Gregory v. Abou-Samra, Case No. B253223 (2d Dist., Div. 6 Mar. 9, 2015) (Unpublished).
In this one, an assistant surgeon and employer of the primary surgeon (the latter settling out earlier) in a medical malpractice/fraud action sent plaintiff a CCP § 998 offer to waive all costs and malicious prosecution rights in exchange for a pre-trial dismissal with prejudice in favor of assistant surgeon. Plaintiff rejected the offer, and dismissed its suit without prejudice as to assistant surgeon on the eve of trial, garnering assistant surgeon $19,715 in costs (mainly expert witness fees) under section 998 in a later costs proceeding. Plaintiff’s appeal of the costs award did not prevail, given that acceptance of the offer would have absolved her of future cost exposure given that assistant surgeon’s vicarious liability for settling primary surgeon’s conduct was not a foregone conclusion at all. The 998 offer was reasonable in nature under the circumstances.
Duncan v. McCormack, Case No. A139362 (1st Dist., Div. 4 Mar. 9, 2015) (Unpublished).
The second case, although tragically involving a plaintiff’s loss of a right arm in a medical malpractice action, concerned plaintiff patient’s rejection of a 998 offer of a dismissal in exchange for a costs waiver from one defendant doctor who was represented by attorneys jointly representing that doctor plus another doctor who was previously dismissed from the case. Plaintiff suffered a nonsuit against the remaining doctor, who garnered $24,756.86 in costs under section 998 in post-dismissal proceedings. In reaching this costs amount, the lower court did deduct 5% of all costs incurred for the previously dismissed doctor. The appellate court found that the 5% deduction was entirely proper, because the previously dismissed doctor was peripheral to the case even though unified in interest based upon joint representation. The 998 offer was also reasonable because the remaining doctor had an expert opinion saying he was not at fault in the surgery, with plaintiff failing to retain an expert witness. Costs award affirmed.