The Plaintiff accepted a Rule 68 offer of judgment dated October 5, 2013, and petitioned for fees. The offer of judgment allowed judgment to be taken in the amount of $350,000.? ?The judgment also provided that the State would ?pay [Plaintiff?s] awardable costs and reasonable attorney?s fees accrued in this lawsuit up to the date/time of this? offer . ?.? .? Plaintiff?s? claimed costs and fees shall be substantiated by billing records attached to Plaintiff?s acceptance of this offer detailing the nature and date of the work performed and hours accrued.??? ?Plaintiff unequivocally accepted the offer of judgment. After filing a motion for fees, Plaintiff?s counsel submitted modified time records, which included reconstructed time that was not produced when the offer was accepted.?? The attorney?s hourly rates were granted as requested, and Plaintiff?s attorney was awarded a 1.3 multiplier to the lode star.

In relevant part, the trial court ruled that Plaintiff was not entitled to fees after the date of the offer of judgment, which included the time spent preparing the fee petition; only entitled to fees? based ?on ?hours? that ?were contemporaneously billed, and not reconstructed hours; not entitled to fees for time spent on a related administrative challenge; and not entitled for the costs? relating to ?her treating physician insofar he was not listed as an expert and that time was related to his services as a treating physician.? Plaintiff appealed.?In relevant part, the Court ruled that the terms ?of? the? offer? of? judgment ?control.?? ?The Court held that the administrative claim was segregable, as they did not have a common core of facts and legal theories.?Relying principally upon Guerrero v. Cummings, 70 F.3d 111, 1113 (9th Cir. 1995), the?Court ?ruled ?that ?the? fees ?incurred ?for? the? fee petition were appropriately disallowed. ?The Court rejected the public policy argument to the contrary, and declined to depart from federal law because the language of the state and federal Rule 68 is virtually identical.? ?The Court also rejected the argument that the parties? previous course of dealings should have controlled the outcome; the communications ?between ?the ?parties ?made? clear that this offer was different from previous offers and that post offer fees were not intended.

In reference to costs for the treating physician, the Court ruled that the physician was not acting as an expert, and rejected the argument that the time spent responding to legal matters was nevertheless recoverable. ?The Court distinguished a federal line of cases where fact witness physician fees were recovered for time while testifying. Washington law recognizes a difference ?between professionals who are experts in their field and witnesses? ?who? ?are?? experts? ?for?? purposes? ?of litigation,? ?recognizing? ?that? ?the?? mere?? fact? ?of expertise does not automatically warrant a professional?s? treatment ?as ?an? expert? witness.? ?We decline to hold that time spent by a fact- witness treating physician ?responding to legal matters? is recoverable as a WLAD litigation cost.?

Johnson? v.? State,? Department? of? Transportation,?177 Wn. App. 684, 313 P.3d 1197 (Div. I 2013) (Dwyer, Applewick, Grosse)