Plaintiff Possessed the Same Knowledge About Her Physical Condition, Such that Suppression of Defense Video Surveillance Did Not Nullify Prior 998 Offers as Being Made in “Bad Faith.”
Courts do tend to review Code of Civil Procedure section 998 offers in a pragmatic fashion . . . as the next personal injury case illustrates. If plaintiff is presumptively in possession of the same information, beware—it is unlikely that a defense 998 offer will be invalidated, despite being based on “surprise” video surveillance evidence.
Henriks v. Kobashigawa, Case No. B202253 (2d Dist., Div. 1 Jan. 29, 2010) (unpublished) involved a lawsuit by a plaintiff who had been involved in three auto accidents in less than 18 months (bad karma, to say the least). Plaintiff filed an action to recover injuries in the first two accidents, with the jury eventually returning verdicts in favor of both defendants. Defendants had introduced a video surveillance of plaintiff made by a private investigator, showing that plaintiff could lift more weight (groceries) than claimed at trial.
After prevailing at trial, defendants moved for costs of $79,107.37 ($48,360 of which constituted expert witness expenses). The trial court granted all costs except for a minor $1,000 deduction. The basis for this costs award was plaintiff’s rejection of prior 998 offers of $150,000 and $50,000, respectively (with the second offer being made eight months later into the litigation, likely after the parties had engaged in more discovery).
Plaintiff, being unhappy about the $78,107.37 costs award, appealed. Plaintiff was likely no more enthralled after the appellate court ruled—it affirmed across the board, upholding the costs award among other determinations.
The appellate panel had a hard time believing that plaintiff—who was aware of her own physical condition—could challenge a video surveillance tape that simply presented what her condition really was. Plaintiff certainly was not in a “knowledge gap” as far as the real nature of her physical capabilities. (In other words, there could be no “gotcha surprise.”) Beyond that, plaintiff admitted that she sensed being followed by someone, such that the video surveillance could hardly be a true “surprise.” Result: affirmed.
BLOG UNDERVIEW—In a little bit of litigation lore, we remember hearing a tale about Melvin Belli, the “King of Torts,” that is somewhat related. There is a story that he represented a plaintiff in a San Diego personal injury case, where she claimed an inability to play a church organ after slipping on barbeque sauce at a local Kentucky Fried Chicken. Unfortunately, plaintiff apparently did not inform Mr. Belli that she had brought at least a
related claim in a Florida case against a Florida bowling alley for arm/hand injuries. However, an insurance investigator during the fourth day of the Florida trial—involving the same plaintiff—produced a video showing plaintiff with normal arm movements at an amusement park, apparently in derogation of the bowling alley injury claims. Mr. Belli dismissed plaintiff’s San Diego case without prejudice, after previously stating that “I thought if I didn’t win this case, the Lord would punish me.” (If you don’t believe us, see the March 15, 1991 The New York Times article “A Master At Defense Is Duped” still available for reading on the Internet.) Seems like the same “surprise” that greeted Mr. Belli was at play in the 998 decision we just reviewed.