This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




William Henry,



Barbara Mae Joseph,


State of Minnesota,

plaintiff in intervention.

Filed August 18, 1998

Reversed and remanded; motion denied

Randall, Judge

Chisago County District Court

File No. C5-94-672

John M. Steele, John M. Steele P.A., 418 Groveland Avenue, Minneapolis, MN 55403 (for respondent)

Richard L. Pemberton, Jr., W.D. Flaskamp, Leatha G. Wolter, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant)

Byron Peterson, Byron Peterson Law Firm, 5617 Hugo Road, White Bear Lake, MN 55110 (for plaintiff in intervention)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.



Appellant claims the district court erred in granting summary judgment for respondent, arguing that the court erroneously excluded all evidence of her brake failure defense on the ground of spoliation of evidence and that she should be allowed to introduce evidence of other accidents allegedly caused by respondent's contributory negligence. We reverse and remand.


On the evening of November 27, 1992, appellant Barbara Joseph, accompanied by her husband and children, was driving her minivan north on Interstate 35W near Stacy, Minnesota. Respondent William Henry, a Minnesota Highway Patrolman, was also driving north on 35W near Stacy in an unmarked patrol car. A multiple car accident occurred after Henry pulled two vehicles over for speeding.

Barbara Joseph was driving in the right lane, but as she observed Henry's flashing lights in the distance, she moved into the left lane of traffic. When she approached the spot where Henry had pulled over the two vehicles, the van in front of her slowed down suddenly. Barbara Joseph applied her brakes and turned into the right lane to avoid hitting the van in front of her. When she did so, she lost control of her van. Her van spun around clockwise and hit Henry, seriously injuring him when he was pinned between the front of the Joseph's van and one of the cars he had pulled over.

Minnesota State Trooper Timothy Murphy arrived at the scene and was assigned to investigate the accident. At the scene, Murphy drove the Joseph van and conducted three "skid tests." He observed that when the brakes were locked up, the van would pull to the right. Murphy concluded that the brakes were not functioning properly. He immediately impounded the van so it could be inspected. He then issued Barbara Joseph two tickets: one for careless driving and one for faulty equipment.

The day after the accident, Murphy had the brakes on the Joseph van inspected by Mark, Thaddeus, and Dean Oknich of Harold's Towing and Recovery in Forest Lake (the Oknichs). On November 23, 1992, the Oknichs prepared a report that states:

Upon inspection, it is my opinion that the right front caliper was frozen, thus causing excessive wheel drag. When the brakes were applied, the wheel would lock up, which could cause the vehicle to spin under certain conditions. Measurements taken of the right front rotor indicate that it is much narrower than the left front rotor, possibly caused by failure of the caliper.

When brakes are applied, brake pedal would "pulsate" which indicates that both front rotors are warped. Rotors can become warped if the wheel is improperly installed (i.e., if lugs are tightened incorrectly). Rotors may also become warped due to failure of calipers (i.e., piston damaged or wedged, piston frozen in place).

The difference in front tire pressure (34lb right, 26lb left) could cause the vehicle to pull to the right.

The report was not dated, but on approximately October 5 or 6, 1995, the Oknichs reaffirmed their original report and added that it was their conclusion that brake failure was "a main contributing factor" to the accident.

Murphy issued a "Major Crash Investigation Report." In the report, Murphy stated that:

The VC2000 was placed in the van and I attempted to run several test skids with the vehicle. As I stepped hard on the brake the van began to rotate clockwise and as the driver I felt as if the brakes were not functioning properly, [sic] I repeated this test two additional times with the same results. It was decided at this time to place a hold on the van and inspect the brakes the following day.

The brakes were inspected the following day at Harold's Towing in Forest Lake and several defects were noted. (See Mechanics Inspection).

Murphy also noted that the skid marks at the scene of the accident indicated that Barbara Joseph reacted at the last moment to the slowing traffic and that Barbara Joseph stated that, although she saw Henry's lights from some distance, she did not reduce her speed as she approached the scene. Murphy concluded his report by stating that "[b]ased on the evidence at the scene and the witness statements I believe the accident is a result of the inattentive driving on the part of Mrs. Joseph (Van driver)." The report is not dated. Murphy then released the van to the Josephs, and the Josephs' insurer had it towed to a repair shop. Because the Josephs did not feel comfortable driving the vehicle, they sold it to a dealership on January 19, 1993.

On October 1, 1993, Henry commenced a lawsuit against the Josephs, alleging that Barbara Joseph "negligently drove" into him. The State of Minnesota entered the lawsuit as a plaintiff in intervention. The state's interest arises from its payments of Henry's medical expenses. Eventually, the case was tried to a jury on October 30, 1994. On November 9, 1995, the jury returned a verdict of $3,031,453.45 for Henry. The district court denied the Josephs' motion for amended judgment, JNOV, and a new trial.

The Josephs then appealed to this court, arguing that "the [district] court erred in excluding certain testimony relating to their `sudden brake failure' defense on the grounds of relevance and foundation" and that the court erred in excluding evidence of other accidents at the scene. Henry v. Joseph, No. C9-96-433, 1996 WL 601625, at *1, *2 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996) (Henry I). This court reversed in part, affirmed in part, and remanded "for a new trial solely on the issue of liability." Id. at *4. This court held that the district court erred when it excluded the testimony of the Oknichs because, although not disclosed as expert witnesses, the Oknichs had been disclosed as witnesses and Henry and the state "knew about the Oknichs for a long time." Id. at *3. This court also held that the district court abused its discretion when it excluded the Oknichs' testimony on the grounds of relevance and that the district court erred when it precluded the cross-examination of Murphy with regard to his findings and opinion about the condition of the Josephs' brakes. Id. The district court's decision to exclude the testimony of David Daubert as an expert on the issue of brake failure was affirmed. Id. This court further held that the district court erred when it excluded the foundational basis for the testimony of Raymond Knight, an expert witness for the Josephs, relative to the Oknich report. Id. However, to the extent Knight's opinion was based on evidence of other accidents, this court concluded that the district court did not err in excluding his testimony. Id. The supreme court denied review.

After the matter was remanded, Henry made a pretrial motion to again exclude all evidence of brake failure, including the testimony of the Oknichs, Murphy, and Knight (as it related to the Oknichs' report) on the ground of spoliation of evidence. The district court granted Henry's motion. The district court granted Henry's motion for summary judgment and ordered judgment in the amount of $3,145,635.41 for Henry. This appeal follows.


Following this court's remand, Henry again moved the district court to exclude all evidence of brake failure on the ground of spoliation of evidence. Henry argues that he would be prejudiced because he does not have the ability to have his experts examine the brakes and thus prepare a response to the Joseph's defense that the accident was caused by brake failure rather than careless driving. The Josephs claim that the district court, on the second go-around, has effectively circumvented this court's order for a new trial on the issue of liability. The Josephs argue that the doctrine of law of the case requires that the evidence of brake failure be admitted and bars the district court from excluding the brake failure evidence on other grounds.

The doctrine of law of the case applies when an appellate court has ruled on a legal issue and remanded the matter for further proceedings on other matters. Sigurdson v. Isanti County, 448 N.W.2d 62, 66 (Minn. 1989). Unlike res judicata, the law of the case doctrine "'applies only to litigated issues and does not reach issues which could have been but were not litigated.'" Id. (quoting Lange v. Nelson-Ryan Flight Serv., Inc., 263 Minn. 152, 156, 116 N.W.2d 266, 269 (1962)). "[I]ssues not determined in the first appeal may, on remand, be litigated." Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 503 N.W.2d 793, 795 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993). "The reconsideration of a case on remand (and a subsequent appeal) is a continuation of the original proceeding." Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn. 1987).

Because a matter on remand is merely a continuation of the original proceeding, an issue that was not litigated or addressed in the original action may be addressed by the district court on remand. The district court was free to decide evidentiary issues properly brought before it and that were not specifically decided by this court in Henry I. The issue of spoliation had not been decided by this court in Henry I and, thus, was before the district court. The district court was free to consider the issue of spoliation.

The Josephs maintain that Henry and the state waived the issue of spoliation because they failed to raise the issue in the district court before or during the first trial and by failing to request that the case be remanded on the issue of spoliation of evidence in the first appeal. There is no direct authority stating that for a party to preserve an issue in a new trial following a remand from an appellate court, the issue must have been raised in the first trial. Under the doctrine of the law of the case, "[i]ssues not determined in the first appeal may, on remand, be litigated." Sylvester Bros. Dev. Co., 503 N.W.2d at 795. Thus, under the law of the case doctrine, Henry and the state were not required to raise the issue of spoliation in the first trial to preserve it in the second trial following this court's remand. Henry moved to strike the Josephs' argument that he had waived the right to argue spoliation. We deny the motion to strike, decide the issue on the merits, and find for Henry. He did not waive the issue of spoliation. Now, turning to the issue of spoliation on the merits, the Josephs argue that they did not spoliate any evidence and that they had no duty to retain the vehicle after it had been extensively tested by Henry and the state's expert witnesses. The Josephs point out that Henry and the state were not prejudiced by the sale of the van because the van had already been tested and examined by Henry's and the state's expert witnesses. For this reason, the Josephs argue that the district court abused its discretion when it excluded all evidence of brake failure. We agree.

Spoliation is defined as the destruction of evidence or the failure to preserve property for another's use in pending or future litigation. Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436 (Minn. 1990). A court may sanction a party for the spoliation of evidence, "even where the party has not violated a court order and even when there has been no finding of bad faith." Patton v. Newmar Corp., 538 N.W.2d 116, 118 (Minn. 1995). The power to sanction must be tempered by "'the duty to impose the least restrictive sanction available under the circumstances.'" Id. (quoting Bachmeier v. Wallwork Truck Ctrs., 507 N.W.2d 527, 533 (N.D. 1993). When examining a claim of spoliation, the court must evaluate the prejudice to the opposing party and "examine the nature of the item lost in the context of the claims asserted and the potential for remediation of the prejudice." Id. at 119. A reviewing court may reverse a district court's decision to sanction a party for the spoliation of evidence "'only when it is clear that no reasonable person would agree [with] the trial court's assessment of what sanctions are appropriate.'" Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 460, 470 (Minn. App. 1997) (quoting Patton, 538 N.W.2d at 119) (other citation omitted), review denied (Minn. Aug. 26, 1997).

Here, the Josephs' van was not sold until two months after the accident. There is no evidence that the Josephs disposed of the van in bad faith. The district court acknowledged this fact when it stated on the record that it had "no doubt that their disposition of the vehicle was not done with any malicious intent." Thus, the question is what degree of prejudice Henry and the state will suffer, if any, if evidence of brake failure is admitted.

In Patton, plaintiff was injured when the motor home in which she was a passenger caught fire. 538 N.W.2d at 117. Plaintiff brought suit against the manufacturer of the motor home, alleging the motor home was defectively designed. Id. After the accident, the motor home was examined by her expert witness. Id. The expert witness extensively photographed the vehicle and removed and retained several unidentified components. Id. The motor home was later lost or misplaced, including the removed components. Id. at 117-18. Defendant never had the opportunity to have its expert witnesses inspect the vehicle or the removed components. Id. The district court sanctioned plaintiff by excluding expert witness testimony on the issue of defective design and then granted summary judgment because, with that evidence excluded, plaintiff was left with insufficient evidence to establish her claim against defendant. Id. at 118. The supreme court held that the sanction of excluding all expert witness testimony was proper because

[t]he plaintiffs have asserted that the vehicle was defectively designed and have admitted that the vehicle was twice subjected to major repair or modification - the extent and impact of which on their claim of defective design can never now be ascertained. The defendant has been deprived of an opportunity to examine [the motor home] since it left its control and would be limited in the preparation of its defense to a reliance upon photographs, drawings and testimony of the plaintiff's own investigative expert.

Id. at 119.

This case is distinguishable from Patton because, unlike the defendant in Patton, Henry and the state's own expert witnesses actually inspected and conducted tests on the brakes on the Joseph van. Immediately after the accident and for several days after the accident, the van was in the control of Murphy, Henry's expert witness. Under Murphy's direction, the brakes on the van were torn down and inspected by the Oknichs. The Oknichs were expert witnesses for the state at the time they examined the brakes on the van. Henry and the state cannot now claim "prejudice" by an inability to have the Joseph van inspected and tested yet again. Their own experts were the ones that inspected and tested the brakes following the accident. Similarly, Henry and the state cannot claim that the Josephs had exclusive control and possession of the van, a requirement for the doctrine of spoliation to apply. See Kmetz v. Johnson, 261 Minn. 395, 403, 113 N.W.2d 96, 101 (1962) (holding rule permitting unfavorable inference for failure to produce requested evidence applies only where evidence was in exclusive control and possession of party required to produce evidence). At the accident scene and for as long as they wanted afterwards, the state had effective exclusive control of the van and only released it back to the Josephs when they had all of the work and inspection done on it that they wanted.

Here, the evidence of brake failure was equally available to both parties. No party had an unfair advantage over the other. See id. at 402, 113 N.W.2d at 101 ("Where the evidence is equally available to both parties, no unfavorable inference may be drawn from the failure of one to produce it."). Henry and the state did not suffer any prejudice by the Josephs selling the van after the state had concluded its investigation and even sent the van to its own experts. On these facts, it was clear error to take away from the jury the Josephs' claim of brake failure.

We are unpersuaded by the argument of Henry's attorney that they were "unaware" that the Josephs would raise the defense of brake failure. By letter dated March 25, 1993, Henry's attorney was informed by Barbara Joseph's criminal defense attorney that she intended to raise a brake failure defense in her criminal matter. This letter was dated nearly six months before Henry filed suit. Thus, even before he filed suit, Henry knew that the condition of the brakes was an issue relating to the accident. From the minute law enforcement arrived on the scene, the issue of possible brake failure was on the table, in clear view, and was investigated by both sides. That issue has been open and available to all sides in this litigation from day one. It is a factual issue, is material, is in dispute, and is an issue for the jury.

The Josephs claim that the district court erred when it ruled that they could not present any evidence of Henry's contributory negligence. We are not sure of the argument. The district court in its March 3, 1997, order for summary judgment specifically ruled that Raymond Knight, a former police officer, could testify on behalf of the Josephs on the issue of whether Henry "acted negligently on the day of the accident." Thus, the district court basically ruled in the Josephs' favor. We agree with the district court on this issue and reaffirm its statement that Knight can testify on behalf of the Josephs on the issue of whether Henry acted negligently on the day of the accident.

Because we conclude that the district court abused its discretion when it excluded all evidence of brake failure on the ground of spoliation of evidence, we have to conclude that the district court erred when it granted summary judgment in favor of Henry and the state in this personal injury case. Evidence of brake failure presents a question of fact for the jury. Sabasko v. Fletcher, 359 N.W.2d 339, 342 (Minn. App. 1984), review denied (Mar. 21, 1985). So, too, does the issue of contributory negligence. See Thorn v. Glass Depot, 373 N.W.2d 799, 804 (Minn. App. 1985) (noting contributory negligence is ordinarily question of fact for jury), review denied (Minn. Nov. 1, 1985). Here, there are issues of brake failure and possible contributory negligence on the part of Henry. From the record, we have the knowledge that the Josephs are prepared to go forward on the issue of Henry's contributory negligence, if any, with an expert whom the district court has already declared competent to so testify. Simply put, at this stage, this case, an automobile accident case, as a matter of law, is not in a posture suitable for summary judgment.

We reverse the district court's grant of summary judgment and order for judgment in favor of Henry and the state and remand for a new trial on the issue of liability only. The amount of damages from the first trial remains in place, subject, of course, to the next jury's decision as to the apportionment of negligence.

Finally, Henry argues that portions of Josephs' appendix should be stricken because they were not presented to the district court. However, the documents challenged by Henry were not part of our decision and we note that many of the documents were, in fact, submitted to the district court in earlier submissions by both parties. We deny Henry's motion to strike these documents.

In addition, Henry argues that because the district court denied the Josephs' motion for reconsideration of its order excluding all evidence of brake failure, the material submitted along with that motion did not become part of the district court record and should be stricken from the Josephs' appendix. See Sullivan v. Spot Weld, Inc., 560 N.W.2d 712, 715-16 (Minn. App. 1997) (refusing to recognize motion for reconsideration and holding material submitted with such motion is not part of district court record), review denied (Minn. Apr. 24, 1997). However, we note that the Josephs also submitted this material in opposition to Henry's motion for summary judgment. It is part of the district court record. Thus, we also deny Henry's motion to strike the materials the Josephs included with their motion for reconsideration.

Reversed and remanded; motion denied.