This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).






Maria Rodriguez Patino, et al.,





ANPAC, a/k/a American National Property and

Casualty Companies, d/b/a American National

Property and Casualty Company,



Filed April 9, 2002

Affirmed; motion denied

Gordon W. Shumaker, Judge


Dakota County District Court

File No. C7996223


Harry A. Sieben, Jr., Jeffrey M. Montpetit, Sieben, Grose, Von Holtum, McCoy & Carey, Ltd., 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN 55402 (for respondents)


Julian C. Janes, Gislason, Martin & Varpness, P.A., 7600 Parklawn Avenue South, Suite 444, Edina, MN 55435 (for appellant)


††††††††††† Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Parker, Judge.*

U N P U B L I S H E D† O P I N I O N




Respondent Maria Patino was injured in a car accident and brought a claim for underinsured motorist benefits.† At trial, the district court denied appellantís motion to suppress undisclosed expert testimony or for a continuance to obtain a rebuttal expert.† After the juryís award for past and future damages, appellant brought a new-trial motion, claiming that the district court erred in denying the motion to suppress and that appellant suffered prejudice as a result of such error.† The district court denied the new-trial motion.†

In a previous appeal, appellant challenged the district courtís denial of the new trial motion.† Patino v. ANPAC, No. C3-00-1924 (Minn. App. June 25, 2001) (order op.).† This court held that any potential prejudice would be limited to future loss of earning capacity, but we could not evaluate whether the claimed error in allowing allegedly undisclosed expert testimony resulted in prejudice to appellant, where prejudice would occur if the collateral-source offsets to the jury verdict would be less than appellantís underinsured-motorist coverage limits of $100,000.† Id.† We thus remanded to allow either party to move for a determination of collateral-source and no-fault offsets.† Id.† After a hearing on such motion, the district court determined the total amount of collateral-source and no-fault offsets and, finding in favor of respondent, ordered entry of judgment against appellant in the amount of its underinsured-automobile policy limit.†

On this second appeal, appellant again challenges the district courtís denial of its motion for a new trial, claiming that it suffered prejudice as a result of undisclosed expert testimony.† Appellant also moves to strike portions of respondentís brief and appendix as including matters outside of the record on appeal.† Because appellant suffered no prejudice, we affirm the district courtís ruling.† We deny appellantís motion to strike.


††††††††††† On August 5, 1997, respondent Maria Patino was hit by a car while sitting outside the McDonaldís restaurant where she worked at least 40 hours a week as an assistant manager.† After the accident, respondent missed some work and was treated by a chiropractor and a neurologist.† When respondent returned to work, the chiropractor initially limited the number of hours that she could work each day and the amount of weight that she could lift.† As time progressed, respondentís work hours were gradually increased to 40 hours per week, but the weight restriction was increased to only 15 pounds.

††††††††††† After respondent sued for underinsured-motorist benefits, appellant served expert interrogatories requesting a summary of the opinions and conclusions of any of respondentís experts who would be testifying at trial.† Appellant was timely informed of the identity of respondentís expert witnesses, but did not receive the reports of respondentís chiropractor and the neurologist until shortly after the discovery deadline.†

††††††††††† Included in the packet attached to the chiropractorís report are notations as to respondentís weight restrictions and that respondent continued to have difficulty and limitations with certain household and work activities, including lifting.† The chiropractorís report also noted that respondent had suffered a permanent injury.† The neurologistís report confirmed that respondent should avoid performing certain repetitive activities that could cause her pain.† At trial, these experts testified that respondentís lifting and 40-hour-workweek restrictions were permanent restrictions.

††††††††††† Respondent also called as an expert a vocational-rehabilitation consultant who estimated respondentís loss of future earning capacity, based, in part, on what she understood to be respondentís permanent lifting and workweek restrictions.† This expert also gave an opinion that respondentís upward mobility within McDonaldís was eliminated because she was unable to work more than 40 hours per week and because she would have difficulty doing some of the tasks required of managers.

††††††††††† The jury awarded respondent $120,844 in loss of future earning capacity, with a total gross verdict of $303,471.05.††††††



Rule 59 of the Minnesota Rules of Civil Procedure governs the grounds for granting a new trial.† The purpose of a motion for a new trial is to allow correction of errors by the district court without requiring an appeal.† Pierce v. Natíl Farmers Union Prop. & Cas. Co., 351 N.W.2d 366, 368 (Minn. App. 1984).† The decision to grant a new trial lies within the sound discretion of the district court and will not be disturbed absent a clear abuse of discretion.† Halla Nursery v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).†

To grant a new trial, the district court must find that one of the grounds for a new trial as specified in rule 59 exists and that prejudice has resulted to the moving party.† 2 David F. Herr & Roger S. Haydock, Minnesota Practice ß 59.3 (1998) (citing Meagher v. Kavli, 256 Minn. 54, 97 N.W.2d 370 (1959)).†

Identical to the first appeal, ANPAC again claims two grounds for a new trial:† (1) surprise under rule 59.01(c) resulting from the unanticipated expert testimony regarding a permanent work restriction; and (2) an error of law under rule 59.01(f) from the district courtís refusal to suppress the unanticipated expert testimony and its refusal to grant a continuance to allow ANPAC to obtain a rebuttal expert.

We previously determined that potential prejudice could not be evaluated without further findings from the district court regarding collateral-source offsets.† And we specifically limited any potential prejudice to the disputed loss of future earnings award.† The purpose of our ruling was to evaluate whether the $100,000 underinsured-motorist policy limit was met after collateral-source offsets were identified.†

We have thoroughly reviewed the record and find that nothing has changed to cause us to reverse our prior ruling that any prejudice would relate to future earning capacity.† Appellant clearly had information regarding respondentís work restrictions up to the date of the verdict.† Therefore, it remains the law of the case that any potential prejudice is limited to the award for future loss of earnings.† See Lange v. Nelson-Ryan Flight Serv., Inc., 263 Minn. 152, 155-56, 116 N.W.2d 266, 269 (1962) (stating that law-of-the-case doctrine is a rule of practice that issues considered and adjudicated on a first appeal will not be reexamined on a second appeal and that rule is limited to the same case and to only the issues previously decided); see also Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 503 N.W.2d 793, 795 (Minn. App. 1993) (doctrine of ďlaw of the caseĒ applies when an appellate court has ruled on a legal issue and remanded the case for further proceedings on other matters; the issue decided becomes the ďlaw of the caseĒ and may not be relitigated in the district court or re-examined in a second appeal), review denied (Minn. Sept. 30, 1993).

The district courtís findings and conclusions regarding collateral-source offsets resolve this case.† The district court concluded that the total amount of collateral-source and no-fault offsets in this matter equaled $78,778.42.† In totaling the amount awarded in the special verdict, less the collateral-source and no-fault offsets, the amended verdict award totaled $224,692.63 ($303,471.05 minus $78,778.42).† Even if the disputed loss-of-future-earnings award of $120,844 were subtracted from the amended award of $224,692.63, respondent would still receive a total verdict award of $103,848.63.†

Because either calculation of the total amended verdict award exceeds the $100,000 UIM policy limit, there is no prejudice.† Because there is no prejudice, we decline to address the issue of whether the grounds for a new trial due to surprise or error of law were met.

Motion to strike

Appellant moves to strike three separate portions of respondentís brief and appendix.† We note that we have not relied on the discovery deposition or the statement in respondentís brief that her medical records outlined permanent work restrictions.† Consequently, we deny appellantís motion to strike.

Affirmed; motion denied.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.