Kinsey

Following trial of this action brought pursuant to the federal Employers’ Liability Act (FELA), the jury returned a verdict against plaintiff Mario 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.

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.[, rule] 68; Delta Air Lines[, Inc.] v.…