[Cite as Clark v. Durrani, 2025-Ohio-3096.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
CHRIS CLARK, : APPEAL NO. C-240294 TRIAL NO. A-1302874 and :
KATHY CLARK, : JUDGMENT ENTRY Plaintiffs-Appellants, :
vs. :
ABUBAKAR ATIQ DURRANI, M.D., :
and :
CENTER FOR ADVANCED SPINE : TECHNOLOGIES, INC., : Defendants-Appellants, : and : WEST CHESTER HOSPITAL, LLC, : UC HEALTH, : and : JOURNEY LITE OF CINCINNATI, LLC, : Defendants. ; :
This cause was heard upon the appeal, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 8/29/2025 per order of the court.
By:_______________________ Administrative Judge [Cite as Clark v. Durrani, 2025-Ohio-3096.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
KATHY CLARK, : OPINION Plaintiffs-Appellees, :
CENTER FOR ADVANCED SPINE : TECHNOLOGIES, INC., : Defendants-Appellants, : and : WEST CHESTER HOSPITAL, LLC, : UC HEALTH, : and : JOURNEY LITE OF CINCINNATI, LLC, : Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 29, 2025
Statman Harris, LLC, and Alan J. Statman, for Plaintiffs-Appellees, Taft Stettinius & Hollister LLP, Philip D. Williamson, Aaron M. Herzig and Russell S. Sayre, for Defendants-Appellants. OHIO FIRST DISTRICT COURT OF APPEALS
MOORE, Judge.
{¶1} Defendants-appellants Dr. Abubaker Atiq Durrani and Center for
Advanced Spine Technologies, Inc., (“CAST”) (together, “Durrani”) appeal the trial
court’s judgment denying Durrani’s motions for judgment notwithstanding the verdict
or, in the alternative, for a new trial.
{¶2} On appeal, Durrani argues the trial court (1) should have given a
comparative-negligence jury instruction, (2) improperly instructed the jury to draw a
negative inference from Dr. Durrani’s absence at trial, (3) improperly permitted Dr.
Keith Wilkey to testify as an expert, and (4) erred by allowing plaintiffs to pursue
claims for past medical expenses. Durrani asserts that these errors by the trial court in
denying their posttrial motions were not harmless.
I. Factual and Procedural History
{¶3} This case is one of the numerous cases that have come before this court
which are commonly referred to as the “Durrani Cases.” While the legal questions
raised in these appeals are often the same or similar, each plaintiff has their own story
of how they came under Dr. Durrani’s care.
{¶4} Here, plaintiff-appellee Chris Clark worked as a machinist and, later, as
a carpet cleaner. When Clark was 19, a semi-truck rear-ended the car he was driving
and Clark experienced back pain for years afterward.
{¶5} Clark’s family physician, Dr. Deborah Pillow, referred him to Dr. Set
Shahbabian and for an MRI, which revealed disc bulges, protrusions, and herniations
up and down the lumbar region of Clark’s spine. Clark took pain medication daily and
received steroid injections on three occasions. Neither the pain medication nor the
injections improved his back pain.
{¶6} In November 2012, Dr. Pillow referred Clark to Dr. Abubaker Atiq OHIO FIRST DISTRICT COURT OF APPEALS
Durrani at CAST for treatment of his low back pain. On December 7, 2012, Dr. Durrani
performed surgery on Clark’s lumbar spine at the L4-L5 region.
Clark and his wife file a complaint against defendants.
{¶7} Clark filed a complaint and jury demand against Dr. Durrani and his
medical practice, CAST. The complaint also named a number of other defendants who
were all eventually voluntarily dismissed from the case.
{¶8} With respect to Durrani, the complaint alleged (1) that Dr. Durrani
negligently performed the surgery, improperly diagnosed Clark’s condition, and
medically mismanaged and mistreated Clark, (2) that CAST was vicariously liable for
Dr. Durrani’s actions, (3) that CAST was negligent in hiring, retaining, credentialing,
and supervising Dr. Durrani due to foreknowledge that Dr. Durrani’s privileges at
other hospitals had been terminated, (4) that Dr. Durrani committed battery by
performing an unnecessary surgery, (5) that Dr. Durrani committed fraud, (6)
intentional infliction of emotional distress, (7) spoliation of medical records evidence,
(8) that Kathy Clark, Clark’s wife, suffered loss of consortium and medical expenses,
and (9) negligence per se.
Pretrial Filings
{¶9} In March 2020, plaintiffs filed a motion to join United Healthcare as an
involuntary plaintiff because of its subrogation interest with respect to payments it
made for portions of Clark’s treatment. The motion noted that while all parties with a
possible subrogation interest had been notified of the lawsuit filed by their insured,
they had chosen not to be involved.
{¶10} The court responded by ordering that plaintiffs make United
HealthCare a party plaintiff. They did. And, although United Healthcare was served
with a summons and the complaint, it never entered an appearance.
6 OHIO FIRST DISTRICT COURT OF APPEALS
The Trial
{¶11} Prior to the start of trial, defendants filed a motion in limine to exclude
testimony regarding Dr. Durrani absconding to Pakistan amid the pending medical
malpractice cases against him. The trial court stated that it would not allow testimony
regarding Dr. Durrani’s departure, but it would not restrict comments about him
residing in Pakistan, and there would be a jury instruction regarding such testimony.
{¶12} The matter proceeded to a jury trial in August 2021.
Dr. Keith Wilkey’s Testimony
{¶13} At trial, Clark relied on the expert medical testimony of Dr. Keith
Wilkey. Dr. Wilkey is a board-certified orthopedic spine surgeon and a member and
fellow of the American Academy of Orthopedic Surgeons, and holds memberships in
the North American Spine Society and the European Spine Society. He received
training in offering or recommending spine surgeries from the Leatherman Spine
Institute and had performed “[p]robably tens of thousands” of spine surgeries.
{¶14} Prior to COVID, Dr. Wilkey was an orthopedic spine surgeon in New
York where he dedicated more than 50 percent of his professional time to the active
clinical practice of medicine. Then, in July 2020, New York shut down all elective
surgeries—seven years after Clark’s complaint had been filed. At the time of trial, Dr.
Wilkey was a medical director at United Healthcare, and his duties included reviewing
medical records and deciding whether surgery was appropriate.
{¶15} Defendants objected to Dr. Wilkey’s testimony at trial, arguing that Dr.
Wilkey did not spend 50 percent of his professional time in the active clinical practice
of medicine or instructing at an accredited university. Defendants cited Johnson v.
Abdullah, 2021-Ohio-3304, for the proposition that a medical expert must meet these
requirements at the time of trial.
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} Plaintiffs responded that, but for COVID, at the time of the originally
scheduled trial date, Dr. Wilkey would have been practicing full time and therefore
would have dedicated more than 50 percent of his professional time to the active
clinical practice of medicine. Plaintiffs further argued Dr. Wilkey’s affidavit of merit,
which was filed with the complaint, shows he had been involved with the case since its
filing over eight years prior.
{¶17} The trial court overruled the objection based on Evid.R. 601’s purpose
in preventing professional witnesses from testifying. It cited the rule’s exception that
if the trial been conducted at the originally scheduled time, and the delay “wasn’t the
fault of the person calling the witness, and the doctor would have been qualified to
testify at that time, there [was] no reason for [the court not to allow] that witness to
testify.” The court concluded that, had it not been for COVID, Dr. Wilkey would have
been able to testify had the trial been conducted at the scheduled time, and that the
lapse of time was not plaintiffs’ fault. The court added Dr. Wilkey was not a
“professional witness” because he was competent to testify prior to COVID and
remained competent to testify after the COVID restrictions were lifted.
{¶18} At trial, Dr. Wilkey explained the applicable standard of care as it relates
to the type of surgery Dr. Durrani performed on Clark. He testified that Dr. Durrani’s
performance of the surgery on and his subsequent treatment of Clark deviated from
that applicable standard of care and Clark was damaged as a result.
Jury Instructions
{¶19} The trial court denied defendants’ request for a comparative-negligence
instruction. In explaining its decision, the court stated that there is no comparative
negligence in Ohio, and plaintiffs needed only to prove their claims by a
preponderance of the evidence. Defendants objected to the court’s decision, arguing
8 OHIO FIRST DISTRICT COURT OF APPEALS
that comparative negligence applied under R.C. 2315.33.
{¶20} With respect to 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
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 further instructed the jury as to inference:
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.
Defendants objected to both instructions.
The Jury’s Verdicts
{¶21} The jury returned verdicts in plaintiffs’ favor on the claims of
negligence, fraudulent misrepresentation, and loss of consortium. The jury found in
favor of defendants as to the claims of failure to obtain informed consent and battery.
{¶22} The jury awarded Clark $485,000 in compensatory damages: $75,000
9 OHIO FIRST DISTRICT COURT OF APPEALS
in past medical expenses, $10,000 in future medical expenses, $300,000 in past pain
and suffering, $50,000 in future pain and suffering, $40,000 in past loss of enjoyment
of life, and $10,000 in future loss of enjoyment of life. Kathy Clark was awarded
$10,000 on her loss-of-consortium claim. The jury also awarded Clark attorney’s fees
and $200,000 in punitive damages.
{¶23} Defendants filed two separate motions for judgments notwithstanding
the verdict (“JNOV”), or, pursuant to Civ.R. 59(A)(1)-(9), for a new trial in the
alternative. The trial court denied these motions in a January 6, 2023 entry.1
{¶24} On March 20, 2024, defendants filed a memorandum in support of their
motions based on Hounchell v. Durrani, 2023-Ohio-2501 (1st Dist.), in which this
court held that the jury instruction regarding Dr. Durrani’s absence allowed the jury
to infer that Dr. Durrani was absent because of a consciousness of guilt.
{¶25} On April 22, 2024, the trial court entered a final, appealable judgment
based on the jury verdicts and its final decisions on the remaining posttrial motions.
As discussed below, the trial court again denied Durrani’s JNOV motions.
{¶26} This appeal followed. Each issue raised on appeal was raised in
defendants’ post-trial motions and thus preserved for review by this court.
II. Analysis
{¶27} In the sole assignment of error, Durrani argues the trial court should
have granted the post-trial motions because the court (1) failed to instruct the jury on
comparative negligence, (2) improperly instructed the jury to draw a negative
inference from Dr. Durrani’s absence, (3) improperly permitted Dr. Wilkey to testify
as an expert, despite his lack of active clinical practice, and (4) erred by allowing Clark
1 Plaintiffs’ motions for prejudgment interest and attorney’s fees remained pending after the trial
court made the January 6, 2023 entry.
10 OHIO FIRST DISTRICT COURT OF APPEALS
to pursue claims for past medical expenses at trial. Durrani also argues these errors
were not harmless.
JNOV Motions
{¶28} Under Civ.R. 50(B)(1), a party may move for a JNOV after the trial court
enters judgment on the jury’s verdict. Moving for JNOV challenges “the legal
sufficiency of the evidence.” Alonso v. Thomas, 2021-Ohio-341, ¶ 55 (9th Dist.).
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.). Here, Durrani fails to articulate an argument
challenging the sufficiency of Clark’s evidence. We “will not create an argument in
support of an assignment of error where an appellant fails to develop one.” Fontain v.
Sandhu, 2021-Ohio-2750, ¶ 15 (1st Dist.).
Motions for a New Trial
{¶29} 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.
Felderman-Swearingen, 2020-Ohio-4271, ¶ 7 (1st Dist.); Yenni v. Yenni, 2022-Ohio-
2867, ¶ 60 (8th Dist.). While Durrani fails to specify which subsections of Civ.R. 59(A)
apply to each issue raised on appeal, as discussed below, we will apply the applicable
standard of review based on the nature of the issue being reveiwed.
A. The denial of the comparative-negligence instruction was not an abuse of discretion.
{¶30} Durrani claims to be entitled to a new trial based on the trial court’s
refusal to instruct the jury on comparative negligence. A trial court should give a
requested instruction if (1) the instruction is a correct statement of the law, (2) it is
11 OHIO FIRST DISTRICT COURT OF APPEALS
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.
{¶31} Ohio law recognizes contributory negligence as a defense in medical
malpractice cases. Viox v. Weinberg, 2006-Ohio-5075, ¶ 13 (1st Dist.). A defendant
doctor must prove the plaintiff patient breached a duty, proximately causing his own
injury. Segedy v. Cardiothoracic & Vascular Surgery of Akron, Inc., 2009-Ohio-2460
(9th Dist.), quoting Brinkmoeller v. Wilson, 41 Ohio St.2d 223, 226 (1975). Thus, the
defendant must show the plaintiff’s own “want of ordinary care . . . which 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. 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.
{¶32} In its January 6, 2023 entry, the trial court distinguished Dr. Durrani’s
recommendation that Clark engage in postsurgical physical therapy from requiring
him to do so. The court further concluded Clark could not be deemed to have been
contributorily negligent for failing to complete physical therapy prescribed by the
same surgeon who recommended and performed an unnecessary surgery.
{¶33} In his merit brief, Durrani references Dr. Horn’s recommendation that
12 OHIO FIRST DISTRICT COURT OF APPEALS
Clark do physical therapy and Dr. Kaloostian’s testimony that physical therapy was an
appropriate recommendation after Clark’s back surgeries. Durrani asserts that
recommending physical therapy and requiring physical therapy were the same thing.
Durrani further argues that a physician cannot “require” a patient to do anything, and
whether his advice was an “order” or a “recommendation” is irrelevant. Durrani
contends that, as this would be a fact for the jury to decide, the trial court incorrectly
concluded that a jury instruction was not warranted.
{¶34} Clark complained of postsurgical pain running down his legs,
headaches, swelling in the incision, and fluid leaking from his back, which was
accumulating at the surgical site. Clark testified he did not have any of these symptoms
before being treated by Dr. Durrani. Clark also testified that, before the surgery, he
only experienced pain going up his back.
{¶35} While defense experts testified that the physical therapy prescribed by
Dr. Durrani was appropriate, there was no evidence to suggest Clark’s failure to fully
comply with physical therapy caused or contributed to the postsurgical injuries he
complained of. Reasonable minds, therefore, could not have concluded that Clark
contributed to the pain and discomfort he experienced after the unnecessary surgery
was performed on him. Accordingly, the trial court did not abuse its discretion in
denying Durrani’s request for a comparative-negligence instruction.
B. The trial court’s instructions did not cause the jury to draw negative inferences from Dr. Durrani’s absence.
{¶36} In addition to arguing that the trial court failed to give the previously
discussed jury instruction, Durrani claims that the instruction regarding Dr. Durrani’s
absence was also improper. On appeal, “‘[t]he question of whether a jury instruction
is legally correct and factually warranted is subject to de novo review.’” Jones v.
13 OHIO FIRST DISTRICT COURT OF APPEALS
Durrani, 2024-Ohio-1776, ¶ 29 (1st Dist.), quoting Cromer v. Children’s Hosp. Med.
Ctr. of Akron, 2015-Ohio-229, ¶ 22.
{¶37} An adverse-inference instruction “‘has its origin in the theory that the
failure to produce evidence which a fearless claimant would naturally produce permits
the inference that the tenor of the evidence would be unfavorable to such claimant.’”
Id. at ¶ 33, quoting Silveous v. Rensch, 20 Ohio St.2d 82, 84 (1969).
{¶38} In Jones, the trial court instructed the jury using the exact verbiage as
in the instant matter. Id. at ¶ 30. The Jones court initially concluded that the trial court
erred in giving the jury instruction because it “was not permissive nor limited to
evidence that would naturally be produced” as it “permit[ted] only the inference that
the testimony or evidence in Dr. Durrani’s possession would be unfavorable to him.”
Id. at ¶ 34. This court then considered the instruction as a whole to determine whether
it misled the jury such that it materially affected defendants’ substantial rights. Id. at
¶ 35. This court ultimately held that the instruction, as a whole, did not prejudice
defendants because it was apparent that the inference was permissive, not required,
and that it also “clearly set forth what evidence should be considered by the jury in
rendering its decision.” Id. at ¶ 38. We further held that a thorough review of the entire
proceeding revealed that the jury was not misled; as in the instant matter, we noted
the jury found for Durrani on some claims. Id. at 39. That, combined with jury
interrogatories which showed the jury relied on actual evidence in the record,
demonstrated the trial court’s instruction did not affect the jury’s verdict. Id.
{¶39} Here, as in Jones, the trial court informed the jury that it had discretion
as to what inferences it drew, including inferences from Dr. Durrani’s absence. There
is no indication on the face of the record that this permissive inference misled the jury
or tainted its decision. Accordingly, we hold the trial court did not abuse its discretion
14 OHIO FIRST DISTRICT COURT OF APPEALS
by giving the jury instruction regarding Dr. Durrani’s absence.
C. Dr. Wilkey was an expert qualified to testify at the time of the trial.
{¶40} To establish his medical malpractice claim, Clark relied on the expert
testimony of Dr. Wilkey. Over defendants’ objection at trial, Dr. Wilkey testified that
Dr. Durrani breached the standard of care and that the breach caused Clark’s injuries.
Durrani now argues the trial court erred in allowing Dr. Wilkey’s expert testimony.
{¶41} A trial court has discretion to determine whether a witness is competent
to testify as an expert under Evid.R. 601, and the trial court’s decision will not be
reversed absent a clear showing that the court abused its discretion. Celmer v.
Rodgers, 2007-Ohio-3697, ¶ 19. On appeal, Durrani argues that the trial court abused
that discretion by permitting Dr. Wilkey to testify.
{¶42} Under the 2022 version of Evid.R. 601(B), a witness can testify as a
medical expert “on the issue of liability in any medical claim” if the witness is licensed
to practice medicine, devotes “at least one-half of his or her professional time to the
active clinical practice in his or her field of licensure, or to its instruction in an
accredited school,” and “the person practices in the same or substantially similar
specialty as the defendant.”
{¶43} The Celmer Court reasoned that Evid.R. 601(B)’s use of the present
tense did not preclude the trial court from exercising its discretion where the physician
“satisfied the requirements of Evid.R. 601(D) at the time the cause of action accrued,
at the time of filing suit, and during the first three years of this litigation.” (Emphasis
added.) Celmer at ¶ 26. The Court concluded the trial court was not unreasonable or
arbitrary when it found that the doctor’s hiatus from the practice of medicine did not
render him incompetent to testify and turn him into the “professional witness” that
Evid.R. 601 guards against. Id.
15 OHIO FIRST DISTRICT COURT OF APPEALS
{¶44} In Johnson, the Ohio Supreme Court declined to expand the Celmer
exception but expressly reiterated the general rule that “the witness must meet the
active-clinical-practice requirement of Evid.R. 601 at the time the testimony is offered
at trial.” (Emphasis added.) Johnson, 2021-Ohio-3304, at ¶ 20, quoting Celmer at ¶
27. The Court held that “Celmer sets forth a limited exception to that rule, and the
exception is clearly confined to the particular facts of that case.” Id. Thus, if the limited
exception announced in Celmeris inapplicable, the proponent of expert testimony
must show that the proposed expert “was engaged in the active clinical practice of
medicine at the time of trial.” Id. at ¶ 29. Our analysis, however, does not end here.
{¶45} Evid.R. 601(B)(5)(b) was amended in July 2023 to require a medical
expert to “devote[] at least one-half of his or her professional time to the active clinical
practice in his or her field of licensure, or to its instruction in an accredited school, at
either the time the negligent act is alleged to have occurred or the date the claim
accrued.” (Emphasis added.) The staff notes state, “Division (B)(5)(b) [was] amended
to clarify the time at which the active clinical practice requirement is needed to qualify
the witness as an expert witness, in response to the Supreme Court of Ohio’s ruling in
Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304.” Staff Notes, Evid.R. 601.
{¶46} Durrani asserts Johnson controls as it forbids a trial court from creating
new exceptions outside of the one laid out in Celmer. Durrani further argues that the
July 1, 2023 amendment to Evid.R. 601(B)(5)(b) does not apply because the trial
occurred in September 2021. This court has previously rejected this argument.
{¶47} Adopting Durrani’s position would create a requirement that “would
preclude anyone from taking a temporary leave of absence for any number of reasons,
including maternity or paternity leave, a sabbatical, or in this case, a global pandemic.”
Miles v. Cleveland Clinic Health Sys.-East Region, 2023-Ohio-2582, ¶ 19 (8th Dist.).
16 OHIO FIRST DISTRICT COURT OF APPEALS
Further, the holding in Johnson and amendments to Evid.R. 601 do not implicate such
strict application; even the dissent in Celmer at ¶ 35 (Cupp, J., dissenting)—which
concluded there was no exception to Evid.R. 601—stated that a temporary absence of
a short duration, such as a sabbatical, would not “automatically render an otherwise
qualified medical expert incompetent to testify.” Id. at ¶ 19.
{¶48} Additionally, Evid.R. 1102(Y) provides that the amended version of
Evid.R. 601(B)(5)(b) applies to cases that were pending when the amendment came
into effect, unless its application “would not be feasible or would work injustice, in
which event the former procedure applies.” Nothing in the record suggests that
permitting Dr. Wilkey’s testimony was infeasible or would work injustice.
{¶49} Further, the amendment became effective prior to the trial court’s April
2024 entry of final judgment on all posttrial motions—including Durrani’s revived
JNOV motion filed in March 2024—and this matter has remained pending throughout
this appeal. See Courtney v. Durrani, 2025-Ohio-2335, ¶ 72-75 (1st Dist.);
Ravenscraft/Bowling v. Durrani, 2025-Ohio-2900, ¶ 43-46 (1st Dist.). Dr. Wilkey,
therefore, was qualified to testify as an expert under Evid.R. 601(B)(5)(b), as amended.
{¶50} We, therefore, once again, reject Durrani’s challenge to Dr. Wilkey’s
qualifications as an expert. Accordingly, the trial court did not abuse its discretion
when it permitted Dr. Wilkey’s testimony.
D. The trial court did not err in awarding past medical expenses
{¶51} Durrani argues that, because Clark failed to join United Healthcare, the
trial court should have vacated Clark’s damages for past medical expenses. Durrani
further argues that Clark was not the real party in interest because United Healthcare
paid Clark’s past medical expenses.
17 OHIO FIRST DISTRICT COURT OF APPEALS
Real Party in Interest and Joinder
{¶52} The record shows that plaintiffs followed the trial court’s order to join
United Healthcare as an involuntary plaintiff. United Healthcare chose not to enter an
appearance. Although the trial court concluded in its January 2023 entry that United
Healthcare “could and should have been joined as a party to this action under Civ.R.
19(A),” it was unwilling to grant defendants’ request to vacate Clark’s award for past
medical expenses as “Defendants did not raise the real-party-in-interest issue until
less than one week before the trial commenced,” when it was “no longer possible for
[the] Court to cause United Healthcare to join this action before the scheduled trial
date.” The entry further stated, “. . . in order to prevent Defendants from being
prejudiced by the failure to join United Healthcare as a party to this action before trial,
[this Court] orders that the $75,000 award to Plaintiff for past medical expenses will
not be paid to Plaintiff without the release that is necessary from Defendants in this
case.”
{¶53} Actions must be prosecuted by “the real party in interest.” Bender v.
Durrani, 2024-Ohio-1258, ¶ 129 (1st Dist.), quoting Civ.R. 17(A). “The purpose behind
the real party in interest rule is . . . to enable the defendant to avail himself of evidence
and defenses that the defendant has against the real party in interest, and to assure
him finality of the judgment, and that he will be protected against another suit brought
by the real party at interest on the same matter.” Setters v. Durrani, 2020-Ohio-6859,
¶ 54 (1st Dist.), quoting Shealy v. Campbell, 20 Ohio St.3d 23, 24-25 (1985). Thus, the
real-party-in-interest rule concerns proper party joinder. McCann v. Durrani, 2023-
Ohio-3953, ¶ 21 (1st Dist.). Further, under Civ.R. 19(A), a person who “has an interest
relating to the subject of the action as an assignor, assignee, subrogor, or subrogee” is
a necessary party. Id.
18 OHIO FIRST DISTRICT COURT OF APPEALS
{¶54} In McCann, the plaintiff’s medical expenses were paid by her insurer.
Id. at ¶ 15, 17. We held that “in a case where the insurer only paid part of a plaintiff’s
damages, the plaintiff has standing and is also a real party in interest along with her
insurer.” Id. at ¶ 27.
{¶55} Of note, the parties stipulated that the amount of past medical expenses
was correct in that United Healthcare made medical payments in the amount of
$67,413.21. United Healthcare had a subrogation agreement with Clark, which gave
United Healthcare a contractual subrogation claim, which entitled it to collect a share
of the damages awarded to Clark as reimbursement for medical payments it made on
Clark’s behalf. See R.C. 2323.44. Clark, therefore, had standing regarding past medical
expenses and it was not necessary to join United Healthcare. See Bender at ¶ 122-134
(holding appellee was the real party in interest where the insurance company only paid
a portion of appellee’s past medical expenses and had a lien against appellee’s damages
for reimbursement of expenses paid by the insurance company).
Defendants were not exposed to double damages.
{¶56} Further, the subrogation lien against Clark’s awarded damages
protected Durrani’s interest; as stated by the trial court, defendants were not subject
to double liability because United Healthcare can only collect from Clark’s verdict
against defendants. See id. at ¶ 132; see also Courtney, 2025-Ohio-2335, at ¶ 96 (1st
Dist.) (the trial court cured the insurers’ absence from the trial by protecting Durrani
from the risk of double damages).
{¶57} The trial court did not err in awarding past medical expenses to Clark.
III. Conclusion
{¶58} As the trial court did not err, this court declines to address Durrani’s
harmless-error argument.
19 OHIO FIRST DISTRICT COURT OF APPEALS
{¶59} Construing the evidence in the light most favorable to plaintiffs, the trial
court did not err in denying defendants’ JNOV motions. Reasonable minds could not
conclude in defendants’ favor, and the weight of the evidence was not contrary to the
judgment and no reason for good cause to grant the motion was shown. The trial court
did not abuse its discretion by rejecting defendants’ request for a comparative-
negligence instruction, permitting Dr. Wilkey to testify as an expert, or granting
Clark’s motion for past medical expenses. The trial court did not err in giving its
instruction on Dr. Durrani’s absence. Accordingly, Durrani’s motion for a new trial
was properly denied. Durrani’s sole assignment of error is overruled. The judgment of
the trial court is affirmed.
Judgment affirmed.
ZAYAS, P.J., and BOCK, J., concur.