J.K. v. Peters

• Decision Date: 27 September 2011
• Docket Number: No. 2010AP2135.,2010AP2135.
• Citation: 808 N.W.2d 141,337 Wis.2d 504,2011 WI App 149
• Parties: J.K., P.K. and M.J.K., Plaintiffs–Respondents, v. Mark PETERS, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

2011 WI App 149

337 Wis.2d 504

808 N.W.2d 141

J.K., P.K. and M.J.K., Plaintiffs–Respondents,

v.Mark PETERS, Defendant–Appellant.

No. 2010AP2135.

Court of Appeals of Wisconsin.

Submitted on Briefs July 29, 2011.Opinion Filed Sept. 27, 2011.

On behalf of the defendants-appellants, the cause was submitted on the briefs of W. Timothy Steinle and Mark C. Severino of Terschan, Steinle & Ness, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of John F. Mayer and Justin F. Wallace of Nash, Spindler, Grimstad & McCracken LLP, Manitowoc.

Before FINE, KESSLER and BRENNAN, JJ.

BRENNAN, J.

[337 Wis.2d 510] ¶ 1 Mark Peters appeals from a judgment ordering him to pay over $700,000 in damages to M.J.K. and M.J.K.'s parents J.K. and P.K. (collectively “M.J.K.” unless otherwise noted) as a consequence of Peters' sexual assault of M.J.K. Peters argues that the trial court erroneously exercised its discretion when it: (1) permitted into evidence certain expert testimony; and (2) ordered damages. Because we conclude that Peters waived ¹ HIS evidentiary arguments when he failed to raise his claims to the trial court in a post-trial motion, and because the trial court did not erroneously exercise its discretion when ordering damages, we affirm.

Background

¶ 2 M.J.K., born in January 1993, is the son of J.K. and P.K. In May 2005, M.J.K. was having behavioral issues at home. J.K. asked Peters, who had been a close family friend for many years and who held a Masters of Social Work degree from the University of Wisconsin–Milwaukee, whether he could help with M.J.K.'s behavior problems. Peters agreed to help. As such, in the summer of 2005, Peters began meeting with M.J.K. for the stated purpose of helping M.J.K. and his parents. Peters continued to work with M.J.K. throughout the summer and fall of 2005, including Sunday sessions that sometimes lasted up to five hours.

¶ 3 As part of his work with M.J.K., Peters offered to take M.J.K. to his home for a weekend in October 2005. J.K. and P.K. trusted Peters and agreed to the overnight session. Accordingly, on October 29, 2005, M.J.K. travelled with Peters to Peters' home and stayed the night for two subsequent evenings. At that time, M.J.K. weighed approximately ninety pounds and was an introverted, self-conscious, non-functioning, pubescent boy with low self-esteem, low confidence and other emotional issues typical of a twelve-year-old boy.

¶ 4 During the first night of the visit, Peters asked M.J.K. to remove his clothes, insisting that he had to check M.J.K.'s muscles for a hernia or an old injury; however, M.J.K. had never discussed a hernia or an old injury with Peters. M.J.K. did not want to remove his clothing and repeatedly told Peters “no.” However, following Peters' repeated prodding and insistence, M.J.K. did remove his clothing, exposing his body to Peters, including his genital area. Peters held and manipulated M.J.K.'s penis close to his face while he examined it, and repeatedly moved his hands over M.J.K.'s naked body, under the pretense of performing an exam to help M.J.K. with his body issues.

¶ 5 M.J.K. visited Peters' home again on December 15, 2005, however, there are no allegations that Peters assaulted M.J.K. on that visit.

¶ 6 M.J.K. visited Peters' home for a third time on February 25, 2006, at which time Peters asked M.J.K. to remove all of his clothes and perform pushups and sit-ups while Peters watched him from his bed. Afterwards, Peters made M.J.K. watch a movie with him while sitting together on Peters' bed. For the duration of the movie, Peters held M.J.K. close by wrapping his arm around M.J.K., despite M.J.K.'s protests.

¶ 7 In February 2007, Peters was charged with one count of first-degree sexual assault of a child and two counts of causing a child to expose his genitals. Peters entered an Alford plea ² with respect to the first-degree sexual-assault-of-a-child charge, and the other two counts were dismissed but read in during sentencing. Peters was sentenced to five years of imprisonment and three years of extended supervision, but the sentence was stayed and Peters was placed on probation for eight years. As a condition of his probation, Peters served nine months in jail.

¶ 8 In October 2007, M.J.K. filed this civil action against Peters, alleging loss of society and companionship and multiple intentional torts, including sexual assault of a child, enticement, and causing a child to expose his genitals to an adult.

¶ 9 During discovery, Peters served two interrogatories on M.J.K. that are relevant to Peters' appeal. The first requested that M.J.K. disclose “each and every medical provider, including, but not limited to, M.J.K.'s primary care provider, psychiatrist, psychologist, social worker, psychotherapist, and/or counselor that M.J.K. saw [in] the ten ... years prior.” The second requested that M.J.K. disclose the name and address of the expert witnesses M.J.K. intended to call at trial. In his responses to the interrogatories, M.J.K. did not disclose Charles Schmidt, a social worker, as a treatment provider or otherwise disclose that he may call Schmidt as an expert witness at trial.

¶ 10 The trial court's scheduling and amended scheduling orders also required M.J.K. to provide Peters with “the names, addresses, and resumes together with a written report for each expert [witness]” he intended to call at trial. M.J.K. provided Peters with a written list of his expert witnesses, and later provided Peters with an amended list. M.J.K. disclosed numerous expert witnesses, including Dr. Charles Lodl, who ultimately did testify at trial. However, neither report disclosed Schmidt as a potential expert witness or provided an expert report for Schmidt.

¶ 11 Dr. Lodl was deposed in December 2009. Among other things, Dr. Lodl testified that, based upon M.J.K.'s medical records and his conversations with M.J.K., he understood Schmidt to be treating M.J.K. once or twice a month, “focusing primarily on school achievement issues and at-home behavior.” Dr. Lodl stated that based upon his review of the medical records, he did not see any indication that Schmidt was treating M.J.K. for sexual abuse issues. Peters contends that this was the first time he was made aware that M.J.K. was being treated by Schmidt in any fashion.

¶ 12 On January 4, 2010, M.J.K. submitted his pretrial report, which included a witness list. M.J.K. listed Schmidt as an expert witness. On February 12, 2010, Peters received M.J.K.'s medical records from Aurora Behavioral Health, including Schmidt's treatment records. Over Peters' objection, the parties deposed Schmidt on February 13, 2010, two days before trial.

¶ 13 On the first day of trial, Peters brought a motion in limine, attempting to bar Schmidt from testifying or to adjourn trial and impose sanctions based upon M.J.K.'s failure to timely disclose Schmidt as a potential expert witness. The trial court denied the motion, concluding that Schmidt had been identified in M.J.K.'s pretrial report and that Peters had been aware of Schmidt's treatment of M.J.K. since Dr. Lodl's deposition in December. Furthermore, the trial court noted that Peters had authorizations for M.J.K.'s medical records and could have obtained Schmidt's treatment notes from Aurora immediately after Dr. Lodl's deposition, but chose not to do so. The trial court did, however, limit the scope of Schmidt's testimony to those opinions also rendered in his treatment notes.

[337 Wis.2d 515] ¶ 14 A trial to the court was held on February 15 through 19, February 22, and April 27, 2010. During the trial, numerous witnesses testified on behalf of M.J.K., including Dr. Lodl. Schmidt did not testify, but his deposition testimony was entered into evidence as limited by the trial court's prior order. Only Peters testified for the defense.

¶ 15 As relevant to Peters' appeal, on February 18, 2010, Dr. Lodl testified at trial. However, the parties ran out of time, and due to scheduling conflicts, Dr. Lodl's testimony did not resume until April 27, 2010. In April, Dr. Lodl testified that, since the court had adjourned on February 18, he had reviewed Schmidt's deposition testimony in its entirety regarding M.J.K.'s treatment. Based upon his review of Schmidt's deposition testimony, Dr. Lodl testified that he understood Schmidt to be treating M.J.K. for ongoing sexual abuse issues, although in doing so, Schmidt could not ignore the difficulties M.J.K. was having in school.

¶ 16 Peters immediately moved for a mistrial, arguing that Dr. Lodl's opinions regarding Schmidt's treatment had changed since Dr. Lodl's December deposition. Peters contended that Dr. Lodl's allegedly new opinions were based upon his reading of Schmidt's deposition testimony while the court was adjourned, without notifying Peters. The trial court denied the motion, but allowed Peters' counsel to question Dr. Lodl about his allegedly new opinions, and the trial court stated that based upon Dr. Lodl's answers it may reconsider its ruling. During Peters' counsel's renewed questioning, Dr. Lodl testified that the deposition transcript did not change his prior opinions regarding the treatment M.J.K. received, but merely verified his previously held opinions.

[337 Wis.2d 516] ¶ 17 Peters again moved for a mistrial, and the trial court again denied his motion. While the trial court expressed some concern that Dr. Lodl had read Schmidt's entire deposition transcript, even though some parts had previously been struck by the court, Dr. Lodl testified that he did not rely on those parts of the transcript in reaching his opinions and that the transcript did not change his opinions, but merely verified them.

¶ 18 At the conclusion of the trial, the trial court issued extensive written findings of fact and conclusions of law.

¶ 19 With respect to M.J.K., the trial court found that M.J.K. now suffers from a litany of psychological and emotional disorders, struggles in school...