COURT OF APPEALS

DECISION

DATED AND FILED

April 16, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP1685 Cir. Ct. No. 2012CV124

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

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.

APPEAL from a judgment of the circuit court for Iowa County: 

MARGARET MARY KOEHLER, Judge. Affirmed.

Before Blanchard, Graham, and Nashold, JJ.
No. 2018AP1685

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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).

¶1 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,1and 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.

¶2 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. 

¶3 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. 

 

1

 The Doughertys were dismissed by stipulation prior to trial. For ease of reading, 

respondents Country Kitchen and its insurer will be referred to collectively as “Country Kitchen.”
No. 2018AP1685

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¶4 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 to trial. 

¶5 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.

¶6 A party may move for a new trial based on trial errors, a verdict 

contrary to the law or evidence, excessive damages, newly discovered evidence, or 
No. 2018AP1685

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in the interest of justice. WIS. STAT. § 805.15(1) (2017-18).

2

 We review a circuit 

court’s decision on a motion for a new trial for an erroneous exercise of discretion. 

See Sievert v. American Family Mut. Ins. Co., 180 Wis. 2d 426, 431, 509 N.W.2d 

75 (Ct. App. 1993). A circuit court’s decision “whether to impose sanctions for 

the destruction or spoliation of evidence, and what sanction to impose, [are] 

committed to the [circuit] court’s discretion.” Garfoot v. Fireman’s Fund Ins. 

Co., 228 Wis. 2d 707, 717, 599 N.W.2d 411 (Ct. App. 1999). A circuit court’s 

evidentiary rulings are also reviewed for an erroneous exercise of discretion. 

Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698. We 

affirm discretionary decisions if the court applied the correct law to the facts of 

record and reached a reasonable result using a rational method. Id.

¶7 The Martinezes contend that they are entitled to a new trial because 

the circuit court erred by allowing Country Kitchen to introduce Alpstadt’s 

testimony and supporting video evidence. They contend that Alpstadt was offered 

as an expert witness, and that Country Kitchen was required to notify them of his 

proposed testimony in advance under the court’s pretrial order. They contend that 

Alpstadt was an expert witness because he had specialized training and knowledge 

based on his experience as a police officer and detective, and that he had expert 

knowledge of this case based on his extensive surveillance of Martinez. They also 

contend that Alpstadt’s ability to edit his five hours of surveillance video footage 

to a 26-minute clip that was introduced into evidence was a specialized skill that 

rendered him an expert. They argue that Alpstadt was an expert because his

 

2

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2018AP1685

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testimony went beyond his own perceptions when he was asked to provide

conclusions based on his observations. We are not persuaded.

¶8 Under WIS. STAT. § 907.01, a lay witness may offer opinions that are 

rationally based on the witness’ perceptions, helpful to a clear understanding of 

the witness’ testimony, and not based on specialized knowledge. An expert 

witness may offer opinions that are based on scientific, technical, or other 

specialized knowledge. WIS. STAT. § 907.02.

¶9 Here, Alpstadt testified regarding his observations of Martinez on 

job sites. He testified that he believed that Martinez was performing carpet 

cleaning work inside homes based on his observations of Martinez at those sites. 

Nothing in that testimony suggested reliance on specialized knowledge to give 

those observations and that conclusion. While the Martinezes point to Alpstadt’s 

training and experience, they have not pointed to any of his testimony that 

appeared to rely on his specialized knowledge to form an opinion. Accordingly, 

we conclude that the circuit court properly exercised its discretion by admitting 

Alpstadt’s testimony. 

¶10 The Martinezes also argue that they are entitled to a new trial 

because Alpstadt’s testimony, and the 26-minute video that Country Kitchen 

introduced during Alpstadt’s testimony, were false and misleading. They contend 

that Alpstadt’s testimony that Martinez performed carpet cleaning at job sites was 

false, because Alpstadt would not have been able to observe Martinez inside the 

homes to observe whether he was doing any physical work. They argue that 

Alpstadt’s testimony that Martinez was the lead worker, and that a secondary 

worker usually stayed outside by the work van, was contrary to the total footage 

captured on the five hours of surveillance video. They also argue that the 26-
No. 2018AP1685

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minute video, which Alpstadt created by editing five hours of surveillance video, 

was misleading because it left out footage of other employees doing work. We are 

not persuaded that the Martinezes are entitled to a new trial on this basis.

¶11 The circuit court found that the Martinezes were not entitled to a 

new trial in the interest of justice based on their claim that Alpstadt’s trial 

testimony and the 26-minute video clip were false and misleading. The court 

explained that the proposed witness and evidence were available to the Martinezes 

through pretrial discovery or a request for a pretrial order to disclose lay witnesses. 

The court also noted that the Martinezes had the option at trial to request a recess 

to allow the Martinezes to review the five-hour video in full and then to use 

portions of the video in cross-examination. The court found, after its review of the

full five-hour video, that Alpstadt’s testimony and the 26-minute clip shown to the 

jury were consistent with the remainder of the video footage. 

¶12 The Martinezes have not established that the circuit court 

erroneously exercised its discretion by denying the Martinez’s post-trial motion 

for a new trial based on the argument that Alpstadt’s testimony and the 26-minute 

video clip were false and misleading. The circuit court relied on the proper legal 

standard, the relevant facts, and a rational process of reasoning to determine that 

the Martinezes were not entitled to a new trial because they could have obtained 

the evidence prior to trial or made use of it when they discovered it during trial. 

The Martinezes do not persuasively dispute the court’s reasoning. Their only 

argument is that a continuance would have delayed trial, contrary to their promise 

to the jury that the trial would be completed by the end of the week and that they

had inadequate time to adequately prepare a response mid-trial. Moreover, the 

Martinezes have not established that the circuit court erred by finding that the full 
No. 2018AP1685

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five-hour video was consistent with the trial evidence. We discern no basis to 

disturb the court’s exercise of discretion.

¶13 Finally, the Martinezes argue that they are entitled to a new trial 

based on the destruction of the surveillance videotape of Martinez’s slip and fall. 

They contend that the Doughertys knew the surveillance videotape of Martinez’s 

slip and fall was relevant evidence in a potential lawsuit. They contend that, 

despite that awareness, Craig Dougherty threw away the computer and hard drive

on which the surveillance video was located, and also deleted the surveillance 

video subfiles. They contend that the destruction of the surveillance video was 

intentional and egregious, citing Craig Dougherty’s trial testimony that he had 

surveillance video on his laptop that was missing the footage of the actual slip and 

fall, but could not explain how the surveillance video got there.

¶14 “Spoliation is the ‘intentional destruction, mutilation, alteration, or 

concealment of evidence.’” See American Family Mut. Ins. Co. v. Golke, 2009 

WI 81, ¶21, 319 Wis. 2d 397, 768 N.W.2d 729 (quoted source omitted). 

¶15 Here, the circuit court found that the Doughertys did not act 

intentionally or egregiously in destroying the surveillance video footage of 

Martinez’s slip and fall. Rather, the circuit court found that Craig Dougherty was 

untrained in the Country Kitchen restaurant’s new surveillance system, and made 

errors in his attempts to capture and save the footage. While the Martinezes assert 

that different findings could have been made based on the evidence, they have not 

established that the circuit court erroneously exercised its discretion by denying 

the Martinezes’ motion based on a spoliation claim. We affirm.

By the Court.—Judgment affirmed.
No. 2018AP1685

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This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.