$18,957 Award of Expert Witness Fees Against Plaintiff Was the Outcome.
The facts in some cases are simply amazing. Cano v. Anaheim Arena Management, LLC, Case No. G044751 (4th Dist., Div. 3 Feb. 6, 2012) (unpublished) is one of them.
Plaintiff doctor was attending a concert by “The Boss” (Bruce Springsteen) at the Honda Center in Anaheim when another concertgoer, who apparently was intoxicated, fell backwards and landed on plaintiff’s head resulting in permanent blindness in her left eye requiring her to close her medical practice. The falling concertgoer died from a heart condition six months after the concert. Plaintiff sued defendant management company mainly for negligence, although defendant won a summary judgment because it adequately screened each concertgoer and even the other concertgoer’s wife said he did not appear drunk at the time of the concert. The trial court later awarded defendant $18,957 in expert witness fees because plaintiff failed to beat a 998 offer worth $125,000 ($101,000, plus waiver of the costs inclusive of routine costs and expert witness fees).
Plaintiff did not convince the appellate court that the section 998 offer was token or made in bad faith, in a 3-0 decision authored by Justice Aronson.
Just because plaintiff claimed serious injuries did not justify finding the offer to be illusory in nature. After all, there were serious liability questions and the offer was made nearly five months after defendant served its summary judgment motion such that plenty of information was available to plaintiff for assessment purposes. Also, plaintiff may have suffered from a preexisting eye condition that would have diluted the damages picture. In the end, even hindsight could not support disturbing the trial court’s discretionary decision that the 998 decision was reasonable based on the circumstances existent at the time of the offer. Expert fee-shifting was appropriate in this interesting case. (Essex Ins. Co. v. Heck, 186 Cal.App.4th 1513, 1528-1530 (2010).)
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