Expert Witness Fees May be “Scaled” In Consideration of a Party’s Modest Resources

In Holman v. Altana Pharma US, Inc., the Court of Appeal has ruled that in the employment discrimination litigation context, a trial court has discretion when awarding costs to “scale” the cost award to account for the modest resources of the party that the award will be imposed upon.  Thus, although a successful defendant has incurred over $100,000 in expert witness expenses, and they were recoverable because the plaintiff had rejected a settlement offer and not obtained a more favorable judgment after trial (per section 998 of the Code of Civil Procedure) the court nonetheless held that the court should have considered the “modest resources” of the losing plaintiff when making the award.

The court specifically stated that “we express no opinion as to whether such an analysis could be required in any circumstance beyond the context of FEHA litigation.”

A copy of the court’s opinion is attached.

At Slote & Links we regularly advise employers and employees, as well as unions, about employment-related issues.  Feel free to contact our office if you need assistance in this area.

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