Courtney v. Durrani

2025 Ohio 2335

• Court: Ohio Court of Appeals
• Decided: July 2, 2025
• Docket: C-240295, C-240296
• Status: Published

Opinion

[Cite as Courtney v. Durrani, 2025-Ohio-2335.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

ERIC COURTNEY, : APPEAL NO. C-240295 TRIAL NO. A-1307859 Plaintiff-Appellee, :

vs. :

ABUBAKAR ATIQ DURRANI, M.D. : JUDGMENT ENTRY

and :

CENTER FOR ADVANCED SPINE : TECHNOLOGIES, : Defendants-Appellants.

MICHAEL KOELBLIN, : APPEAL NO. C-240296 TRIAL NO. A-1506160 Plaintiff-Appellee, :

ABUBAKAR ATIQ DURRANI, M.D. :

CENTER FOR ADVANCED SPINE : TECHNOLOGIES, : Defendants-Appellants. :

This cause was heard upon the appeals, the records, the briefs, and arguments. The judgments of the trial court are affirmed for the reasons set forth in the Opinion filed this date. Further, the court holds that there were reasonable grounds for these appeals, allows no penalty, and orders that costs are taxed under App.R. 24. OHIO FIRST DISTRICT COURT OF APPEALS

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 7/2/2025 per order of the court.

By:_______________________ Administrative Judge OHIO FIRST DISTRICT COURT OF APPEALS

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

ERIC COURTNEY, : APPEAL NO. C-240295 TRIAL NO. A-1307859 Plaintiff-Appellee, :

ABUBAKAR ATIQ DURRANI, M.D. : OPINION

CENTER FOR ADVANCED SPINE : TECHNOLOGIES, : Defendants-Appellants.

MICHAEL KOELBLIN, : APPEAL NO. C-240296 TRIAL NO. A-1506160 Plaintiff-Appellee, :

CENTER FOR ADVANCED SPINE : TECHNOLOGIES, : Defendants-Appellants. :

Civil Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: July 2, 2025 OHIO FIRST DISTRICT COURT OF APPEALS

Statman Harris LLC, Alan Statman, The Deters Law Firm, P.S.C., and Benjamin M. Maraan II, for Plaintiffs-Appellees,

Taft Stettinius & Hollister LLP, Philip D. Williamson, Russel S. Sayre, Nathan R. Coyne and Aaron M. Herzig, for Defendants-Appellants. OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Presiding Judge.

{¶1} Defendants-appellants Abubakar Atiq Durrani, M.D. and Center for

Advanced Spine Technologies, Inc. (“CAST”) (collectively “Durrani”) appeal the

judgments of the Hamilton Count Court of Common Pleas following jury verdicts in

favor of plaintiffs-appellees Eric Courtney and Michael Koelblin.1 Courtney and

Koelblin sued after Durrani performed what they claim were medically unnecessary

back surgeries. The jury awarded them each substantial monetary damages, including

punitive damages.

{¶2} In this latest of many such appeals, we in part cover familiar territory.

Consistent with our holding in Jones v. Durrani, 2024-Ohio-1776 (1st Dist.), we hold

that there was no error in the trial court’s decision to consolidate Courtney’s and

Koelblin’s cases for trial. Courtney’s and Koelblin’s claims raised common questions

of law and fact sufficient to support joinder under Civ.R. 42, and Durrani did not

demonstrate that he was prejudiced by the joint trial. But, following our earlier

opinions in Stephenson v. Durrani, 2023-Ohio-2500 (1st Dist.), Bender v. Durrani,

2024-Ohio-1258 (1st Dist.), and Jones, we hold that the trial court erred in admitting

improper testimony about Durrani’s supposed habit in advising patients and in issuing

a jury instruction that Durrani’s absence from trial gives rise to a negative inference.

Because those errors were harmless, however, we affirm the trial court’s judgments

despite them.

{¶3} We also cover some new territory in these appeals. Durrani contends

that the trial court erred in admitting the testimony of an expert who, at the time of

trial, did not meet the active clinical practice standard required by Evid.R.

1 We sua sponte consolidate the plaintiffs’ two separate appeals into a single opinion and judgment

because they raise identical arguments in both appeals. OHIO FIRST DISTRICT COURT OF APPEALS

601(B)(5)(b). Durrani is correct, at least as to the expert’s work history. But the

evidentiary standard was amended in July 2023 and made retroactive to cases like

Courtney’s and Koelblin’s. Because the expert satisfied the amended standard, we

hold that his testimony was admissible below.

{¶4} Durrani also argues that he was entitled to a jury instruction on

contributory negligence. On another record, he may be. But because nothing at trial

established that Courtney’s and Koelblin’s alleged negligence caused their ongoing

pain and mobility limitations, the trial court did not err in denying the instruction.

{¶5} And lastly, Durrani contends that the trial court erred in permitting

Courtney and Koelblin to recover past medical damages without joining the insurance

companies who paid their medical bills. Because the trial court reasonably exercised

its discretion in finding pretrial joinder of plaintiffs’ insurers infeasible and because

the trial court cured their absence by excusing Durrani’s payment of those damages

without adequate releases, we disagree.

{¶6} As a result, we see no prejudicial error in the record of Courtney and

Koelblin’s trial against Durrani. We accordingly overrule Durrani’s assignments of

error and affirm the judgments of the trial court.

Factual and Procedural History

{¶7} In 2013, Courtney and Koelblin separately sued Durrani after he

operated on their backs. Their complaints included claims for battery, negligence,

negligent hiring, fraud, intentional infliction of emotional distress, informed consent,

violation of the Ohio Consumer Sales Protection Act, and falsification. The crux of

Courtney’s and Koelblin’s claims was that Durrani performed surgeries on them they

did not need, causing them unnecessary pain and leaving them worse off than had they

treated their conditions through nonsurgical interventions. Their claims were

6 OHIO FIRST DISTRICT COURT OF APPEALS

ultimately joined for a jury trial.

{¶8} Prior to trial, Durrani filed a number of pretrial motions, including one

in which he sought to join Courtney’s and Koelblin’s insurance companies to the extent

they had claims for subrogation. Durrani also filed a motion in limine seeking to

exclude evidence from trial. Critically, Durrani moved to limit the testimony of Dr.

Zeeshawn Tayeb, a witness to be called by Courtney and Koelblin to testify about

Durrani’s habit in advising his patients about surgery. He also moved to preclude

plaintiffs from asserting claims for past medical expenses because of the failure to join

the insurers. In addition to filing pretrial motions, Durrani also submitted proposed

jury instructions, which included a request for a contributory negligence instruction

and modified language for an adverse inference instruction about Durrani’s absence

from trial. The trial court deferred ruling on the motions until trial.

{¶9} Courtney and Koelblin’s consolidated trial against Durrani began on

September 8, 2021 and lasted six days.

Courtney’s and Koelblin’s Evidence

{¶10} Courtney, who had experienced back and leg pain since 2009, testified

first. He sought treatment for these conditions from Durrani beginning on October 1,

2012. Durrani initially recommended that he receive two injections, but Courtney only

received one, as the doctor who administered the injections was not available for the

second procedure. When the single injection did not bring Courtney lasting pain relief,

Durrani recommended back surgery. According to Courtney, Durrani did not discuss

the specifics of the surgery or its risks, nor did Durrani review his diagnosis with him.

But Durrani did advise him that surgery would “fix it” and that “it’s easy.”

{¶11} On December 9, 2012, Durrani conducted a lumbar hemilaminectomy,

foraminotomy, and L5-S1 decompression on Courtney. Courtney admitted that he did

7 OHIO FIRST DISTRICT COURT OF APPEALS

not read the post-surgical discharge instructions. The day after his discharge from the

hospital, he awoke in excruciating pain and visited the emergency room (“ER”). After

being released from the ER, Courtney saw Durrani to obtain pain medication and

steroids. At a follow-up visit two weeks after surgery, Courtney’s pain was still worse

than it was before surgery.

{¶12} Durrani advised Courtney to engage in post-operative physical therapy.

Courtney saw the physical therapist on January 2 and January 4, 2013. During these

visits, he communicated his desire to return to his job as a welder as soon as possible.

Courtney admitted that he did not complete the recommended course of physical

therapy, stopping after two visits because he perceived it to be ineffective.

{¶13} Courtney received a note from Durrani that allowed him to return to

work for half-days on January 7, 2013 with restrictions on lifting. Consistent with

Durrani’s note, Courtney started back to work at that time. But Courtney lost his job

just a few weeks later on January 28, 2013. He struggled both to attend work and to

complete his job duties due to his ongoing back pain. Courtney did not see Durrani

after he was fired from his job, because he lost his health insurance.

{¶14} Courtney told the jury that the surgery left him in a worse condition than

he was in before seeking treatment from Durrani. He described his significantly

diminished quality of life, significant functional impairments, and inability to be

employed as a welder.

{¶15} Koelblin described a similar experience. Like Courtney, Koelblin had

been experiencing back and leg pain, although for a much longer period of time.

Koelblin’s condition began in 1988. Koelblin initially saw Durrani on November 1,

2012. At this visit, Durrani recommended back surgery, stating that he could “fix”

him.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶16} Koelblin had been to many doctors over the years and wanted more than

temporary relief from his pain. But Durrani did not provide Koelblin with information

about the surgical procedure he planned to perform and “ignored the question” when

Koelblin asked him about the risks. Durrani advised Koelblin that he would be

confined to a wheelchair in the future if he did not receive surgery. About the surgery,

Durrani also said “[Y]ou’ll shake my hand before you leave the hospital and tell me

that you’re feeling better,” and that Koelblin would “be back to being a normal 40-

year-old man.”

{¶17} On April 19, 2013, Durrani performed the same surgery on Koelblin that

he performed on Courtney: a lumbar hemilaminectomy, foraminotomy, and

decompression in the L5-S1 area. An additional procedure on the L4-L5 area was

initially planned but was not performed. Koelblin testified there was no discussion

about the change. Immediately after surgery, Koelblin experienced “excruciating”

pain on his right side, the opposite side of where he felt pain prior to surgery. He called

Durrani’s office and was told that his recovery sounded normal.

{¶18} Koelblin saw Durrani approximately six weeks after surgery. But his

concerns about his level of pain and subsequent complaints of numbness were

ignored, and he was only prescribed steroids. Koelblin did not see Durrani after this

visit, because Durrani was out of town. Instead, he followed up with his primary care

physician. He took pain medication for years after surgery to manage his back pain

but discontinued the medicine in 2018 because he disliked the side effects.

{¶19} Koelblin was involved in an accident with a Bobcat machine in 2013

after he returned to work. He agreed that the Bobcat incident caused him some neck

and upper back pain separate from the pain he experienced from the surgery.

{¶20} Koelblin testified that his daily pain was worse after surgery, that the

9 OHIO FIRST DISTRICT COURT OF APPEALS

surgery significantly diminished his enjoyment of life, and that he was no longer able

to perform physical labor for his job, cutting his income in half.

{¶21} Courtney and Koelblin called three physicians to testify in support of

their claims. The first was Dr. Keith Wilkey. Dr. Wilkey, an orthopedic surgeon, had

essentially treated patients full-time until July 2020, when Covid restrictions led to

the loss of his position. Dr. Wilkey agreed that he was not in active clinical practice at

the time of trial. Instead, he was employed by an insurance company to review

records, assess the necessity of surgery, and testify in court proceedings. As of the

time of trial, Dr. Wilkey was in discussions with a clinical practice to return to a

surgical position, but had not yet accepted the job.

{¶22} Durrani objected to Dr. Wilkey’s testimony on the grounds that he did

not meet the active clinical practice standard in Evid.R. 601(B)(5)(b). That rule

requires experts testifying on the question of liability in a medical claim case to devote

at least 50 percent of their professional time to active clinical practice or instruction at

an accredited school. As it existed at the time, the 50 percent standard was measured

as of the time of trial. Dr. Wilkey did not meet the standard when he testified.

{¶23} The trial court nonetheless permitted Dr. Wilkey to testify. Relying on

the Ohio Supreme Court’s decision in Celmer v. Rodgers, 2007-Ohio-3697, it

attributed Dr. Wilkey’s inability to meet the Evid.R. 601(B)(5)(b) to the Covid-19

pandemic, not his own withdrawal from the profession. It therefore overruled

Durrani’s objection.

{¶24} Testifying for Courtney and Koelblin, Dr. Wilkey opined that the

medical images of plaintiffs’ anatomies were inconsistent with the diagnoses made by

Durrani. According to Dr. Wilkey, Durrani misrepresented and exaggerated the

plaintiffs’ conditions to justify surgeries that were not indicated. Dr. Wilkey

10 OHIO FIRST DISTRICT COURT OF APPEALS

additionally testified that, because of Durrani’s misrepresentations, Courtney and

Koelblin could not provide medically adequate informed consent and that the consent

to surgery that they did provide did not comport with the standard of care.

{¶25} Dr. Wilkey also testified to specific mistakes that Durrani made in each

plaintiff’s case. With respect to Courtney, Dr. Wilkey opined that Durrani exaggerated

Courtney’s MRI and was negligent in recommending and performing Courtney’s

surgery. More specifically, Dr. Wilkey testified that Durrani struck Courtney’s nerve

with a surgical instrument during the operation. According to Dr. Wilkey, this was the

likely cause of Courtney’s post-surgical pain, ER visit, and subsequent permanent

injury. Durrani also misrepresented Courtney’s gender in his medical records.

{¶26} Dr. Wilkey acknowledged that Durrani referred Courtney to physical

therapy and that Courtney only attended two sessions. But he explained that he does

not routinely recommend post-operative physical therapy in the absence of an

identified motor deficit. Thus, his opinion as to Durrani’s malfeasance was not

impacted by Courtney’s post-surgical conduct.

{¶27} As to Koelblin, Dr. Wilkey testified that, in his opinion, Durrani was

negligent in recommending and performing surgery and that the surgery permanently

exacerbated what had previously been a relatively mild condition. Dr. Wilkey also

opined that Koelblin provided inadequate informed consent to Durrani to operate.

{¶28} After reviewing Koelblin’s medical records, Dr. Wilkey was unable to

explain why Durrani did not perform the L4-L5 procedure that had been planned. He

also noticed other anomalies in Koelblin’s records. For example, one of Durrani’s

initial diagnoses was inexplicably missing from the operative report. Similarly, the

side of the problem noted in the operative record was the opposite of where Koelblin

had reported pain. Even more concerning, the name of another patient, McClure,

11 OHIO FIRST DISTRICT COURT OF APPEALS

repeatedly appeared in Koelblin’s medical records. McClure’s actual records were

nearly identical to Koelblin’s operative report, making it difficult for Dr. Wilkey to

discern whether Koelblin’s records actually pertained to him.

{¶29} Dr. Wilkey agreed that Koelblin did not complete the physical therapy

that Durrani recommended. But this did not change his opinion about Durrani’s

negligence.

{¶30} Courtney and Koelblin also called Dr. Ranjav Saini, a neuroradiologist.

Dr. Saini expressed the opinion that Durrani’s impressions of plaintiffs’ medical

histories and preoperative MRIs were incorrect and that Durrani exaggerated the

radiology to perform surgeries that were not indicated. Dr. Saini additionally opined

that informed consent cannot be provided for a surgery that is not medically necessary.

Regarding Koelblin, he testified that the inclusion of McClure’s records in Koelblin’s

file made it difficult to discern the details of the operative report. He also agreed with

Dr. Wilkey that Koelblin’s records failed to explain why Durrani abandoned the L4-L5

surgery just before the operation began.

{¶31} The final witness for Courtney and Koelblin was Dr. Zeeshan Tayeb, an

interventional spine, pain and sports specialist who testified by deposition. Before Dr.

Tayeb’s testimony was read to the jury, Durrani objected and renewed the improper

habit issue he previously raised in his motion in limine. The trial court overruled the

motion and permitted the deposition to be read to the jury.

{¶32} In his deposition, Dr. Tayeb testified that, while working with Durrani,

he heard Durrani say to patients that he would “fix” them and that they would be

paralyzed if they did not consent to surgery. Patients also reported various comments

that Durrani made to them: that their “head would fall off” if they did not consent to

surgery, that they would be paralyzed, that they would not walk again, and that they

12 OHIO FIRST DISTRICT COURT OF APPEALS

would lose control of their bowels and bladders without surgical intervention. He

further testified that another physician, Dr. Shanti, advised him that Durrani was

“overaggressive” in performing surgeries. Dr. Tayeb’s view was that Durrani failed to

properly treat his patients and often did not employ adequate conservative treatment

prior to surgery, instead highlighting the high number of surgeries he was performing.

Durrani’s Evidence

{¶33} In his defense, Durrani presented the testimony of two medical experts:

Dr. Michelle Whitman, a neuroradiologist, and Dr. Paul Kaloostian, a neurosurgeon.

Dr. Whitman agreed with Durrani’s impressions of Courtney’s and Koelblin’s histories

and imaging and testified that, in her opinion, surgery was appropriate in both

plaintiffs’ cases. Dr. Whitman also testified that Courtney and Koelblin provided

adequate informed consent.

{¶34} Dr. Kaloostian testified to similar opinions. Based on his review of

plaintiffs’ histories, imaging, and medical records, he opined that Durrani’s

recommendations were appropriate and met the standard of care, that surgery was in

fact medically indicated for Courtney and Koelblin, and that both plaintiffs provided

proper informed consent for their operations. He further testified that, in both cases,

surgery was successful and that, according to their medical records, plaintiffs’ pain

levels improved after surgery.

{¶35} As to the inclusion of McClure’s records in Koelblin’s file, Dr. Kaloostian

testified that Koelblin was not harmed by this error. As to Dr. Tayeb’s testimony that

Durrani advised patients they would be wheelchair-bound without surgery, Dr.

Kaloostian admitted that nothing in plaintiffs’ records indicated they might lose their

ability to walk.

{¶36} Dr. Kaloostian also testified that, in general, physical therapy is

13 OHIO FIRST DISTRICT COURT OF APPEALS

indicated after spinal surgery and that the failure to complete it can potentially cause

chronic pain. This testimony was not specific to Courtney’s and Koelblin’s cases. He

further opined that plaintiffs’ ongoing pain was attributable to causes other than the

surgeries that Durrani performed. As to Courtney, Dr. Kaloostian indicated that his

rigorous work activities contributed to chronic muscle pain. As to Koelblin, Dr.

Kaloostian pointed to his decades-long experience with pain prior to seeking

treatment from Durrani as evidence of Koelblin’s enduring injuries.

Jury Instructions and Verdicts

{¶37} At the conclusion of the trial, the trial court instructed the jury. It

rejected Durrani’s request to include a comparative negligence instruction. And it

included an instruction that Durrani’s absence from trial gives rise to an inference that

the evidence or testimony Durrani would have offered would have been unfavorable.

{¶38} On September 17, 2021, the jury issued verdicts in favor of both

plaintiffs. The jury found in Koelblin’s favor as to all of his claims against Durrani. It

awarded him $629,781.92 in compensatory damages, $104,781.92 in past medical

expenses, $75,000 in future medical expenses, $175,000 for past pain and suffering,

$75,000 for future pain and suffering, $75,000 for past loss of enjoyment of life, and

$125,000 for future loss of enjoyment of life.

{¶39} As to Courtney, the jury found that (1) Durrani was negligent in his care

and treatment because he failed to meet the required standard of care; (2) Durrani

failed to acquire informed consent; (3) Durrani committed battery by performing

surgery; (4) the battery was the proximate cause of harm to Courtney; and (5) Durrani

fraudulently misrepresented the necessity of the surgery. The jury did not find that

Durrani’s negligence, failure to receive informed consent, or misrepresentations were

the proximate cause of Courtney’s injuries.

14 OHIO FIRST DISTRICT COURT OF APPEALS

{¶40} Courtney was awarded $337,804.88 in compensatory damages:

$80,804.88 in past medical expenses, $20,000 in future medical expenses, $100,000

for past pain and suffering, $20,000 for future pain and suffering, $75,000 for past

loss of enjoyment of life, and $42,000 for future loss of enjoyment of life.

{¶41} The jury also awarded each plaintiff $750,000 in punitive damages plus

attorney’s fees.

Posttrial Motions

{¶42} After the jury reached its verdicts, Durrani moved for judgment

notwithstanding the verdict (“JNOV”) or, in the alternative, a new trial, arguing that

(1) the trial court erred in refusing to issue a comparative negligence instruction; (2)

the trial court erred by permitting plaintiffs to pursue claims for past medical expenses

when they failed to join their insurers, who were the real parties interest; (3) the trial

court erred in its adverse inference jury instruction; (4) the jury’s verdicts were against

the manifest weight of the evidence; (5) the trial court violated Evid.R. 601(B)(5)(b) in

admitting Dr. Wilkey’s testimony; (6) the trial court erred in admitting Dr. Tayeb’s

improper habit testimony; and (7) defendants were entitled to a setoff.

{¶43} The trial court denied Durrani’s motion for JNOV or a new trial except

as to his argument regarding past medical expenses. As to that issue, the trial court

concluded that, under Civ.R. 19(A), Courtney’s and Koelblin’s insurance companies

were the real parties in interest as to plaintiffs’ claims for past medical expenses. It

accordingly ordered that Durrani need not pay the past medical damages award to

plaintiffs without obtaining adequate releases to avoid the potential of paying twice.

The trial court also concluded that its admission of Dr. Tayeb’s testimony and its

absent defendant instruction were erroneous, but that these errors were harmless. In

resolving Durrani’s posttrial motions, the trial court also reduced Courtney’s punitive

15 OHIO FIRST DISTRICT COURT OF APPEALS

damages award from $750,000 to $675,609.76, to comply with the relevant statutory

cap.

{¶44} Durrani has appealed.

Analysis

{¶45} On appeal, Durrani raises three assignments of error. First, Durrani

argues that the trial court should have ordered new trials with single plaintiffs, rather

than trying Courtney’s and Koelblin’s claims together. Second, Durrani contends that

the trial court erred in denying his motion for JNOV or a new trial. In support of this

assignment of error, he presents a number of issues, including whether the trial court

properly permitted the testimony of Dr. Tayeb and Dr. Wilkey and whether the trial

court properly instructed the jury. Third, he argues that the trial court erred in

allowing plaintiffs to pursue claims for past medical expenses at trial.

A. Joint Trial

{¶46} In his first assignment of error, Durrani argues that the trial court erred

by joining plaintiffs’ claims before the jury. This is not the first time we have resolved

a joint trial question in a case against Durrani. In Jones, 2024-Ohio-1776, at ¶ 25-26

(1st Dist.), we concluded that Civ.R. 42(A) permits the joinder of highly similar claims

against Durrani, where the plaintiffs received similar surgeries, presented the

testimony of similar medical experts on overlapping medical conditions, and raised

common claims of malpractice and fraud based on the same legal theory. As in Jones,

we review the trial court’s decision to consolidate cases under Civ.R. 42(A) for an abuse

of discretion. Id. at ¶ 20.

{¶47} Durrani presents essentially three arguments in support of his

contention that the trial court abused its discretion in trying Courtney’s and Koelblin’s

claims together. First, he argues that differences in Courtney’s and Koelblin’s injuries,

16 OHIO FIRST DISTRICT COURT OF APPEALS

the duration of their pain, and their post-operative care render their cases

inappropriate for joinder under Civ.R. 42(A). Second, he asks us to overrule Jones.

Third, he contends that trying medical cases together is inherently prejudicial, such

that Civ.R. 42(A) cannot be properly applied to them. None of these arguments are

persuasive.

{¶48} To begin, Civ.R. 42(A)(1)(b) permits the consolidation of civil trials “[i]f

actions involve a common question of law or fact.” The common questions need not

be identical. Jones at ¶ 26. In addition, the Civ.R. 42(A) consolidation standard does

not take into account whether the joined actions have separate components or raise

distinct factual or legal issues. See, e.g., Clemente v. Gardner, 2004-Ohio-2254, ¶ 18

(5th Dist.) (finding no abuse of discretion in trial court’s consolidation even though

cases presented questions of law and fact that were not in common). Nor does the rule

weigh the proportion of a case that is in common against the proportion that is

different in determining whether consolidation is appropriate. Rather, by the plain

terms of the rule, a simple common question of law or fact is enough to support a joint

trial. See Civ.R. 42(A)(1)(b).

{¶49} Here, common questions of law and fact supported trying Courtney’s

and Koelblin’s actions together, and the trial court therefore properly exercised its

discretion in conducting a joint trial. Courtney and Koelblin had similar diagnoses

and received essentially the same surgery. They both advanced claims that Durrani

made medically incorrect impressions of their images to order and perform surgeries

that were not necessary. Through identical expert testimony, plaintiffs explained, in

a detailed way, how the spine functions, the complexities of their conditions, and the

surgeries Durrani performed. Because the cases need not be identical to warrant

consolidation, the fact that Courtney’s and Koelblin’s claims were different in certain

17 OHIO FIRST DISTRICT COURT OF APPEALS

factual respects is immaterial to the Civ.R. 42(A) inquiry. Thus, we reject Durrani’s

argument that differences in Courtney’s and Koelblin’s cases made joinder

inappropriate under Civ.R. 42(A).

{¶50} We also reject Durrani’s suggestion that Jones is bad law.2 He argues

for overruling Jones in large part based on the policy position that medical malpractice

claims are uniquely individualized and therefore inappropriate for consolidation. He

further contends that applying the Civ.R. 42(A) standard to doctors leaves them

particularly vulnerable to prejudice. As Durrani contends, the impression left when

one learns a doctor has been sued for malpractice by multiple patients is hard to

overcome.

{¶51} In Jones, we rejected Durrani’s argument that joinder of two plaintiffs’

medical claims for trial was an abuse of discretion. Jones, 2024-Ohio-1776, at ¶ 23

(1st Dist.). The plaintiffs in Jones did not have identical histories, diagnoses or

surgeries. Id. at ¶ 23-25. But the commonality in the facts of their medical procedures

and conditions, the expert testimony necessary to prove their claims, and their legal

claims and theories against Durrani supported the trial court’s exercise of discretion

in scheduling a joint trial. Id. While outside the Civ.R. 42 standard, we noted in Jones

that the jury’s nonidentical verdicts in that case, following the trial court’s reminder to

consider each plaintiff’s case on its own merits, reflected the jury’s ability to reach

verdicts in a consolidated action. Id. at ¶ 26.

{¶52} While Durrani might have a point about the implications of Civ.R. 42(A)

on physicians, the rule does not exempt any particular claim or any particular class of

defendants from its application. To the contrary, consolidation under Civ.R. 42(A) is

2 The Ohio Supreme Court declined to review Jones. See Jones v. Durrani, 2024-Ohio-3313.

18 OHIO FIRST DISTRICT COURT OF APPEALS

essentially a docket-management technique. It enables trial courts to join civil actions

that present common factual or legal questions so they can be processed more

efficiently. See, e.g., In re Cletus P. & Mary A. McCauley Irrevocable Trust, 2014-

Ohio-5123, ¶ 16 (5th Dist.) (crediting trial court’s desire to streamline litigation in

Civ.R. 42 analysis). Unless or until Civ.R. 42(A) is amended to exclude medical claims

against physicians from its joinder provision, we are duty-bound to follow it. We

accordingly decline to overrule Jones.

{¶53} Durrani’s final argument is one of prejudice. He contends that the trial

court’s decision to join Courtney’s and Koelblin’s claims for trial prejudiced the jury

against him, because it heard evidence applicable to only one plaintiff’s case in

conjunction with trying the other plaintiff’s case.

{¶54} Durrani preserved a general prejudice objection when the trial court

determined that it would permit a large number of plaintiffs who had filed medical

claims against Durrani to consolidate their cases for trial. This decision occurred in

another action—Densler v. Durrani, Hamilton C.P. No. A-1706561 (Dec. 7, 2022). In

Densler, Durrani objected to joint trials on the basis of nonspecific prejudice. But

Durrani did not renew that objection in Courtney’s and Koelblin’s cases specifically,

nor did he point to the source of any actual prejudice on the record below. We review

Durrani’s prejudice argument with its lack of preservation in mind.

{¶55} For the first time on appeal, Durrani presents two examples of claimed

evidentiary prejudice. Regarding Koelblin, Durrani asserts that he was prejudiced

because the jury heard testimony that Durrani incorrectly performed Courtney’s

surgery by making contact with a nerve. This evidence, in Durrani’s view, would have

prejudiced the jury’s understanding of how Durrani performed Koelblin’s surgery,

because it would have been tainted by the notion that Durrani was a substandard

19 OHIO FIRST DISTRICT COURT OF APPEALS

physician. Durrani also points to errors in both plantiffs’ medical records—Courtney

was misgendered, and Koelblin’s records were commingled with another patient’s.

Durrani argues that these examples strongly implied to the jury that he copied and

pasted medical notes, and that this damaging inference could not have been made if

the cases were tried separately.

{¶56} Durrani is correct, insofar as he argues that prejudice might inform the

Civ.R. 42(A) joinder inquiry. Federal courts examining a similarly-worded rule have

included prejudice in the inquiry into whether consolidation is proper. See, e.g.,

Gamboa v. Ford Motor Co., 381 F.Supp.3d 853, 866 (E.D.Mich. 2019) (“Once the

threshold requirement of establishing a common question of law or fact is met, . . .

[t]he court weighs the interests of judicial economy against the potential for new

delays, expense, confusion, or prejudice.” (citations omitted.)). And in Siuda v.

Howard, 2002-Ohio-2292, ¶ 12 (1st Dist.), we considered the impact of consolidation

on the jury in a medical case. While not finding such an impact to be prejudicial, this

court did not foreclose the argument that prejudice impacts the propriety of joining

medical malpractice claims for trial. Id. at ¶ 10-12.

{¶57} Prejudice can therefore be relevant in assessing joinder under Civ.R.

42(A). And, of course, any consolidation of trials will certainly result in some

prejudice. But the mere fact that a defendant can articulate some degree of prejudice

flowing from Civ.R. 42(A) consolidation is insufficient to undermine consolidation.

Rather, a party claiming prejudice under Civ.R. 42(A) must demonstrate unfair

prejudice. See e.g. Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, (2001)

(“Emphasis must be placed on the word 'unfair.' Unfair prejudice is that quality of

evidence which might result in an improper basis for a jury decision.”).

{¶58} Durrani has failed to do that here. The jury in Courtney’s and Koelblin’s

20 OHIO FIRST DISTRICT COURT OF APPEALS

cases rendered different verdicts for each plaintiff, evidencing its ability to consider

the evidence applicable to each claim and to treat each plaintiff’s cases in isolation. On

this record, we see no indication that the jury considered evidence admitted by

Koelblin in deciding Courtney’s case or vice versa. While the punitive damages awards

were identical, “the purpose of punitive damages are to punish the tortfeasor and to

deter similar conduct.” Whetstone v. Binner, 2016-Ohio-1006, ¶ 15. Thus, while there

might come a time when a defendant does establish prejudice in a Civ.R. 42(A) joinder

case, no prejudice exists in this case.

{¶59} Therefore, the trial court did not abuse its discretion in ordering

consolidated trials. We accordingly overrule Durrani’s first assignment of error.

B. Judgment Not Withstanding the Verdict and/or New Trial

{¶60} In his second assignment of error, Durrani challenges the trial court’s

decision denying his motion for JNOV or a new trial, identifying five alleged issues

with the trial court’s judgment. First, he asserts that the trial court erred in admitting

Dr. Tayeb’s testimony. Second, he contends that the trial court erred in allowing the

testimony of Dr. Wilkey. Third, he asserts that the trial court erred in failing to give a

comparative negligence instruction. Fourth, he asserts that the trial court erred by

improperly instructing the jury on Durrani’s absence. Lastly, rather than addressing

the impact of each alleged error, he argues that the errors were not harmless and

cumulatively deprived him of a fair trial.

{¶61} We review a trial court’s decision on Civ.R. 50 JNOV motion de novo.

Hounchell v. Durrani, 2023-Ohio-2501, ¶ 30 (1st Dist.). Under this standard, we take

the evidence in the light most favorable to the nonmoving party and grant the motion

if reasonable minds can come to only one conclusion, which is in favor of the moving

party. Id. Civ.R. 59 governs motions for a new trial. We review a trial court’s decision

21 OHIO FIRST DISTRICT COURT OF APPEALS

on a motion for a new trial for an abuse of discretion. Id. at ¶ 31.

1. Dr. Tayeb’s Testimony

{¶62} Durrani first takes issue with the admission of portions of Dr. Tayeb’s

testimony under Evid.R. 406. In specific, Dr. Tayeb testified by way of deposition that

Durrani had a habit of advising his patients of the ill-effects of foregoing surgery in an

effort to convince them to agree. According to Dr. Tayeb, Durrani would tell patients

if they did not agree to surgery their heads would fall off, they would lose bladder and

bowel function, and they would be paralyzed.

{¶63} We held this testimony to constitute improper habit evidence under

Evid.R. 406 in Stephenson v. Durrani, 2023-Ohio-2500, ¶ 37 (1st Dist.), and Densler

v. Durrani, 2024-Ohio-14, ¶ 18 (1st Dist.). This was because Dr. Tayeb failed to

establish the proper foundation for how often Durrani gave this advice to patients. Id.

On the records before us in those cases, we could not discern whether Durrani told

“five [patients] or fifty” that they would face severe consequences if they turned down

his services. Stephenson at ¶ 37. And this was insufficient to meet the standard of a

pattern to establish a habit under Evid.R. 406. Id.

{¶64} The testimony admitted in this case from Dr. Tayeb’s deposition as to

Durrani’s habit in advising his patients appears to be substantially the same as, if not

identical to, the testimony admitted in Stephenson and Densler. Based on our

precedent, we agree with Durrani that this testimony was admitted in error. See

Stephenson at ¶ 37.

{¶65} But the error was harmless. In assessing whether an evidentiary error

was prejudicial or harmless we reverse a trial court’s judgment only when “the error

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

22 OHIO FIRST DISTRICT COURT OF APPEALS

substantial justice.” Hounchell, 2023-Ohio-2501, at ¶ 71 (1st Dist.). In considering

the former standard, we assess whether the trier of fact would have reached the same

decision if the evidentiary error had not occurred. Id.

{¶66} We believe it would have. In both Stephenson and Densler, the jury

cited Dr. Tayeb’s testimony in its interrogatories as a basis for its verdict. Stephenson,

2023-Ohio-2500, at ¶ 82 (1st Dist.); Densler, 2024-Ohio-14, at ¶ 20 (1st Dist.). Not so

here. And, while Dr. Tayeb’s testimony was certainly harsher in degree, other

testimony in the record supported the notion that Durrani minimized the risks of

surgery to Courtney and Koelblin—telling them he would “fix” them and that surgery

is “easy”—and exaggerated the dangers of skipping it. For example, as Courtney

testified, Durrani told him he would be wheelchair-bound without an operation. But

as Dr. Kaloostian conceded, this was not an accurate assessment of his condition.

Moreover, the trial below was lengthy, Dr. Tayeb was not the only physician witness,

and his testimony was not a focal point.

{¶67} Under these circumstances, the jury’s verdicts appear to have rested on

evidence other than Dr. Tayeb’s testimony. We accordingly conclude that the trial

court’s error in admitting portions of Dr. Tayeb’s testimony under Evid.R. 406 was

harmless.

{¶68} Durrani also takes issue with Dr. Tayeb’s testimony as to Dr. Shanti’s

opinion. According to Dr. Tayeb, Dr. Shanti told him that Durrani was overly

aggressive in recommending surgery. Unlike Dr. Tayeb’s habit testimony, this portion

of his deposition was admissible. As this court held in Bender v. Durrani, 2024-Ohio-

1258, ¶ 78 (1st Dist.), Dr. Shanti’s opinion could be properly admitted into evidence

under Evid.R. 804(B)(3) as a statement against a party’s interest, because Dr. Shanti

was an agent of party-defendant CAST. We accordingly see no error in the trial court’s

23 OHIO FIRST DISTRICT COURT OF APPEALS

admission of this portion of Dr. Tayeb’s deposition testimony.

2. Dr. Wilkey’s Testimony

{¶69} Durrani next argues that the trial court erred in admitting Dr. Wilkey’s

testimony under Evid.R. 601(B)(5)(b), because he did not spend at least 50 percent of

his professional time in active clinical practice or instruction at an accredited school.

The version of Evid.R. 601(B)(5)(b) in place as of Courtney and Koelblin’s September

8, 2021 trial measured Dr. Wilkey’s compliance with this standard at the time of trial.

See Evid.R. 601 (B)(5)(b) (effective July 1, 2021). As of that date, Dr. Wilkey had left

his position as an orthopedic surgeon due to the Covid-19 pandemic. He was working

for an insurance company and testifying as an expert witness. He provided no direct

patient care. But prior to the onset of the pandemic, when Courtney’s and Koelblin’s

complaints were filed, Dr. Wilkey spent 90 to 95 percent of his time operating on

patients in a clinical setting. From his testimony and the admission of his curriculum

vitae, we can trace his compliance with the active clinical practice standard from 2005

to the summer of 2020, fully encompassing the period of time when Durrani was

advising, treating, and operating on Courtney and Koelblin.

{¶70} The trial court concluded that Dr. Wilkey could testify despite his

technical noncompliance with the then-existing clinical practice standard contained

in Evid.R. 601(B)(5)(b). It did so on the basis of Celmer, 2007-Ohio-3697. In Celmer,

the Ohio Supreme Court upheld the trial court’s admission of an expert witness who

did not meet the clinical practice standard3 “where the witness would have qualified .

. . but for defense continuances and a stay of proceedings resulting from the insolvency

3 At the time Celmer was decided, the clinical practice standard was contained in Evid.R. 601(D).

Celmer at ¶ 16.

24 OHIO FIRST DISTRICT COURT OF APPEALS

of a [third party].” Id. at ¶ 25. It concluded that the trial court properly exercised its

discretion because the expert met the standard “at the time the cause of action accrued,

at the time of filing suit, and during the first three years of th[e] litigation” and because

the expert would have continued to meet the standard if “the [trial] court commenced

trial as originally scheduled.” Id. at ¶ 26.

{¶71} The Ohio Supreme Court subsequently limited the holding in Celmer to

its facts in Johnson v. Abdullah, 2021-Ohio-3304. At issue in Johnson was whether a

physician employed in an administrative position who does not directly oversee other

doctors engaged in active patient care may testify as an expert under Evid.R.

601(B)(5)(b). Id. at ¶ 1. Answering that question in the negative, the Court

emphasized that, as written, the active clinical practice standard is assessed at the time

the testimony is offered at trial. Id. at ¶ 24. And it declined to extend the Celmer

exception to instances where an expert may have previously satisfied the professional

practice standard, but no longer complied at trial. Id. at ¶ 23. Doing so, it said, would

effectively rewrite the rule. Id.

{¶72} Interestingly, the rule was actually rewritten in July of 2023, with the

express intention of neutralizing Johnson.4 The amended rule now assesses an

expert’s compliance with the active clinical practice standard “at either the time the

negligent act is alleged to have occurred or the date the claim accrued.” See Evid.R.

601(B)(5)(b) (effective July 1, 2023). The current version of Evid.R. 601(B)(5)(b)

therefore permits experts to testify based on their professional practice as of the time

of the alleged medical negligence, not as of the time of trial.

4 The staff notes to the rule amendment confirm that the rule was changed in response to the Ohio

Supreme Court’s decision in Johnson. See Evid.R. 601, Staff Notes (“[d]ivision (B)(5)(b) is 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”).

25 OHIO FIRST DISTRICT COURT OF APPEALS

{¶73} Thus, the admissibility of Dr. Wilkey’s testimony squarely turns on

which version of Evid.R. 601(B)(5)(b) applies. If the version of the rule in place at the

time of trial governs, the trial court’s decision was incorrect. Johnson limited Celmer

to its facts, and the trial court could not rely on Celmer in creating a Covid-19 exception

to the active clinical practice standard. On the other hand, if the current version of the

rule applies, the trial court did not err in permitting Dr. Wilkey to testify, as he was

essentially operating on patients full-time as of the date of plaintiffs’ surgeries.

{¶74} The Ohio Rules of Evidence conclusively resolve this question.

Pursuant to Evid.R. 1102(Y), the current version of Evid.R. 601(B)(5)(6) applies to all

proceedings pending at the time of the July 2023 amendment unless application to

pending cases “would not be feasible or would work injustice, in which event the

former procedure applies.” Courtney’s and Koelblin’s cases were pending in the trial

court as of July 1, 2023, when the amended version of the active clinical practice

standard was adopted. Therefore, according to Evid.R. 1102(Y), the amended rule

applies to this proceeding, and the trial court did not err in permitting Dr. Wilkey to

testify.

{¶75} Although not grounding his argument in the language of Evid.R.

1102(Y), Durrani suggests that it would be unfair to apply the amended evidentiary

standard to Dr. Wilkey. But we think otherwise. If we were to agree with Durrani and

apply the former standard, Dr. Wilkey could clearly testify on remand in accordance

with the now-applicable amended rule. Thus, the remedy Durrani seeks—a new trial

under the applicable Evid.R. 601(B)(5)(b) standard—is the very proceeding that

already occurred. We decline to create such an absurd result.

3. Jury Instruction Issues

{¶76} Durrani next challenges two aspects of the trial court’s jury instructions:

26 OHIO FIRST DISTRICT COURT OF APPEALS

its failure to give a comparative negligence instruction and its instruction that

Durrani’s absence from trial gives rise to a negative inference.

{¶77} “We review a trial court’s decision granting or denying a proposed jury

instruction for an abuse of discretion. However, [t]he question of whether a jury

instruction is legally correct and factually warranted is subject to de novo review.”

(Cleaned up.) Jones, 2024-Ohio-1776, at ¶ 29 (1st Dist.).

a. Comparative Negligence Instruction

{¶78} Durrani requested that the trial court issue a comparative negligence

instruction. He argued that Courtney’s and Koelblin’s failure to complete post-

operative physical therapy and the demanding nature of their occupations at least in

part caused their ongoing pain and suffering. The trial court denied Durrani’s request,

a decision Durrani now challenges. Because this issue raises a question of whether a

comparative negligence instruction was legally warranted by the evidence presented

at trial, we review the question de novo. Id.

{¶79} Ohio law recognizes the defense of contributory negligence in medical

malpractice cases. Viox v. Weinberg, 2006-Ohio-5075, ¶ 13 (1st Dist.). If a plaintiff is

contributorily negligent, his recovery from the defendant will be reduced according to

the principles of comparative negligence. Lambert v. Shearer, 84 Ohio App.3d 266,

284 (1oth Dist. 1992). To establish contributory negligence, the defendant must prove

that the plaintiff breached a duty, proximately causing his own injury and combining

and concurring with the defendant’s conduct as an element without which the injury

would not have occurred. Segedy v. Cardiothoracic & Vascular Surgery Assoc. of

Akron, Inc., 2009-Ohio-2460, ¶ 61 (9th Dist.).

{¶80} Specifically with regard to contributory negligence in medical

malpractice cases, there must be some evidence that creates a causal connection

27 OHIO FIRST DISTRICT COURT OF APPEALS

between the patient’s negligence and the injury caused by the medical professional.

Viox at ¶ 13. The patient’s negligence must occur contemporaneously with, and not

prior to, the physician’s negligence. Reeves v. Healy, 2011-Ohio-1487, ¶ 71 (10th

Dist.). Disregarding a doctor’s orders can constitute contributory negligence, where

there is evidence the patient’s conduct proximately caused or contributed to his

injuries. Striff v. Luke Med. Practitioners, Inc., 2010-Ohio-6261, ¶ 57 (3d Dist.).

{¶81} The evidence presented at Courtney and Koelblin’s trial did not warrant

a comparative negligence instruction under these standards. Most lacking was any

evidence that plaintiffs’ failure to complete physical therapy or their return to

demanding jobs proximately caused their ongoing pain and mobility limitations. In

this context, Dr. Kaloostian testified that plaintiffs’ activity levels before they sought

treatment may have left them in ongoing muscular pain, but this was insufficient to

establish proximate cause for the panoply of plaintiffs’ post-surgical problems. These

included not only muscle tension, but ongoing spinal injuries, debilitating spinal and

limb pain, mobility limitations, and the inability to work. Neither Dr. Kaloostian nor

any other expert testified that plaintiffs would not have suffered but for their decisions

not to fully pursue physical therapy. And Dr. Kaloostian did not indicate that either

plaintiff breached a duty in working so hard, such that they were negligent.

{¶82} There were also questions at trial about whether Courtney and Koelblin

ever received Durrani’s physical therapy referrals, such that they had a duty to attend.

Durrani’s notes indicate that he sent the information about physical therapy to other

doctors, not to plaintiffs themselves. Presumably at least Courtney knew about

Durrani’s recommendation, because he attended two sessions of physical therapy. But

on this record we are unsure whether Durrani established a duty on either plaintiffs’

part to attend post-operative physical therapy. Nonetheless, even if he did, nothing at

28 OHIO FIRST DISTRICT COURT OF APPEALS

trial attributed the proximate cause of Courtney’s and Koelblin’s conditions to the

absence of physical therapy follow-up.

{¶83} “As the party asserting the affirmative defense, it was incumbent upon

[Durrani] to present sufficient evidence to warrant the giving of the [contributory

negligence] instruction.” Hacker v. Roddy, 2013-Ohio-5085, ¶ 22 (3d Dist.). Because

Durrani did not present adequate evidence of causation, the trial court properly

declined Durrani’s request for a comparative negligence instruction.

b. Absent-Defendant Instruction

{¶84} Durrani also challenges the trial court’s issuance of an absent-defendant

instruction. He contends the language chosen by the trial court for this purpose—that

Durrani’s absence from trial “gives rise” to an inference that his evidence or testimony

would be adverse to him—was improper.

{¶85} We found fault with an identical instruction in Jones, 2024-Ohio-1776,

at ¶ 34 (1st Dist.). But we concluded the issuance of the instruction did not necessitate

reversal, because the jury instructions as a whole did not mislead the jury on a matter

affecting Durrani’s substantial rights. Id. at ¶ 37-40.

{¶86} “In examining errors in a jury instruction, a reviewing court must

consider the jury charge as a whole” for the purpose of determining whether the jury

was likely to be mislead. Id. at ¶ 36. With regard to this instruction, it was not. While

the trial court erroneously instructed the jury that Durrani’s absence from trial

affirmatively creates an inference that is adverse to him, it also informed the jury that

the choice of making inferences from the evidence rested in its sound discretion. As

we observed in Jones, this mitigated against the impact of the absent-defendant

instruction, because the jury was not required to make the negative inference that

instruction suggested. Id. at ¶ 37-40.

29 OHIO FIRST DISTRICT COURT OF APPEALS

{¶87} Moreover, like in Jones, the record does not reflect that the jury was

actually misled. It issued separate verdicts in Courtney’s and Koelblin’s cases that

reflect its ability to understand the evidence to differentiate between the claims. We

accordingly find no reversible error in the trial court’s issuance of an absent-defendant

instruction.

c. Cumulative Error

{¶88} Durrani’s final argument in support of his second assignment of error

is that cumulative, nonharmless errors impacted the trial court’s judgment denying

his JNOV and new trial motion. We have identified two errors with that decision: (1)

the improper admission of Dr. Tayeb’s habit testimony, and (2) the issuance of an

erroneous absent-defendant jury instruction. But, as we have explained, the jury

instruction error did not constitute reversible error, and the admission of Dr. Tayeb’s

testimony was harmless.

{¶89} Under the cumulative error doctrine, a judgment may still be reversed

if the cumulative effect of otherwise harmless errors deprives a party of a fair trial.

Woods v. Rogers, 2024-Ohio-338, ¶ 51 (8th Dist.). We cannot describe the character

of the two harmless errors we identified in this manner.

{¶90} Durrani’s second assignment of error is accordingly overruled.

C. Past Medical Expenses and the Failure to Join Necessary Parties

{¶91} In his third assignment of error, Durrani asserts that the trial court

erred in permitted Courtney and Koelblin to recover monetary damages for their past

medical expenses without joining as parties the insurance companies that actually

paid those expenses.

{¶92} We established a framework in Setters v. Durrani, 2020-Ohio-6859, ¶

53-58 (1st Dist.), for assessing Durrani’s preservation of this issue. As we observed in

30 OHIO FIRST DISTRICT COURT OF APPEALS

Setters, pursuant to Civ.R. 12(H)(2), a defense of failure to join a necessary party under

Civ.R. 19 can be asserted in an answer, motion for judgment on the pleadings, or at

trial. Id. at at ¶ 57. But merely raising a real-party-in-interest defense in an answer

without taking affirmative action to further prosecute it results in waiver. Id.

{¶93} Unlike in Setters, where Durrani merely raised a cursory Civ.R. 19 issue

in his answer and did no more, in this case Durrani filed a pretrial motion pursuant to

Civ.R. 19(A) to join Courtney’s and Koelblin’s insurers and again raised the issue in his

JNOV and new trial motion. See id. at ¶ 58. He therefore properly preserved the issue

for our review. See McCann v. Durrani, 2023-Ohio-3953, ¶ 33 (1st Dist.).

{¶94} The trial court did not resolve Durrani’s Civ.R. 19(A) joinder motion

before trial. Instead, in its order denying Durrani’s JNOV and new trial motion, it

concluded that Courtney’s and Koelblin’s insurance companies were the real parties

in interest to the past medical damages claims. But it held that their absence from trial

was not fatal to the damages awards, as Durrani could obtain releases before making

payment for past medical damages. It therefore ordered that Durrani need not pay

the $80,804.88 the jury awarded for past medical expenses until such releases were

executed. This mechanism, according to the trial court, would avoid the possibility of

double payments to plaintiffs and their insurers. The trial court also noted that the

timing of Durrani’s motion, which was filed about a month before a trial date that had

long been scheduled and involved the coordination of several medical experts’

schedules, made pretrial joinder impractical.

{¶95} We see no error in this approach. Civ.R. 19(A) vests trial courts with

considerable flexibility in determining when a party is necessary and when its

appearance is feasible. Walton v. Able Drywall Co., 2001 Ohio App. LEXIS 5154, *13

(2d Dist. Nov. 16, 2001). Here, given the rapidly approaching trial date and the

31 OHIO FIRST DISTRICT COURT OF APPEALS

tardiness of Durrani’s motion, the trial court did not act unreasonably in determining

that joinder was infeasible.

{¶96} Moreover, the Ohio Supreme Court has advised that dismissal for the

failure to join a necessary party is warranted “only where the defect cannot be cured.”

State ex rel. Bush, 42 Ohio St.3d 77, 81 (1989). Here, the trial court cured the insurers’

absence from the trial by protecting Durrani from the risk of double damages. We

noted in McCann that this is the core purpose of the real party in interest rule: to

protect the tortfeasor from the risk of litigating multiple lawsuits and facing multiple

judgments for the same damages. McCann, 2023-Ohio-3953, at ¶ 27 (1st Dist.). And

in McCann, we approved mechanisms that protect that interest where joinder at trial

under Civ.R. 19(A) may not, in the trial court’s discretionary determination, be

feasible. Id. at ¶ 33-34. We follow that approach again here.

{¶97} Durrani does not argue that plaintiffs’ claims could not be adjudicated

without the insurers, nor does he argue that he is unable to secure the releases the trial

court ordered. Rather, he contends that the amount of Courtney’s and Koelblin’s past

medical expenses should not have been included in calculating the statutory cap on

punitive damages. But he does not otherwise assign error to the punitive damages

award, and we decline to advance that argument for him. See, e.g., Saylor v. Saylor,

2020-Ohio-3647, ¶ 29 (1st Dist.) (“Appellate courts review assignments of error—we

sustain or overrule only assignments of error and not mere arguments.”).

{¶98} Durrani’s third assignment of error is accordingly overruled.

Conclusion

{¶99} Treading familiar ground, we uphold the jury’s verdicts in Courtney’s

and Koelblin’s favor on their medical claims against Durrani. The trial court did not

err in trying Courtney’s and Koelblin’s claims together, in rejecting a comparative

32 OHIO FIRST DISTRICT COURT OF APPEALS

negligence instruction, in permitting Dr. Wilkey to testify, and in declaring the joinder

of plaintiffs’ insurers on the eve of trial infeasible. Nor did it commit reversible error

in admitting the testimony of Dr. Tayeb as to Durrani’s habit in advising his patients

or in instructing the jury on Durrani’s absence from trial. We accordingly overrule

Durrani’s assignments of error and affirm the judgments of the trial court.

Judgments affirmed.

CROUSE, J., concurs. BOCK, J., concurs separately.

BOCK, J., concurring.

{¶100} Based on this court’s holding in Jones v. Durrani, 2024-Ohio-1776 (1st

Dist.), as well as Dr. Durrani’s failure to raise a general prejudice argument below, I

agree with the majority that the trial court did not abuse its discretion by joining

Courtney’s and Koelblin’s trials. But I write separately because I believe that joining

for trial separate professional-negligence claims against the same defendant creates

an unacceptable risk of prejudice.

{¶101} The Ohio Rules of Civil Procedure allow a trial court to hold a joint trial

when multiple “actions before the court involve a common question of law or fact.”

Civ.R. 42(A)(1)(a). In some situations, this makes sense. For example, when multiple

parties to an identical contract sue for contractual damages and ask a factfinder to

ascertain the meaning of an ambiguous clause, a joint trial carries little risk of

prejudice. While the damages may be different, the clause’s meaning would apply to

any plaintiff alleging damages based on that clause. Likewise, if multiple people were

injured by the same vehicle collision, none of the claims would survive if the fact finder

determined that the alleged tortfeasor did not act negligently. In those situations, a

single act exposes the defendant to liability.

33 OHIO FIRST DISTRICT COURT OF APPEALS

{¶102} But in professional-liability lawsuits, where a jury must determine

whether a licensed professional negligently performed a service, liability is based on

the professional’s unique interactions with unique individuals. Yet, joint lawsuits

involving the same physician permit the factfinder to hear details about another

pending malpractice action against the defendant doctor. Such evidence risks both

jury confusion and a verdict based on improper propensity considerations.

A. Ohio courts have determined that evidence of other malpractice cases is unfairly prejudicial

{¶103} Ohio courts, including this court, have held that evidence of prior or

pending medical-malpractice claims against the same defendant doctor should be

excluded because that evidence is unfairly prejudicial. E.g., Stephenson v. Durrani,

2023-Ohio-2500, ¶ 47 (1st Dist.), quoting D’Amore v. Cardwell, 2008-Ohio-1559, ¶

97 (6th Dist.) (“[A]bsent a finding of malpractice, evidence of the existence of a prior

medical malpractice case is properly excluded, as unfairly prejudicial.”); House v.

Swann, 2010-Ohio-4704, ¶ 53 (6th Dist.) (probative value of evidence involving the

defendant-physician’s previous, similar birth-injury incidents “was substantially

outweighed by the danger of unfair prejudice.”); McGarry v. Horlacher, 2002-Ohio-

3161, ¶ 42-43 (2d Dist.) (evidence that the physician-defendant had previously

misdiagnosed ovarian cancer was properly excluded because of the risk of unfair

prejudice); Lumpkin v. Wayne Hosp., 2004-Ohio-264, ¶ 23 (2d Dist.) (excluding

evidence that the physician-defendant had committed similar malpractice in a

separate lawsuit, noting, “Proof of one bad result in a previous, similar surgery,

without more, promotes an improper inference that because a doctor has had one bad

result on a previous occasion, the doctor is incompetent.”); D’Amore v. Cardwell,

2008-Ohio-1559, ¶ 97 (6th Dist.) (excluding evidence of pending medical-malpractice

34 OHIO FIRST DISTRICT COURT OF APPEALS

lawsuits because “[c]onsideration of other negligence claims, that remained to be

proven, would have been highly prejudicial to [the physician] in this action and risked

confusion of the issues for the jury in an already complicated case.”); Malcolm v.

Duckett, 2013-Ohio-2806, ¶ 17, 20 (6th Dist.) (even if the patient-plaintiff had offered

evidence of previous malpractice actions against the physician-defendant for a

permissible Evid.R. 404(B) purpose, it would have been excluded under Evid.R.

403(A) because the evidence “would certainly have caused unfair prejudice and would

have confused and misled the jury.”).

{¶104} Ohio’s prohibition on admitting propensity evidence benefits both

patients and physician-defendants. Evid.R. 404(A), which prohibits improper

character evidence, states, “Evidence of a person’s character or a trait of character is

not admissible for the purpose of proving action in conformity therewith on a

particular occasion.” Yet, joint professional-liability trials may be a trojan horse for

such improper character evidence, the prejudicial effect of which is a two-way street.

In Robinson v. Mercy St. Vincent Med. Ctr., 2018-Ohio-2030, ¶ 61 (6th Dist.), the

appellate court determined that an OBGYN-defendant’s testimony and closing

argument involving his shoulder-dystocia deliveries with good outcomes constituted

improper propensity evidence. The court held that the physician offered this evidence

to show that he had “successfully managed other ‘much more difficult’ and ‘much more

complicated’ shoulder dystocia cases and, therefore, it can be inferred that he

successfully managed the shoulder dystocia in the present case, which was ‘relatively

easy’ by comparison.” Id.

B. In other Durrani appeals, this court rejected attempts to introduce evidence of other lawsuits filed against Dr. Durrani

{¶105} In Stephenson, this court explained that plaintiff’s counsel introduced

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a video collage, which contained excerpts of Dr. Durrani’s various depositions.

Stephenson, 2023-Ohio-2500, at ¶ 41 (1st Dist.). In addition to introducing prejudicial

evidence that is not at issue in this case, the collage contained questions or references

to five or more other malpractice lawsuits that had been filed against Dr. Durrani. Id.

at ¶ 48. This court, quoting D’Amore at ¶ 97, stated, “Consideration of other negligence

claims, that remain to be proven, would have been highly prejudicial to [defendant] in

this action and risked confusion of the issues for the jury in an already complicated

case.” Id. Further, it held that because the collage did not attempt to show a

correlation to the plaintiff’s case, the collage’s snippets of information about other

malpractice cases “seems only to reinforce the point that Dr. Durrani is an incapable

doctor.” Id. at ¶ 50.

{¶106} Likewise, in Hounchell v. Durrani, 2023-Ohio-2501, ¶ 50-60 (1st

Dist.), this court determined that including evidence of other lawsuits filed against Dr.

Durrani permitted the plaintiff to introduce improper propensity evidence. This court

noted that the evidence of other lawsuits Hounchell wished to introduce “was not

related in any way to the surgery performed on Hounchell.” Id. at ¶ 51.

{¶107} First, this court engaged in an Evid.R. 404(B) analysis and noted that

evidence involving a party’s previous crimes, acts, or wrongs is called “propensity

evidence” because it tends to show that the defendant engaged in the accused

wrongdoing in the instant case because the defendant previously had committed

wrongful acts. Id. at ¶ 53. The Hounchell court rejected Hounchell’s argument that

evidence that Dr. Durrani failed to disclose previous lawsuits, despite having a duty to

do so, was relevant to his credibility. Id. at ¶ 55. It held that no valid Evid.R. 404(B)

basis justified admitting evidence of other lawsuits. Id. Indeed, the court noted that

permitting this evidence to attack Dr. Durrani’s credibility “looks exactly like the

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propensity suggestion that Evid.R. 404(B) forbids by inviting the jury to infer that Dr.

Durrani lied to Hounchell about the need for surgery since he supposedly lied about

prior malpractice lawsuits on his license applications.” Id. Further, the Hounchell

court determined that the risk of prejudice “outweighed its very limited probative

value.” Id. at ¶ 56. The court determined that because the evidence did not relate to

Dr. Durrani’s treatment of Hounchell, it had been introduced “for the prejudicial

purpose of asking the jury to infer that (1) because Dr. Durrani had been charged with

malpractice in the past, he must have committed malpractice against Hounchell and

(2) because Dr. Durrani had been dishonest in the past, he necessarily must have been

dishonest when informing Hounchell about the findings on her medical images and

about the medical necessity of surgery.” Id.

C. Permitting joint trials in the cases against Dr. Durrani risks unfair prejudice

{¶108} When a jury hears evidence that the same physician negligently treated

two separate patients, the risk of juror confusion arises. And so does the risk of the

jury basing its verdict on its belief that because multiple patients accused the physician

of providing negligent treatment and fraudulently misrepresenting the need for

surgery, the allegations must be true.

{¶109} This danger is exacerbated where, as here, multiple plaintiffs allege

that the physician breached a duty of care in the same or similar way. When only one

patient sues and asserts that a physician negligently performed surgery and caused

injuries, the jury only considers whether the physician’s treatment of that individual

patient was negligent. But when multiple patients in a joint trial assert that a doctor

was negligent by using the same surgical technique, that doubling up “promotes an

improper inference that because a doctor has had one bad result on a previous

37 OHIO FIRST DISTRICT COURT OF APPEALS

occasion, the doctor is incompetent.” Lumpkin v. Wayne Hosp., 2004-Ohio-264, ¶ 23

(2d Dist.).

{¶110} Here, both Koelblin and Courtney alleged that Dr. Durrani lied to them

by misrepresenting their need for surgery. As stated in Hounchell, when evidence of

other lawsuits filed against Dr. Durrani constitute an attack on his credibility, that

evidence “looks exactly like the propensity suggestion that Evid.R. 404(B) forbids by

inviting the jury to infer that Durrani lied to Hounchell about the need for surgery

since he supposedly lied about prior malpractice lawsuits on his license applications.”

Hounchell, 2023-Ohio-2501, at ¶ 55 (1st Dist.).

{¶111} That Dr. Durrani gave Koelblin and Courtney similar diagnoses,

performed similar surgeries, and allegedly lied to both about the need for surgery

should not justify joining these cases. Ohio courts, including this court, have

repeatedly held that permitting a plaintiff to introduce evidence of other medical-

malpractice lawsuits involving the same physician constitutes unfair prejudice.

Introducing such evidence risks the jury improperly determining that if the physician

made a mistake treating one patient, it is more likely that the physician made a mistake

treating the plaintiff. This improper inference seems more likely when the allegations

of negligence—or fraud—involve similar medical treatment, outcomes, or

misrepresentations.

{¶112} Jurors heard evidence that Dr. Durrani fraudulently misrepresented

the need for surgery to two separate patients and negligently treated both patients in

a similar manner. It is well-settled law in Ohio that permitting a patient to introduce

evidence of pending medical-malpractice cases against a defendant doctor is unfairly

prejudicial. The difference in this case—that the propensity evidence involved the

other patient in a joint trial rather than a patient in a separate pending proceeding—is

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irrelevant. Permitting evidence of other malpractice claims against the same doctor,

regardless of how that evidence comes in, risks juror confusion and unfairly prejudices

the physician. Ohio law forbids evidence of other bad acts because it leads to improper

inferences. Here, jurors may have improperly inferred that because multiple patients

made similar allegations against Dr. Durrani, the allegations must be true.

D. Conclusion

{¶113} I am compelled to join the majority based on the precedent set by this

court in Jones v. Durrani. But permitting the Koelblin and Courtney actions to be

joined for trial created a real possibility that the verdicts were based not on Dr.

Durrani’s unique medical treatment of—and representations to—his two unique

patients, but on juror speculation that multiple accusations of the same bad behavior

make it more likely that the allegations in both actions were true.