District Judge Properly Denied Expert Fees Requested Under § 998 Because More Restrictive Federal Law Applied.
In First National Mortgage Co. v. Federal Realty Investment Trust, Nos. 9-16377 et al. (9th Cir. Feb. 1, 2011) (for publication), plaintiff won a breach of contract case, but the district court refused to award it expert witness fees based on California Code of Civil Procedure section 998(b).
The Ninth Circuit affirmed based on the application of federal law.
Although section 998 allows a successful plaintiff to recover all reasonable expert witness fees, 28 U.S.C. § 1821(b) only allows the plaintiff to recover $40 per day per witness. Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1167-1168 (9th Cir. 1995) (federal law applies in diversity cases on this procedural issue). Thus, the district court properly denied expert witness fee recovery pursuant to section 998.
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