Substantial Expert Witness Costs Can Be Shifted Under CCP § 998.
In Sanchez v. Scripps Health, Case No. D066005 (4th Dist., Div. 1 Dec. 8, 2015) (unpublished), plaintiffs lost a medical malpractice case, with defendant awarded over $250,000 in disputed expert witness fees based on plaintiffs’ rejection of two CCP § 998 offers.
That determination was affirmed on appeal.
No abuse of discretion in the costs-shifting award was demonstrated upon review. The court of appeal observed that a defense offer to waive costs in return for a case dismissal can have significant value, given that the defense costs memorandum for expert witness fees was over $287,000 and can frequently be in expert-driven matters. Here, the second 998 costs waiver offer was made two years into the case after the defense had designated seven retained and some dozen of unretained experts. The offers were not made in bad faith, as the defense verdict presumptively demonstrated.
So, in affirming, there is a message for plaintiffs and their counsel in cases which are expert intensive: carefully evaluate the offers even those that you may consider to be “token” 998 offers; if you lose, you would wish you gave hard study to these offers to compromise.
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