[Cite as Zurieck v. Durrani, 2026-Ohio-3369.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MARY ZURIECK, : APPEAL NO. C-250170
TRIAL NO. A-1400581
Plaintiff-Appellee, :
vs. :
ABUBAKAR ATIQ DURRANI, M.D., :
and :
CENTER FOR ADVANCED SPINE :
TECHNOLOGIES, INC.,
:
Defendants-Appellants,
:
and
:
JOURNEY LITE OF CINCINNATI, LLC,
:
Defendant.
:
SAMANTHA HAMILTON, : APPEAL NO. C-250173
TRIAL NO. A-1706393
Plaintiff-Appellee, :
vs. :
JUDGMENT ENTRY
ABUBAKAR ATIQ DURRANI, M.D., :
and :
CENTER FOR ADVANCED SPINE :
TECHNOLOGIES, INC.,
:
Defendants-Appellants,
:
and
:
CINCINNATI CHILDREN’S HOSPITAL
MEDICAL CENTER, :
WEST CHESTER HOSPITAL, LLC, :
and :
UC HEALTH, :
Defendants. :
This cause was heard upon the appeals, the record, the briefs, and arguments.
For the reasons set forth in the Opinion filed this date, the judgments of the trial court are affirmed in part and reversed in part, and the cause is remanded.
Further, the court holds that there were reasonable grounds for these appeals, allows no penalty, and orders that costs be taxed 50% to appellants and 50% to appellees.
The court further orders that (1) a copy of this Judgment with a copy of the
Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk:
Enter upon the journal of the court on 8/28/2026.
Pursuant to App.R. 30, the clerk is directed to send all parties, or their
counsel if represented, a copy of the court’s judgment and note such action
on the docket.
By:_______________________
Administrative Judge
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MARY ZURIECK, : APPEAL NO. C-250170
TRIAL NO. A-1400581
Plaintiff-Appellee, :
vs. :
ABUBAKAR ATIQ DURRANI, M.D., :
and :
CENTER FOR ADVANCED SPINE :
TECHNOLOGIES, INC.,
:
Defendants-Appellants,
:
and
:
JOURNEY LITE OF CINCINNATI, LLC,
:
Defendant.
:
SAMANTHA HAMILTON, : APPEAL NO. C-250173
TRIAL NO. A-1706393
Plaintiff-Appellee, :
vs. :
OPINION
ABUBAKAR ATIQ DURRANI, M.D., :
and :
CENTER FOR ADVANCED SPINE :
TECHNOLOGIES, INC.,
:
Defendants-Appellants,
:
and
:
:
CINCINNATI CHILDREN’S HOSPITAL
MEDICAL CENTER, :
WEST CHESTER HOSPITAL, LLC, :
and :
UC HEALTH, :
Defendants. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: August 28, 2026
Statman Harris, LLC, Alan J. Statman and Benjamin A. Maraan, II, for PlaintiffsAppellees,
Taft Stettinius & Hollister LLP, Philip D. Williamson, Aaron M. Herzig, Russell S. Sayre, and Annie M. McClellan, for Defendants-Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS
MOORE, Judge.
{¶1} Defendants-appellants Dr. Abubakar Atiq Durrani and the Center for
Advanced Spine Technologies, Inc., (“CAST”) (collectively, “Durrani”), appeal the
judgments of the Hamilton County Court of Common Pleas in favor of plaintiffsappellees Mary Zurieck and Samantha Hamilton (“plaintiffs”). At the conclusion of the
trial, the jury found in favor of plaintiffs on their claims for negligence, lack of
informed consent, and fraudulent misrepresentation. The jury returned verdicts in
Durrani’s favor on the battery claims.1
{¶2} Durrani now raises five assignments of error. First, as to Hamilton only,
Durrani alleges that the trial court should have granted their motion for judgment on
the pleadings because the statute of repose barred Hamilton’s claims. Second, Durrani
argues that the trial court erred when it denied their combined motion for a judgment
notwithstanding the verdict (“JNOV”) or, in the alternative, a new trial, and asserts
that the trial court committed several evidentiary errors. Durrani asserts that (1) the
trial court erred when it joined plaintiffs’ cases for trial; (2) the court improperly
instructed the jury on Dr. Durrani’s absence; and (3) these errors were not harmless.
Third, Durrani argues that Dr. Saini’s testimony was improper under Evid.R. 702 and
this court’s precedent in Stephenson v. Durrani, 2023-Ohio-2500, ¶ 71-73 (1st Dist.).
Fourth, Durrani contends that they were entitled to a set-off based on plaintiffs’
settlements with other tortfeasors. Fifth, Durrani argues that the court erred in
awarding prejudgment interest to plaintiffs.
{¶3} We hold that only Durrani’s argument regarding set-off is meritorious.
We, therefore, sustain Durrani’s fourth assignment of error and remand the cause to
1 We sua sponte consolidate these separate appeals into a single opinion and judgment.
5
OHIO FIRST DISTRICT COURT OF APPEALS
the trial court to determine the amount of set-off that Durrani is entitled to. We
overrule the remaining assignments of error and affirm the trial court’s judgments in
all other respects.
I. Facts and Procedure
A. The Complaints
{¶4} Zurieck filed her complaint on January 31, 2014, alleging negligence,
battery, lack of informed consent, intentional infliction of emotional distress, fraud,
and spoliation of evidence against Durrani.
{¶5} Hamilton initially filed her complaint in July 2014 in the Butler County
Court of Common Pleas. Hamilton voluntarily dismissed this complaint in November
2015 and refiled it in the Hamilton County Court of Common Pleas as a part of a multiplaintiff case on August 15, 2016. The court severed those cases and ordered each
plaintiff to file an amended complaint, which Hamilton filed on December 7, 2017.
Plaintiffs alleged the same claims in their respective complaints.
B. Durrani’s Motion for Judgment on the Pleadings
{¶6} Durrani moved for judgment on the pleadings in Hamilton’s case,
arguing that the statute of repose barred Hamilton’s claims. Durrani based their
argument on the General Assembly’s October 2024 amendment to R.C. 2305.15, the
absent-defendant tolling statute. Durrani argued that Hamilton’s claims were barred
because she brought them more than four years after she reached the age of majority.
Durrani asserted that the amendment expressly states that the absent-defendant
tolling statute does not toll the medical-claim statute of repose, and because Hamilton
did not timely file her claim, it was barred.
{¶7} Hamilton responded that R.C. 2305.15 tolled the statute of repose when
Dr. Durrani absconded, and that the one-year savings statute in R.C. 2305.19 allowed
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OHIO FIRST DISTRICT COURT OF APPEALS
her claim to survive beyond the expiration of the statute of repose. The matter
proceeded to trial.
C. The Trial
1. Plaintiffs’ Testimony
{¶8} At trial, both plaintiffs asserted that Dr. Durrani failed to provide
adequate informed consent, to perform proper examinations, and to offer conservative
treatment alternatives before recommending surgical interventions.
a. Mary Zurieck’s Testimony
{¶9} Zurieck had initially undergone surgery in 2007 by an orthopedic
surgeon and in 2009 by a spine surgeon. Zurieck stated that, although she had low
back pain, she sought treatment from both surgeons to address the pain in her left leg.
Zurieck explained that the spine surgeon, to whom her orthopedic surgeon referred
her, resolved her leg pain. When Zurieck’s back pain returned, and she was unable to
be treated by that surgeon again, she scheduled a visit with Dr. Durrani.
{¶10} Zurieck testified that her initial visit with Dr. Durrani lasted ten
minutes, during which he told her that he could “fix” her with two surgeries. By
Zurieck’s second appointment with Dr. Durrani at CAST—the presurgical
appointment—Zurieck complained of pain in her right knee and in her right groin. She
was using a cane on her own volition due to concern that her knee would give out and
cause her to fall while walking. Zurieck refuted documentation by Dr. Durrani stating
that she had pain “shooting down [her] right and left leg,” and reiterated that the pain
was in her right knee rather than down her leg. She also denied telling Dr. Durrani that
she felt numbness on her left side or that her pain limited her ability to do yardwork.
{¶11} Zurieck testified that, although she had undergone presurgical
conservative treatment under the care of her previous surgeons, Dr. Durrani
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OHIO FIRST DISTRICT COURT OF APPEALS
recommended surgery during the initial ten-minute visit but presented no nonsurgical
alternatives. Zurieck’s consent for surgery showed that she was to undergo a
laminectomy and an extension of spinal fusion from L1-L2, and she testified that she
did not know that a laparoscopic procedure would also be done.
{¶12} Zurieck recalled feeling such “excruciating” back pain when she woke
up from surgery that she could not gauge the level of pain in her groin and knee. She
could tell after a few weeks that her back, groin, and knee pain were the same as before
Dr. Durrani’s surgery. Zurieck reported her concerns to Dr. Durrani, but she never
went back for the second surgery due to CAST ceasing operations.
{¶13} After Dr. Durrani’s surgery, Zurieck saw another orthopedic surgeon,
who recommended that she see a spine surgeon. That spine surgeon, in turn,
recommended that she return to the orthopedic surgeon. The orthopedic surgeon
identified the source of Zurieck’s hip pain and performed a total hip replacement. The
hip surgery relieved her knee pain, but the groin pain persisted. The orthopedic
surgeon then referred Zurieck to a general surgeon, who identified a herniated groin
as the source of her groin pain, which was rectified after she underwent hernia surgery.
{¶14} Zurieck’s back pain, however, had gotten worse. At the time of trial, she
had been treating her pain with Tramadol as prescribed by her family doctor for “some
number of years.”
b. Regina and Samantha Hamilton’s Testimony
{¶15} Hamilton’s mother, Regina Hamilton, testified that Hamilton’s
pediatrician referred her to Cincinnati Children’s Hospital Medical Center
(“CCHMC”), where Dr. Charles Mehlman diagnosed her with S-shaped scoliosis with
curves in both lumbar and thoracic spines. Hamilton was about 13 years old at that
time. Dr. Durrani, who was then employed with CCHMC, performed surgical bracing
8
OHIO FIRST DISTRICT COURT OF APPEALS
on Hamilton’s spine. Regina testified that the procedure was successful.
{¶16} Regina was notified that Dr. Durrani was starting his own practice,
CAST. During Hamilton’s first visit with Dr. Durrani at CAST, Dr. Durrani told her
that her upper curve had progressed significantly, and this would affect her heart and
lungs without immediate surgery. Dr. Durrani recommended a fusion, which entailed
inserting rods on both sides of her spine. She was 16 years old at that time.
{¶17} Regina recalled that the fusion took longer than expected, and Hamilton
was taken to the ICU after the fusion to address breathing issues and to get her pain
under control. Hamilton was discharged three or four days later, but she was still in “a
lot of pain.” One of the rods that Dr. Durrani placed could be felt and seen through
Hamilton’s skin at the top of her spine. The protruding rod kept Hamilton from
continuing postsurgical physical therapy. Hamilton developed a severe rash covering
her chest and back, and an oozing, green pus infection at her incision persisted for
months. Regina testified she applied the silver nitrate that Dr. Durrani prescribed for
the infection as directed.
{¶18} These complications required three more procedures to address
Hamilton’s infection. During the fourth surgery, Dr. Durrani removed the protruding
rod. In the fifth surgery, Dr. Durrani replaced some screws and again addressed the
pus oozing from the surgical site. Regina testified that Hamilton has had pain since
the rods were inserted and continues to experience postsurgical problems.
{¶19} Hamilton testified that, before her first surgery at CAST, Dr. Durrani
told her that her heart and lungs would be affected by her scoliosis if she did not have
surgery, and that he assured her that the surgery would be “easy.” She recalled having
“terrible pain” and other postoperative symptoms. These complications caused issues
with her later pregnancy and delivery, including a difficult epidural placement and an
9
OHIO FIRST DISTRICT COURT OF APPEALS
emergency C-section. She added that her left arm goes numb while feeding her baby.
Hamilton stated that she had seen several other doctors after Dr. Durrani’s procedure
but eventually stopped seeing additional providers.
{¶20} Hamilton testified that she had to change her career path from nursing
to business management due to her ongoing back issues. She currently works as a
training manager in vertical farming, where she can avoid roles with physical
demands. She testified that she takes hydrocodone and over-the-counter medications
as needed for pain. She explained that, since the surgeries, she (1) cannot lift laundry
baskets or perform household chores, (2) avoids activities like canoeing, kayaking, and
riding roller coasters, and (3) has difficulty caring for her six-month-old daughter,
including bathing and playing on the floor with her. Her husband assists her with
household tasks and childcare.
{¶21} Both plaintiffs offered expert testimony as to whether Dr. Durrani
deviated from the standard of care in treating them.
2. The Absent-Defendant Instruction
{¶22} The trial court instructed the jury as to Dr. Durrani’s absence from trial:
The Defendant Dr. Durrani has not attended these proceedings
in person. He is represented here by counsel. You shall not speculate on
why he is not present or consider his absence for any purpose, except as
instructed below. Dr. Durrani has voluntarily left the jurisdiction,
removing himself from Plaintiffs’ ability to subpoena him to trial. When
a party such as Dr. Durrani has relevant evidence or testimony within
his or her control and the party fail[s] to produce that relevant evidence
or testimony, that failure gives rise to an inference that the evidence or
testimony is unfavorable to that party.
10
OHIO FIRST DISTRICT COURT OF APPEALS
D. The Jury’s Verdict
{¶23} The jury found for both plaintiffs on their claims for negligence, lack of
informed consent, and fraudulent misrepresentation. The jury found in favor of
Durrani on the battery claims. The jury awarded damages as follows:
Plaintiff Compensatory Past Past Pain Future Pain Past Loss of Future Loss Punitive
Damages Medical and and Enjoyment of Damages
Expenses Suffering Suffering of Life Enjoyment and
of Life Attorney
Fees
Hamilton $1,601,500 $1,500 $400,000 $400,000 $400,000 $400,000 $337,500 Zurieck $289,000 $1,000 $72,000 $72,000 $72,000 $72,000 $337,500
E. Posttrial Motions
1. Motion for a Judgment Notwithstanding the Verdict, a New Trial, and/or
Remittitur
{¶24} Durrani moved for a judgment notwithstanding the verdict (“JNOV”), a
new trial, and/or remittitur. Pertinent to this appeal, Durrani asserted the absentdefendant instruction gave rise to a negative inference, and that joinder was improper,
and they requested a set-off against plaintiffs’ settlements with other tortfeasors and
remittitur to “mold” the noneconomic damages to the statutory limits.
{¶25} The trial court granted remittitur but otherwise denied Durrani’s
motions. The trial court applied the statutory-damage caps, reducing Hamilton’s
noneconomic damages award to $500,000, making the total compensatory award
$501,500. The trial court reduced Zurieck’s noneconomic damages award to
$250,000, making the total compensatory award $251,000. As the jury found that
both plaintiffs were entitled to attorney’s fees, the parties stipulated that each plaintiff
should receive $37,500.
2. Plaintiffs’ Motions for Prejudgment Interest
{¶26} Plaintiffs moved for prejudgment interest. The conclusion of the
hearing on plaintiffs’ motions brought out the same facts as in other Durrani cases:
11
OHIO FIRST DISTRICT COURT OF APPEALS
plaintiffs made a $500,000 settlement demand and counsel for Durrani informed the
court Durrani offered $4,000,000 to all remaining Durrani plaintiffs, and they were
not interested in making individual offers. The trial court made similar findings in this
matter to those in other Durrani cases, noting that the global offer would leave
plaintiffs with less in damages than was awarded by the jury. The court, finding that
plaintiffs made good-faith settlement demands while Duranni failed to make goodfaith efforts to settle the cases, granted plaintiffs’ motions for prejudgment interest.
{¶27} This appeal followed.
II. Analysis
A. Durrani’s Motion for Judgment on the Pleadings Was Properly
Denied
{¶28} In their first assignment of error, Durrani argues that the trial court
erred by denying their motion for judgment on the pleadings. Dismissal on a Civ.R.
12(C) motion for judgment on the pleadings is proper when a court construes as true
the material allegations in the complaint, along with drawing all reasonable inferences
in favor of the nonmoving party and finds beyond doubt that the plaintiff can prove no
set of facts that would entitle the plaintiff to relief. Georgantonis v. City of Reading,
2020-Ohio-3961, ¶ 8 (1st Dist.); Planned Parenthood S.W. Ohio Region v. Ohio Dept.
of Health, 2026-Ohio-639, ¶ 25-26 (1st Dist.). We review a trial court’s ruling on a
Civ.R. 12(C) motion for a judgment on the pleadings de novo. Id.
1. Statute of Repose
{¶29} R.C. 2305.113(C), Ohio’s statute of repose for medical claims, provides,
with specified exceptions, that “No action upon a medical . . . claim shall be
commenced more than four years after the occurrence of the act or omission
constituting the alleged basis of the medical . . . claim.” Wilson v. Durrani, 2020-Ohio12
OHIO FIRST DISTRICT COURT OF APPEALS
6827, ¶ 15. R.C. 2305.113(C) “exists to give medical providers certainty with respect to
the time within which a claim can be brought and a time after which they may be free
from the fear of litigation.” Id. at ¶ 16, quoting Ruther v. Kaiser, 2012-Ohio-5686, ¶
19. It is a “true statute of repose that applies to both vested and nonvested claims.” Id.,
quoting Antoon v. Cleveland Clinic Found., 2016-Ohio-7432, ¶ 1. “Therefore, any
medical-malpractice action must be filed within four years of the occurrence of the act
or omission alleged to have caused a plaintiff’s injury.” Id. R.C. 2305.113(C) provides
an exception for those who are minors at the time of the act or omission, giving them
four years after they reach the age of majority to file their claim.2
{¶30} Durrani argues Hamilton commenced her action in August 2016, which
was more than four years after her 18th birthday. Based on the Ohio Supreme Court’s
holding in Wilson, Durrani asserts that Hamilton’s claims are barred under the terms
of the statute of repose.
2. The Absent-Defendant Saving Provision Tolled Hamilton’s Claims
{¶31} Hamilton argues that her claims are not barred by the statue of repose—
R.C. 2305.113(C)—because they were tolled under the absent-defendant statute. This
argument has merit. In Elliot v. Durrani, 2022-Ohio-4190, ¶ 24-25, the Ohio Supreme
Court held that the absent-defendant saving provision under R.C. 2305.15(A) tolled
the medical statute of repose. Thereafter, the 135th General Assembly enacted House
Bill 179, which added R.C. 2305.15(A)(2)(b)3 “to explicitly overrule the decision of the
Ohio Supreme Court in the case of Elliot v. Durrani, 2022-Ohio-4190.” 2023 Am.
Sub.H.B. No. 179. R.C. 2305.15(A)(2)(b) explicitly provides that the section does not
2 The other exceptions set forth in R.C. 2305.113(D) include exceptions for those of “unsound mind”
and for persons who did not discover their injury within three years of the act or omission and filed their claim within the following year.
3 Durrani erroneously cites the amendment as R.C. 2305.15(B), which pertains to the absence of a
defendant due to imprisonment.
13
OHIO FIRST DISTRICT COURT OF APPEALS
apply to R.C. 2305.113(C). However, because the General Assembly did not explicitly
make the amendment retroactive, and Hamilton’s 2016 complaint filed in Hamilton
County Court of Common Pleas was filed prior to the amendment, that complaint was
not barred.
{¶32} Hamilton’s fifth and final surgery was performed on March 10, 2011,
when she was 17 years old. The record shows that Hamilton reached the age of majority
on September 28, 2011. Therefore, under the statute of repose, Hamilton had four
years from September 28, 2011, or until September 29, 2015,4 to file her claim.
Accordingly, her August 2016 complaint was filed beyond the statute of repose.
Pursuant to Wilson, the complaint that she filed in Hamilton County does not relate
back to the date when she initially filed her Butler County claims for purposes of the
statute of repose. See Wilson, 2020-Ohio-6827, at ¶ 25.
{¶33} We must next turn to the 2024 amendment to R.C. 2305.15—the absentdefendant tolling statute—to determine whether the amended version applies to
Hamilton’s claims.
{¶34} We disagree with Durrani’s proposition that the amended R.C. 2305.15
was meant to be applied retroactively, and therefore, Hamilton’s claims remain
barred. First, under Section 1c, Article II, of the Ohio Constitution, no law or section
of any law “passed by the general assembly shall go into effect until ninety days after
it shall have been filed by the governor in the office of the secretary of state, except as
herein provided.” See Pelletier v. Mercy Health Youngstown, LLC, 2024-Ohio-3397,
¶ 12 (7th Dist.). The amended statute was enacted on July 24, 2024. 2023 Am.Sub.H.B.
No. 179. Second, “[a] statute is presumed to be prospective in its operation unless
expressly made retrospective.” See id.; R.C. 1.48. There is no language in H.B. 179 that
4 We take judicial notice that September 28, 2015, the actual four-year mark, fell on a Sunday.
14
OHIO FIRST DISTRICT COURT OF APPEALS
expressly made its application retroactive. Accordingly, former R.C. 2305.15 saved
Hamilton’s claims from being barred by the statute of repose as her complaint was
filed before the 2024 amendment was enacted. The first assignment of error is
overruled.
B. Consolidation of Trials
{¶35} In their second assignment of error, Durrani challenges the trial court’s
joining of plaintiffs’ trials, arguing that the court erred in joining these cases for trial.
Based on our holding in Wilson v. Durrani, 2026-Ohio-2279, ¶ 51-52, 84 (1st Dist.),
Durrani is correct.5
{¶36} In Wilson, the majority examined the language in Civ.R. 42(A). It
concluded that the rule’s reference to “common question of law or fact” requires that
a party seeking to join cases must demonstrate that the cases present common
questions capable of being resolved with a single, common answer. Id. at ¶ 58, 77. The
majority explained that a common question of law concerns questions about the
defendant’s liability that are capable of uniform resolution across the consolidated
cases. Id. at ¶ 57. This is distinct from common questions of fact, which concern
overlapping material facts that are capable of uniform resolution at once. Id. at ¶ 68.
It is not enough that the cases contain common allegations, nor is it enough that there
are overlapping insignificant facts that do not bear on the disposition of the cases. Id.
at ¶ 68. Questions that require unique and individualized proof are not common in
nature. Id. at ¶ 76.
{¶37} Where the cases are not linked by common questions, then joinder is
5 While acknowledging my dissent in Wilson, the majority obviously did not adopt my reasoning.
Wilson is now the law of this court and therefore is followed for purposes of determining the instant appeal, my disagreement with that opinion notwithstanding. See Wilson at ¶ 95-125 (Moore, J., dissenting).
15
OHIO FIRST DISTRICT COURT OF APPEALS
improper, and we must then assess whether the court’s improper joinder constituted
harmless error. Id. at ¶ 84. Pursuant to Civ.R. 61 and R.C. 2309.59, courts must
disregard errors that do not affect a party’s substantial rights. “To find that substantial
justice has not been done, a court must find (1) errors and (2) that without those errors,
the jury probably would not have arrived at the same verdict.” Hayward v. Summa
Health Sys., 2014-Ohio-1913, ¶ 25. To determine the existence of prejudicial error, we
are “bound by the disclosures of the record.” Id.
{¶38} In this case, the court’s consolidation was improper under the analysis
adopted by the majority in Wilson. While the plaintiffs put forth common legal claims
for negligence, lack of informed consent, fraud, and battery, these claims were reliant
upon individualized facts and were incapable of uniform resolution. In Wilson, we
considered the same claims and held that those were incapable of uniform resolution.
Wilson, 2026-Ohio-2279, at ¶ 72 (1st Dist.). As to the negligence claims, whether
Durrani was liable hinged on individualized reviews of each plaintiff’s imaging to
determine whether they required surgery, as well as each plaintiff’s individualized
injury history to determine whether Durrani breached the standard of care and
whether plaintiffs sustained damages. Similarly, plaintiffs’ lack of informed consent,
battery, and fraud claims are not capable of uniform resolution and therefore should
not have been consolidated. Id. at ¶ 73. Because “no one piece of evidence could
answer” whether plaintiffs needed surgery, plaintiffs’ claims should not have been
consolidated. Id. at ¶ 76.
{¶39} In holding that the court erred in consolidating these cases, we next
consider whether the court’s decision constituted a harmless error. Id. at ¶ 84. Durrani
asserts that they had no burden to show that they were prejudiced by consolidation
because “plaintiffs never met their burden to justify consolidation in the first place.”
16
OHIO FIRST DISTRICT COURT OF APPEALS
Based on Wilson, we disagree. See Wilson at ¶ 86 (“As the appellant, Durrani bears the
burden of demonstrating the improper joinder of the plaintiffs’ cases for trial was not
harmless . . . In analyzing harmless error, we accordingly confine our review to matters
that Durrani has brought to our attention on appeal.”). Unlike in Wilson, here, Durrani
failed to point to any specific evidence in the record to demonstrate prejudice as the
result of the improper joinder.
{¶40} Based on our independent review of the record, we cannot say that any
error rose beyond the harmless threshold. The verdicts, jury interrogatories, and
damage awards all support the conclusion that the jury was able to and did follow the
court’s instruction and treated each of these cases separately, reaching an independent
resolution for each case. See Boggs v. Durrani, 2026-Ohio-210, ¶ 121 (1st Dist.)
(“Where a thorough review of the record shows that the jury properly considered each
case separately and on its own merit, as instructed, the record does not indicate
prejudice from the joinder of trials under Civ.R. 42 that is inconsistent with substantial
justice. See, e.g., Courtney v. Durrani, 2025-Ohio-2335, ¶ 58 (1st Dist.); see also Jones
v. Durrani, 2024-Ohio-1776, ¶ 26 (1st Dist.).”); Civ.R. 61. Ultimately, the trial court
instructed the jury to consider each case on its own merit, and the jury found in favor
of Durrani and CAST on the plaintiffs’ claims for battery and returned different
compensatory damages awards in each joined action. Further, the jury verdicts were
not unanimous. This shows that the jury was able to successfully parse through the
evidence and reach independent conclusions as to each action joined. Accordingly, we
hold that no prejudice occurred in the trial court’s joining of plaintiffs’ cases for trial.
C. The Absent-Defendant Instruction
{¶41} Under their second assignment of error, Durrani also argues that the
trial court improperly instructed the jury on Dr. Durrani’s absence. A trial court’s
17
OHIO FIRST DISTRICT COURT OF APPEALS
decision to grant or deny a proposed jury instruction is reviewed for an abuse of
discretion. Niehaus v. Durrani, 2023-Ohio-4818, ¶ 35 (1st Dist.). The absentdefendant instruction here mirrors the instruction submitted to the jury in Boggs at ¶
87-88, Clark v. Durrani, 2025-Ohio-3096, ¶ 20 (1st Dist.), and Ravenscraft v.
Durrani, 2025-Ohio-2900, ¶ 135-136 (1st Dist.). In those cases, this court held that
the instruction, as a whole, did not prejudice Durrani because it was apparent that the
inference was permissive, not required, and that it also “clearly set forth what evidence
should be considered by the jury in rendering its decision.” Id. at ¶ 38. We further held
that a thorough review of the entire proceeding revealed that the jury was not misled.
Id. at 39. As in the instant matter, we noted the jury found for Durrani on some claims.
Id. That, combined with jury interrogatories showing the jury relied on the actual
evidence in the record, demonstrated that the trial court’s instruction did not affect
the jury’s verdict. Id. We likewise hold the same here and decline Durrani’s invitation
to overturn the established precedent of this court. The second assignment of error is
overruled.
D. Dr. Saini’s Testimony
{¶42} Both plaintiffs and Durrani presented expert medical testimony from
multiple experts to support their positions. However, the only such testimony at issue
on appeal is with respect to the testimony of plaintiffs’ expert, Dr. Ranjiv Saini.
{¶43} Expert testimony is governed by Evid.R. 702. A witness may testify as
an expert when he is “qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the testimony.”
Evid.R. 702(B). In Ohio, a witness testifying in a medical-malpractice case need not
practice in the same specialty as that of the defendant-physician; rather, it is the scope
of the witness’s knowledge and not the artificial classification by title that should
18
OHIO FIRST DISTRICT COURT OF APPEALS
govern the threshold question of his qualifications. Adams v. Durrani, 2022-Ohio-60,
¶ 50 (1st Dist.), appeal not accepted, 2022-Ohio-1485, overruled on other grounds by
Fenner v. Durrani, 2025-Ohio-4477 (1st Dist.). So long as the expert witness
demonstrates knowledge of the standards of the specialty, and that knowledge enables
the witness to provide expert testimony involving whether the defendant’s conduct
conformed with that specialty’s particular standards, the witness is competent to
testify as an expert. Id.
{¶44} Dr. Saini is a teleradiologist, neuroradiologist, and board-certified
diagnostic radiologist and neuroradiologist who is licensed in 29 states. He reads
images for approximately 200 cases daily, has been practicing for 30 years, and has
served as chief of radiology at six hospitals.
{¶45} Dr. Saini explained that, as a radiologist, he interprets images of the
body, including X-rays, CT scans, MRIs, nuclear medicine scans, ultrasound,
fluoroscopy, and pre- and post-surgical imaging. Dr. Saini testified that his
interpretations guide surgeons on whether they performed a procedure correctly,
whether they performed the procedure on the correct body part, or which procedure
should have been done. He further explained the fluoroscopy process and how it helps
to ensure that hardware is correctly placed.
{¶46} In their third assignment of error, Durrani claims that Dr. Saini’s
testimony was improper because his testimony went beyond his expertise. During
trial, Durrani objected to Dr. Saini’s testimony regarding a surgical note and notes
from a physical. Durrani also objected when Dr. Saini began to explain what a
microdiscectomy entailed. Both objections were overruled. We conclude that those
objections were properly overruled because the testimony was within the scope of Dr.
Saini’s expertise. However, as discussed below, as to the portions of Dr. Saini’s
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OHIO FIRST DISTRICT COURT OF APPEALS
testimony to which Durrani failed to object, we hold that admission of this testimony
did not constitute plain error.
{¶47} In appeals of civil cases, the plain-error doctrine is not favored; it may
be applied only in the extremely rare case involving exceptional circumstances where
error, to which no objection was made at the trial court, seriously affects the basic
fairness, integrity, or public reputation of the judicial process, thereby challenging the
legitimacy of the underlying judicial process itself. State ex rel. Suburban Driving
School, L.L.C. v. Ohio Bur. of Workers’ Comp., 2026-Ohio-597, ¶ 34. The doctrine
implicates errors that are “obvious and prejudicial although neither objected to nor
affirmatively waived which, if permitted, would have a material adverse [e]ffect on the
character and public confidence in judicial proceedings.” Missionaries of the Sacred
Heart, Inc. v. Ohio Dept. of Youth Servs., 2021-Ohio-1559, ¶ 18, fn. 3.
{¶48} Of the unobjected-to portions of Dr. Saini’s testimony, only Dr. Saini’s
opinion of the placement of an anterior cage during Zurieck’s procedure and that he
would have thought that Dr. Durrani would have first addressed the loosening screws
during Zurieck’s surgery instead of the diseased disc at L1-L2 were questionable. As
Durrani failed to object to these statements, we must determine whether the
admission of those statements constituted plain error. They do not.
{¶49} Even if Dr. Saini’s opinions went beyond his area of expertise, his
testimony regarding Hamilton was echoed by another of plaintiffs’ experts, Dr. Charles
Mehlman, who also opined that Dr. Durrani’s treatment of Hamilton deviated from
the standard of care, and that he directly caused permanent injuries to both patients.
Durrani raises no objection to the admission of Dr. Mehlman’s opinion testimony.
Therefore, even if the trial court erred in permitting Dr. Saini to testify on these issues,
any such error was harmless because there was other testimony on these same issues
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OHIO FIRST DISTRICT COURT OF APPEALS
that the jury was able to rely on. Because the admission of Dr. Sani’s testimony was
not prejudicial, Durrani’s third assignment of error is overruled.
E. Set-off
{¶50} In their fourth assignment of error, Durrani argues that they were
entitled to a set-off. Our opinion in Boggs, 2026-Ohio-210, at ¶ 100-101 (1st Dist.),
recognized that this court has held that Durrani is entitled to a set-off based on
plaintiffs’ settlements with other defendants. The same holds true here and the cause
must be remanded to the trial court to determine the set-off amounts to which Durrani
are entitled. The fourth assignment of error is sustained.
F. Prejudgment Interest
{¶51} In their fifth and final assignment of error, Durrani argues the court
erred when it granted plaintiffs prejudgment interest. Durrani’s argument that the
plaintiffs’ $500,000 settlement demands on the date of trial were not made in good
faith has most recently been considered by this court in Boggs. The facts are the same
as in Boggs and other Durrani cases in which we overruled Durrani’s identical
assignment of error. Id. at ¶ 102-112. Our holding in Boggs controls, and therefore,
Durrani’s fifth assignment of error is overruled.
G. Plaintiffs’ Posttrial Motion to Dismiss the Fraud Claim
{¶52} Regarding plaintiffs’ efforts to dismiss their fraud claims, the Ohio
Supreme Court has reconsidered the issue in Clark v. Durrani, 2026-Ohio-846, and
has denied the plaintiffs’ motion. This court follows that holding.
III. Conclusion
{¶53} The judgments of the trial court are affirmed in part and reversed in
part, and the cause is remanded.
Judgments affirmed in part, reversed in part, and cause remanded.
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OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, P.J., and NESTOR, J., concur.
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