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Kinsey v. Union Pacific Railroad Co.

October 9, 2009

MARLO KINSEY, PLAINTIFF AND APPELLANT,
v.
UNION PACIFIC RAILROAD COMPANY, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of San Joaquin County, Lauren P. Thomasson, Judge. Reversed in part and affirmed in part. (Super. Ct. No. CV023921).

The opinion of the court was delivered by: Nicholson, Acting P. J.

CERTIFIED FOR PUBLICATION

Following trial of this action brought pursuant to the Federal Employers Liability Act*fn1 (FELA), the jury returned a verdict against plaintiff Marlo Kinsey and in favor of his employer, defendant Union Pacific Railroad Company.

Prior to trial, plaintiff had rejected defendant‟s offer to compromise pursuant to Code of Civil Procedure section 998. After judgment was ultimately entered in defendant‟s favor, the court awarded defendant its costs, including expert witness fees of more than $142,000.*fn2

Plaintiff appeals from the postjudgment order awarding expert witness fees as costs to defendant. In his original appellant‟s opening brief, plaintiff separately challenged the fee award as to individual expert witnesses; defendant responded that each award was appropriate under California law, and urged us to affirm the cost award.

Following oral argument before this court, we vacated the submission of the case and requested supplemental briefing on the following question: "Is Union Pacific entitled to an award of costs pursuant to federal law? If not, does that affect the recovery of costs under state law? (See Fed. Rule[s] of Civil Proc. 68; Delta Air Lines[, Inc.] v. August (1981) 450 U.S. 346 [67 L.Ed.2d 287]; Miller v. Union Pacific [Railroad Co.] (2007) 147 Cal.App.4th 451.)"

For reasons that follow, we reverse that portion of the cost award that allowed defendant to recover expert witness fees as costs and remand for further proceedings.

As we explained in Miller v. Union Pacific Railroad Co., supra, 147 Cal.App.4th 451 (Miller), the availability of expert witness fees in a FELA action filed in state court is controlled by federal law. And, as we did not have occasion to consider in Miller, we conclude federal law does not authorize an award of expert witness fees to a defendant who has made a rejected offer of settlement and then obtains a defense verdict.

BACKGROUND

In view of the limited legal question before us, we need not examine the underlying facts of the case. This is indeed fortunate, as the extremely limited record on appeal tells us nothing about the nature of plaintiff‟s injury, claim or case: it contains neither the pleadings, the Code of Civil Procedure section 998 offer, nor the reporter‟s transcript of the six-week jury trial. Apart from the clerk‟s minutes of the trial and an exhibit list, the clerk‟s transcript on appeal is comprised wholly of documents related to defendant‟s memorandum of costs, and plaintiff‟s motion to tax costs.

DISCUSSION

Because the Availability of Expert Witness Fees in a FELA Action Filed in State Court is Controlled by Federal Law, Defendant Cannot Recover Expert Witness Fees

"FELA is a broad remedial statute based on fault . . . and is intended by Congress to protect railroad employees by doing away with certain common law tort defenses. [Citations.]" (Villa v. Burlington Northern and Santa Fe (8th Cir. 2005) 397 F.3d 1041, 1045.) It "holds railroad employers liable for the injury or death of railroad employees that results, in whole or in part, from the railroad‟s negligence or that of its agents. [Citations.]" (Frastaci v. Vapor Corp. (2007) 158 Cal.App.4th 1389, 1395.)

A FELA action may be brought in state or federal court. (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 5 (Lund); Miller, supra, 147 Cal.App.4th at p. 455.) When a FELA action is instituted in state court, state law governs the resolution of procedural issues unless application of state law results in the denial of a right granted by Congress. Federal law ...


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