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Defendant, PhyllisGannotti, appeals after a jury verdictfinding her negligent in causing an automobile collision on March20, 1996, in which plaintiff, Suzanne Phillips, was injured.Defendant argues that the trial court improperly barred her fromquestioning an eyewitness about his opinion concerningplaintiff's speed. Defendant also argues that the trial courterred in directing a verdict in favor of plaintiff on the issueof contributory negligence. Plaintiff questions this court'sjurisdiction over most of the issues on appeal; she maintainsthat defendant's posttrial motion was not timely filed. We findthat we have jurisdiction, and we reverse and remand for a newtrial.

Plaintiff's complaint alleged that defendant was negligentin colliding with plaintiff's vehicle at an intersection. Defendant asserted plaintiff's contributory negligence as anaffirmative defense.

Plaintiff's answers to interrogatories pursuant to SupremeCourt Rule 213(g) (177 Ill. 2d R. 213(g)) stated that witnessCharles Parcell would testify that in his opinion plaintiff wastraveling at the speed limit at the time of the collision.

Before the start of testimony, one of defendant's attorneysstated that the other defense counsel had spoken to Parcell, whohad been subpoenaed by plaintiff. (Plaintiff asserts that thewitness was also subpoenaed by defendant, but Parcell's trialsubpoenas are not in the record.) Defense counsel reported that Parcell was going to testify thatplaintiff had been speeding,which was contrary to plaintiff's answers to interrogatories.

Defense counsel claimed that this opinion was new to himbecause Parcell had refused to talk on the telephone prior totrial. Defendant asked for the opportunity to cross-examineParcell about his opinion of plaintiff's speed, and defendantfiled a supplemental answer to her opinion interrogatories.

The supplemental interrogatory stated Parcell would testify thatthe speed of plaintiff's vehicle immediately prior to impact was45 to 50 miles per hour (when the speed limit was 40 miles perhour). After plaintiff represented that she was not going tocall Parcell as a witness, defendant asked that the witness beallowed to testify as his witness and would give his new opinion.

The court did not address the Parcell issue until later,after testimony had begun. It ruled that Parcell could testifyas an occurrence witness but barred Parcell's opinion about plaintiff's speed. Parcell testified in an offer of proof thatimmediately before the collision he observed plaintiff's carspeeding 5 or 10 miles per hour over the speed limit.

Defendant testified that on the day of the accident she waslost and ended up at the intersection of United Lane and DevonAvenue. United Lane was a north-south street, and Devon was aneast-west, four-lane highway. The speed limit on Devon was 40miles per hour. United Lane had a stop sign where it intersectedwith Devon. Devon did not have any stop signs or stop lights atUnited Lane.

Defendant further testified that she was going to make aright-hand turn onto Devon. She stopped her front bumper evenwith the stop sign. After she stopped, she had to move up alittle bit. She did not get very far into the intersection whenher car collided with plaintiff's car. The impact happened justafter she let her foot off the brake. She was going a lot lessthan 20 miles an hour. According to defendant, plaintiff wasgoing with the flow of traffic; plaintiff was going pretty fast.

Plaintiff testified that her vehicle was in the right-handlane of Devon. She did not know exactly what speed she wastraveling; she was going somewhere near 40 miles per hour. Shewas 5 or 10 feet away from the intersection when she first saw defendant's car. When she saw defendant, defendant had passedthe stop sign. Two or three seconds elapsed between the time shefirst saw defendant and the time of the collision.

Plaintiff further testified that, when she first sawdefendant, she took her foot off the accelerator. When sherealized defendant was not going to stop, she hit the brakes andturned the steering wheel to the left. There was no one inoncoming traffic so she headed in that direction. Probably fewerthan two seconds passed from the time that she realized thatdefendant was not going to stop until the time she hit the brakesand spun the wheel to the left. She did not have the opportunityto hit the brakes and stop the car before defendant crossed intoDevon.

Plaintiff further testified that the front end ofdefendant's car hit her passenger door. The impact was extremelystrong. Her car lifted up on two wheels and flipped about fourtimes, landing upside down on the north side of Devon.

Charles Parcell testified that he was waiting on United Laneto make a right turn on Devon. He observed defendant's car tohis left in the inside lane. He was two car lengths from theintersection. A truck made a right turn on United Lane fromDevon. Defendant's car was easing out of United Lane in front ofthe truck. Plaintiff's car was traveling in the lane next to thetruck.

Parcell further testified that the impact occurred within asplit second. The impact occurred just in front of the truck,just as it was turning in. Prior to impact, he did not hear thescreeching of tires or a horn sounding. Plaintiff's vehiclelanded about 200 feet from the point of impact. He saw no skidmarks before the point of impact.

Plaintiff presented testimony that she suffered severeheadaches caused by the accident. Defendant disputed that theaccident caused plaintiff's headaches.

At the close of the evidence, the trial court directed averdict on plaintiff's contributory negligence in plaintiff'sfavor, finding that the evidence was unrebutted that plaintiffwas driving within the speed limit.

On May 2, 2000, the jury returned a verdict in favor ofplaintiff awarding $400,000 in damages. An order dated May 2,2000, entered judgment on the jury verdict.

Defendant filed a posttrial motion on June 2, 2000, whichwas 31 days after May 2, 2000.

On June 9, 2000, defendant filed a motion to correct therecord. Defendant argued that the May 2, 2000, judgment orderwas actually signed and filed on May 3, 2000. Defendant'sattorney filed a supporting affidavit swearing that (1) theverdict was returned on May 2, 2000, at 6:15 p.m. but thatjudgment was not entered that day; (2) plaintiff faxed defendanta proposed judgment order on May 3, 2000; and (3) the order wasexecuted by the court on May 3, 2000, but the clerk file-stampedthe order May 2, 2000.

At the hearing on defendant'smotion to correct, the trialcourt found that the jury reached a verdict on May 2, 2000, whenthe court clerk was not present, and that the judgment wasentered on May 3, 2000.

On July 12, 2000, the court entered an order grantingdefendant's motion to correct the record. The order stated thatthe record was corrected to reflect that the court enteredjudgment on the verdict on May 3, 2000.

Defendant filed a notice of appeal after the entry of anorder denying the posttrial motion and awarding costs toplaintiff.

Plaintiff argues that this court lacks jurisdiction over allissues except an issue concerning the award of costs because thejudgment was entered on May 2, 2000, and defendant's posttrialmotion was not filed within 30 days thereafter. Although thetrial court amended the judgment order nunc pro tunc to May 3,2000, which had the effect of making the posttrial motion timely,plaintiff argues that the trial court lacked authority to do sobecause modifying orders nunc pro tunc can only be done tocorrect clerical errors.

Supreme Court Rule 272 states:

"If at the time of announcing finaljudgment the judge requires the submission ofa form of written judgment to be signed bythe judge or if a circuit court rule requiresthe prevailing party to submit a draft order,the clerk shall make a notation to thateffect and the judgment becomes final onlywhen the signed judgment is filed. If nosuch signed written judgment is to be filed,the judge or clerk shall forthwith make anotation of judgment and enter the judgmentof record promptly, and the judgment isentered at the time it is entered of record." 137 Ill. 2d R. 272.

The purpose of Rule 272 was to resolve the difficulties thathad arisen regarding the timeliness of an appeal where an oralannouncement of judgment from the bench antedated the entry of awritten judgment order. West v. West, 76 Ill. 2d 226, 233, 390N.E.2d 880 (1979).

In Ahn Brothers, Inc. v. Buttitta, 143 Ill. App. 3d 688, 493N.E.2d 384 (1986), the trial judge made an oral pronouncementthat he would award certain costs. At issue in that case waswhether the date of the judgment was the date of the oralpronouncement. The reviewing court pointed out the following:

"Rule 272 provides for two alternatives:(1) a written order is required; or (2) nowritten order is necessary, and the judgmentis entered when it becomes of record.[Citation.] Thus, under Rule 272, when anoral pronouncement of judgment occurs, thejudgment becomes final at the time it isentered as of record." Ahn Brothers, 143Ill. App. 3d at 690.

The court observed that no judgment was ever noted in aminute book or on a docket sheet or other record-keepingdocument. The court held that no judgment was entered of recordin the case and that the court did not have jurisdiction todecide the case. Ahn Brothers, 143 Ill. App. 3d at 691.

In this case, the jury returned a verdict in the evening ofMay 2, 2000. At that time no clerk was present. No judgment wasentered or recorded on May 2, 2000, and the trial court did notorally declare that judgment on the verdict was being entered andthat no written order was required. The next day, May 3, 2000,the trial court signed the judgment order. However, the courtclerk stamped May 2, 2000, as the date the judgment was entered. We find that the judgment was entered on May 3, 2000, when thejudgment order was actually signed.

Notwithstanding the general rule that the trial courtretains jurisdiction only for 30 days after entry of a finalorder, a court may modify its judgment nunc pro tunc at any time. In re Marriage of Breslow, 306 Ill. App. 3d 41, 49, 713 N.E.2d642 (1999). Nunc pro tunc orders are used to correct clericalerrors in written orders and thereby make final orders conform tothe actual judgment of the court. In re Marriage of Breslow, 306 Ill. App. 3d at 49.

The trial court made the finding that the judgment order wasactually entered on May 3, 2000. Stamping the order as of May 2,2000, was a clerical error because, without leave of court, theclerk has no authority to file stamp documents as of any otherdate than the date on which they are received by the clerk (see

Ruffin v. Department of Transportation, 101Ill. App. 3d 728,732, 428 N.E.2d 628 (1981) (file-stamp date on complaint had beenchanged to later date)). Therefore, the use of a nunc pro tuncorder was appropriate. Because the posttrial motion was timelyfiled within 30 days of May 3, 2000 (735 ILCS 5/2-1202(c) (West2000)) and the notice of appeal was timely filed within 30 daysof the denial of the posttrial motion (155 Ill. 2d R. 303(a)(1)(West 2000)), this court has jurisdiction.

Upon written interrogatory, a party must state the subjectmatter on which an opinion witness is expected to testify. 177Ill. 2d R. 213(g). A party has a duty to seasonably supplementor amend any prior answer or response whenever new or additionalinformation subsequently becomes known to that party. 177 Ill.2d R. 213(i). Discovery is to be completed no later than 60 daysbefore the date that the trial court reasonably anticipates thetrial will commence. 166 Ill. 2d R. 218(c).

The parties disagree over whether defendant committed adiscovery violation in disclosing at trial Parcell's opinion thatplaintiff's vehicle was speeding. Defendant contends that shewas entitled to rely upon plaintiff's Supreme Court Rule 213(g)disclosure and that there was no deadline in Supreme Court Rule213(i) to prevent disclosure of a supplemental opinion learned attrial. The issue need not be decided because, assuming arguendothat defendant did not timely disclose the opinion, we hold thatthe trial court's sanction of barring Parcell's opinion was anabuse of discretion.

Supreme Court Rule 219(c) provides for sanctions if a partydoes not comply with the discovery rules. 166 Ill. 2d R. 219(c). The trial court in this case chose the sanction under the rulethat was applicable to this type of discovery violation. 166Ill. 2d R. 219(c)(iv) (a witness may be barred from testifyingconcerning the issue to which the discovery violation relates).

The purpose of discovery sanctions is not to punish but toensure fair discovery and a trial on the merits. Sobczak v.Flaska, 302 Ill. App. 3d 916, 926, 706 N.E.2d 990 (1998). Drastic sanctions should be resorted to only when a lessermeasure such as continuance would be ineffective. People v. Beu,268 Ill. App. 3d 93, 98, 644 N.E.2d 27 (1994).

Some factors used in determining the suitability of thesanction of barring testimony are (1) surprise to the adverseparty; (2) the prejudicial effect of the witness's testimony; (3)the nature of the witness's testimony; (4) the diligence of theadverse party; (5) whether an objection to the witness'stestimony was timely; and (6) the good faith of the party callingthe witness. Sobczak, 302 Ill. App. 3d at 926.

The imposition of sanctions for discovery violations will bereversed only for an abuse of discretion. Sobczak, 302 Ill. App.3d at 925-26.

On the first factor, we note that plaintiff claimed surpriseat Parcell's opinion that plaintiff was speeding.

Relevant considerations in assessing the second factor ofprejudice are the strength of the undisclosed evidence, thelikelihood that prior notice could have helped the opposing partydiscredit the evidence, the feasibility of continuance ratherthan a more drastic sanction, and the wilfulness of the opposingparty in failing to disclose the witness. Sobczak, 302 Ill. App.3d at 926.

The effect of the opinion that plaintiff was speeding wouldhave been adverse to plaintiff because she testified that she wastraveling near the speed limit. The opinion evidence was strongbecause it came from a disinterested witness, who was the soletestifying eyewitness.

Plaintiff argued for the first time at oral argument thatshe was prejudiced because, if there had been timely disclosure,she could have rebutted Parcell's opinion by presenting thetestimony of the police officer, who could have testified thatParcell did not tell him that plaintiff was speeding. Thisargument will not be considered because it was not raised inplaintiff's brief. Points not asserted in an appellee's briefare waived and shall not be raised for the first time in oralargument. 177 Ill. 2d R. 341(e)(7); 177 Ill. 2d R. 341(f).

We also consider that plaintiff makes no argument why shewould have been prejudiced by a short delay for a continuance,which would have allowed the parties to depose Parcell.

Finally on the issue of prejudice, defendant was not wilfulin the late disclosure of the opinion because defense counseldisclosed it as soon as it was discovered.

The fourth factor of the adverse party's diligence refers todiligence in seeking discovery. Carlson v. General Motors Corp.,9 Ill. App. 3d 606, 619, 289 N.E.2d 439 (1972). As plaintiff knew about Parcell, there is no issue concerning plaintiff'sdiligence in seeking discovery of his existence. However, it isnot known on this record if plaintiff was diligent in discoveringParcell's opinion of the speed of plaintiff's vehicle.

Concerning the fifth factor, there is no question thatplaintiff timely objected to defendant's supplemental answer toopinion interrogatories.

Relevant to the fifth factor of bad faith is plaintiff'sargument that defendant should have deposed Parcell. Defendantresponds that she justifiably relied on plaintiff's interrogatoryanswer that stated that Parcell's opinion was that plaintiff wasnot exceeding the speed limit. Furthermore, defendant arguesthat Parcell would not speak to her attorneys prior to the trial. We do not decide whether defendant should have deposed Parcell. Because the record does not reveal when Parcell changed hisopinion, it cannot be determined whether defendant would haveeven discovered Parcell's different opinion had she deposed him. We cannot find that defendant acted in bad faith by notdiscovering the opinion sooner.

Considering all the factors, we conclude that the interestsof justice would have been best served by ordering a continuanceso that the parties could have deposed Parcell. With Parcell'sopinion testimony, and any rebuttal testimony presented byplaintiff, the jury would have been able to consider all therelevant evidence of how the accident occurred. See Kurrack v.American District Telegraph Co., 252 Ill. App. 3d 885, 903-04,625 N.E.2d 675 (1993) (court did not abuse discretion in refusingto bar testimony and instead ordering deposition of expert;opposing party was not prejudiced where she did not indicate whatsurprise information she was unprepared to meet).

We hold that the trial court erred in choosing the drasticsanction of barring Parcell's opinion testimony.

We next address defendant's argument that the trial courterred in directing a verdict on contributory negligence.

A directed verdict or a judgment notwithstanding the verdictcan only be entered if all of the evidence, viewed in the lightmost favorable to the opponent, so overwhelmingly favors themovant that no contrary verdict could ever stand. Pedrick v.Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504(1967).

A directed verdict is improper where there is any evidence,together with reasonable inferences to be drawn therefrom,demonstrating a substantial factual dispute, or where theassessment of credibility of the witnesses or the determinationregarding conflicting evidence is decisive to the outcome. Maplev. Gustafson, 151 Ill. 2d 445, 454, 683 N.E.2d 508 (1992).

As the improperly barred opinion testimony of Parcell wasevidence of plaintiff's contributory negligence, the trial courterred in directing a verdict. See Savage v. Martin, 256 Ill.App. 3d 272, 280, 682 N.E.2d 606 (1993) (whether plaintiff iscontributorily negligent is a question for the jury unless it isestablished from undisputed facts that all reasonable minds wouldhave to conclude that plaintiff was not contributorilynegligent). The trial court's errors are reversible.

Plaintiff argues that, if this court finds reversible error,the case should be remanded for a new trial only on liability. Defendant argues that the case should be remanded for a new trialon liability and damages.

An appellate court should limit the issues to be resolved onretrial only where it is plain that any error that has crept intoone element of the verdict did not affect the determination ofany other issue. Thatch v. Missouri Pacific R.R. Co., 47 Ill.App. 3d 980, 986, 362 N.E.2d 1064 (1977). A limited retrialshould not be granted if it might be prejudicial to either party. See Glassman v. St. Joseph Hospital, 259 Ill. App. 3d 730, 769,631 N.E.2d 1186 (1994) (new trial on damages only is appropriateif the questions of liability and damages are so separate anddistinct that such a trial was not unfair).

In light of plaintiff's testimony that she was travelingnear the speed limit, Parcell's testimony that plaintiff wasspeeding could possibly affect a jury's assessment of thecredibility of plaintiff's testimony concerning the extent of herphysical injuries, her pain and suffering, and her disability. Anew trial on all issues should be held.

The judgment of the trial court is reversed, and the causeis remanded for a new trial.

Reversed and remanded.

HALL, P.J., and WOLFSON, J., concur.