Superior Court of California

County of Los Angeles

North Central District

Department B

jasper rose,

Plaintiff,

raymond g. tatevossian, et al.,

Defendants.

Case No.: 20STCV31521

Hearing Date: November 3, 2023

[TENTATIVE] order RE:

motion to STRIKE

BACKGROUND

A. Allegations

Plaintiff Jasper Rose (“Plaintiff”) alleges that in 2013 to 2019, he was being treated for back pain by Defendant Raymond G. Tatevossian, M.D., stemming from a degenerative compression of the thorax spinal discs in his back. Plaintiff alleges that Dr. Tatevossian prescribed opioids to lessen the pain and represented that Plaintiff could get off the pain medication if he utilized a neurostimulator, and that the neurostimulator from Defendant Nevro Corporation (“Nevro”) was safe and approved by the FDA. On September 17, 2017, based on the representations of Dr. Tatevossian and Defendant Greg Khouganian, M.D., Plaintiff went forward with surgery to surgically implant into his back the Nevro neurostimulator model NIPG1500 (serial no. 47909). From September 17, 2017 to December 2019, Dr. Tatevossian and Dr. Khouganian stated that the intensity of the device signal had to be adjusted and that the reason the device did not work was because the programming of the device had changed. Plaintiff alleges that unbeknownst to him, Defendants had negligently or wrongfully implanted the device in the thorax area of his back instead of the upper buttock and that Nevro was aware that the device was not giving the desired result.

The action was commenced on August 18, 2020. The fifth amended complaint (“5AC”), filed July 19, 2023, against Defendants Raymond G. Tatevossian, Greg Khouganian, and Nevro Corporation for: (1) misrepresentation against Nevro and (2) failure to obtain informed consent against Dr. Khouganian.

On October 30, 2023, Plaintiff dismissed with prejudice Nevro from the complaint. Each party is to bear their own fees and costs.

B. Motion on Calendar

On August 18, 2023, Dr. Khouganian filed a motion to strike portions of the 5AC. On September 29, 2023, Plaintiff filed an opposition brief. On October 5, 2023, Dr. Khouganian filed a reply brief.

On October 10, 2023, Nevro filed a motion to strike portions of the 5AC, which was scheduled to be heard on November 3, 2023. The Court is not in receipt of an opposition brief to this motion to strike. However, in light of the dismissal of Nevro, the motion to strike will be taken off-calendar.

DISCUSSION

Dr. Khouganian moves to strike from the 5AC: (1) the “New Facts Relevant To All Counts” in paragraphs 8-24; (2) the new “misrepresentation” 1^st cause of action against Dr. Khouganian only at paragraphs 40-41; (3) the new allegations for misrepresentation, concealment, and conspiracy in the 2^nd cause of action in paragraphs 60, 62, and 63; and (4) the new punitive damages demand in the prayer as to the 1^st cause of action only as against Dr. Khouganian only.

With respect to the “New Facts,” Dr. Khouganian moves to strike paragraphs 8-24, arguing that the Court already entered an order striking these same allegations in its April 14, 2023 Court Order as paragraphs 9-28 in the 4AC. Indeed, the Court’s April 14, 2023 written order struck the allegations in the 4AC without leave to amend:

Next, Dr. Khouganian moves to strike the allegations in paragraphs 9-28, which include allegations regarding the background of the neurostimulator (¶¶9-17: FDA regulation of medical devices, how the HF10 NPIG1500 neurostimulator is supposed to work, tests prior to implantation, the components of the neurostimulator, implantation set up), the nature of Plaintiff’s complaint (¶¶18-19), doctor as fiduciary to a patient (¶20), false claims by Plaintiff’s doctors and Nevro (¶¶21-22), and delayed discovery (¶¶23-28). As stated in its December 9 2022 order on the demurrer to the TAC, the Court only granted limited leave to amend as to the lack of informed consent cause of action to the extent Plaintiff intended to allege a medical battery claim. Plaintiff’s additions go beyond this order. Further, on March 24, 2023, the Court denied Plaintiff’s motion for leave to file the fifth amended complaint, which was filed while Dr. Khouganian’s demurrer to the 4AC had already been filed and scheduled. The Court found that Plaintiff’s proposed amendments were not modest and that the 5AC included 5 new pages of allegations, which are the allegations cited above in paragraphs 9-28 of the 4AC. It may be that some of the allegations of the 4AC have reworded the background facts of the TAC, but at this point, Plaintiff and his counsel have clouded the record by amending the pleading beyond the Court’s order and without asking the Court for leave to amend prior to making those changes, and demonstrating good cause for such late amendments. Thus, the motion to strike these allegations is granted. As noted above, Plaintiff has not opposed the motion to strike and thereby has not justified these additions or shown whether the additions were proper. As such, the motion to strike is granted without leave to amend.

(4/14/23 Order re Demurrer to 4AC at p.7.) The Court already denied Plaintiff leave to amend and granted without leave to amend Dr. Khouganian’s motion to strike these allegations in the 4AC. As such, the motion to strike will again be granted as to paragraphs 8-24 in the 5AC.

The 1^st cause of action is alleged against Nevro only. (See 5AC at p.8, line 20.) While paragraphs 40 and 41 mention the “treating Doctor(s)” and Dr. Khouganian, the allegations can be construed as background facts regarding what happened during Plaintiff’s doctor visits. The Court declines to strike the 1^st cause of action or paragraphs 40-41 as the 1^st cause of action is not alleged against Dr. Khouganian. Plaintiff also acknowledges that the 1^st cause of action is not alleged against Dr. Khouganian in the opposition brief (as well as in the 5AC). Accordingly, the motion to strike the request for punitive damages in connection with the 1^st cause of action only is denied as moot as the 1^st cause of action is not alleged against Dr. Khouganian.

Finally, with respect to the new allegations for misrepresentation, concealment, and conspiracy in the 2^nd cause of action in paragraphs 60, 62, and 63, Plaintiff agrees to strike portions of paragraph 60 (the second half of paragraph 60 starting at “Inadequate facts and mis-leading misrepresentations were made…” to the end of the paragraph) and 62 (“intentionally concealed” to “concealed”). In the reply brief, Dr. Khouganian argues that Plaintiff did not obtain leave to amend the 5AC to add facts in the 2^nd cause of action, including that “[i]nadequate facts and mis-leading representations were made to Plaintiff” thereby “misleading Plaintiff” and allowing him to rely on previously presented “false information.” (5AC, ¶60, p. 17, lines 18-19, 23-24.) He also moves to strike allegations that Dr. Khouganian “concealed material information,” “conspired” to keep the true facts from Plaintiff, and “concealed the facts.” (Id., ¶¶62-63, p. 18, lines 6-7, 9-10, and 20.)

As Plaintiff has agreed to strike paragraph 60 on page 17, lines 18-25, the motion to strike is granted without leave to amend as to paragraph 60 (page 17, lines 18-25).

The Court previously overruled Dr. Khouganian’s demurrer to the Plaintiff’s failure to obtain informed consent cause of action in the 4AC, but stated that it may proceed as a medical malpractice cause of action only and struck without leave to amend the heading to the extent that Plaintiff was trying to allege a medical battery claim. (4/13/23 Order at p.6.) The cause of action is therefore only a claim for medical malpractice and not for an intentional tort. In addition, the claims for concealment of information and conspiracy with Dr. Tatevossian exceed the scope of the Court’s order allowing amendment. Further, there is now no cause of action for fraud alleged in the complaint against Dr. Khouganian. (The Court notes that in the 4AC, Plaintiff alleged a claim for negligent misrepresentation and failure to obtain informed consent against Dr. Khouganian, but Plaintiff removed that cause of action when filing the 5AC.) As such, the Court grants the motion to strike these allegations in paragraphs 62 and 63 without leave to amend.

CONCLUSION AND ORDER

Defendant Dr. Greg S. Khouganian’s motion to strike portions of the Fifth Amended Complaint is granted in part without leave to amend as to paragraphs 8-24, paragraph 60 (page 17, lines 18-25), paragraph 62, and paragraph 63 (at page 18, lines 19-22). The motion to strike is denied as moot as to the allegations in the 1^st cause of action and the request for punitive damages in the prayer for damages as the 1^st cause of action was not alleged against Dr. Khouganian. Defendant shall provide notice of this order.

To the extent that Defendant Nevro Corporation’s motion to strike is still on calendar, the Court takes the motion to strike off-calendar in light of the dismissal of Defendant Nevro Corporation entered on October 30, 2023.

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