COURT OF APPEALS DECISION DATED AND RELEASED November 9, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1206-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
JOEL JOHNSON,
Plaintiff-Appellant,
v.
WISCONSIN CENTRAL
LTD.,
Defendant-Respondent.
APPEAL from orders of
the circuit court for Portage County:
JOHN V. FINN, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER
CURIAM. Joel Johnson appeals from pretrial orders by which the
circuit court (1) denied his motion to depose opposing witness Edward Walkuch
and (2) denied his reconsideration motion to permit his own witness, Dr.
Charles Wirtz, to testify at trial.
Johnson argues that because the circuit court incorrectly exercised its
discretion, we should reverse. For the
reasons set forth below, we affirm.
I. BACKGROUND
In November 1989,
Johnson, a laborer for Wisconsin Central, Ltd., was injured in the face and
chest while removing some nuts and bolts from a rail joint. Trial was originally scheduled for December 1993,
but was set over until December 1994.
At a hearing on January 13, 1994, Johnson moved to compel Wisconsin
Central to comply with his discovery requests, specifically, to clarify the
subject matter of Walkuch's proposed testimony, and Wisconsin Central moved to
limit Johnson's evidence by excluding evidence from Johnson's expert witness,
Dr. Wirtz. The court granted both
motions. For ease of exposition, we
consider each motion separately.
A. Johnson's motion to compel
On March 28, 1994, and
April 4, 1994, Wisconsin Central and Johnson respectively submitted proposed
orders to the circuit court. Although
Wisconsin Central's order failed to reflect the circuit court's January 13,
1994, ruling that it should comply with Johnson's discovery requests, the
circuit court signed Wisconsin Central's version of the order on April 15,
1994.
Despite the omission in
the signed order, Johnson did not act to remedy the deficiency until September
28, 1994. On that date, Johnson
obtained a hearing date of November 21, 1994, on his motion to reconsider
and compel compliance with the order of January 13, 1994. At the hearing on November 21, 1994, the
court denied Johnson's order to compel as untimely.
B. Wisconsin Central's motion to exclude
evidence
At the January 13, 1994,
hearing, the circuit court granted Wisconsin Central's motion to exclude the
proposed evidence from Dr. Wirtz about Johnson's neck injury. The circuit court ruled that there was
insufficient evidence of causal connection between the facial injuries Johnson
sustained at the time of the accident and the neck injury, which became
apparent only later. At the time the
court entered this ruling, however, a deposition of Dr. Wirtz had been
scheduled.
On September 28, 1994,
Johnson moved the circuit court to reconsider its ruling excluding Dr. Wirtz's
testimony. Johnson indicated that
Wirtz's deposition had been taken, and that Wirtz's testimony remedied the
earlier lack of causal connection between the neck injury and the facial and
chest injuries. At the November 21,
1994, hearing on that motion, the court held that admitting Wirtz's testimony
would prejudice Wisconsin Central because Wisconsin Central would have to
prepare to try the neck injury issue with only a few weeks left to trial.
II. ANALYSIS
A. Motion to compel
Discovery orders lie
within the discretion of the trial court. Earl v. Gulf and Western Mfg.
Co., 123 Wis.2d 200, 204, 366 N.W.2d 160, 163 (Ct. App. 1985). Here, the circuit court determined that
Johnson's September 28, 1994, motion to compel discovery was untimely. This was not error.
On April 15, 1994, the
circuit court filed its order purporting to memorialize its January 13, 1994,
decision. However, even if the order
wrongly omitted the ruling that Wisconsin Central comply with Johnson's
discovery requests, Johnson did nothing to remedy the deficiency between April
15, 1994, and September 28, 1994.
Having invited the complained-of error by delaying for five months to
object, Johnson cannot complain that the court found his motion untimely. Cf. Soo Line R.R. Co. v. Office
of the Comm'r of Transp., 170 Wis.2d 543, 557, 489 N.W.2d 672, 678 (Ct.
App. 1992).
B. Dr. Wirtz's testimony
Dr.
Wirtz would have testified that Johnson's November 1989 face and chest injuries
were related to neck injuries later discovered. This testimony is about injury, and is relevant to damages. However, because the jury found no
negligence, any error in excluding Wirtz's testimony was harmless. Stated otherwise, where no negligence is
found, testimony about injury and damages is irrelevant, and we need not
consider this matter further.
By the Court.—Orders
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.