$20,000 Offer Plus Waiver Of Costs Was Found To Be In Good Faith.
Gonggryp v. BMW of No. America, LLC, Case No. B279895 (2d Dist., Div. 1 Sept. 14, 2018) (unpublished) is a stark reminder for attorneys representing clients in personal injury cases that they must seriously evaluate CCP § 998 pre-trial settlement offers, given that their client may be on the hook for significant cost shifting expenses if they lose in expert witness intensive cases.
In this one, plaintiff suffered a unanimous defense verdict by a jury after the trial court properly excluded or narrowed expert testimony proffered by plaintiff in a defective seatbelt case brought against manufacturer and its related distributor. Earlier, the defense had made a $20,000 section 998 offer plus a waiver of their costs if the offer was accepted. It was not. The defense then moved to recover almost $400,000 in costs, a fair chunk of which related to expert witness expenses. The trial court denied plaintiff’s motion to tax costs.
On appeal, the Second District, Division 1 affirmed the lower court’s conclusion that the offer was in good faith and not token in nature. After all, the unanimous jury verdict was prima facie evidence that the offer was made in good faith. Beyond that, the expert testimony was not credited by the jury, with the case being a weak one that should have been settled instead—consistent with the trial judge’s remarks at the hearing on the motion to tax costs. Plaintiff could not demonstrate an abuse of discretion in awarding these costs under the circumstances.
So, the moral here is simple: carefully explain the risks to a personal injury client when a 998 offer is made in expert intensive cases. We have seen more and more unsuccessful plaintiffs being saddled with substantial 998 costs-shifting awards in the last couple of years.
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