MILLER v. UNION PACIFIC RAILROAD COMPANY
Filed
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
ROBERT MILLER, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Respondent. | C052300 (Super. |
APPEAL from a judgment of the Superior Court of Placer County, Larry D. Gaddis, Judge. Affirmed.
Larry Lockshin, Diana Esquivel, and Charlotte E. Costan for Plaintiff and Appellant.
Reed Smith and Joseph P. Mascovich; Michael L. Whitcomb and William H. Pohle for Defendant and Respondent.
Plaintiff Robert Miller filed suit in state court under the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq.) seeking recovery for injuries he sustained while working for defendant Union Pacific Railroad Company (Union Pacific). Miller prevailed at trial and sought to recover approximately $73,000 in expert witness fees under Code of Civil Procedure[1] section 998. The trial court granted Union Pacific's motion to strike the fees and denied Miller's motion for reconsideration.
In the published portion of the opinion, we hold the availability of expert witness fees in a FELA action filed in state court is controlled by federal law, and we find federal law does not authorize an award of expert witness fees to a prevailing plaintiff in a FELA action. Accordingly, we affirm the trial court's order striking Miller's request for expert witness fees.
In the unpublished portion of the opinion, we hold the trial court did not abuse its discretion in denying Miller's motion for reconsideration.
FACTUAL AND PROCEDURAL BACKGROUND
In 1966, Miller began his career at Union Pacific, working mainly as a locomotive engineer. In July 2001, he was injured when a hand brake on a locomotive engine failed.
Miller filed suit in state court against Union Pacific for negligence under the FELA. He made several offers to compromise pursuant to section 998 ranging from $499,999 to $749,999. Union Pacific rejected the offers. Thereafter, a jury found in Miller's favor and awarded him $2.5 million for pain and suffering. The court ordered a remittitur reducing the amount to $1.3 million, to which Miller consented.
Miller filed a memorandum of costs requesting approximately $73,000 in expert witness fees pursuant to section 998. Union Pacific asked the court to strike the fees, contending the FELA did not provide for expert witness fees, and federal law preempted state law. The trial court agreed with Union Pacific, finding instructive a recent case from the California Supreme Court that held federal law prohibited an award of prejudgment interest under state law to a prevailing plaintiff in a FELA action. (Lund v.
Miller filed a motion for reconsideration, presenting evidence Union Pacific recently prevailed on its request for expert witness fees in a FELA action tried in the Los Angeles County Superior Court. The trial court denied the motion for reconsideration, ruling a conflicting award or opinion rendered by another jurisdiction did not constitute new facts.
Miller filed a timely notice of appeal from the trial court's orders. On appeal, he contends the court erred in interpreting Lund to preclude an award of expert witness fees and in denying his motion for reconsideration. As will be explained, we disagree with these contentions.
DISCUSSION
I
A Prevailing Plaintiff In A FELA Action Filed In
State Court Is Not Entitled To Expert Witness Fees
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