Favaron v. Durrani

majority opinion

[Cite as Favaron v. Durrani, 2026-Ohio-3761.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

LINDA FAVARON, Executrix of the : APPEAL NO. C-250065 Estate of Neil Favaron, TRIAL NO. A-1506607

Plaintiff-Appellee,

vs.

ABUBAKAR ATIQ DURRANI, M.D.,

and

CENTER FOR ADVANCED SPINE

TECHNOLOGIES, INC., :

Defendants-Appellants, :

and :

WEST CHESTER HOSPITAL, LLC, :

and :

UC HEALTH, :

Defendants. :

STEVEN ANDREW SCHULTZ, : APPEAL NO. C-250066

TRIAL NO. A-1506861

Plaintiff-Appellee, :

vs. :

ABUBAKAR ATIQ DURRANI, M.D., :

and :

CENTER FOR ADVANCED SPINE :

TECHNOLOGIES, INC.,

Defendants-Appellants,

OHIO FIRST DISTRICT COURT OF APPEALS

and :

WEST CHESTER HOSPITAL, LLC, :

and :

UC HEALTH, :

Defendants. :

MAURICE GRABOW, : APPEAL NO. C-250274

TRIAL NO. A-1706526

Plaintiff-Appellee, :

and :

JUDGMENT ENTRY

HANNAH GRABOW, :

Plaintiff, :

vs. :

ABUBAKAR ATIQ DURRANI, M.D., :

and :

CENTER FOR ADVANCED SPINE :

TECHNOLOGIES, INC.,

Defendants-Appellants,

and

WEST CHESTER HOSPITAL, LLC,

and

UC HEALTH,

Defendants.

This cause was heard upon the appeals, the record, the briefs, and arguments.

OHIO FIRST DISTRICT COURT OF APPEALS

For the reasons set forth in the Opinion filed this date, the judgments of the trial court are affirmed in part, reversed in part and vacated 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 9/25/2026.

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

[Cite as Favaron v. Durrani, 2026-Ohio-3761.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

LINDA FAVARON, Executrix of the : APPEAL NO. C-250065 Estate of Neil Favaron, TRIAL NO. A-1506607

Plaintiff-Appellee,

vs.

ABUBAKAR ATIQ DURRANI, M.D.,

and

CENTER FOR ADVANCED SPINE

TECHNOLOGIES, INC., :

Defendants-Appellants, :

and :

WEST CHESTER HOSPITAL, LLC, :

and :

UC HEALTH, :

Defendants. :

STEVEN ANDREW SCHULTZ, : APPEAL NO. C-250066

TRIAL NO. A-1506861

Plaintiff-Appellee, :

vs. :

ABUBAKAR ATIQ DURRANI, M.D., :

and :

CENTER FOR ADVANCED SPINE :

TECHNOLOGIES, INC.,

Defendants-Appellants,

OHIO FIRST DISTRICT COURT OF APPEALS

and

WEST CHESTER HOSPITAL, LLC,

and

UC HEALTH,

Defendants.

MAURICE GRABOW, : APPEAL NO. C-250274

TRIAL NO. A-1706526

Plaintiff-Appellee, :

and :

OPINION

HANNAH GRABOW, :

Plaintiff, :

vs. :

ABUBAKAR ATIQ DURRANI, M.D., :

and :

CENTER FOR ADVANCED SPINE :

TECHNOLOGIES, INC.,

Defendants-Appellants,

and

WEST CHESTER HOSPITAL, LLC,

and

UC HEALTH,

Defendants.

OHIO FIRST DISTRICT COURT OF APPEALS

Civil Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed in Part, Reversed in Part, Vacated in Part,

and Cause Remanded

Date of Judgment Entry on Appeal: September 25, 2026

Statman Harris, LLC, and Alan J. Statman, for Plaintiffs-Appellees,

Taft Stettinius & Hollister LLP, Philip D. Williamson, Aaron M. Herzig, Russell S. Sayre, and Lillian F. Rigby, 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 Linda Favaron, mother of the late Neil Favaron and executrix of his estate,

Steven Schultz, and Maurice Grabow (“plaintiffs”). Following a two-week trial, the jury

found in favor of plaintiffs on their claims for battery, negligence, fraud, and lack of

informed consent regarding the surgeries that Dr. Durrani performed on them, which

plaintiffs asserted were unnecessary. This court has consolidated the appeals for

purposes of argument and opinion.

{¶2} Durrani now raises four assignments of error alleging that the court

erred by: (1) consolidating plaintiffs’ cases for trial, (2) denying Durrani’s combined

motion for a judgment notwithstanding the verdict (“JNOV”) or, in the alternative, a

new trial in which Durrani asserted that the trial court committed several evidentiary

errors, (3) denied their JNOV motion regarding their challenge of the jury’s award for

future medical expenses and their entitlement to a set-off based on plaintiffs’

settlements with other tortfeasors, and their claim that the future-damages awards to

Schultz and Grabow were against the manifest weight of the evidence. Durrani’s fourth

and final assignment of error asserts the court erred in awarding prejudgment interest.

{¶3} For the reasons set forth below, Durrani’s arguments concerning their

JNOV motion as it relates to the jury’s future-damages award for Grabow as well as

Durrani’s entitlement to a set-off are meritorious. Therefore, the judgments of the trial

court are affirmed in part and reversed in part, and the cause is remanded for the

limited purpose of the trial court determining the proper amount of the set-off on

plaintiffs’ damages awards based on plaintiffs’ settlements with other tortfeasors. The

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jury’s award of future damages to Grabow is vacated.

I. Factual and Procedural History

A. Pretrial

{¶4} Plaintiffs moved to join their trials. Durrani filed a motion in limine

arguing that there were no common questions of law or fact to warrant joint trials.

Durrani also sought to exclude testimony from Dr. Wilkey and Dr. Saini. On the first

day of trial, prior to voir dire, the trial court held a hearing on Durrani’s motion in

limine, which was denied.

{¶5} The parties also apprised the court of their settlement efforts. Counsel

for plaintiffs informed the court that each plaintiff had made a $500,000 settlement

demand. Counsel for Durrani informed the court that they had made a global offer to

plaintiffs, which was rejected, and that “no individual offers will be extended for these

three plaintiffs” based on Durrani’s belief that their expert testimony supported Dr.

Durrani’s course of care for each plaintiff. Counsel for Durrani stated that they would

be “willing to further negotiate globally.”

B. Plaintiffs’ Testimony

1. Steven Schultz’s and Lindsay Schultz’s Testimony

{¶6} Steven Schultz testified that he first experienced back pain in 2008.

After medication and conservative treatment failed to remedy the pain, Schultz

consulted with Dr. Durrani in 2010, who recommended surgery. Schultz testified that

he took several months to seek additional opinions and consulted with Dr. Shahbabian

and Dr. Bohinski. Both doctors told Schultz that he did not need surgery.

{¶7} Schultz and his family had a prior relationship with Dr. Durrani as a

care provider and, despite other doctors advising against it, Schultz agreed to surgery.

Schultz testified that he relied on Dr. Durrani’s insistence that surgery was the only

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option, and that Dr. Durrani promised Schultz, “I’m going to fix you.” Schultz claimed

that at no point prior to surgery did Dr. Durrani identify the risks, or the percentage

rates of success, failure, or complications.

{¶8} On September 26, 2011, Dr. Durrani, who was assisted by Dr.

Schneeberger, performed Schultz’s first surgery. Dr. Durrani’s operative report

referenced that he performed the following procedures on Schultz: (1) an AxiaLIF at

the L5-S1 vertebrae, (2) installation of a lumbar interbody cage at L5-S1, (3)

installation of pedicle screws at the L5-S1, and (4) a spinal fusion through allograft.

However, Schultz remained sedated until September 28, 2011. Upon awakening,

Schultz was informed an artery was struck during the procedure, which caused major

internal bleeding and required a corrective procedure. Schultz remained hospitalized

for eight days in the intensive care unit.

{¶9} Schultz recalled that his pain persisted after the operation. Despite

being told by Dr. Durrani that he was not supposed to carry or lift any type of weight,

Schultz testified that he did hold his one-year-old daughter after the operation.

{¶10} Schultz also recalled that he experienced several postoperative

complications. One complication made going to the bathroom uncomfortable. Schultz

explained that Dr. Durrani discredited Dr. Shahbabian’s expertise and urged Schultz

not to meet with other doctors. Schultz testified that Dr. Durrani warned him that

another doctor might force Schultz to have a catheter inserted. This warning convinced

Schultz not to consult with other doctors.

{¶11} Schultz’s reproductive system was also damaged during the surgery.

Despite years of consulting with fertility clinics and specialists, Schultz has remained

infertile.

{¶12} Schultz claimed that despite Dr. Durrani’s post-visit evaluation letters,

OHIO FIRST DISTRICT COURT OF APPEALS

in which Dr. Durrani insisted that Schultz was doing well, Schultz was actually in

immense pain. In the months following Schultz’s surgery, he fell at home and suffered

a herniated disc. He returned to consult with Dr. Durrani, who recommended either

injections or surgery. Schultz opted to have a second surgery because he had “already

missed so much work” and “[s]omething had to be fixed” because he “did not

anticipate this much pain after [his] first surgery.”

{¶13} On March 7, 2012, Dr. Durrani performed Schultz’s second surgery, a

lumbar hemilaminectomy and discectomy at the L4-L5 vertebrae. While Schultz

initially felt better, this relief was short lived and the pain persisted.

{¶14} Schultz recalled being dissatisfied with Dr. Durrani and deciding to seek

consultation with other doctors. Schultz returned to Dr. Bohinski at Mayfield Spinal

Surgery Center, who had previously informed Schultz that he did not need any surgery.

Following an evaluation, Dr. Bohinski advised Schultz to cease all care with Dr.

Durrani. Schultz testified that he was informed that the fusion hardware was

improperly placed, and that he had “pseudoarthrosis,” which is pain resulting from

hardware that had failed to fuse. In February 2013, Schultz underwent a corrective

procedure with Dr. Bohinski and testified that following the procedure he felt slightly

better than prior surgeries but that the pain remained.

{¶15} Lindsay Schultz, Schultz’s wife, similarly testified about the assertions

made by Dr. Durrani. Lindsay testified that Dr. Durrani minimized the potential

adverse side effects from the procedure, that Dr. Durrani stated there was minimal

risk of blood loss, and that Dr. Durrani stated that none of his patients had injuries or

complications as a result. Lindsay testified that despite assurances from Dr. Durrani

that he would only be using two pedicle screws for Schultz’s procedure, she was

surprised to discover Dr. Durrani used rods and heavy hardware. She stated that Dr.

OHIO FIRST DISTRICT COURT OF APPEALS

Durrani claimed the hardware was necessary because portions of Schultz’s spine

fractured during the procedure.

2. Linda Favaron’s and Shawna Marie Helsinger’s Testimony

{¶16} Linda Favaron testified on behalf of her son Neil Favaron, who died in

November of 2014. Neil was a marine who had worked in construction and had a

history of back pain and other issues before a car accident magnified some of these

issues. In 2010, after pursuing conservative care for several months and being told by

multiple physicians that he was not a candidate for surgery, 30-year-old Neil visited

with Dr. Durrani. In Dr. Durrani’s notes from his first two visits with Neil, he stated

that Neil complained that pain radiated from his mid-neck and along his lower back.

Dr. Durrani diagnosed Neil with degenerative disc disease and disc herniation along

the C4-C5 vertebrae, herniation along the T9-T10 vertebrae, and spinal stenosis along

the L2-L3, L3-L4, L4-L5, and L5-S1 vertebrae. He recommended three separate

surgeries.

{¶17} In May 2010, Durrani performed Neil’s first surgery and completed a

discectomy and a cervical fusion, and placed instrumentation and an interbody cage

along the C4-C5 vertebrae. In September 2010, Durrani performed Neil’s second

surgery. Despite Dr. Durrani’s preoperative notes concerning the T9-T10 vertebrae,

Dr. Durrani actually performed a discectomy, a laminectomy and a thoracic fusion,

and placed instrumentation and an interbody cage along the T11-T12 vertebrae. In

December 2010, Dr. Durrani performed Neil’s third surgery, which entailed an

interbody fusion and installation of interbody cages along the L2-L5 vertebrae,

completion of the AxiaLIF procedure along the L5-S1 vertebrae, and completion of a

spinal fusion and instrumentation from L2-S1 vertebrae.

{¶18} Linda testified that Neil’s condition did not improve after the

OHIO FIRST DISTRICT COURT OF APPEALS

procedures. While Neil did not live with Linda, Linda stated that it appeared that Neil

was getting worse after each surgery, and that he had a total loss of independence.

{¶19} Shawna Helsinger, Neil’s live-in girlfriend, echoed many of the same

sentiments as Linda. Shawna testified that the “first thing” she recalled was that Dr.

Durrani promised Neil, “I can fix you” through surgery. Shawna further testified that

Dr. Durrani told Neil during one visit that if he did not schedule surgery that day “you

will be paralyzed” and that Neil would “be in a wheel chair.” Shawna recalled that when

Neil was anxious and had second thoughts the day of surgery, Dr. Durrani tried to

pressure Neil to undergo the surgery. Shawna asserted that, despite Dr. Durrani’s

surgeries, Neil could not work, dress himself, or shower without assistance,

persistently suffered falls, and was in constant pain following the surgeries.

3. Maurice Grabow’s Testimony

{¶20} Maurice Grabow testified he had been a welder by profession but retired

once the strain on his back became too intense. Grabow stated that he had suffered

back pain his entire life and had consulted with a family doctor and chiropractor for

years, but the pain persisted.

{¶21} In February 2011, 68-year-old Grabow first consulted with Dr. Durrani.

Grabow complained of pain ranging from his lower back to the nape of his neck.

Grabow testified that, on the intake form where it asked, “What do you want to see

happen,” he indicated that he sought nonsurgical options. Grabow stated that Dr.

Durrani, however, told him that nonsurgical options weren’t going to fix him and that

surgery was necessary. Grabow further testified that Dr. Durrani advised that, without

surgery, Grabow would eventually lose control of his bowels. After reviewing Grabow’s

imaging, Dr. Durrani diagnosed Grabow with cervical spinal stenosis, bilateral

foraminal stenosis, and degenerative disc disease, all presenting along the C5-C6 and

OHIO FIRST DISTRICT COURT OF APPEALS

C6-C7 vertebrae. In May 2011, Durrani performed Grabow’s surgery and completed a

lumbar interbody fusion at the L4-L5 vertebrae, an AxiaLIF along the L5-S1 vertebrae,

and an interbody fusion with instrumentation along the L3-L4 vertebrae.

{¶22} Contrary to Durrani’s postoperative report saying everything was fine,

Grabow testified that he was in considerable pain and went to the emergency room to

treat an abscess developing at the surgical site.

{¶23} Two years removed from treatment, Grabow continued to complain of

pain, which had spread to his hips and joints. Grabow testified that he had been

consulting Dr. Durrani for postoperative care but, at a certain point, Dr. Durrani never

followed up. Grabow was scheduled to have a steroid injection done by Dr. Durrani,

but Dr. Durrani did not show up, and Grabow never saw him again.

C. Plaintiffs’ Expert Testimony

1. Dr. Keith Wilkey’s Testimony

{¶24} Dr. Wilkey, an orthopedic surgeon, testified similarly as to all three

plaintiffs. He asserted that Dr. Durrani’s exaggeration of the radiological images

conflicted with the findings of the reading radiologists, Dr. Durrani’s

misrepresentation of the findings led plaintiffs to believe that they needed surgery,

and the surgeries that Dr. Durrani performed on plaintiffs were not medically

necessary and injured them.

{¶25} Dr. Wilkey also testified concerning potential future medical expenses

that Schultz and Grabow would incur. Regarding Schultz, Dr. Wilkey testified that

every ten years there is a 30 percent likelihood that he would need corrective surgery.

Dr. Wilkey explained that this was because “every ten years you can expect the next

disc to – there’s a one-third chance that the next disc will become problematic enough

to need some type of intervention.” Despite already having a revisionary surgery, Dr.

OHIO FIRST DISTRICT COURT OF APPEALS

Wilkey opined that Schultz would incur medical expenses because Schultz was

“looking at a lot more surgeries.” Dr. Wilkey stated that he was familiar with these

kinds of corrective procedures because he approves them daily, and they can cost

anywhere from $100,000 to $150,000 per surgery with insurance and at least

$500,000 without insurance.

{¶26} Dr. Wilkey testified that the procedures that Dr. Durrani performed on

Grabow caused permanent functional injury to his spine. Dr. Wilkey stated that, as a

direct result of the procedures, Dr. Durrani exacerbated Grabow’s preexistingdegenerative-disc disease and, as a result, Grabow would need future pain

management or surgery. Dr. Wilkey, however, did not offer any testimony as to what

kind of surgeries Grabow may need or how much a future procedure or future pain

management would cost.

2. Dr. Ranjiv Saini’s Testimony

{¶27} Dr. Saini, a teleradiologist, neuroradiologist, and diagnostic radiologist,

testified that he reviewed the imaging and radiology reports in each plaintiff’s case. As

a radiologist, Dr. Saini explained that he interprets images of the body including xrays, CAT scans, MRIs, nuclear medicine, ultrasound, fluoroscopy, and postsurgical

imaging. Dr. Saini explained that his interpretations give guidance to surgeons on

whether they performed a procedure correctly or suggest which procedure should have

been done.

a. Dr. Saini’s Opinion Regarding Favaron’s Surgeries

{¶28} Dr. Saini testified that Dr. Durrani breached the standard of care by

dictating notes from Favaron’s May 2010 surgery four months after surgery because

dictation should occur within 24 hours to ensure that another physician knows what

was done on a patient should an emergency arise. Dr. Saini explained that he saw no

OHIO FIRST DISTRICT COURT OF APPEALS

need for surgery on Favaron’s cervical spine to address his degenerative-disc disease

as there was no evidence on Favaron’s images of compression on the cervical or

thoracic spine.

{¶29} Dr. Saini stated that there was “no way there was a disc herniation

warranting the thoracic surgery,” and agreed with the findings of the radiologists who

reviewed Favaron’s thoracic and lumbar images and concluded that surgery was not

needed in those areas.

{¶30} Dr. Saini further testified that Dr. Durrani breached the standard of care

by misrepresenting the conditions Dr. Durrani claimed to find in Favaron’s cervical,

thoracic, and lumbar MRIs. Noting the differences between Dr. Durrani’s findings as

compared to the original reading radiologist’s findings, Dr. Saini stated that Dr.

Durrani’s readings of the imaging and reports—and recommendations for all three of

Favaron’s surgeries—were outside of the standard of care.

{¶31} Outside of the jury’s presence, Durrani once again objected to Dr. Saini’s

testimony as to his surgical opinions. The trial court noted their objection and

reiterated its prior finding pursuant to holdings from this court that, based on Dr.

Saini’s experience, background, “and training orthopedic surgeons and reviewing their

work as they’re doing it,” he was qualified to give the opinions.

{¶32} As to the lumbar fusion that Dr. Durrani performed on Favaron, Dr.

Saini testified that a discectomy and foraminotomy would have alleviated Favaron’s

pain, instead of performing the fusion, as the images did not indicate stenosis as Dr.

Durrani noted. Dr. Saini further opined that performing the AxiaLIF on Favaron was

unnecessary and breached the standard of care.

b. Dr. Saini’s Opinion Regarding Grabow’s Surgeries

{¶33} Dr. Saini testified that Dr. Durrani deviated from the standard of care

OHIO FIRST DISTRICT COURT OF APPEALS

by recommending the surgery performed on Grabow and negligently interpreting or

exaggerating radiologic imaging. Dr. Saini agreed with the findings of the reading

radiologist for Grabow’s May 2011 surgery that there was no evidence of

spondylolisthesis at the levels that Dr. Durrani indicated. He stated that Grabow’s

condition was the type where physical therapy and injections could help the pain, and

there was nothing in the images to justify performing surgery on Grabow.

c. Dr. Saini’s Opinion Regarding Schultz’s Surgeries

{¶34} Dr. Saini testified that Schultz’s images reflect that he should not have

undergone surgery. Dr. Saini opined that Dr. Durrani fabricated spondylolisthesis and

radiculopathy findings. Dr. Saini explained that, although he saw some abnormalities

or mild or early degenerative changes, he agreed with the reading radiologist that there

was no evidence of stenosis. Dr. Saini testified to exhibits containing Dr. Shahbabian’s

and Dr. Bohinski’s written opinions refuting Dr. Durrani’s conclusion that Schultz had

stenosis at L5-S1 or that surgery was necessary.

{¶35} Dr. Saini explained that, while Dr. Durrani reported that Schultz was

taken out of the operating room in stable condition, Schultz’s postsurgical record

showed that he was transported “straight to the ICU.” Dr. Saini discussed the images

from the fluoroscopy during the surgery, which showed that Schultz underwent a

posterior spinal fusion with pedicle screws and rods despite Dr. Durrani’s assurances

to Schultz that there would be no rods or screws used in the procedure outside of

pedicle screws. Dr. Saini further explained that Dr. Durrani had placed the pedicle

screws incorrectly and that they caused bleeding, and this bleeding accumulated

because of the complications from Schultz’s surgery.

{¶36} As to Schultz’s second surgery, Dr. Saini testified that Dr. Durrani

exaggerated his finding that the disc was herniated at L4-L5. Dr. Saini explained that

OHIO FIRST DISTRICT COURT OF APPEALS

Dr. Bohinksi’s notes reflected that the screws that Dr. Durrani placed were protruding

in areas they should not have and the fusion that Dr. Durrani performed with the

AxiaLIF was not successful, which led to Schultz undergoing a third surgery—the

revision Dr. Bohinski performed.

{¶37} On cross-examination, Dr. Saini testified that Dr. Durrani never

correlated the imaging pathology with the clinical presentation because Dr. Durrani

did not read the images correctly.

3. Dr. Zeeshan Tayeb’s Testimony

{¶38} The trial court permitted plaintiffs to read Dr. Tayeb’s deposition

transcript into the record over Durrani’s objection that it contained inadmissible

hearsay.

{¶39} Dr. Tayeb explained that he worked at CAST for three years as the painmanagement physician, and he heard Dr. Durrani tell patients that he would “fix

them” during the first few weeks when he shadowed Dr. Durrani. Dr. Tayeb testified

that “here and there” he overheard Dr. Durrani tell patients that they could be

paralyzed or lose control of their bowels or bladder if they did not undergo the surgery

he recommended.

{¶40} Dr. Tayeb noted that Dr. Durrani was performing “quite a bit of

surgery,” which made him wonder “where’s the conservative management taking

place?” He recalled that Dr. Durrani would indicate in patients’ preoperative and

postoperative notes that those patients “underwent conservative measures or failed

conservative measures.” He explained that he had not seen those patients despite

being the only conservative-treatment provider outside of CAST’s lone physical

therapist.

{¶41} Dr. Tayeb testified that there were instances where Dr. Durrani was not

OHIO FIRST DISTRICT COURT OF APPEALS

getting the patients “back to baseline before setting up a second surgery, or maybe

even a third or fourth.” He added that it “always seemed like there was this push for

surgery as opposed to looking for” conservative treatment. When asked whether Dr.

Durrani ever coerced patients into having surgery, Dr. Tayeb responded, “Well, you

tell a person that they’re going to be paralyzed or they’re not going to walk again, I

would think you’re basically telling that person, you need to do this.”

{¶42} Dr. Tayeb testified that he witnessed Dr. Durrani’s exaggeration of

spinal stenosis firsthand and discussed the same with Dr. Shanti, another doctor at

CAST. Dr. Tayeb recalled that Dr. Durrani’s dictated notes would deem a stenosis

“moderate to severe” while Dr. Tayeb or Dr. Shanti would conclude the spinal stenosis

was “mild to moderate.” Dr. Tayeb explained the process of determining the severity

of spinal stenosis—that each image should be reviewed because “you’re actually not

supposed to make a call based off looking at one slice.” He further explained that the

images of a spine are taken in “slices” and a doctor can “make it say whatever you

want” if he or she only looked at one slice, so reviewing each slice was necessary to

make an accurate call as to the severity of spinal stenosis. Dr. Tayeb testified that the

common theme in Dr. Durrani’s conversations with patients was “severe stenosis” that

could be helped with conservative management, but surgery would fix the problem.

Dr. Tayeb stated that “a good percentage” of Dr. Durrani’s patients would “go towards

surgery, or he would recommend surgery.”

4. Dr. Stephen Bloomfield’s Testimony

{¶43} Dr. Bloomfield testified only to Favaron’s and Schultz’s cases. He opined

that Dr. Durrani failed to meet the standard of care and that he operated without the

plaintiffs’ informed consent.

OHIO FIRST DISTRICT COURT OF APPEALS

D. Durrani’s Experts’ Testimony

{¶44} Durrani called two witnesses in his defense. Both Dr. Derk Purcell and

Dr. Mario Ammirati, a neuroradiologist and a neurosurgeon, testified that Dr. Durrani

met the requisite standard of care.

E. Durrani’s Proposed Jury Instructions

1. Intervening-and-Superseding-Cause and Comparative-Negligence Instructions

{¶45} On June 12, 2023, Durrani submitted supplemental proposed jury

instructions, which requested an intervening-and-superseding-cause instruction.

Durrani also requested an instruction on the inapplicability of the “captain of the ship”

doctrine—a theory of liability that a lead doctor is responsible for all underlying

negligence in the operating room. Durrani requested this instruction because of Dr.

Wilkey’s testimony that Dr. Durrani, as the “spine surgeon” was the “captain of the

ship,” despite identifying that Dr. Schneeberger was at fault for causing the bleed.

{¶46} Ultimately, the court denied Durrani’s proposed jury instructions,

noting that the “overriding question and the question that the jury has to decide is

whether or not [Schultz] should have gone to surgery or not.”

2. The Absent-Defendant Instruction

{¶47} Dr. Durrani did not attend the trial. With respect to Dr. Durrani’s

absence, the court provided the following instructions to the jury:

The defendant, Dr. Durrani, has not attended these proceedings

in person. He is represented 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 plaintiff’s ability to subpoena him to trial . . .

When a party, such as Dr. Durrani, has relevant evidence or testimony

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within his or her control, and the party fails to produce that relevant

evidence or testimony, that failure gives rise to an inference that the

evidence or testimony is unfavorable to that party.

The trial court also instructed the jury regarding making inferences:

To infer or to make an inference is to reach a reasonable

conclusion of fact which you may, but are not required to, make from

other facts which you find have been established by direct evidence.

Whether an inference is made rests entirely with you. You may

not build one inference upon another inference. But you may make

more than one inference from the same facts or circumstances.

F. The Jury’s Verdict

{¶48} On June 16, 2023, the jury returned verdicts for all three plaintiffs on

their claims for negligence, lack of informed consent, battery, and fraudulent

misrepresentation and awarded damages as follows:

Plaintiff Compensatory Punitive Future Medical

Damages Damages Expenses

Favaron $3,500,000 $3,500,000 $0

Schultz $7,000,000 $7,000,000 $1,000,000

Grabow $1,031,000 $1,031,000 $16,000

G. Durrani’s motion for a new trial and or JNOV.

{¶49} On July 19, 2023, Durrani filed a motion for a JNOV or a new trial and

remittitur, in which Durrani challenged the consolidation of the cases for trial, Dr.

Wilkey’s testimony and the absent-defendant instruction, and that plaintiffs were

permitted to pursue claims for past and future medical expenses. Durrani further

asserted that plaintiffs’ awards for past medical expenses were against the manifest

weight of the evidence, and the awards for noneconomic and punitive damages were

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subject to reduction by statute.

{¶50} On March 20, 2024, Durrani filed a memorandum in support of their

motion based on the holding in Hounchell v. Durrani, 2023-Ohio-2501, ¶ 69-70 (1st

Dist.), that the trial court’s absent-defendant instruction was prejudicial, and the

holding in Densler v. Durrani, 2024-Ohio-14 (1st Dist.), that the trial court abused its

discretion by admitting Dr. Tayeb’s testimony. Durrani asserted that they were

entitled to a new trial based on those holdings.

{¶51} On June 24, 2024, Durrani again moved for a JNOV or a new trial in

Favaron’s case only, citing several issues including the consolidation of the trials, Dr.

Tayeb’s testimony, past medical expenses, the noneconomic-damages award, punitive

damages, and set-off.

{¶52} As discussed in more detail below, on August 27, 2024, the trial court

denied Durrani’s motion. On the issue of consolidation, the court noted that there was

sufficient commonality and that the jury was able to parse through the evidence to

reach independent conclusions. As to whether Dr. Wilkey met the expert-qualification

requirement under Evid.R. 601, the trial court concluded that Dr. Wilkey was engaged

in active clinical practice in his field of licensure, or to its instruction at an accredited

school, at least 50 percent of his professional time and that he practiced “in the same

or substantially similar specialty.”

H. The Evidentiary Hearing on Plaintiffs’ Motions for Prejudgment

Interest

{¶53} On October 30, 2024, the trial court held an evidentiary hearing on

plaintiffs’ motions for prejudgment interest. The court’s entry noted that plaintiffs’

counsel asserted that each plaintiff made two settlement offers, for $1,000,000 and

$500,000, and Durrani made no counteroffer. Plaintiffs’ counsel claimed Durrani

OHIO FIRST DISTRICT COURT OF APPEALS

represented that they had no interest in settling with individual plaintiffs, and that

they were going to “stand on their group offer.” The entry noted that counsel for

plaintiffs indicated that there was ambiguity as to what the group offer was, and that

Durrani had offered competing values.

{¶54} Based on the evidence elicited at the hearing, the court concluded that

in June 2024, Durrani’s insurer made a firm global settlement offer of $4,000,000 for

the approximately 400 current and pending plaintiffs engaged in Durrani litigation.

Based on the de minimis value that would be afforded to each plaintiff and the high

success rates of plaintiffs in the Durrani litigation paired with Durrani’s failure to

make a counteroffer to plaintiffs’ reduced settlement offer, the court concluded that

Durrani failed to make a good-faith attempt at settling the cases and plaintiffs were,

therefore, were entitled to prejudgment interest under R.C. 1343.03(C).

{¶55} This appeal followed.

II. Analysis

{¶56} Durrani raises four assignments of error on appeal, taking issue with the

court’s trial consolidation of the cases for trial, the court’s denial of the combined

JNOV and new trial motions, and the court’s award of prejudgment interest. Before

addressing these assignments of error in turn, we want to briefly address an argument

raised in Durrani’s reply brief.

A. Deficiencies in Plaintiffs-Appellees’ Briefing

{¶57} Durrani argues that plaintiffs’ failure to adequately respond to their

merit brief warrants that we hold in Durrani’s favor. Durrani asserts that plaintiffs’

merit briefs failed to address three of Durrani’s arguments, that plaintiffs gave twosentence conclusory rationales for their positions, and that plaintiffs failed to

meaningfully respond to Durrani’s arguments. Durrani also contends that plaintiffs’

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briefing identifies issues completely immaterial to this appeal, such as the failure to

join plaintiffs’ health insurers, as well as an argument concerning the validity of a pastmedical-damages award.

{¶58} In addition, we note that plaintiffs’ briefing is not consistently written

in complete sentences, only intermittently cites to the record, and sporadically cites to

caselaw in support of their arguments.

{¶59} Durrani further argues that plaintiffs’ briefs fail to adequately give this

court a reason to uphold the verdicts below, and therefore, we should vacate the

judgments and remand the cause for a new trial.

{¶60} Durrani, however, has failed to cite any authority in support of their

argument that an appellee’s deficient briefing warrants reversal. Durrani does cite

Cook v. Lockland, 2024-Ohio-9, ¶ 28 (1st Dist.), which concerned an appellee’s

reliance on a citation to a law without generating an argument in support of that

proposition. While the Cook court concluded that the appellee had waived the

opportunity to argue that issue, Cook did not stand for the proposition that an

appellant’s arguments are automatically meritorious where an appellee is precluded

from arguing. See State v. Sheets, 2025-Ohio-355, ¶ 5 (10th Dist.) (“Appellants bear

the burden of demonstrating error on appeal by reference to the record of the

proceeding below and must designate specific rulings by the trial court challenged on

appeal.”).

{¶61} Durrani also cites to the proposition that “issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed argumentation, are

deemed waived. It is not sufficient for a party to mention a possible argument in the

most skeletal way, leaving the court to put flesh on the bones.” Rowitz v. McClain,

2019-Ohio-5438, ¶ 23 (10th Dist.), quoting United States v. Stewart, 628 F.3d 246,

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256 (6th Cir. 2010). However, Rowitz concerned an appellant’s obligation to

sufficiently develop its arguments, not the duties of an appellee. While the failure to

put forth more than a “threadbare” argument might waive an appellee’s chance to

argue a certain point, Rowitz does not stand for Durrani’s assertion that they are

automatically entitled to a holding in their favor. In the absence of caselaw or any

statutory authority in support of Durrani’s arguments concerning deficiencies in

plaintiffs’ appellate briefing, Durrani’s arguments are not well taken.

{¶62} However, plaintiffs’ briefing habits have not gone unnoticed. While the

burden is on the appellant to formulate arguments in support of the contentions and

relief requested on appeal, this does not mean that appellees are free to shirk their

responsibilities in appearing before this court. “This court may impose sanctions

against a party as a valid exercise of its inherent authority to sanction a party ‘where

that party’s conduct thwarts the administration of justice, disobeys court orders,

abuses the judicial process, or when it is otherwise necessary for the administration of

justice and protection of judicial powers and processes.’” Smith v. Gamble, 2025-Ohio-2381, ¶ 26 (12th Dist.), quoting DiCuccio v. Lindsmith, 2018-Ohio-2320, ¶ 30

(10th Dist.). While we do not do so now, appellees’ continued submission of briefs like

the ones in this case and those in the past may expose them to sanctions in the future,

consistent with this court’s inherent authority to punish conduct that thwarts the

administration of justice. See id.

B. Joinder

{¶63} Durrani asserts that the court erred in joining these cases for trial. In

light of our holding in Wilson v. Durrani, 2026-Ohio-2279, ¶ 51-52, 84 (1st Dist.),

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Durrani’s contention is correct.1

{¶64} In Wilson, the majority examined the language within Civ.R. 42(A) and

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 that can be answered by 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.

{¶65} Where the cases are not linked by common questions, then joinder is

improper. However, finding that joinder was improper is but the first step in the

analysis of this issue. We must next assess whether the court’s improper joinder

constituted harmless error. Id. at ¶ 84.

{¶66} 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

1 While acknowledging my dissent in Wilson, the majority obviously did not adopt my reasoning

and 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).

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“bound by the disclosures of the record.” Id.

{¶67} 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, battery, lack of informed consent, and fraud, 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.

Id. at ¶ 72. Because “no one piece of evidence could answer” whether plaintiffs needed

surgery, plaintiffs’ claims should not have been consolidated. Id. at ¶ 76.

{¶68} In holding that the court erred in consolidating these cases, we next

consider whether the court’s decision to do so constituted a harmless error. Id. at ¶ 84.

As stated, to determine the existence of prejudicial error, we are “bound by the

disclosures of the record.” Hayward at ¶ 25. Following our independent review of the

record, we cannot say, based on the “disclosures of the record,” that any error rose

beyond the harmless threshold. Id. 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 treat each of these cases separately and reach an independent

resolution for each case.

{¶69} Accordingly, Durrani’s first assignment of error is overruled.

C. Defendant’s Motion for a New Trial2

1. Standard of Review

{¶70} A trial court may grant a motion for a new trial under Civ.R. 59(A) for a

variety of reasons. Civ.R. 59(A)(1)-(9). The standard of review of a trial court’s ruling

on a Civ.R. 59 motion depends upon the grounds for the motion. See Berardo v.

2 While most of the issues that Durrani raised on appeal were raised in their JNOV/new trial

motion, issues regarding testimony of Drs. Tayeb and Saini were preserved for appeal via objections at trial, and in other posttrial motions.

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Felderman-Swearingen, 2020-Ohio-4271, ¶ 7 (1st Dist.); Yenni v. Yenni, 2022-Ohio2867, ¶ 60 (8th Dist.). Here, Durrani’s motion alleged that the trial court’s judgments

were against the manifest weight of the evidence.

2. Dr. Wilkey’s Testimony

{¶71} Durrani notes that they suspected that Dr. Wilkey was testifying based

on a contingency fee, and they would have challenged his trial testimony on that basis.

As Durrani failed to raise this issue below and does not make a plain-error argument

on appeal, that argument is waived on appeal. See Linder v. Ohio Dept. of Aging,

2022-Ohio-177, ¶ 15 (1st Dist.), quoting Carlson v. City of Cincinnati, 2020-Ohio4685, ¶ 33 (1st Dist.) (“Except for claims of plain error, the failure to raise an issue at

the trial-court level acts as a waiver of the issue on appeal,” and this court will not

consider arguments where a party failed to argue that the plain-error doctrine

applies.). Durrani has, however, preserved their other challenge to the admission of

Dr. Wilkey’s testimony.

{¶72} Durrani asserts that Dr. Wilkey was not qualified to testify pursuant to

Evid.R. 601, which prohibits medical experts from testifying in a medical-malpractice

action unless the person devotes one half of his professional time to practice or

teaching. However, based on our holding in Courtney v. Durrani, 2025-Ohio-2335, ¶

74-75 (1st Dist.), Dr. Wilkey was qualified to testify as an expert pursuant to Evid.R.

601(B)(5)(c) and 1102(Y). Thus, Durrani’s arguments are meritless.

3. Dr. Tayeb’s Hearsay Testimony

{¶73} This court has held that Dr. Tayeb’s testimony about what Dr. Durrani

told patients to convince them to have surgery and Dr. Shanti’s statements to Dr.

Tayeb regarding Dr. Durrani constituted improper habit evidence under Evid.R. 406

in Stephenson v. Durrani, 2023-Ohio-2500, ¶ 37 (1st Dist.), and Densler, 2024-Ohio27

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14, ¶ 18 (1st Dist.), as plaintiffs failed to establish the proper foundation for how often

Dr. Durrani advised his patients that they would not walk again or would be paralyzed

without surgery. Based on the records in those cases, this court concluded that it was

uncertain whether Durrani told “five [patients] or fifty” that they would face severe

consequences if they turned down his services, which was insufficient to establish a

habit under Evid.R. 406. Stephenson at ¶ 37.

{¶74} Here, in its decision on Durrani’s combined JNOV motion or motion for

a new trial, the trial court acknowledged that it abused its discretion by admitting Dr.

Tayeb’s testimony. The trial court, however, cited to Densler at ¶ 19-20, in finding that

Duranni failed to point to anything in the record to show that the jury would not have

reached the same conclusion had Dr. Tayeb’s testimony been excluded. See Densler at

¶ 19-20 (An improper evidentiary ruling constitutes reversible error only when the

error affects the substantial rights of the adverse party or the ruling is inconsistent

with substantial justice, which requires a reviewing court to weigh the prejudicial

effect of the errors and determine whether the trier of fact would have reached the

same conclusion had the errors not occurred.).

{¶75} Unlike in Densler, the jury interrogatories here do not indicate that its

findings were based on Dr. Tayeb’s testimony. See id. (“[T]he jury awarded Mr.

Densler punitive damages after finding that Dr. Durrani ‘acted with malice and

aggravated or egregious fraud’ by telling Mr. Densler, ‘that he would be paralyzed

without surgery and lose control of his bodily functions.’”). Based on the

interrogatories, the Densler court held that the record provided “clear confirmation”

that the jury relied on Dr. Tayeb’s improperly-admitted testimony, and we could not

conclude that the jury would not have returned a different verdict had the testimony

not been admitted. Id.

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{¶76} Here, the jury interrogatories stated that Dr. Durrani acted with malice

or aggravated or egregious fraud based on his “disregard for the rights and safety of

others.” Further, there was testimony that Dr. Durrani told each plaintiff that he would

“fix” them—and he told Grabow that he would lose control of his bowels without

surgery—which is further indication that the jury’s verdict was not based on Dr.

Tayeb’s testimony. Although the trial court abused its discretion by admitting Dr.

Tayeb’s testimony, this error was harmless as the testimony covered the same ground

as other properly-admitted evidence and was therefore cumulative. See Slupski v.

McGill Dev. Corp., 2025-Ohio-5235, ¶ 22 (10th Dist.) (“If the testimony is cumulative

of other properly admitted evidence, there is no prejudice and any error is harmless.”).

{¶77} As to Dr. Tayeb’s testimony regarding Dr. Shanti’s opinion, this court

has previously held that this portion of the testimony was admissible as a statement

against a party’s interest under Evid.R. 804(B)(3) because Dr. Shanti was an agent of

party-defendant CAST. See Courtney, 2025-Ohio-2335, at ¶ 68 (1st Dist.); Bender v.

Durrani, 2024-Ohio-1258, ¶ 78 (1st Dist.).

4. Dr. Saini’s Testimony

{¶78} Durrani argues that Dr. Saini’s testimony regarding what the surgeries

consisted of and the differences between certain surgeries, whether Dr. Durrani

improperly placed screws during Schultz’s AxiaLIF, how a surgeon’s dictation of notes

months after the procedure was a breach of the standard of care, and his opinion that

another procedure should have been used on Grabow was beyond the scope of his

expertise.

{¶79} This court has previously determined that Dr. Saini was qualified to give

his opinions after reviewing plaintiffs’ radiological images, including whether the

surgeries that Dr. Durrani performed were medically necessary, based on the scope of

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his knowledge of the standards of spine surgery. See Adams v. Durrani, 2022-Ohio60, ¶ 57 (1st Dist.), overruled in part on other grounds, Fenner v. Durrani, 2025-Ohio-4477, ¶ 127-128 (1st Dist.) (a radiologist is equally, if not more, qualified to

determine whether an image indicates a need for surgery; thus, a radiologist is

qualified to opine on a surgeon’s standard of care in reviewing diagnostic images and

ordering surgery based on those images).

{¶80} Although Dr. Saini made an isolated comment regarding which

procedure he would have used on Favaron based on his review of Favaron’s

radiological images, the admission of this comment was a harmless error. The

remainder of Dr. Saini’s testimony regarded his opinion that Dr. Durrani fabricated

each plaintiffs’ radiological images and performed unnecessary surgery—which went

to the heart of plaintiffs’ allegations in their complaints—and was echoed by the

testimony of Drs. Wilkey and Bloomfield. See Haggard v. Durrani, 2025-Ohio-5327,

¶ 55 (1st Dist.) (“[Dr. Saini] . . . expressed his opinion that, after reviewing plaintiffs’

radiological images, the surgeries Durrani performed were not indicated . . . Dr. Saini

focused on whether Durrani should have operated. This was permissible.”). Further,

Durrani elicited contradictory testimony from Dr. Purcell that all hardware and screws

were properly placed that the jury was free to consider. Accordingly, although the trial

court abused its discretion by permitting Dr. Saini’s isolated comment, it was harmless

error as Duranni cannot show that the jury’s verdict would have been different had

this comment been excised. The jury was free to reject Dr. Saini’s comment.

{¶81} In sum, except for the trial court’s harmless error in admitting Dr.

Tayeb’s testimony and Dr. Saini’s isolated comment, Durrani’s evidentiary challenges

are meritless.

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5. Jury Instructions

a. The Absent-Defendant Instruction

{¶82} Durrani asserts that the trial court erred by giving the absent-defendant

instruction and that the specificity in the instruction was “even worse” than the general

instruction in Hounchell, 2023-Ohio-2501, at ¶ 65 (1st Dist.). They also argue that the

instruction regarding making inferences was only applicable to circumstantial

evidence.

{¶83} A trial court should give a requested instruction if (1) the instruction is

a correct statement of the law, (2) it is applicable to the facts of the case, and (3) a

reasonable jury could reach the conclusion sought by the instruction. Niehaus v.

Durrani, 2023-Ohio-4818, ¶ 34 (1st Dist.), citing Murphy v. Carrollton Mfg. Co., 61

Ohio St.3d 585, 591 (1991). A trial court will not instruct the jury where there is no

evidence to support an issue. Sanders v. Fridd, 2013-Ohio-4338, ¶ 17 (10th Dist.),

quoting Murphy at 591. A trial court’s decision to grant or deny a proposed jury

instruction is reviewed for an abuse of discretion. Niehaus at ¶ 35. A trial court abuses

its discretion when its decision is unreasonable, unconscionable, or arbitrary. Id.

{¶84} This court has considered this same instruction, verbatim, in previous

Durrani litigation, and determined that it was not an abuse of discretion to fail to give

the instruction. See Clark v. Durrani, 2025-Ohio-3096, ¶ 20 (1st Dist.); Ravenscraft

v. Durrani, 2025-Ohio-2900, ¶ 135-136 (1st Dist.). Therefore, consistent with our

prior holdings, the trial court’s decision not to issue Durrani’s proposed absentdefendant instruction was not an abuse of discretion, and the instruction that the jury

received was legally correct.

b. Intervening-and-Superseding-Cause Instruction for Schultz

{¶85} Durrani also argues that they were prejudiced by the court’s rejection of

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two of their proposed jury instructions. One of these instructions would have stated

that the “captain of the ship” doctrine is obsolete in Ohio. Durrani argues that this

instruction would have addressed Dr. Wilkey’s comments that Dr. Durrani, as the

spinal surgeon supervising Schultz’s surgery, was the captain of the ship. This phrase

was also repeated on cross-examination. Durrani also takes issue with the court’s

rejection of the intervening-or-superseding-cause instruction as it relates to Schultz’s

case. Durrani argues that the intervening-cause language was necessary to insulate Dr.

Durrani from any adverse inferences the jury may have drawn from Dr. Schneeberger

causing Schultz’s internal bleeding during Schultz’s first surgery.

{¶86} We review whether a given jury instruction is legally correct and

factually warranted de novo. Clark at ¶ 36. A trial court’s refusal to give a requested

jury instruction is reviewed for an abuse of discretion. Niehaus, 2023-Ohio-4818, at ¶

34 (1st Dist.).

{¶87} In Ohio, the “captain of the ship” doctrine had stood for the proposition

that an operating physician was liable for all negligent conduct that may transpire in

the operating room. However, the Ohio Supreme Court has rendered this doctrine

obsolete. Baird v. Sickler, 69 Ohio St.2d 652, 655 (1982).

{¶88} In first addressing Durrani’s proposed “captain of the ship” instruction,

we hold the court’s refusal to give the instruction was not erroneous. Dr. Wilkey’s

reference was at most an inappropriate yet harmless analogy rather than the

introduction of an out-of-date theory of liability. The jury’s interrogatories generally

asked whether Dr. Durrani was negligent in Schultz’s care, how he was negligent, and

whether Dr. Durrani was the proximate cause of any harm. Dr. Wilkey made a limited

reference to the phrase, and the jury was able to consider ample testimony from

Durrani’s expert, Dr. Ammirati, that rebutted Dr. Wilkey’s claim. Based on a review of

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the complete record, we cannot say that the court’s failure to include the “captain of

the ship” instruction constituted an abuse of discretion.

{¶89} As to Durrani’s argument that the superseding-and-intervening-cause

instruction was necessary to address Dr. Schneeberger’s culpability for Schultz’s

bleeding, this is also meritless. In rejecting the proposed jury instruction, the court

stated the ultimate question before the jury “was whether or not Dr. Durrani was

negligent in recommending that Plaintiff undergo the surgery; what occurred after

Plaintiff agreed to undergo surgery was something for which Dr. Durrani was

responsible.” “[T]he intervening cause must be disconnected from the negligence of

the first person.” Niehaus, 2023-Ohio-4818, at ¶ 33 (1st Dist.). Schultz’s injury was

sustained during the procedure that Dr. Durrani negligently recommended Schultz

undergo. And, nothing in the record before us shows that there was any intervening

cause that broke the connection to Dr. Durrani’s negligent recommendation that

Schultz should undergo the surgery.

{¶90} Accordingly, Durrani’s challenge is unpersuasive.

c. The Comparative-Negligence Instruction in Schultz’s Case

{¶91} Durrani argues that they were prejudiced by the court’s failure to adopt

their proposed jury instruction regarding comparative negligence as it pertained to

Schultz.

{¶92} Ohio law recognizes contributory negligence as a defense in medicalmalpractice cases. Viox v. Weinberg, 2006-Ohio-5075, ¶ 13 (1st Dist.); see R.C.

2315.33. To successfully establish the defense, a defendant doctor must prove the

plaintiff’s own negligence proximately caused the plaintiff’s injury. Segedy v.

Cardiothoracic & Vascular Surgery of Akron, Inc., 2009-Ohio-2460, ¶ 61 (9th Dist.).

Thus, the defendant must show the plaintiff’s own “want of ordinary care . . . which

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combined and concurred with the defendant’s negligence and contributed to the injury

as a proximate cause thereof, and as an element without which the injury would not

have occurred.” (Emphasis added.) Id., quoting Brinkmoeller v. Wilson, 41 Ohio St.2d

223, 226 (1975). In other words, “[t]he contributory negligence of the patient must

have been an active and efficient contributing cause of the injury that is the basis of

the patient’s claim.” Viox at ¶ 13.

{¶93} Further, “If a patient is contributorily negligent, his recovery from the

defendant will be reduced according to the principles of comparative negligence.”

Courtney, 2025-Ohio-2335, at ¶ 79 (1st Dist.). Disregarding a doctor’s order can

constitute contributory negligence, where there is evidence the patient’s conduct

proximately caused or contributed to his injuries. Id.

{¶94} The record does not support Durrani’s assertion that a comparativenegligence instruction was warranted. Durrani asserts that Schultz’s labor-intensive

job aggravated his preexisting back problems and caused his need for surgery. Schultz

testified, however, that multiple physicians recommended against surgery. The

contention that Schultz did not need surgery, or underwent unnecessary surgery, was

echoed by plaintiffs’ expert testimony. While Durrani cites Schultz’s decision to hold

or carry his one-year-old daughter against medical advice, they fail to point to any

testimony or other evidence in the record to show that Schultz’s carrying his daughter

was the proximate cause of his postsurgical problems such that, had he not done so,

the injury would not have occurred. “As the party asserting the affirmative defense, it

was incumbent upon [Durrani] to present sufficient evidence to warrant the giving of

the [comparative negligence] instruction.” Courtney at ¶ 83, quoting Hacker v. Roddy,

2013-Ohio-5085, ¶ 22 (3d Dist.). Because Durrani did not present any evidence of

causation, the trial court properly declined Durrani’s request for a comparative34

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negligence instruction.

6. The Trial Court’s Errors were Harmless

{¶95} Durrani asserts that the cumulative effect of the trial court errors were

prejudicial. We disagree.

a. The Properly-Admitted Testimony Did Not Present a Close Case

{¶96} Durrani argues that the cases “boiled down to a battle of the experts.”

Indeed, there was competing expert testimony. The expert testimony criticizing Dr.

Durrani’s treatment of each plaintiff, however, was not all the jury had to rely on.

Schultz and Linda Favaron testified that they were previously advised by other

physicians that surgery was not necessary. Grabow testified that he went to Dr.

Durrani seeking nonsurgical options while Dr. Durrani pushed for surgery. As to

negligence and battery, Schultz echoed expert testimony that Dr. Bohinski had also

concluded that the tips of the screws that Dr. Durrani installed were “very close to a

vein or artery” and were “interfering with the ability for the joint above it to move.”

{¶97} In Stratman v. Durrani, 2023-Ohio-3035, ¶ 21-28 (1st Dist.), this court

held that there was cumulative reversible error where the case “was a close one” based

on a battle of the experts, evidence of improvement of the plaintiff's condition

following surgery, and potential intervening causes.

{¶98} Here, Durrani’s evidence that the procedures that Dr. Durrani

performed improved plaintiffs’ conditions was contradicted by plaintiffs’ evidence.

Durrani raised the fact that Schultz held or carried his daughter without offering

testimony to show that this was a potential intervening cause of Schultz’s postsurgical

injuries. Additionally, Schultz testified that he agreed to allow Dr. Bohinski to perform

the revision surgery because he was suffering with pain after Dr. Durrani operated on

him, and that his pain did not improve until Dr. Bohinski performed the revision

OHIO FIRST DISTRICT COURT OF APPEALS

surgery. Favaron’s pain never went away, and he could not do essential self-care tasks

after Dr. Durrani’s surgeries. Grabow, likewise, complained that his pain did not

subside, and Dr. Durrani never saw him again to address postsurgical pain.

{¶99} Further, there are no instances of multiple improper evidentiary rulings

here. Compare Worley v. Durrani, 2025-Ohio-2245, ¶ 25 (1st Dist.), quoting

Stephenson, 2023-Ohio-2500, at ¶ 77-85 (1st Dist.) (“This court has held that multiple

improper evidentiary rulings, including admission of the Durrani Collage and

evidence of Durrani’s license revocations, resulted in cumulative prejudicial error that

warranted a new trial where the errors were extensive and interrelated and shifted the

jury’s attention away from the issue of medical malpractice and toward improper

character issues concerning Durrani, and where the liability issues were ‘hotly

contested in a close case.’”). Unlike in Worley, the improperly-admitted testimony in

this matter was harmless.

{¶100} Although this case presented a “battle of the experts,” this term regards

the credibility of and the weight to be given to an expert’s opinions, rather than their

admissibility. See Walker v. Ford Motor Co., 2014-Ohio-4208, ¶ 35 (8th Dist.). The

jury apparently gave credibility and weight to plaintiffs’ experts opinions over

Durrani’s. Based on our review of the properly-admitted evidence, this case was not a

close call.

b. The Improperly-Admitted Testimony Did Not Taint the Jury or Tip the Scales in

Favor of Plaintiffs

{¶101} Durrani asserts that the scales were tipped in favor of plaintiffs because

the trial court permitted plaintiffs’ counsel to call Dr. Durrani a “liar” in voir dire and

in opening and closing statements, and testimony elicited by plaintiffs’ counsel

focused on Dr. Durrani’s credibility. Durrani further asserts that Dr. Wilkey made

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inflammatory statements about Dr. Durrani, Dr. Tayeb’s “improper testimony was

even more egregious” as it “painted Dr. Durrani as a grifter who routinely told his

patients that they would be paralyzed without surgery,” Dr. Saini’s improper testimony

“skewed the jury’s views on matters for which [Dr. Saini] had no expertise,” and the

theme of plaintiffs’ closing argument was that Dr. Durrani and his experts were not

credible. Durrani again raises Dr. Wilkey’s “captain of the ship” comment, asserting

that the trial court’s decision not to instruct the jury regarding the comment was

contrary to law. Durrani further asserts that had the trial court properly instructed the

jury on comparative negligence and intervening-and-superseding causes, a reasonable

jury would have found in Durrani’s favor on those defenses.

{¶102} As Durrani has correctly asserted, improper evidentiary rulings

constitute reversible error upon a showing that, but for those errors, the trier of fact

would have reached a different conclusion. See Worley, 2025-Ohio-2245, at ¶ 24 (1st

Dist.). This court has previously held that a trial court does not abuse its discretion by

admitting testimony from plaintiffs’ expert witness referring to defendant doctor as a

liar where the comments predominately related to plaintiffs’ claim that defendant

doctor had misrepresented plaintiff's need for surgery. Potts v. Durrani, 2023-Ohio4195, ¶ 32-33 (1st Dist.). The same holds true here.

{¶103} As stated earlier, the trial court’s decision not to give an instruction on

Dr. Wilkey’s limited reference to the “captain of the ship” was harmless, as was the

admission of Dr. Tayeb’s testimony and Dr. Saini’s isolated comment as to which

procedure should have been done on Favaron. While Durrani asserts that Schultz and

Favaron chose to have surgery because “everything else had failed them,” the jury’s

conclusion that Dr. Durrani misrepresented Schultz’s and Favaron’s need for surgery

was supported by the record where both plaintiffs were previously advised by other

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physicians not to undergo surgery or that it was not necessary. Further, we have

concluded that the trial court’s decision not to instruct the jury on comparative

negligence and intervening-and-superseding causes was not an abuse of discretion;

thus, Durrani’s argument is meritless

{¶104} The jury interrogatories do not suggest that any improperly-admitted

evidence shifted the jury’s attention away from the issues of medical malpractice and

toward improper character issues regarding Dr. Durrani. The interrogatories do,

however, suggest that the jury focused on plaintiffs’ claims as to informed consent and

battery, that Dr. Durrani misrepresented each plaintiff’s need for surgery, and Dr.

Durrani was negligent in performing those surgeries. The argument that the jury was

tainted, or the improperly-admitted evidence tipped the scales in plaintiffs’ favor is,

therefore, meritless based on our conclusion that Durrani’s evidentiary challenges fail

and that the trial court did not abuse its discretion in instructing the jury.

{¶105} For the above reasons, Durrani’s second assignment of error is

overruled.

D. Failure to Enter JNOV

1. JNOV Motions

{¶106} Under Civ.R. 50(B)(1), a party may move for a JNOV after the trial court

enters judgment on the jury’s verdict. Indeed, “[a] motion for [JNOV] is used to

determine only one issue: whether the evidence is totally insufficient to support the

verdict.” (Citations omitted.) Grieser v. Janis, 2017-Ohio-8896, ¶ 15 (10th Dist.). We

review a court’s JNOV ruling de novo. Bender, 2024-Ohio-1258, at ¶ 123 (1st Dist.).

We must assess the legal sufficiency of the evidence, while construing the evidence in

a light most favorable to the nonmoving party, and may “only reverse if reasonable

minds could only find in favor of the moving party.” Id.

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2. Future Medical Expenses

{¶107} Durrani argues that the jury’s award for future medical expenses was

against the manifest weight of the evidence. Durrani alleges that Schultz and Grabow

put forth unreliable testimony to support their future-damages awards. Schultz was

awarded $1,000,000 and Grabow $16,000 for future medical expenses. Durrani takes

issue with Dr. Wilkey’s testimony as to future medical damages and alleges that his

testimony was entirely speculative. Plaintiffs argue that their damages awards were

supported by testimony from their three experts. However, only one of their experts,

Dr. Wilkey, testified to future medical damages.

{¶108} Durrani has contended that the court’s overruling of their JNOV motion

was erroneous. Durrani has expressly raised a manifest-weight challenge, however

this argument disregards that when ruling on a Civ.R. 50(B) motion, the appellate

court may not weigh the evidence or assess the credibility of witnesses. Grindling v.

Shiff, 2012-Ohio-764, ¶ 14 (1st Dist.), citing Bair v. McDonagh, 2008-Ohio-3696, ¶ 46

(1st Dist.). However, the body of Durrani’s argument seems to set forth a sufficiency

argument. We interpret the body of Durrani’s argument to challenge the sufficiency of

the evidence supporting the jury’s future-damages award.

{¶109} “A plaintiff’s claim for future medical expenses must be supported by

evidence that reasonably establishes the amount to be incurred in the future.” PuckettMorrissette v. Durrani, 2026-Ohio-1444, ¶ 30 (1st Dist.), quoting Potts, 2023-Ohio4195, at ¶ 58 (1st Dist.), quoting Setters v. Durrani, 2020-Ohio-6859, ¶ 40 (1st Dist.).

A future-medical-expenses award must be supported by reasonably certain costs and

cannot be purely speculative. Id., citing Bender, 2024-Ohio-1258, at ¶ 136 (1st Dist.),

citing Setters at ¶ 40. “[T]here must be some data furnished to the jury upon which to

predicate an estimate of future costs.” Potts at ¶ 58, citing Setters at ¶ 40, quoting

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Waller v. Phipps, 2001 Ohio App. LEXIS 4119, *10-11 (1st Dist. Sept. 14, 2001).

{¶110} In our opinion in Puckett-Morrissette, we clarified the kind of evidence

necessary to support a future-damages award. Puckett-Morrissette at ¶ 30-37. We

stated that a future-medical-expenses award “must be supported by expert testimony

regarding the duration, frequency, kind of care, and costs that plaintiffs could expect

in the future.” Id. at ¶ 31, citing Waller at *12-13. In Waller, we concluded that because

plaintiff’s expert offered no testimony to the duration, frequency, kind of care, or cost

that the plaintiff would expect in the future, the jury was left to speculate as to costs.

Waller at *12-13. Because the award was supported by legally insufficient evidence,

the appropriate remedy was to vacate the award. Id. at *14.

{¶111} Here, there was sufficient evidence to support Schultz’s future-damages

award. Dr. Wilkey testified that there was a 30 percent likelihood that every ten years

Schultz would experience disc failure and would require a corrective procedure that

would cost from $100,000 to $150,000 if covered by insurance, and upwards of

$500,000 if not. Dr. Wilkey concluded that it was a medical certainty that Schultz

would need multiple surgeries. Therefore, there was sufficient testimony in the record

to support the jury’s future-damages award of $1,000,000 for Schultz.

{¶112} As for Grabow, Dr. Wilkey’s testimony was totally insufficient. Dr.

Wilkey speculated that Grabow may need surgery but offered no testimony as to the

kind of procedure, how frequently it would be needed, or what a procedure might cost.

Further, Dr. Wilkey offered no testimony as to the kind of pain management or

treatments that Grabow would need in the future or the associated costs. While Dr.

Wilkey recalled what care Grabow received in the months following his operation, no

testimony of reasonably certain medical costs was adduced. While Dr. Wilkey offered

some expert testimony, this cursory testimony that Grabow may need pain

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management or may need future surgery, without addressing in any particular detail

the kind of care or procedures or costs that he may face, is at most speculative. This

conclusion is supported by our holdings in Puckett-Morrissette and Waller. Therefore,

the court erred in its denial of Durrani’s JNOV motion as it relates to the jury’s futuremedical-expenses award for Grabow.

{¶113} Accordingly, Durrani’s arguments concerning future medical expenses

are overruled in part and sustained in part, and the judgment as it relates to Grabow’s

award is vacated.

3. Set-off with Other Tortfeasors

{¶114} Durrani alleges that the court erred by denying their motion for a setoff of the damages. Our recent opinion in Boggs v. Durrani, 2026-Ohio-210, ¶ 100-101 (1st Dist.), recognized that Durrani is entitled to a set-off based on plaintiffs’

settlements with other defendants. The cause must be remanded for the trial court to

determine the set-off amount that Durrani is entitled to.

{¶115} Durrani’s third assignment of error is overruled in part. It is sustained

in part as it relates to the jury’s future-medical-expenses award for Grabow, and that

award is vacated. It is also sustained in part as to the set-off issue, and the cause is

remanded to the trial court to determine the amount of the set-off to which Durrani is

entitled.

E. Prejudgment Interest

{¶116} In their fourth assignment of error, Durrani argues that the court erred

by granting plaintiffs’ motions for prejudgment interest. Durrani argues that plaintiffs

failed to make a good-faith effort to settle because they initially demanded $1,000,000

before trial commenced, then demanded $500,000 on the second day of trial.

{¶117} While the trial court found that Durrani made a “firm settlement offer

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of $4 million to the remaining Durrani plaintiffs,” which included plaintiffs in the

instant matter, it concluded that this amount “would have provided each of the

approximately 400 remaining plaintiffs . . . with an amount that was far lower than

what they likely would have received by going to trial in their individual cases.” The

trial court further found that, although the attorneys for plaintiffs had demonstrated

that they had “rationally evaluated [their] risks and potential liability,” Durrani had

failed to do so in all three cases. The trial court concluded that “Defendants failed to

make a good-faith effort to settle” with all three plaintiffs, while plaintiffs “made a

good-faith effort to settle,” and therefore, plaintiffs were entitled to prejudgment

interest under R.C. 1343.03(C).

{¶118} This court has considered this issue on the same facts in Boggs, 2026-Ohio-210 (1st Dist.), and we held that the trial court did not err in its judgment, and

we do so here. See Boggs at ¶ 102-112. Durrani’s fourth assignment of error is

overruled.

III. Conclusion

{¶119} In sum, Durrani’s first, second, and fourth assignments of error are

overruled, and the third assignment of error is overruled in part and sustained in part

as it relates to Durrani’s arguments for a set-off and as it relates to the jury’s futuredamages award for Grabow. Because the evidence was legally insufficient to support

Grabow’s future-medical-expenses award, the award is vacated. The cause is

remanded to the trial court to determine the amount of the set-off to which Durrani is

entitled.

{¶120} The judgments of trial court are affirmed in part, reversed in part, and

vacated in part, and the cause is remanded.

Judgments affirmed in part, reversed in part, vacated in part, and cause remanded.

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NESTOR, J., concurs.

BOCK, P.J., concurs in part and dissents in part.

BOCK, P.J., concurring in part and dissenting in part.

{¶121} I agree with portions of the majority opinion. For example, I agree that

the trial court improperly joined the plaintiffs’ actions for trial, though, as I explain

below, I believe the trial court should have rejected plaintiffs’ request for group trials

based on their deficient motion for “group trials.”

{¶122} But I part ways with the majority on several points. First, I believe the

trial court improperly admitted Dr. Tayeb’s testimony recalling Dr. Shanti telling him

that Dr. Durrani’s surgical recommendations were “overaggressive.” Second, from my

perspective, the trial court improperly admitted several pieces of Dr. Saini’s testimony.

Third, the trial court’s absent-defendant jury instruction—the same instruction this

court consistently has held to be an error—was not legally correct and, under the

circumstances in this case, misled the jury. And finally, I am convinced that the

cumulative effect of the trial court’s multiple errors deprived the defendants of a fair

trial. Accordingly, I respectfully dissent from these portions of the majority opinion. I

concur with the remainder of the majority opinion.

A. The plaintiffs’ cases should have been tried separately

{¶123} I agree with the majority that the trial court abused its discretion by

joining Favaron’s, Schultz’s and Grabow’s cases for trial. Our recent Durrani opinions

have held that Civ.R. 42(A) demands a common question of law or fact, not common

facts or witnesses, before a court may join cases for trial. See Wilson v. Durrani, 2026-Ohio-2279, ¶ 51 (1st Dist.); see also Wheeler v. Durrani, 2026-Ohio-2475, ¶ 86 (1st

Dist.); Weisman v. Durrani, 2026-Ohio-2639, ¶ 86 (1st Dist.). But I write separately

about this topic to emphasize two points: the plaintiffs’ motion for group trials was

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wholly deficient and the trial court lacked a basis for denying Durrani’s Civ.R. 42(B)

motion for separate trials.

1. Plaintiffs’ global motion for group trials was wholly deficient

{¶124} Counsel representing hundreds of plaintiffs in their lawsuits against

Durrani filed a “global” motion for “group trials” in Robert Densler’s lawsuit against

Durrani. See Densler v. Durrani, 2025-Ohio-14 (1st Dist.). But the global motion failed

to identify a particularized ground for the motion, as required by Civ.R. 7(B), to justify

joining or consolidating plaintiffs’ actions against Durrani under Civ.R. 42(A). The

global motion, instead of setting forth grounds to justify their requests for group trials,

rests on high-handed conviction.

{¶125} The global motion, filed months into the COVID-19 pandemic,

complained of logistics and delays associated with litigating 500 medical-malpractice

actions. Frustrated with the effect of the delays on their clients, counsel unjustifiably

attacked the integrity of Ohio judges and the court system. And, while the global

motion discussed then-General Ulysses S. Grant, it made no mention of Favaron,

Schultz, Grabow, or any other plaintiff. The closest the motion came to particularized

grounds to justify group trials was its request for the plaintiffs to be grouped

“rationally” based on “location of surgery and/or type of surgery and/or time frame of

surgery.” In support of its request for group trials, the global motion cited this court’s

opinion in Suida v. Howard, 2002-Ohio-2292 (1st Dist.), which involved consolidated

trials under Civ.R. 42(A). Id. at ¶ 10-12. But curiously, plaintiffs replied to Durrani’s

memorandum opposing group trials and insisted that “Civ.R. 42(A) has nothing to do

with group trials” and “consolidation does not apply to group trials.”

{¶126} Of course, identifying a common question of law or fact with

particularity to justify joining 500 plaintiffs’ cases is no small undertaking. But

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attorneys often must “turn square corners” to successfully litigate their clients’ cases.

See Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). For plaintiffs’

counsel, this meant identifying a common question of law or fact as the grounds for

joining multiple cases against Durrani. Considering the 100-page complaints and the

400-page motions that have been filed in these cases, plaintiffs’ counsel seems capable

of such an undertaking. Yet, plaintiffs’ counsel failed to support the request for group

trials with particularized grounds, which should have revealed a common question of

law or fact to justify granting the motion.

{¶127} Because it contained no mention of a common question of law or fact,

or any other legitimate ground to support its request, the global motion, in essence,

asked the trial court to arbitrarily consolidate plaintiffs’ cases against Durrani. See

Hageman v. Bryan City Schools, 2019-Ohio-223, ¶ 13 (10th Dist.) (“An arbitrary

decision is one that lacks adequate determining principle and is not governed by any

fixed rules or standard.”). The global motion’s deficiencies should have caused the trial

court to deny plaintiffs’ request for group trials, and I would hold that the trial court

abused its discretion when it granted the request for group trials in light of plaintiffs’

deficient motion.

{¶128} Yet, the trial court accepted the global motion’s invitation to group the

cases together for trial. In 2020, it entered a decision in the Densler case that stated,

“given the number of pending cases and the ability of the Court to accommodate trials,

a modification of the trial procedure appears to be appropriate.” It invited plaintiffs’

counsel to submit a schedule for groups of two-to-three plaintiffs, noting that the

group trials “must comply with Civ.R. 42.”

{¶129} To add confusion, the trial court failed to enter that decision—or any

order consolidating or grouping trials—on Favaron’s, Grabow’s, or Schultz’s

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journalized dockets. And “a court of record speaks only through its journal.” Schenley

v. Kauth, 160 Ohio St. 109, 111 (1953).

{¶130} The trial court abused its discretion by granting the global motion for

group trials because that motion contained no legally-sound justification for the relief

it sought.

2. The trial court arbitrarily and unreasonably denied the Civ.R. 42(B) motion

{¶131} Before trial, the Durrani defendants moved under Civ.R. 42(B) to hold

three separate trials. Durrani argued that joining Schultz’s, Favaron’s, and Grabow’s

trials would permit the jury to hear propensity evidence that is prohibited by Evid.R.

404 and that would warrant exclusion under Evid.R. 403. Durrani asserted that the

prejudicial effect of this evidence, as well as confusion stemming from the complexities

inherent in medical-malpractice cases, outweighed trial-management concerns.

{¶132} Before voir dire, the trial court heard arguments on Durrani’s request

for separate trials and other evidentiary requests. For the first time in the case, the

trial court discussed, on the record, whether common questions of law or fact existed.

It said yes: “there are common questions of law and/or facts” and “sufficient

commonalty of the issues” “based upon the cases that we’ve held” and because “[t]he

parties are substantially the same.”

{¶133} The trial court’s analysis of commonality at such a high level of

generality suggests that it looked beyond Favaron’s, Schultz’s, and Grabow’s

complaints to find a sufficiently common question of law or fact. Rather than focusing

on the questions raised by these plaintiffs’ complaints, the trial court relied on “the

cases [it has] held.” Which cases? Nobody knows. In any event, Civ.R. 42(A) demands

a case-specific and forward-looking analysis. A common question of law requires an

analysis of the allegations in each plaintiff’s complaint in support of the respective

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claims. See, e.g., Wilson, 2026-Ohio-2279, at ¶ 71-72 (1st Dist.) (conducting an

“element-by-element analysis.”). As for a common question of fact, courts must look

at the allegations and claims to discern a common question of material fact and

anticipate whether a single piece of evidence will resolve that question in a uniform

manner. See id. at ¶ 76.

{¶134} Rather than discussing the complaints’ allegations and claims, the trial

court looked to other Durrani cases over which it had presided. Courts should exercise

caution when taking judicial notice of unrelated proceedings. The unnamed cases

referenced by the trial court “‘“are not part of the record as defined in App.R. 9, and

whether the trial court correctly interpreted such prior proceedings is not reviewable

by the appellate court.”’” In re J.D., 2015-Ohio-4114, ¶ 42 (2d Dist.), quoting State ex

rel. Everhart v. McIntosh, 2007-Ohio-4798, ¶ 7, quoting Phillips v. Rayburn, 113 Ohio

App.3d 374, 379, fn. 1 (4th Dist. 1996). Also, we have never held that the same

defendant, alone, satisfies Civ.R. 42(A)’s test for consolidating or joining cases. See,

e.g., Wilson at ¶ 64 (“common witnesses should not be confused for the separate

inquiry into whether the actions present a common factual question.”).

{¶135} Moreover, even if a common question of law or fact exists,

“consolidation is by no means a necessity.” Bailey v. N. Trust Co., 196 F.R.D. 513, 517

(N.D.Ill. 2000). Indeed, “‘court[s] must balance the probable savings of time and effort

against the likelihood that a party might be prejudiced, inconvenienced[,] or put to

extra expense.’” Id., quoting Bernardi v. City of Scranton, 101 F.R.D. 411, 413 (D.C.

Pa. 1983).

{¶136} The trial court denied Durrani’s motion for separate trials. It based its

denial on efficiency considerations outweighing the risk of prejudice, seeing that “we

give them notebooks that segregate everything” and limiting instructions had

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successfully mitigated the risk of unfair prejudice against Durrani in past cases.

{¶137} I understand the appeal of consolidation, especially when courts are

faced with hundreds of plaintiffs asserting similar claims against the same defendants.

And, in the appropriate case, consolidation or joinder under Civ.R. 42 avoids

unnecessary litigation costs and delays. See Wilson, 2026-Ohio-2279, at ¶ 50 (1st

Dist.). Yet, “a trial is no more efficient when evidence that would be required in

individual trials is merely presented in sequence in a consolidated trial.” Id. at ¶ 77.

And litigation is no more efficient when the parties spend years litigating whether

group trials, joinder, and consolidation are even justified, both in the trial court and

on appeal. I question whether plaintiffs’ counsel’s pursuit of group trials—and the

eventual joinder of these cases—was, in fact, efficient. In law and in life, the short road

is often the longest in the end.

{¶138} Still more, “convenience and economy must yield to a paramount

concern for a fair and impartial trial.” Johnson v. Celotex Corp., 899 F.2d 1281, 1285

(2d Cir. 1990). Indeed, efficiency comes at a cost. It is well established that “any

consolidation of trials will certainly result in some prejudice.” Courtney v. Durrani,

2025-Ohio-2335, ¶ 57 (1st Dist.). So, the “urge to aggregate litigation must not be

allowed to trump our dedication to individual justice, and we must take care that each

individual plaintiff’s—and defendant’s—cause not be lost in the shadow of a towering

mass litigation.” In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 853 (2d

Cir. 1992).

{¶139} The trial court arbitrarily granted plaintiffs’ motion for group trials,

especially as plaintiffs’ global motion did not contain a single legitimate justification

for grouping the trials. And the trial court unreasonably and arbitrarily denied

Durrani’s motion for separate trials. These decisions were abuses of discretion.

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B. The trial court improperly admitted Dr. Tayeb’s testimony involving

Dr. Durrani’s character and reputation

{¶140} I concur with the majority that Dr. Tayeb’s account of Dr. Durrani

remarking to patients, “here and there,” about the risks of paralysis failed to lay a

foundation to admit that testimony. But to the extent that the majority holds that Dr.

Tayeb’s testimony involving Dr. Shanti—recalling Dr. Shanti’s belief that Dr. Durrani’s

surgical recommendations were “overaggressive”—was admissible, I cannot join that

holding. The evidence would be admissible if the only obstacle were Evid.R. 802’s

prohibition against hearsay evidence because we have held that this testimony falls

into a hearsay exception. See Bender v. Durrani, 2024-Ohio-1258, ¶ 78 (1st Dist.).

{¶141} But Dr. Tayeb’s testimony recalling Dr. Shanti’s characterization of Dr.

Durrani’s surgical recommendations as being “overaggressive” faced an additional

obstacle to admission: the testimony constitutes inadmissible character evidence.

{¶142} When asked about Dr. Shanti’s view of “Dr. Durrani’s surgical

indications,” Dr. Tayeb testified that Dr. Shanti had described Dr. Durrani as

“significantly more on the aggressive end, if not over, overaggressive.” Dr. Shanti’s

description of Dr. Durrani as “overaggressive” is quintessential character evidence. A

person’s “character” is “‘a person’s disposition or a general trait such as honesty,

temperance, or peacefulness.’” State v. Sims, 2010-Ohio-6228, ¶ 10 (2d Dist.), quoting

Weissenberger, Weissenberger’s Ohio Evidence Treatise § 404.3 (2009). In the

context of evidence, “‘character refers to an aspect of an individual’s personality which

is usually described . . . as a “propensity.”’” Id.

{¶143} Character evidence is governed by Evid.R. 404, 405, and 803(21), and

the three rules must be read together. First, Evid.R. 404(A) bars character evidence to

prove that a person acted “in conformity” with his character “on a particular occasion,”

OHIO FIRST DISTRICT COURT OF APPEALS

unless the evidence falls within three inapplicable exceptions. See Evid.R. 404(A)(1)-(3). Second, if the character evidence serves a nonpropensity purpose or falls within

an exception, Evid.R. 405 allows “testimony as to reputation or testimony in the form

of an opinion.” Third, an out-of-court statement describing the “[r]eputation of a

person’s character among the person’s associates or in the community” is an exception

to the rule prohibiting hearsay evidence. Evid.R. 803(21).

{¶144} Again, we have held that this testimony about Dr. Shanti’s opinion of

Dr. Durrani falls within the hearsay exception for statements against a party’s interest

under Evid.R. 804(B)(3). See Bender, 2024-Ohio-1258, at ¶ 78 (1st Dist.). But the trial

court admitted the evidence on other grounds. After the parties argued about the

admissibility of Dr. Tayeb’s deposition testimony, the trial court concluded that the

testimony was admissible under Evid.R. 803(21) because “character testimony is

appropriate when you’re talking about the nature and character of Dr. Durrani’s

representations that he’s made to patients.” The trial court was incorrect.

{¶145} First, Dr. Tayeb’s testimony “is inadmissible under Evid.R. 803(21).”

Weisman, 2026-Ohio-2639, at ¶ 95 (1st Dist.). Evidence of a person’s reputation must

reflect “what the community as a whole thought or believed.” Weisman at ¶ 96.

Admitting out-of-court statements about a person’s character or reputation requires

the proponent to lay a “‘proper foundation . . . establishing that the witness had the

means of knowing the victim’s reputation.’” Id., quoting State v. Collins, 1987 Ohio

App. LEXIS 8045, *19 (12th Dist. July 27, 1987). But reputation evidence cannot rest

on rumors, gossip, or “‘what a few persons say or may think about the party in

question.’” Id. at ¶ 95, quoting Collins at *19. As we held in Weisman, Dr. Tayeb’s

testimony was inadmissible because it failed to address “what the community as a

whole thought or believed about him.” Id. at ¶ 96. I would follow our opinion in

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Weisman and hold that Dr. Shanti’s opinion that Dr. Durrani was “overaggressive”

was inadmissible.

{¶146} Second, the trial court admitted Dr. Tayeb’s testimony, because, in its

view, “character evidence is relevant” under Evid.R. 803(21) and “appropriate when

you’re talking about the nature and character of Dr. Durrani’s representations that he’s

made to patients, in general, about the paralysis and about the fixing, et cetera.”

{¶147} The issue is not whether character evidence is relevant. Rather, it is “too

relevant.” See People v. Fitch, 55 Cal.App.4th 172, 179 (1997); State v. Hahn, 2000

Ohio App. LEXIS 4678, *12 (9th Dist. Sep. 27, 2000) (“It is not that character evidence

has no probative value. It’s loaded with it, and that’s just the trouble.”). Character

evidence “‘is said to weigh too much with the jury and to so overpersuade them as to

prejudge one with a bad general record and deny him a fair opportunity to defend

against a particular charge.’” Old Chief v. United States, 519 U.S. 172, 181 (1997),

quoting Michelson v. United States, 335 U.S. 469, 475-476 (1948).

{¶148} Again, Evid.R. 803(21) provides that out-of-court statements involving

a person’s reputation or character in the community are not barred by Evid.R. 802’s

rule against hearsay. But Evid.R. 803 simply identifies statements that “are not

excluded by the hearsay rule.” Just because “testimony is not hearsay, or is hearsay

that falls within an exception, that does not mean it must be received.” State v. Morris,

2010-Ohio-5682, ¶ 3 (9th Dist.). Indeed, “[t]he trial court still has discretion to apply

Rule 403 and exclude it.” Id. Evid.R. 403(A) demands relevant evidence’s exclusion

when its probative value is “substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.”

{¶149} And Evid.R. 404 is simply a concrete application of Evid.R. 403(A) to

the frequent issue of character evidence. See United States v. Guardia, 135 F.3d 1326,

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1330 (10th Cir. 1998) (“the ban on character evidence is merely an application of Rule

403 to a recurring issue.”). The Staff Notes to Evid.R. 404(A) recognize as much,

explaining that “[c]haracter evidence is relevant in that it tends to prove a material

proposition but its prejudicial effect substantially outweighs its probative value and it

creates collateral issues.”

{¶150} Dr. Tayeb’s testimony recalling Dr. Shanti’s opinion about Dr. Durrani

was relevant to prove that Dr. Durrani’s “overaggressive” character was consistent

with his recommendations for surgery for these three plaintiffs. Look no further than

the closing statements, where plaintiffs’ counsel deployed Dr. Shanti’s opinion to

bolster the credibility of their experts and impugn the credibility of Durrani’s experts.

It should come as no surprise that, in the majority’s words, “[t]he jury apparently gave

credibility and weight to plaintiffs’ experts opinions over Durrani’s.”

{¶151} I would hold that Dr. Tayeb’s testimony, which was used to prove Dr.

Durrani’s “disposition to commit certain acts,” was inadmissible. See State v.

Hartman, 2020-Ohio-4440, ¶ 22.

C. Dr. Saini’s testimony repeatedly exceeded the scope of his expertise

{¶152} I concur with the majority that Dr. Saini, as an expert in

neuroradiology, may testify about his impressions of imaging and whether imaging

shows that surgery is medically indicated. I also agree that Dr. Saini improperly

testified that a discectomy and foraminotomy would have addressed Favaron’s issues.

See Weisman, 2026-Ohio-2639, at ¶ 105 (1st Dist.) (“determining the type of surgery

necessary to correct those conditions fell within the purview of a surgeon.”). But I

dissent because there were additional examples of the trial court improperly

permitting Dr. Saini to testify outside his area of expertise.

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{¶153} Dr. Saini improperly critiqued Dr. Durrani’s choice of which pedicle

screw to use for Schultz’s procedure and testified that the pedicle screws caused

“extensive air and blood in the . . . peritoneal compartments.” We have held that Dr.

Saini’s “testimony criticizing the spinal fusion that Durrani performed on [the plaintiff

is] improper.” Wheeler, 2026-Ohio-2475, at ¶ 104 (1st Dist.). In Wheeler, we explained

that testimony critiquing the placement of pedicle screws and suggesting that the

screws “could result in ‘an aggravation of the scoliosis,’ ‘a lot of degenerative changes,’

or ‘problems with the nerves coming out’” falls “within the knowledge of a surgeon,

and it exceeds the scope of Dr. Saini's expertise as a radiologist.” Id.

{¶154} Consistent with Wheeler, I would hold that Dr. Saini’s testimony about

the cause of the blood and air in Schultz’s peritoneal compartments was inadmissible

and fell outside of the scope of his expertise.

D. The absent-defendant instruction

{¶155} I dissent from the majority’s conclusion that the absent-defendant jury

instruction was “legally correct.”

{¶156} In relevant part, the trial court instructed the jury:

Dr. Durrani[] did not attend these proceedings in person. . . . 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 plaintiff’s 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 failed to produce that relevant evidence or testimony, that

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failure gives rise to an inference that the evidence or testimony is

unfavorable to that party.

(Emphasis added.)

{¶157} This court, in multiple cases, has held that the trial court erred by

providing this exact absent-defendant instruction. See Jones v. Durrani, 2024-Ohio1776, ¶ 34, 38 (1st Dist.) (the instruction “necessarily requires the inference to be

made.”); see also Wheeler, 2026-Ohio-2475, at ¶ 107 (1st Dist.); Courtney, 2025-Ohio2335, at ¶ 84-87 (1st Dist.); Ravenscraft v. Durrani, 2025-Ohio-2900, ¶ 130-137 (1st

Dist.); Fenner v. Durrani, 2025-Ohio-4477, ¶ 69-74 (1st Dist.). I would follow our

precedent and hold that the trial court erred by providing this instruction.

{¶158} Moreover, unlike in our previous cases, I would hold that the error

misled this jury. In Jones, Wheeler, Courtney, Ravenscraft, and Fenner, this court

held that while a portion of the instruction required a negative inference, the jury

charge as a whole adequately informed the jury that it need not infer that Durrani had

unfavorable evidence based on his absence. See Jones at ¶ 37. So, in the ordinary case,

these jury instructions would not mislead the jury.

{¶159} But here, the trial court’s erroneous instructions were compounded by

plaintiffs’ counsel’s closing argument. Throughout his closing argument, plaintiffs’

counsel distorted the law by insisting that the jury was required to draw every negative

inference from Dr. Durrani’s absence.

{¶160} At one point during closing, counsel explained that a jury “may infer

that” Dr. Durrani’s testimony “would not have helped his case.” So far, so good. But

then plaintiffs’ counsel littered the closing with misleading and false statements about

appropriate inferences drawn from a defendant’s absence. Counsel told the jury: (1)

Dr. Durrani’s absence “means that there is a negative inference in this case”; (2) the

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jury “do[es]n’t get to just say” that Dr. Durrani had many reasons to be absent from

trial because “the consequence of being a missing witness is that, which is if he were

sitting there (indicating), the words coming out of his mouth would not be favorable

to him”; (3) the jury had to infer that Dr. Durrani’s testimony “wouldn’t have been

good for him”; (4) “You can’t say, well, I assume Dr. Durrani did it correctly. No. You

don’t assume that. The law says you do the opposite. You infer he didn’t do it correctly

because he wasn’t here to explain it”; (5) “Because if he would have come in to explain

it, the inference is, it wouldn’t have been a very good explanation for him. That’s how

that works. That’s the instruction. That’s the law you follow”; and (6) while discussing

Grabow’s lack of informed and verbal consent, plaintiffs’ counsel reminded the jury

that Dr. Durrani was not present to testify and “[w]e already know that it wouldn’t be

favorable to him if he was.”

{¶161} Of course, counsel’s remarks during closing arguments are not jury

instructions. But before the trial court had an opportunity to instruct the jury,

plaintiffs’ counsel launched a final salvo peppered with distortions of the law involving

what adverse inferences jurors could draw from Dr. Durrani’s absence. And the trial

court made no attempt to correct these misstatements of law. True, counsel has

significant leeway during closing arguments, when counsel can “summarize the

evidence presented and assist the jury in analyzing, evaluating, and applying the

evidence.” Kassay v. Niederst Mgt., 2018-Ohio-2057, ¶ 43 (8th Dist.). But the “‘judge

who presides over a cause is not a mere umpire.’” Pesek v. Univ. Neurologists Assn.,

87 Ohio St.3d 495, 501 (2000), quoting Jones v. Macedonia-Northfield Banking Co.,

132 Ohio St. 341, 351 (1937). The trial court judge has a duty “‘to see that counsel do

not create an atmosphere which is surcharged with passion or prejudice and in which

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the fair and impartial administration of justice cannot be accomplished.’” Id., quoting

Macedonia at 351.

{¶162} The trial court gave the jury no reason to suspect that counsel’s

misrepresentations of the law were anything but correct, which is especially troubling

considering the erroneous absent-defendant instruction. I fail to see how the trial

court’s jury instruction as a whole neutralized the taint caused by plaintiffs’ closing

argument. I would hold that the absent-defendant instruction was prejudicial error.

E. The cumulative errors deprived Durrani of a fair trial

{¶163} Even if the trial court’s errors described above—improperly joining the

three lawsuits for trial, admitting Dr. Tayeb’s improper character testimony,

permitting Dr. Saini to testify outside of his expertise, and providing a misleading

absent-defendant instruction—were individually harmless, their cumulative effect

denied Durrani the right to a fair trial.

{¶164} When a trial court errs, we must decide whether it affected “the

substantial rights of the adverse party.” Weisman, 2026-Ohio-2639, at ¶ 128 (1st

Dist.), quoting Beard v. Meridia Huron Hosp., 2005-Ohio-4787, ¶ 35. To do so, we

weigh the error’s prejudicial effect and then determine if the jury likely would have

reached the same verdict without the error. Id. In other words, we ask if “‘“the jury . .

. would probably have made the same decision”’” in an error-free trial. Bender, 2024-Ohio-1258, at ¶ 93 (1st Dist.), quoting Beard at ¶ 35, quoting O’Brien v. Angley, 63

Ohio St.2d 159, 164-165 (1980).

{¶165} Even if a trial court’s errors, standing alone, are individually harmless

or only marginally prejudicial, the cumulative-error doctrine allows a reviewing court

to reverse a judgment when a trial court’s multiple errors’ cumulative effect deprives

a party of fair trial. See Mattox v. S.W. Gen. Health Ctr., 2026-Ohio-3339, ¶ 96 (8th

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Dist.); see also Courtney, 2025-Ohio-2335, at ¶ 88 (1st Dist.), citing Woods v.

Douglas, 2024-Ohio-338, ¶ 51 (8th Dist.).

{¶166} Beginning with the prejudicial effect, the many errors resulted in

Durrani being tried by inadmissible character evidence, other-acts evidence, and

improper inferences, rather than the properly-admitted evidence involving Durrani’s

treatment of these three plaintiffs.

{¶167} To me, the prejudice is clear. The trouble began with the trial court

joining Favaron’s, Schultz’s and Grabow’s cases. Joining cases against “the same

physician permit[s] the factfinder to hear details about another pending malpractice

action against the defendant doctor.” Courtney at ¶ 102 (Bock, J., concurring); see

Weisman, 2026-Ohio-2639, at ¶ 130 (1st Dist.). This is why “joint professional-liability

trials may be a trojan horse for [] improper character evidence.” Courtney at ¶ 104

(Bock, J., concurring). We have held that the erroneous consolidation of plaintiffs’

trials, alone, is reversable error where the record reveals “contamination across cases”

and indicates that the jury would have reached a different conclusion if the plaintiffs’

cases were tried separately. See Wilson, 2026-Ohio-2279, at ¶ 91 (1st Dist.). And we

have held that prejudice caused by interrelated errors is clear where the errors

“shift[ed] the jury’s attention away from the issue of medical malpractice and towards

improper character issues concerning Dr. Durrani.” Stephenson v. Durrani, 2023-Ohio-2500, ¶ 79 (1st Dist.).

{¶168} During closing arguments, plaintiffs capitalized on the consolidation of

Favaron’s, Schultz’s, and Grabow’s cases to stress the quantity of the evidence against

Durrani. Indeed, plaintiffs’ closing argument reveals a “strength-in-numbers” theory

of the cases. Counsel explained, “Credibility of my clients is an issue in this case. You

have to decide if you believe what they’ve been telling you the truth about their visits

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with Dr. Durrani . . . what they tell you about Dr. Durrani’s ability to convince them.”

(Emphasis added.) Plaintiffs’ counsel also leveraged the consolidation to frame the

battle of the experts, with “17 different readers of radiology” for the plaintiffs and only

two for the defense. Counsel continued,

Dr. Durrani doesn’t agree with one of the 17. Dr. Purcell doesn’t agree

with any of the 17. That doesn’t make – you know, apply logic, because

you’re allowed to use philosophical concepts of logic.

Does that make any sense that there could be 17 incompetent

medical providers to these three people, and the only people that are

competent is a radiologist from Northern California and a guy who’s left

the country? And all of these people (indicating), they don’t know what

they’re talking about.

Credibility of the witnesses. It’s a must.

{¶169} But consolidation was not the only error that bolstered plaintiffs’ cases.

Plaintiffs’ counsel relied on Dr. Tayeb’s testimony containing impermissible character

evidence to support Favaron’s, Schultz’s, and Grabow’s claims. Throughout plaintiffs’

closing argument, their counsel told the jury that his clients’ and plaintiffs’ experts’

testimony involving informed consent “makes perfectly good sense” because of Dr.

Tayeb’s testimony. He told the jury that Dr. Durrani’s treatment of the plaintiffs “falls

right in line with the things Dr. Tayeb testified to” and he urged the jury to “[l]isten to

Dr. Tayeb.” And again, he insisted that Dr. Durrani’s absence from trial carried

negative inferences, particularly for Favaron’s, Schultz’s, and Grabow’s informedconsent claims.

{¶170} Of course, the trial court’s effort to cure an error is relevant to the

prejudice analysis. The trial court did remind the jury that it must focus on each

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plaintiff’s case individually. Typically, I would presume that the jury followed the trial

court’s instructions. But the jury’s verdicts and interrogatories undermine that

presumption. The jury returned identical verdicts for all three plaintiffs, finding

Durrani liable to Favaron, Schultz, and Grabow for negligence, battery, a lack of

informed consent, fraud, and punitive damages. We have held in consolidation cases

that split verdicts suggest that the jury compartmentalized the cases and evidence. See

Jones, 2024-Ohio-1776, at ¶ 26 (1st Dist.); see also Courtney, 2025-Ohio-2335, at ¶ 58

(1st Dist.); Bender, 2024-Ohio-1258, at ¶ 102 (1st Dist.); but see Wilson, 2026-Ohio2279, at ¶ 89 (1st Dist.) (split nonunanimous verdicts suggest that “the jury had

doubts”); Weisman, 2026-Ohio-2639, at ¶ 129 (1st Dist.); Greene v. Durrani, 2023-Ohio-3069, ¶ 26 (1st Dist.) (split nonunanimous verdicts from shifting juror coalitions

“reflects a compromise verdict.”).

{¶171} But jury interrogatories provide the biggest clue of prejudice.

Sometimes, jury interrogatories suggest that the jury relied on erroneously-admitted

evidence to find Durrani liable. See Wheeler v. Durrani, 2026-Ohio-2475, ¶ 125 (1st

Dist.). In our consolidation cases, we have held that errors are harmless where “jurors

differentiated between the unique facts for each plaintiff” in the interrogatories. See

Meadows v. Durrani, 2026-Ohio-3324, ¶ 54 (1st Dist.); see also Krabacher v.

Durrani, 2026-Ohio-3368, ¶ 38 (1st Dist.). Significantly, the jury interrogatories in

this case include identical findings for its basis to award punitive damages to Favaron,

Schultz, and Grabow. In each case, it determined that Dr. Durrani “[d]isregard[ed] []

the rights and safety of others.” The jury’s identical interrogatories following identical

verdicts, the sheer number of trial court errors, and the severity of those errors

convince me that those errors contaminated the jury’s verdicts, and that the jury

probably would not have reached the same result without the errors.

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{¶172} Holding separate trials, excluding Dr. Tayeb’s testimony, confining Dr.

Saini’s testimony, and properly instructing the jury about Dr. Durrani’s absence would

have significantly weakened plaintiffs’ strength-in-numbers theory. The trial would

have been about the quality of the medical treatment Dr. Durrani provided to his

former patients, rather than Dr. Durrani’s character, propensity to behave in a

particular manner, and what he was hiding by his absence.

{¶173} The result would have been a quintessential battle of the experts. The

same decision was possible, but not probable. I would hold that the cumulative effect

of the errors was not harmless and that Durrani is entitled to a new trial.

{¶174} Therefore, I respectfully dissent.

Favaron v. Durrani

Authorities cited

Opinion · public domain