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Florida Fifth DCA rules that cost of non-testifying expert is not a taxable cost that can be counted in determining whether 125% proposal for settlement threshold has been passed to qualify for award of attorney’s fees and costs under Fla. Stat. § 768.79

On June 14, 2019, in R.J. Reynolds Tobacco Company v. Lewis, No. 5D17-773, the Florida Fifth DCA reversed a trial court’s award of attorney’s fees and costs to a prevailing plaintiff in an Engle-progeny tobacco case.  The Fifth DCA concluded that in determining the “judgment obtained” threshold for the award of fees and costs under Fla. Stat. § 768.79 (requiring a judgment obtained of more than 125% of the amount of a pre-trial proposal for settlement), the trial court erroneously included in the judgment the cost of fees paid by that plaintiff to experts who did not actually testify at trial.  The Fifth DCA noted that under White v. Steak & Ale of Florida, Inc., 816 So. 2d 546 (Fla. 2002), a court may only properly consider those costs that were already taxable on the date the proposal for settlement was filed, and according to In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So. 2d 612, 616–17 (Fla. 2005), an expense relating to a consulting but non-testifying expert should not be taxed. [Reviewer’s Note: Since the plaintiff was the prevailing party in this case, the plaintiff would still be entitled to an award of taxable costs even though not entitled to an award of costs under Fla. Stat. § 768.79]