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Kubicheck v. Traina

Court of Appeals of Illinois, Third District

September 23, 2013

GINA KUBICHECK, Plaintiff-Appellee,
JEFFREY F. TRAINA, M.D., Defendant-Appellant.

Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Appeal No. 3-11-0157 Circuit No. 06-L-397 Honorable Stephen Kouri, Judge, Presiding.

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Lytton and Carter concurred in the judgment and opinion.



¶ 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 later filed by Dr. Traina, the trial court issued an order stating that Dr. Holmes would not be barred from testifying during the retrial.

¶ 2 Dr. Traina filed a petition for leave to appeal (PLA) the trial court's order granting Kubicheck a new trial under Illinois Supreme Court Rule 306 (eff. Feb. 16, 2011). This court entered an order denying Dr. Traina's PLA. Kubicheck v. Traina, 3-11-0157 (Sept. 7, 2011). Exercising its supervisory authority, the Illinois Supreme Court subsequently ordered this court to vacate its order denying Dr. Traina's PLA and to hear the appeal on the merits. Kubicheck v. Traina, No. 113130 (Jan. 25, 2012). In this appeal, Dr. Traina asks us to reverse the trial court's order granting Kubicheck a new trial as a discovery sanction.


¶ 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 are mated and screwed together, leaving the foot perpendicular to the lower leg and flat to the ground.

¶ 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 flexed[1] 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 into Kubicheck's ankle had penetrated her subtaler joint. Kubicheck's ankle did not heal. On October 7, 2005, Dr. D'Souza performed a second corrective surgery to insert an internal bone stimulator. The procedure involved the removal and replacement of the hardware in Kubicheck's ankle. A subsequent X-ray revealed that one of the screws implanted by Dr. D'Souza had penetrated Kubicheck's subtaler joint. Accordingly, Dr. D'Souza performed a third corrective surgery (a subtaler fusion) on March 10, 2006.

¶ 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 Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007). However, he did not supplement his responses to Kubicheck's production requests.

ΒΆ 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, 2009, the trial court again ordered Dr. Traina to comply with ...

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