Second District, Division 4 Rejects Plaintiff’s Protest to Cost Award, After Defense Prevailed and Recouped Expert Fees Through 998 Cost Shifting.
Co-contributors Marc and Mike have litigated several cases (usually, fraud or nondisclosure cases) in which plaintiffs have attempted to recover damages for exposure to “toxic mold.” These cases are extremely expert intensive, with the expert fees on the mold issues eclipsing many of the other expenses. The losing side on a mold case may have exposure for hefty expert witness expenses as costs, a sobering reality that should be factored in before the case is adjudicated on the merits. The next opinion is a good “real time” illustration of the substantial costs that can (and will) be assessed against a losing mold plaintiff in the right circumstances.
Dee v. PCS Property Management, Inc., Case No. B186000 (2d Dist., Div. 4 May 28, 2009) (certified for partial publication on a May 11, 2009 filed opinion) involved a plaintiff tenant who lost a jury defense verdict in a lawsuit stemming from her exposure to mold in an apartment she was renting. Plaintiff was ordered to pay the defense $331,167.52 in costs after she rejected a Code of Civil Procedure section 998 offer, with most of the costs being defense expert witness expenses. Plaintiff appealed.
She lost. In an unpublished portion of the opinion, the Second District, Division 4 dismissed her main challenge to awarding both pre-offer and post-offer expert witness fes to the defense. The appellate panel found Regency Outdoor Advertising, Inc. v. City of Los Angeles, 36 Cal.4th 507, 532-533 (2006) to be dispositive, given it held that expert witness fees are recoverable under a successful 998 offer regardless of whether they were incurred before or after the 998 offer was extended.
So, in the end, plaintiff had a substantial costs judgment to satisfy after losing her mold case.
BLOG BONUS MILEAGE—This case also has a good discussion of motion in limine/Evidence Code section 402 hearing attacks that were successfully made against several well-known plaintiff mold experts.