— In February 2017, California plaintiff Iain McDonald was on a motorcycle when a vehicle driven by Areg Zargaryan collided with the motorcycle at "walking speed."
The minor collision didn't cause McDonald to fall to the ground, but he walked to the sidewalk without assistance and left the scene without receiving medical care.
However, the next day Iain McDonald went to a clinic and reported pain in his right hip, leg and foot. But importantly, not in his neck or groin.
That's important because later the plaintiff claimed the collision left him with debilitating injuries to his neck and groin.
McDonald continued snowboarding, rollerblading and motorcycling following the minor collision, but six years after the incident a jury awarded McDonald $13,872,900.
The nearly $14 million award was broken down into future medical expenses of $1,872,900, another $2 million for past pain and suffering and $10 million for future pain and suffering.
McDonald v. Zargaryan $14 Million Verdict Thrown Out
Vehicle driver and defendant Areg Zargaryan's lawyers appealed the verdict by claiming a surprise witness was allowed into the 2023 trial, blindsiding the defendant.
The parties had exchanged expert designations for the case in September 2021, with plaintiff McDonald listing 29 experts. Later that month the plaintiff added a 30th expert, but it wasn't Dr. Toorag Gravori.
A week before the trial and 16 months after the expert information was exchanged, plaintiff McDonald visited surgeon Dr. Gravori in January 2023. That physician wrote a report which recommended surgery to the spine.
However, this was six years after the collision and for those six years no one had mentioned anything about spinal surgery which had not been an issue in the case.
According to the appeals court, no new medical problem or symptom prompted McDonald’s belated visit to Gravori. The plaintiff had not mentioned anything about increased pain or some other new medical condition that caused McDonald to time his visit for the brink of trial.
McDonald himself did not claim his condition, six years after the incident, had worsened just before trial. In fact, he went rollerblading the day before he went to Dr. Gravori. And he also went rollerblading the day afterwards.
However, Dr. Gravori did testify that McDonald’s trial attorney previously had retained him in other cases and Gravori had testified as an expert for McDonald’s trial attorney in those unrelated cases. According to the appeals court, this means McDonald’s trial lawyer had a professional relationship with Dr. Gravori.
When asked whether his attorney had referred McDonald to Dr. Gravori, McDonald said:
“I don’t recall, but possibly. Maybe. I think so, before the trial. We just wanted to make sure that I was in the right place. And essentially let myself know what my choices are.”
The question for California's Second District Court of Appeal was if the trial court should have allowed Dr. Gravori to enter the case at such a late stage. And the court's answer was a resounding, no.
The appeals court ruled there was no reasonable explanation for McDonald’s delay, and the trial judge should not have allowed the "tardy expert to testify."
McDonald claimed if there was an abuse of discretion it was harmless, but the appeals court didn't buy that argument.
"This claim is untenable. Absent [Dr.] Gravori’s testimony, it is reasonably probable the jury would have reached a result more favorable to Zargaryan. In other words, Gravori’s testimony likely prompted the jury to award more to McDonald than it would have otherwise."
According to the appeals court ruling:
"Seven days before trial, counsel for plaintiff Iain McDonald blindsided the defense with a new medical expert with a new medical theory. No emergency or extraordinary development justified this last-minute development. We vacate the judgment and remand for a new trial."
The lawsuit was filed in the Superior Court of Los Angeles, California: Iain Paruig Fancourt McDonald v. Areg Zargaryan, et al.