Second District, Division 1 Follows Palmer‘s Bright-Line Rule.
In a very interesting unpublished case, plaintiffs suffered a nonsuit after the trial court struck a medical expert’s testimony based upon the expert not giving certain causation opinions during his deposition, even though plaintiffs’ counsel had provided notice three months before trial that causation would be opined on at trial beyond anything said at the deposition. The defense did not try to redepose the expert, but relied on in limine and nonsuit motions to preclude the causation testimony. It worked, with nonsuit granted after the testimony was excised out. Defendants filed a costs memorandum seeking expert witness fees based on Code of Civil Procedure section 998. The trial court taxed the requested expert costs, and both sides appealed.
Judge Bauer, sitting by assignment on the Second District, Division 1, reversed the judgment against plaintiffs and dismissed the costs denial refusal as moot in Easterby v. Clark, Case No. 201218 (2d Dist., Div. 1 Feb. 5, 2009) (unpublished). The appellate panel reversed the judgment against plaintiffs based on the notion that defendants should have redeposed the expert given that they knew he would be testifying beyond his deposition. Although the costs ruling was moot, the Court of Appeal nevertheless discussed the issue to provide the parties with further guidance.
Prior to trial, defendants made two separate 998 offers, one directed at the plaintiff wife and one directed at plaintiff husband—both of which lapsed without acceptance. Seven months later, defendant made another 998 offer to both plaintiffs, without differentiation, which also lapsed by its terms. The parties conceded that the second 998 offer was invalid. The issue was whether the second invalid offer revoked the first two valid offers.
The second offer did, Judge Bauer reasoned on behalf of the panel. Palmer v. Schindler Elevator Corp., 108 Cal.App.4th 154, 158 (2003) adopted a “bright-line” rule that a later offer under 998 extinguishes earlier offers, regardless of their validity. The defense argued that Palmer did not apply because the offers expired by operation of law (they were not accepted within the required 30 days), a distinction the 2/1 panel found to be immaterial. “Palmer did not carve out an exception for initial offers that expire by operation of law, and we see no reason to do so here. Such an exception, as we explained in Palmer, would allow a party to make ‘multiple valid and invalid offers to single or multiple parties, then sit back and decide after the fact which offer is the most advantageous for purposes of enhanced costs and prejudgment interest.’ We follow the bright-line rule set forth in Palmer and conclude the trial court properly taxed defendants’ expert witness fees.” (Slip Opn., at p. 15.)