The trial court did not abuse its discretion in awarding the defendant $167,570 in expert witness fees after plaintiff refused defendant's C.C.P. §998 offer of $10,000 plus a waiver of costs and defendant prevailed at trial, said the Second District Court of Appeal in Adams v. Ford Motor Co. (Sept. 29, 2011, B225791), __ Cal.App.4th __ [2011 DJDAR 15491].
Plaintiff Adams and her three children sued Ford, several other automobile manufacturers and auto parts distributors (the "automotive defendants"), and others involved in the construction trade (the "construction defendants") after her husband died of mesothelioma, a cancer associated with asbestos exposure. Plaintiffs contended that the decedent was exposed to asbestos while working in construction and while conducting routine maintenance on his vehicles, and sought $150,000 in medical expenses, $1 million in loss of earnings and $1 million in general damages. They settled with the construction defendants for $7,500 and $20,000, and with all automotive defendants except Ford for amounts ranging from $2,000 to $70,000 (Volkswagen was dismissed when its summary judgment motion was granted). Plaintiffs received a total of $179,250 from these settlements.
Shortly before trial, Ford offered to settle for $10,000 plus a waiver of costs. The offer expired, the case went to trial and the jury returned a verdict for Ford. The court awarded costs to defendant in the amount of $185,741.82.
The settlement offer was reasonable, said the court, given that the defendant prevailed at trial, the amount was within the range of other settlements in the case (especially considering that it included a waiver of costs) and the likelihood that the plaintiffs would prevail at trial was low. Since the offer was made by a defendant, the court had the discretion to award expert witness fees incurred both before and after the offer was rejected. Although initially concerned about the amount of the fees, the trial court asked for supplemental briefing and concluded that the fees were reasonable. The trial judge was in the best position to make this determination, said the appellate court, and the judgment was affirmed.