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Martinez v. Regent Ins. Co.

Court of Appeals of Wisconsin, District Four

April 16, 2020, Decided; April 16, 2020, Filed

Appeal No. 2018AP1685

Opinion

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis. Stat. Rule 809.23(3).

P1 PER CURIAM. Jamie and Maggie Martinez appeal a judgment, following a jury trial, dismissing their claims against Country Kitchen, its owners Craig and Dawn Dougherty, and its insurer,1 and an order denying the Martinezes' post-verdict motions. The Martinezes argue that they are entitled to a new trial because, they contend: (1) Country Kitchen failed to disclose an expert witness prior to trial, and the witness's testimony and supporting videotape evidence were false and misleading; and (2) the Doughertys intentionally destroyed videotape footage of the slip and fall of Jamie Martinez (Martinez) at the Country Kitchen restaurant. For the reasons set forth in this opinion, we reject these arguments and accordingly affirm.

P2 Martinez alleged that he was injured when he slipped and fell at the Country Kitchen restaurant in Dodgeville in July 2009. The Martinezes brought this action for damages. [*2] 

P3 Prior to trial, the Martinezes moved for judgment or sanctions for spoliation based on the Doughertys' destruction of the videotape footage of Martinez's slip and fall at the Country Kitchen restaurant. The circuit court denied the motion, finding that the destruction of the tapes was not intentional. The Martinezes moved for reconsideration, which the circuit court denied after a hearing.

P4 On the third day of trial, Country Kitchen called private investigator Martin Alpstadt to testify regarding his surveillance of Martinez following the slip and fall. The Martinezes objected, arguing that Alpstadt was being offered as an expert witness and that Country Kitchen had not disclosed Alpstadt as a proposed expert witness, as required by the court's pretrial order. Country Kitchen argued that Alpstadt was not being offered as an expert witness because he would testify only as to facts, and there was no pretrial order requiring disclosure of lay witnesses. The circuit court found that Alpstadt was not being offered as an expert witness because his testimony was not based on technical or other specialized knowledge, and that therefore Country Kitchen was not required to disclose him prior [*3]  to trial.

P5 The jury returned a special verdict finding Country Kitchen 20% negligent and Martinez 80% negligent. The court entered an order denying the Martinezes' post-trial motions and a judgment dismissing the Martinezes' claims. The Martinezes brought post-trial motions for a new trial. They again moved for reconsideration of their motion for judgment or sanctions based on spoliation, arguing that Craig Dougherty's trial testimony further supported their spoliation argument. They also argued that they were entitled to a new trial because Country Kitchen failed to timely disclose Alpstadt as an expert witness and failed to provide his supporting videotape evidence with its expert disclosure, and because Alpstadt's trial testimony and the videotape evidence were false and misleading. The circuit court denied the motions, finding that there was no intentional destruction of evidence, failure to disclose an expert witness, or false and misleading trial evidence. The Martinezes appeal.

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2020 Wisc. App. LEXIS 150 *

JAIME MARTINEZ AND MAGGIE MARTINEZ, PLAINTIFFS-APPELLANTS, KATHLEEN SEBELIUS, STATE OF WISCONSIN DEPARTMENT OF HEALTH AND FAMILY SERVICES AND MOLINA HEALTHCARE OF WISCONSIN, INC., INVOLUNTARY-PLAINTIFFS, v. REGENT INSURANCE COMPANY AND C&B ENTERPRISES, LLC D/B/A COUNTRY KITCHEN, DEFENDANTS-RESPONDENTS.

Notice: THIS OPINION IS SUBJECT TO FURTHER EDITING. IF PUBLISHED, THE OFFICIAL VERSION WILL APPEAR IN THE BOUND VOLUME OF THE OFFICIAL REPORTS.

Prior History:  [*1] APPEAL from a judgment of the circuit court for Iowa County: MARGARET MARY KOEHLER, Judge. Cir. Ct. No. 2012CV124.

Disposition: Affirmed.

CORE TERMS

video, surveillance, footage, destruction, misleading, videotape, spoliation, pretrial

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Evidence, Relevance, Preservation of Relevant Evidence, Spoliation, Judgments, Relief From Judgments, Motions for New Trials, Judicial Officers, Judges, Discretionary Powers, Lay Witnesses, Opinion Testimony, Nonspecialized Knowledge, Personal Perceptions, Testimony, Expert Witnesses, Qualifications