina. More over, a s Dr. Tra ina observe s, the trial cour t stated that " [t ]here is absolutely nothing in the r ecor d that sug g ests any fault direc tly

on [Dr. Traina ] or his attorney s for the f ailure to c omply

with discovery . To the contra ry , it appear s defe nse counse l was makingever y eff ort to comply ." N ever

theless, we f

ind no error

in the trial court' s decision to impose sanctions on Dr. Tr aina. The discovery rules impose enf

orce able obligations upon the parties, includinga duty to disclose rele vant and discove rable information relating to their c ontrolled expert witnesses. See, e.g. , I ll. S. C t. R. 213(f)(3) (ef f. Jan. 1. 2007). The fa ilure to make suc h disclosures in a timely and complete fashion justifies sanctions ag ainst the par ties, even if the failure is the result of ac tions taken or not taken by the controlled witnesses themselves. See , e.g. , Dec ker v . St. Mary's Hospital , 249 I ll. App. 3d 802, 813 (1993) (af firmingdiscovery

sanction imposed ag ainst defe ndant bec ause, inter alia , defe ndant' s expert failed to produc e re cords of other c ases in which he had testified a s an expert despite promising to do so during his de position). Under the c rampe d interpre tation of Rule 219(c) advocated by Dr. Tr aina, pa

rties could eva de their discove ry obliga tions merely

by claimingthat their controlled e x pert is to blame for their fa ilure to disclose discover able infor mation about that expert. That would enc ourag e g amesmanship and c ontrave ne the spirit of the discove ry rules. ¶ 40 Dr. T raina

also argues that the trial c ourt err ed by sanctioninghim for discover y abuses that Dr. Holmes a lleg edly committed in other proce eding s ( i.e. , Dr. Holmes' s failure to disclose

18information in prior trials). Contra ry to Dr. Tra ina' s assertion, the sa nction in this case wa s based on Dr. Holmes' s failure to make the r equire d disclosures in this case , not his alleg ed misconduct in other ca ses. The tria l court addr essed Dr . Holmes' s conduct in other c ases be cause it was rele vant impeac hment evidenc e that Kubiche ck' s counsel could have used dur ing his
cross-e x amination of Dr. H olmes if it had been timely disclosed. Howe ver, the court did not base its sanc tion on the fac t that Dr. Holmes had c ommitt ed discove ry abuses in prior c ases. Rather, it g rante d a new

trial bec ause it found that Dr . Holmes' s discovery violations in this case ( i.e. , his repeated fa ilure to disclose a c omplete ca se list in a timely manner) put Kubiche ck at a n unfair a dvantag e. ¶ 41 Dr. T raina

also argues that the trial c ourt err ed in g rantingKubichec k a new trial bec ause Kubichec k was not pre

judiced by

Dr. Holmes' s discovery

violations. I n support of this argument, Dr. Tr aina notes that Kubichec k' s counsel re ceive d a list of case s from Dr. H olmes prior to the start of trial a

nd was a ble to cross-e x amine Dr . Holmes about his prior testimony . Howeve r, as noted above , Dr. Holmes a dmitted during c ross-examination that the list he produced w as incomplete. More over, that partial list was produce d on the eve of trial, which w as too late for Kubichec k' s counsel to make f ull use of it. Dr. Tra ina also argues that, duringthe trial cour t's hear ing on K

ubichec k' s motion for a newtrial, Kubiche ck' s counsel ef fec tively conce ded that Kubichec k had suff

ere d no prejudice . Specifica lly , Dr. Tr aina notes that, when the tria l court asked K ubichec k' s counsel whe ther ther e wa s any specific information that would have been important to his case whic h he did not rec eive due to Dr. Holmes' s discovery violations, counsel admitted that he wa s not able to identify any thing. We do not find this admission dis positive. Although the materia ls disclosed by Dr. Holmes may

not have c ontained important information
19that might have chang ed the r esult of the trial, Kubic heck doe s not, and ca nnot, know what is contained in the materials Dr . Holmes has not disclosed. It would be unfa ir to require Kubichec k' s counsel to identify something important or

prejudicia l contained in docume nts that
wer e improper ly

withheld from him and that re main entirely within Dr. Holmes' s control. See Delve cchio , 255 I ll. App. 3d at 200. ¶ 42 F inally , Kubichec k argues that, if we aff irm the trial cour

t's or der grantinga new

trial, we should exercise our authority under I llinois Supreme Court Rule 366(a )(5) (ef f. F eb. 1, 1994) and bar Dr. Holmes f

rom testifying during r etrial. In eff ect, Kubic heck a sks us to rever se the trial court' s J uly

2011 clar ification orde r rulingthat Dr. Holmes would not be ba rre d from testifying dur ing the retria l. There are two problems with this request. F irst, Kubichec k has not filed a c ross-appe al of that orde r. " An appe llee who ha s not prosecute d a cr oss-appe al ca nnot proper ly seek to modify

a portion of the tr ial court' s order in order to se cure aff

irmative re lief," and we lack jurisdiction to consider suc h a re quest. Bucc ieri v. W ayne Township , 111 I ll. App. 3d 396, 397-98 (1982) ; see a lso Dundee Townshi p v. De partment of Reve nue , 325 I ll. App. 3d 218, 221-22 (2001) . Second, the tria l court' s J uly 2011 clar ification orde r is not in the rec ord on appea l. 5
After

he filed his PLA in this court, Dr. Tr aina moved to suppleme nt the rec ord on 5 appea l with the trial court' s J uly 2011 clar ification orde r. We denied D r. Tra ina' s motion t o supplement the re cord when we denied his PLA. Althoug h we late r vac ated our order denying Dr. Tr aina' s PL A, we did not vac ate our denial of D r. Tra ina' s motion t o supplement the re cord. Neither party subsequently

moved to supplement the re cord w ith the trial court' s clarif ication order . As a re sult, that order re mains outside of the re cord on a ppeal. 20¶ 43 Howe ver, e ven assuming arguendo that this court has the a uthority to gr ant the re lief soug ht by Kubichec k under Rule 366( a)( 5), it would be pre mature a nd inappropriate to do so. As noted above , the purpose of a discove ry

sanction under

Rule 219(c) is to coerc e complianc e with discovery rules and or ders a

nd encour ag e trial on the me rits, not to punis h the dilatory party
. Shimanovsky , 181 I ll. 2d at 123; Besco , 297 I ll. App. 3d at 782. "[J ]udges may not impose sanctions that ar e intended pr imarily as punishment". Besco , 297 I ll. App. 3d at 782. Ba rringDr. Holmes from testifying during the retria l would be a pur ely punitive sanction, and a

n onerous one at that. It would not have the e ffe ct of e nsuringcomplete discove ry or enc ourag ing tr ial on the merits. To the contra

ry , it would result in the exclusi on of the de fense ' s only expert witness aside from Dr . Traina

himself. Dr. Holmes should be g iven an oppor tunity to make a c omplete and timely disclosure of a ll releva

nt information befor e the r etrial. I f he f ails to do so, the trial court may revisit its J uly

2011 order

and bar him from testifying. H oweve r, it would be pre mature a nd improperly

punitive to enter such a

sanction at this time. The trial cour t's de cision not to bar Dr. Holmes from testifying on r etrial wa s not an abuse of discretion, and w e will not disturb that decision. ¶ 44 CONCLUSI ON ¶ 45 F or the for eg oing r easons, we aff irm the judg ment of the Peoria County circ uit court. ¶ 46 Aff

irmed.

21