Tuesday, December 23, 2025
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$14 Million Judgment Vacated Due to Late Expert Disclosure
Court of Appeal Says Judge Erred in Allowing Plaintiff’s New Doctor, Announced Seven Days Before Trial, to Testify Without Demanding Good Cause for Delay Even if Defense Was Able to Depose Him During Voir Dire
By Kimber Cooley, associate editor
Div. Eight of this district’s Court of Appeal yesterday vacated a judgment pursuant to a jury verdict for nearly $14 million in a personal injury lawsuit arising out of a low-speed traffic collision, holding that a Los Angeles Superior Court judge erred in allowing testimony from a surgeon who was only disclosed to the defense seven court days before trial without any showing of good cause for the delay in seeking to designate a new expert.
Declaring that the fact that the judge, Michael B. Harwin, conditioned the admission of the testimony on the party making the physician immediately available for deposition was insufficient to cure the prejudice caused by the delay, the court said the plaintiff “flouted” the statutory scheme governing expert witnesses in seeking to have the doctor testify without filing a formal motion to request augmentation of his expert witness list based on good cause.
Justice John Shepard Wiley Jr. authored yesterday’s opinion, joined in by Presiding Justice Maria E. Stratton and Los Angeles Superior Court Judge Jessica Uzcategui, sitting by assignment, saying:
“It was an abuse of discretion to permit [the plaintiff] to go forward with this surprise witness, deposition or no. The problem was the absence of a reasonable justification for [the] delay in bringing [the expert] into the case. Neither doctor nor patient reported an explanation for delaying until the eve of trial.”
The case was remanded for a new trial.
The litigation arose after Iain McDonald filed a complaint against Areg Zargaryan over a February 2017 traffic collision in which the defendant allegedly ran into the plaintiff, who was riding a motorcycle at the time, with his car at about “walking speed.” After the accident, McDonald left the scene without receiving any medical intervention; he later asserted that the collision left him with debilitating injuries to his neck and groin.
Contested Injuries
Zargaryan contested the seriousness of any injuries, citing evidence that the plaintiff continued snowboarding, rollerblading, and motorcycling after the accident. In September 2021, the parties exchanged expert designation lists, with McDonald citing 30 potential witnesses.
On Jan. 18, 2023, seven court days before the scheduled trial date, McDonald visited a Los Angeles spinal surgeon, Dr. Toorag Gravori, who had previously been retained by the plaintiff’s attorneys at the Los Angeles-based Wilshire Law Firm as an expert on unrelated matters. No new ailment prompted the appointment, and Gravori was not listed on McDonald’s expert designation list.
A few days later, McDonald emailed Zargaryan a document titled “Plaintiff’s Further Supplemental Disclosure Of Expert Witness Of New Treating Doctors” without filing anything with the court. On Jan. 25, 2023, Zargaryan moved to exclude Gravori’s testimony.
The following week, Harwin ruled that the surgeon’s testimony would be admitted so long as “[Gravori] is made available and Plaintiff takes the deposition.” The parties deposed Gravori during the evening hours of Feb. 1, 2023, while they were in the thick of jury selection.
Gravori testified at trial that he was recommending spinal surgery, and a jury awarded McDonald $13.97 million on Feb. 9, 2023, with only $100,430 attributable to past medical expenses. The bulk of the award was attributed to anticipated healthcare costs as well as past and future noneconomic losses.
Statutory Scheme
Wiley noted that the statutory scheme governing the admission of expert witness testimony, found at Code of Civil Procedure §2034 et seq., operates “to avoid surprise at trial,” saying that the rules were enacted to further fairness and efficiency in the judicial system.
He pointed out that the law requires that “th[e] parties exchang[e] expert witness information…in writing” and designate any new witnesses “within 20 days” or, if later, by filing a motion seeking leave to augment the list. Case law has established that the proponent must demonstrate “good cause for [any] delay” and allow the opponent the opportunity to explain how the tardy designation has prejudiced him.
The jurist wrote:
“Surprise experts are tremendously abusive because experts can be such powerful witnesses. Time-consuming homework can be essential to challenge a true expert. Courts must view ambushes with tardy new experts with stern disapproval, for witnesses who are genuine experts can be extremely dangerous for the other side. Jamming the opposition for preparation time can be successful, if the judge allows this unfair tactic.”
Continuing, he opined:
“Preparing a cross-examination…can require laborious preparation: immersion in abstruse publications, mastery of arcane concepts, and private schooling from your own counter-experts. This preparation then leads up to the vital expert deposition, where the task is, with the camera rolling, to reveal the assumptions, to expose the contradictions, and to lay the groundwork for effective cross examination before the jury.”
Flouted Rules
Reasoning that “deliberately rushing the other side’s preparation is odious,” he said that “[t]rial judges do right by spotting and squelching this foul tactic.” Applying these principles, he commented that “McDonald flouted these rules” and wrote:
“By code, McDonald needed court permission to add his new expert Gravori. McDonald did not file the mandatory motion….He failed to seek court permission.”
Acknowledging that “some late designations can have valid justifications,” he said:
“McDonald, however, offered no reasonable justification. There was no emergency or serious unexpected development. There was only McDonald’s pretrial consultation with his lawyer.”
Rejecting the assertion that any error was harmless, Wiley pointed out that Gravori was the first doctor to recommend spinal surgery to the plaintiff and remarked:
“The jury awarded McDonald future medical expenses of $1,872,900. The award for past pain and suffering was $2 million and for future pain and suffering was $10 million. It is probable that Gravori’s recommendation of expensive, risky, and intrusive spinal surgeries inflated some or all of these sums.”
The case is McDonald v. Zargaryan, 2025 S.O.S. 3787.
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