[Cite as McCann v. Durrani, 2023-Ohio-3953.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
HEATHER MCCANN, : APPEAL NOS. C-220025 C-220033 Plaintiff-Appellee/Cross- : TRIAL NO. A-1506572 Appellant, : vs. O P I N I O N. : ABUBAKAR ATIQ DURRANI, M.D., : and : CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., :
Defendants-Appellants/Cross- : Appellees, : and
WEST CHESTER HOSPITAL, LLC, :
and :
UC HEALTH, :
Defendants. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in Part and Reversed in Part in C-220025; Affirmed as Modified in C-220033
Date of Judgment Entry on Appeal: November 1, 2023 OHIO FIRST DISTRICT COURT OF APPEALS
Robert A. Winter Jr., James F. Maus, and Benjamin M. Maraan, II, for Plaintiff- Appellee/Cross-Appellant,
Taft Stettinius & Hollister LLP, Philip D. Williamson, Aaron M. Herzig, Russell S. Sayre, Anna M. Greve, Lindhorst & Dreidame Co., LPA, Michael F. Lyon, James F. Brockman, and Paul J. Vollman, for Defendants-Appellants/Cross-Appellees.
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CROUSE, Presiding Judge.
{¶1} After a jury trial, defendants-appellants/cross-appellees Dr. Abubakar
Atiq Durrani and his spinal surgery practice, the Center for Advanced Spine
Technologies, Inc., (“CAST”) (collectively, “appellants”) were found liable for medical
negligence and fraudulent misrepresentation following two surgeries Dr. Durrani
performed on plaintiff-appellee/cross-appellant Heather McCann. Appellants
challenge the trial court’s award of past medical expenses, future medical expenses,
prejudgment interest, and court costs to Ms. McCann, arguing that the trial court
should have entered a judgment of $0 for Ms. McCann.
{¶2} Ms. McCann cross-appeals, arguing that appellants were not entitled to
a setoff of $157,530.83 against the jury’s award.
{¶3} For the reasons that follow, we affirm the trial court’s award of past and
future medical expenses, reverse the trial court’s award of prejudgment interest and
court costs, and modify the amount of the setoff.
I. Factual and Procedural History
{¶4} In 2005, Ms. McCann suffered a back injury resulting in an injured
tailbone and temporary paralysis. By mid-2006, her tailbone injury had healed, but
she still suffered from chronic back pain. Ms. McCann was treated conservatively for
her pain with pain medications, steroid injections, and nerve blocks. Ms. McCann
worked intermittently and received social security disability payments.
{¶5} Eventually, Ms. McCann was unable to continue working and was
granted permanent disability status by the Social Security Administration. In 2012,
she was referred to Dr. Durrani for consultation on her condition and options to relieve
her chronic back pain, numbness, and headaches. These conditions were all attributed
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to her 2005 back injury.
{¶6} Dr. Durrani recommended spinal surgery for Ms. McCann. In July 2012,
Dr. Durrani performed a C1-C2 fusion surgery on her neck, and in February 2013, Dr.
Durrani performed a T7-T9 fusion surgery on her mid-back. These surgeries involved
placing rods and screws on one side of her spine.
{¶7} Following these surgeries, Ms. McCann claimed that her pain worsened.
Eventually, she had another doctor remove the rods and screws Dr. Durrani placed.
After that, Ms. McCann claimed that her pain lessened, and she regained some range
of motion in her neck.
{¶8} In December 2015, Ms. McCann filed suit against Dr. Durrani and
CAST, as well as the hospital where the surgeries were performed and the parent
company of the hospital (collectively, the “hospital defendants”).1 Ms. McCann
asserted claims against Dr. Durrani for negligence; battery; lack of informed consent;
intentional infliction of emotional distress; fraud; and spoliation of evidence. She
asserted claims against CAST for vicarious liability; negligent hiring, retention, and
supervision; spoliation of evidence; violation of the Ohio Consumer Sales Practices
Act; and fraud.
{¶9} Following a trial, the jury returned a verdict for Ms. McCann on her
claims for negligence and fraudulent misrepresentation. The jury awarded Ms.
McCann $58,076.40 for past medical expenses, $50,000 for future medical expenses,
$50,000 for future pain and suffering, and $50,000 for future loss of enjoyment of
life. The total award of compensatory damages was $208,076.40.
{¶10} Appellants filed a notice of appeal in 2021. We requested jurisdictional
1 The hospital and its parent company reached a separate settlement with Ms. McCann and were
dismissed as defendants. They are not parties to this appeal.
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briefing from the parties and subsequently dismissed that appeal as premature.
{¶11} After resolving all posttrial motions, the trial court granted appellants’
motion for a setoff in the amount of $157,530.83 as a result of Ms. McCann’s
settlement with the hospital defendants. This reduced her compensatory damages
award to $50,545.57. Additionally, the trial court awarded Ms. McCann $13,919.25 in
prejudgment interest and $7,494.40 in court costs.
{¶12} This appeal timely followed.
II. Analysis
{¶13} In their sole assignment of error, appellants argue that “The trial court
should have entered a judgment of $0 for Ms. McCann.” Specifically, appellants
contend that the trial court should have vacated the jury’s awards of past and future
medical damages, and that it was erroneous for the court to award Ms. McCann
prejudgment interest and court costs.
{¶14} In her cross-appeal, Ms. McCann raises in a single assignment of error
that the trial court erred in granting appellants a setoff against her damages award.
Past Medical Damages
{¶15} Appellants argue that Ms. McCann lacked standing to seek damages for
past medical expenses, because her past medical expenses were fully paid by her health
insurance providers, the Centers for Medicare & Medicaid Services (“Medicare”) and
Medicaid of Ohio (“Medicaid”). As a result, appellants contend that this court must
vacate Ms. McCann’s past-medical-damages award. Appellants primarily rely on
Shealy v. Campbell, 20 Ohio St.3d 23, 25, 485 N.E.2d 701 (1985), for their standing
argument.
{¶16} Appellants contend that Shealy stands for the proposition that when an
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insurer has fully paid for the loss suffered by its insured, the insured no longer has a
right of action against the wrongdoer. Appellants further argue that because they
argued below that Medicare and Medicaid were the real parties in interest, the trial
court erred by not joining them as parties pursuant to Civ.R. 17 and Ms. McCann had
no standing to proceed against appellants for past medical expenses.
{¶17} Ms. McCann does not dispute that all her medical expenses were paid
by her insurers, Medicare and Medicaid, but, she contends, that fact did not defeat her
standing to sue for those expenses.
{¶18} In order to resolve this issue, we must first discuss the difference
between standing and real party in interest.
{¶19} The concepts of standing and real party in interest are related, but the
interests being served and consequences for their absences are distinct. See Firestone
v. Galbreath, 976 F.2d 279, 283 (6th Cir.1992) (“Frequently, attorneys and courts
confuse the concepts of standing with that of capacity to sue and with the real party in
interest principle.”); Hammes v. Brumley, 659 N.E.2d 1021, 1029 (Ind.1995) (“The
concepts of standing and real party in interest often are understandably—but
incorrectly—considered one and the same.”). Courts and litigants often struggle to
tease apart these concepts. See, e.g., Pillsbury Co. v. Wells Dairy, Inc., 752 N.W.2d
430, 434 (Iowa 2008) (collecting cases).
{¶20} The Ohio Constitution provides that the courts of common pleas have
“original jurisdiction over all justiciable matters * * * as may be provided by law.”
(Emphasis sic.) Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13,
2012-Ohio-5017, 979 N.E.2d 1214, ¶ 20, quoting Ohio Constitution, Article IV, Section
4(B). A fundamental requirement for a matter to be “justiciable” is that the party
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bringing suit has standing to sue. See id. at ¶ 21. “Standing refers to whether a party
has a sufficient stake in an otherwise justiciable controversy to obtain judicial
resolution of that controversy.” Davet v. Sheehan, 8th Dist. Cuyahoga No. 101452,
2014-Ohio-5694, ¶ 22, citing Schwartzwald at ¶ 21. In this context, standing is a
prerequisite to invoke the jurisdiction of the court: “a party’s lack of standing vitiates
the party’s ability to invoke the jurisdiction of a court * * * over the party’s attempted
action.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d
1040, ¶ 22, citing Schwartzwald at ¶ 22. Standing to sue must be determined at the
time the action is filed, and its absence requires that the complaint be dismissed.
Schwartzwald at ¶ 40. If no party with standing to sue has properly invoked the
jurisdiction of the court in the first instance, that defect cannot be cured later by
substitution of a party with proper standing. Id. at ¶ 38.
{¶21} In addition to the standing necessary to invoke the jurisdiction of the
court, the civil rules provide that “[e]very action shall be prosecuted in the name of the
real party in interest.” Civ.R. 17(A). The question of whether a party has standing to
sue is distinct from whether the party is the real party in interest. “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.” (Internal quotations
omitted.) Setters v. Durrani, 2020-Ohio-6859, 164 N.E.3d 1159, ¶ 54 (1st Dist.),
quoting Shealy, 20 Ohio St.3d at 24, 485 N.E.2d 701. The central concern of the real-
party-in-interest rule is proper party joinder. Id. at ¶ 56, citing Schwartzwald at ¶ 33.
Under Civ.R. 19(A), a person who “has an interest relating to the subject of the action
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as an assignor, assignee, subrogor, or subrogee” is a necessary party to be joined, if
feasible. Id. However, because this rule is procedural, it must be timely raised, or else
it will be waived. Id.
{¶22} In a medical-malpractice case, there can be both economic losses, such
as medical expenses or lost wages, see R.C. 2315.18(A)(2), and noneconomic losses,
such as pain and suffering, see R.C. 2315.18(A)(4). Because both types of damages are
caused by “the same tortious act, ‘only a single cause of action arises * * *.’ ” See Smith
v. Natl. W. Life, 2017-Ohio-4184, 92 N.E.3d 169, ¶ 12 (8th Dist.), quoting Rush v.
Maple Hts., 167 Ohio St. 221, 221, 147 N.E.2d 599 (1958), syllabus (“Because the
separate claims were based on the same tortious act, ‘only a single cause of action
arises, the different injuries occasioned thereby being separate items of damage from
such act.’ ”). And because there is only a single cause of action, regardless of the
“separate items of damage” that may be awarded, the injured party does not lose
standing to sue merely because she did not have out-of-pocket costs with regard to her
past medical expenses.
{¶23} Appellants contend that Shealy v. Campbell stands for the proposition
that Ms. McCann lacked standing to pursue past medical expenses. Shealy did state
that “when the loss is fully paid by an insurer and the insurer becomes subrogated to
the insured’s claim against the wrongdoer, the insured no longer has a right of action
against the wrongdoer.” (Emphasis added.) Shealy at 25. However, Shealy does not
apply to this case because Ms. McCann’s entire loss was not “fully paid,” by her health
insurance providers. Ms. McCann’s past medical expenses were only part of her entire
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claim for damages. Only her past medical expenses were paid by insurance.2
{¶24} Appellants also cite Holibaugh v. Cox, 167 Ohio St. 340, 148 N.E.2d 677
(1958), to support their contention that Ms. McCann lacked standing to pursue past
medical expenses.
{¶25} Holibaugh does hold that if the defendant raises the real-party-in-
interest issue then the insurer must be joined as a party. Id. at 346. But Holibaugh
does not stand for the proposition that Ms. McCann lacked standing. In fact, it stands
for just the opposite. The Holibaugh court held:
An insured who is injured by a tortious act retains his ownership of the
resultant claim for damages against the tortfeasor in that he may, in the
absence of a motion or a raising of the issue of joinder, maintain an
action thereon in his own name for the full amount of damages, even
though he has made a partial assignment of the claim to an insurer.
(Emphasis added.) Id. at 345-346.
{¶26} The court went on to explain:
[T]he mere agreement between an insured and his insurer, a thirdparty
contractee having no connection whatever with the tort-feasor, as to the
extent of the liability of such insurer to such insured under the terms of
the contract does not delineate absolutely the extent of the legal liability
of the tort-feasor to the insured.
To so hold might well deprive the injured insured of the right to recover
2 It is also important to note that Shealy concerned an insurer of a tortfeasor. Shealy held “that an
insurance company, which pays the entire amount of a judgment pursuant to a policy issued to an insured tortfeasor and thereafter becomes subrogated to that claim, is the sole real party in interest in a subsequent action brought against a joint tortfeasor for contribution pursuant to R.C. 2307.31(C).” (Emphasis added.) Shealy, 20 Ohio St.3d at 26, 485 N.E.2d 701.
9 OHIO FIRST DISTRICT COURT OF APPEALS
from the tort-feasor damages incurred as a direct result of the tort but
not reimbursable by the insurer under the terms of the insurance
contract.
* * *
The extent of liability of a tort-feasor is fixed at the time of the
commission of the tort, and his interest in respect to a partial-assignee
insurer, aside from the possibility of obtaining evidence of admissions
made by the injured party to such insurer, is merely to see that the
insurer is joined in a suit against him in order to have determined
therein all who may have an interest in any judgment which may be
rendered against him, and the relative extent of such interest.
(Emphasis in first paragraph sic; emphasis in third paragraph added.) Id. at 349-350.
{¶27} Thus, the point of the real-party-in-interest rule is to protect the
tortfeasor from the risk of litigating multiple lawsuits and being subjected to multiple
judgments. And 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. In this
case, there can be no question that Ms. McCann had standing to bring an action against
appellants. Independent of Ms. McCann’s claim for past medical expenses, which
appellants challenge, Ms. McCann’s complaint presents damage claims for future
medical expenses, lost income, and past and future pain and suffering. Appellants do
not challenge Ms. McCann’s standing to seek these other forms of relief. As a result,
Ms. McCann had standing to invoke the jurisdiction of the court, and the only
remaining question is whether the joinder rules have been satisfied as to the real-
party-in-interest issue.
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{¶28} At the close of plaintiff’s evidence, appellants moved for a directed
verdict as to the past medical damages, arguing that Medicare had not been joined.
The trial court denied the motion. Appellants then asked the trial court to set aside the
jury’s award of past medical damages in their motion for judgment notwithstanding
the verdict (“JNOV”), again pointing to Ms. McCann’s failure to join Medicare. In
response, the trial court ordered Ms. McCann to identify all parties possessing a
subrogated interest in her claim and to file a motion to join them. Ms. McCann
identified Medicare, Medicaid, and United Healthcare as potential subrogees and
moved to join them as plaintiffs. The court granted the motion.
{¶29} Eventually, Medicaid joined the action as a party plaintiff and presented
its claim for damages against appellants. Following negotiation with Ms. McCann,
however, Medicaid notified the court that its subrogation claim had been settled and
dismissed its claim against appellants with prejudice.
{¶30} Ms. McCann later informed the court that United Healthcare did not
have a claim against Ms. McCann’s recovery, and appellants have not challenged that
assertion.
{¶31} Despite the trial court’s repeated orders, Ms. McCann never obtained
the voluntary participation of Medicare in this action. However, in her December 2020
report to the court on her attempts to join Medicare, Ms. McCann claimed to have
settled Medicare’s claim as part of a settlement reached in April 2020. The trial court
found that appellants acknowledged that Medicare had settled its claim at a July 2021
hearing on the joinder issue. As a result, the court ordered that Ms. McCann was
entitled to retain the jury’s award of past medical damages.
{¶32} At the time of filing, Medicare and Medicaid were the real parties in
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interest as to Ms. McCann’s past medical expenses. However, following the trial, Ms.
McCann settled with Medicare and Medicaid. Consequently, Ms. McCann became the
sole real party in interest as to those past medical expenses.
{¶33} We agree with the trial court that appellants did not waive the real-
party-in-interest issue. Unlike Setters, where appellants merely raised the issue in
general terms in their answer, in the case at bar, appellants raised the issue in their
answer, and again raised the issue naming a specific absent party, Medicare, in their
motion for a directed verdict and their JNOV motion. See Setters, 2020-Ohio-6859,
164 N.E.3d 1159, at ¶ 57-58 (noting that, under Civ.R. 12(H), a defense of failure to join
a party may be raised at trial).
{¶34} However, we also agree with the trial court that the issue was resolved,
if in a somewhat less than straightforward manner, when Ms. McCann settled the
subrogation claims with her subrogees, effectively terminating their subrogation
rights. The core function of the real-party-in-interest rule is proper joinder of
necessary parties, and the purpose of that function 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.” Id. at
¶ 54. The typical cure for failing to join the real party in interest is joinder of that party.
However, where the plaintiff has bought back the subrogation right from the subrogee,
the same purpose is achieved because the subrogee no longer has any claim against
the defendant.
{¶35} Under these circumstances, the trial court did not err by permitting Ms.
McCann to retain the jury’s award of past medical expenses.
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Future Medical Damages
{¶36} Appellants argue that Ms. McCann failed to prove to a sufficient degree
of certainty the future medical expenses she would incur as a result of appellants’
tortious conduct, and therefore the trial court should have vacated that portion of the
jury’s award. Appellants argue that neither of Ms. McCann’s expert witnesses “offered
more than a guess about her future damages.”
{¶37} Appellants raised the issue of future medical expenses before the trial
court in a motion for a directed verdict at the close of plaintiff’s evidence, as well as in
their JNOV motion. The trial court denied both motions.
{¶38} We review the trial court’s denial of a JNOV motion de novo. Setters,
2020-Ohio-6859, 164 N.E.3d 1159, at ¶ 28. A JNOV motion is a test of the legal
sufficiency of the evidence. Id. In reviewing the motion, we construe the evidence
“most strongly in favor of the party against whom the motion is made.” Id. If there is
“substantial evidence” supporting the nonmoving party, such that “ ‘reasonable minds
may reach different conclusions, the motion must be denied.’ ” Id., quoting Posin v. A.
B. C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976). We
review the denial of a motion for a directed verdict under the same standard. Id. at
¶ 27, fn. 3.
{¶39} “A plaintiff’s claim for future medical expenses must be supported by
evidence that reasonably establishes the amount to be incurred in the future.” Setters
at ¶ 40, citing Stone v. Patarini, 9th Dist. Lorain No. 98CA007242, 2000 Ohio App.
LEXIS 2709, 3 (June 21, 2000). “ ‘[T]he jury cannot be allowed to speculate or guess
in making allowance for future medical expenses, and, to this end, there must be some
data furnished to the jury upon which to predicate an estimate of future costs.’ ” Id.,
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quoting Waller v. Phipps, 1st Dist. Hamilton No. C-000758, 2001 Ohio App. LEXIS
4119, 4 (Sept. 14, 2001).
{¶40} At trial, Ms. McCann elicited testimony in support of future medical
costs from her expert witness, Keith Wilkey, an orthopedic surgeon. Dr. Wilkey
testified that, because of Dr. Durrani’s actions, Ms. McCann will need “ongoing
medical care and pain management” and “at least another cervical surgery sometime
in the next 20 years.” Wilkey also testified that “those procedures are upwards of
$200,000,” as a comprehensive total cost for the procedure, including the costs for
the hospital, the anesthesiology, and the doctor.
{¶41} Wilkey’s testimony was corroborated by Ms. McCann’s expert witness,
Stephen Bloomfield, a neurosurgeon. Bloomfield testified that, because of Dr.
Durrani’s actions, Ms. McCann “will require ongoing pain management and also
ongoing evaluations with serial scans to make sure that she doesn’t have any delayed
instability develop.” Bloomfield did not testify to the estimated costs involved.
{¶42} The jury awarded Ms. McCann only $50,000 for future medical
expenses, well below the costs estimated by Ms. McCann’s expert witnesses.
Construing the evidence presented in favor of Ms. McCann, as the nonmoving party,
we find that there was enough nonspeculative evidence to support the jury’s verdict.
Prejudgment Interest and Court Costs
{¶43} Appellants argue that Ms. McCann was not entitled to prejudgment
interest or court costs. In addition to their attack on the merits of the trial court’s
award of prejudgment interest, appellants contend that Ms. McCann withdrew her
motion for prejudgment interest and court costs and the trial court had no authority
to reinstate it.
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{¶44} Ms. McCann filed her motion for prejudgment interest and court costs
in March 2019. In October 2020, the trial court entered judgment in favor of Ms.
McCann on the December 2018 jury verdict. However, the judgment entry left several
issues pertaining to the parties’ outstanding motions undecided. Notably, Ms.
McCann’s motion for prejudgment interest and court costs was still pending. In March
2021, Ms. McCann withdrew her motion for prejudgment interest and court costs. In
her appellate brief, Ms. McCann states that she withdrew her motion for prejudgment
interest and court costs “to create finality in the trial court and move the case to this
Court for resolution.” Thus, Ms. McCann did not wish to pursue prejudgment interest
and court costs. Shortly after she withdrew her motion, appellants filed a notice of
appeal, attaching the October 2020 judgment entry and several other of the trial
court’s orders.
{¶45} Following jurisdictional briefing, we dismissed appellants’ 2021 appeal
for lack of a final, appealable order. McCann v. Durrani, 1st Dist. Hamilton No.
C-210212 (July 29, 2021). In the order dismissing the appeal, we reasoned that Ms.
McCann’s withdrawal of her motion for prejudgment interest and court costs was
precluded by Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276,
897 N.E.2d 126 (holding that a party may not create finality for appeal after the
resolution of one claim by dismissing the remaining claims against the same party).
Thus, we treated McCann’s withdrawal of her prejudgment-interest motion as a nullity
and held that the prejudgment-interest motion was still outstanding.
{¶46} Our reference to Pattinson in the dismissal order was erroneous
because Pattison referred solely to “claims” and a motion for prejudgment interest and
court costs is not a “claim.” Thus, the following month, in a different Durrani case
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concerning the same issue, we issued a published opinion providing a different
analysis of the effect of the withdrawal of a motion for prejudgment interest.
{¶47} In Nichols v. Durrani, 1st Dist. Hamilton No. C-210224,
2021-Ohio-2973, ¶ 4, we observed that when the time to file an appeal has been tolled
by the filing of a motion for prejudgment interest, the time for filing a notice of appeal
does not begin to run until “the trial court enters an order resolving the last of these
post-judgment filings.” (Emphasis sic.) Id., quoting App.R. 4(B)(2). Thus, we held that
even though the Nicholses had withdrawn their motion for prejudgment interest, the
time to appeal had not begun to run because the trial court had not yet entered an
order resolving the motion for prejudgment interest. We held that the notice of appeal
was premature and dismissed the appeal. The appeal was dismissed rather than
remanded under App.R. 4 (B) because the order appealed from was not otherwise a
final appealable order due to its failure to mention damages. We stated, “We
encourage the trial court to expeditiously resolve the damages issue and enter an
appropriate judgment—as well as to enter an order resolving the Nichols’
postjudgment motion—so that a timely appeal may be perfected and the parties can
receive appellate guidance and certainty.” (Emphasis added.) Id. at ¶ 7. We stated that
we were issuing the opinion “to offer clarity to future parties who find themselves in a
similar predicament.” Id. at ¶ 2.
{¶48} After our dismissal of Ms. McCann’s 2021 appeal, and after the release
of our Nichols opinion, the trial court entered an order in this case that held that Ms.
McCann’s withdrawal of her motion for prejudgment interest and costs was a nullity,
reinstated the motion, and ordered briefing on the issue.
{¶49} Appellants now argue that the trial court’s reinstatement of Ms.
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McCann’s motion was erroneous. In response, Ms. McCann argues that, even if the
reinstatement was erroneous, we must stand by our previous decision that the
withdrawal was a nullity based on the law-of-the-case doctrine.
{¶50} The law-of-the-case doctrine “provides that the decision of a reviewing
court in a case remains the law of that case on the legal questions involved for all
subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v.
Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). The doctrine is “a rule of practice
rather than a binding rule of substantive law” and “functions to compel trial courts to
follow the mandates of reviewing courts.” Id.
{¶51} There is an exception to the law-of-the-case doctrine that compels a
lower court to “take notice of an intervening decision, by a superior court, that is
inconsistent with the law of the case.” Dean v. Grange Mut. Cas. Co., 5th Dist. Stark
No. 2004CA00133, 2005-Ohio-857, ¶ 10, citing Hopkins v. Dyer, 104 Ohio St.3d 461,
2004-Ohio-6769, 820 N.E.2d 329, ¶ 16. Our decision in Nichols was published on
August 27, 2021. Therefore, on August 30, 2021, when the trial court entered its order
reinstating Ms. McCann’s motion for prejudgment interest, the Nichols decision was
an intervening decision. Under these circumstances, application of the law-of-the-case
doctrine is excused, and the trial court should have followed the guidance of Nichols
rather than the erroneous reasoning of the dismissal entry.
{¶52} Consequently, we agree with appellants that Ms. McCann’s motion for
prejudgment interest and court costs was withdrawn, and the trial court erred by
reinstating it.
{¶53} Because we agree that the trial court should not have reinstated Ms.
McCann motion, we sustain appellants’ assignment of error to the extent that the trial
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court erred by awarding Ms. McCann prejudgment interest and court costs. We
overrule the assignment of error in all other respects.
Cross-Assignment of Error: Setoff
{¶54} In her cross-assignment of error, Ms. McCann argues that the trial court
erred by granting appellants a setoff from the judgment awarded to her in the amount
of $157,530.82, which was based on the amount of the settlement reached between
Ms. McCann and the hospital defendants. Ms. McCann argues that the trial court erred
in granting appellants a setoff in this case because the jury found Dr. Durrani liable
for an intentional tort, in addition to an unintentional tort. Alternatively, Ms. McCann
argues that appellants are not entitled to a setoff because the appellants and the
hospital defendants are not joint tortfeasors.
{¶55} “If a settling defendant is liable for any of the tort plaintiff’s damages,
then a nonsettling defendant is entitled to a setoff under R.C. 2307.28.” Setters,
2020-Ohio-6859, 164 N.E.3d 1159, at ¶ 62. However, we have previously described a
“narrow legislative exception” to this rule that prevents an intentional tortfeasor from
benefitting from the setoff. Adams v. Durrani, 2022-Ohio-60, 183 N.E.3d 560, ¶ 77
(1st Dist.), quoting Eysoldt v. Proscan Imaging, 1st Dist. Hamilton No. C-110138,
2011-Ohio-6740, ¶ 10.3
{¶56} In Adams, the plaintiffs presented claims including negligence, lack of
informed consent, fraudulent misrepresentation, battery, and loss of consortium
3 We note that the United States District Court for the Southern District of Ohio has recently called
into question the soundness of our decision in Eysoldt, and by implication our decision in Adams, based on its interpretation of R.C. 2307.28. Gorsha v. Clark, S.D.Ohio No. 2:18-cv-508, 2022 U.S. Dist. LEXIS 16485, 20 (Jan. 31, 2022) (“After considering the record evidence and applying the plain language of §2307.28 (A), the Court finds as a matter of law that Plaintiffs are not entitled to a double recovery.”). However, the parties have not argued that our prior decisions regarding R.C. 2307.28 are erroneous, and we do not address that issue at this time.
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pertaining to surgeries performed by Dr. Durrani in 2010 and 2013. Adams at ¶ 5-7.
The jury eventually found Dr. Durrani liable for negligence, lack of informed consent,
fraudulent misrepresentation, battery, and loss of consortium. Id. at ¶ 8. The jury
found Dr. Durrani negligent only with regard to the 2013 surgery. Id. at ¶ 80. However,
the jury interrogatories were unclear as to whether its findings on lack of informed
consent, battery, or fraudulent misrepresentation pertained to the 2010 surgery, the
2013 surgery, or both. Id. at ¶ 81. In harmonizing the special findings with the general
verdict, we inferred that Dr. Durrani’s liability stemmed entirely from the 2013
surgery. Id. The trial court denied Dr. Durrani’s request to present the jury with an
interrogatory apportioning fault to each of the causes of action. Id. at ¶ 83.
Consequently, we could not disentangle on appeal the degree of fault apportioned to
the intentional and unintentional torts. Id. at ¶ 89. Because we could not distinguish
between the injuries caused by unintentional torts, to which the setoff would apply,
and the intentional torts, which are not entitled to a setoff, we held that Dr. Durrani
was not entitled to any setoff. Id.
{¶57} As in Adams, appellants in the case at bar were found liable for both an
intentional tort (fraudulent misrepresentation) and an unintentional tort
(negligence). The jury awarded Ms. McCann $108,076.40 in economic damages and
$100,000 in noneconomic damages, totaling $208,076.40 in compensatory damages.
The jury interrogatory for noneconomic damages allocated 50 percent of the damages
to the negligence claim and 50 percent of the damages to the fraudulent-
misrepresentation claim. The jury interrogatory pertaining to the economic damages
did not allocate a percentage of damages per claim.
{¶58} Although the jury did not apportion the economic damages between the
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intentional and unintentional tort, the jury did apportion Ms. McCann’s non-
economic damages. We can discern no reason that the apportionment of economic
damages would be different. Accordingly, unlike the situation in Adams, we can infer
from the interrogatory for the noneconomic damages that the jury found that Ms.
McCann’s injuries were caused half by appellants’ intentionally-tortious conduct and
half by appellants’ unintentionally-tortious conduct. As a result, we hold that
appellants are only entitled to a setoff against 50 percent of the jury’s award.
{¶59} Ms. McCann’s argument that appellants are not entitled to a setoff at all
because appellants and the hospital defendants are not joint tortfeasors is unavailing.
She cites Atwood v. UC Health, S.D.Ohio No. 1:16cv593, 2019 U.S. Dist. LEXIS 216184
(Dec. 17, 2019), for the proposition that R.C. 2307.28 only applies to joint tortfeasors.
Id. at 22 (“for the statute to apply, the parties must be joint tortfeasors.”). She points
to Atwood’s recognition that medical malpractice and negligent credentialing are
separate causes of action. Id. at 22-23, citing Browning v. Burt, 66 Ohio St.3d 544,
557, 613 N.E.2d 993 (1993). She claims that because they are separate claims, the
hospital defendants and appellants are not joint tortfeasors.
{¶60} We agree that the two causes of action are distinct theories of liability.
However, Ms. McCann has suffered a single, combined injury arising from appellants’
malpractice and the hospital defendants’ alleged negligence. And the setoff statute’s
focus is on the injury, not the theory of liability. See R.C. 2307.28 (“When a
release * * * is given in good faith to one of two or more persons for the same injury
or loss * * *.”). “Joint tortfeasors” are “[t]wo or more tortfeasors who contributed to
the claimant’s injury and who may be joined as defendants in the same lawsuit.”
Black’s Law Dictionary 1794 (11th Ed.2019). There is no doubt that the alleged
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conduct of the hospital defendants and conduct for which appellants were found liable
both “contributed to” Ms. McCann’s injury. Thus, they are joint tortfeasors.
{¶61} The issue in Atwood was whether the settlement with the hospital
defendants of the negligent-credentialing claims could be set off against the jury award
of punitive damages. Atwood at 23. The court’s ultimate holding focused on the fact
that punitive damages “are not compensation for injury. Instead, they are private fines
levied by civil juries to punish reprehensible conduct and to deter its future
occurrence.” Id., quoting Arbino v. Johnson & Johnson, 116 Ohio St.3d 468,
2007-Ohio-6948, 880 N.E.2d 420, ¶ 97, quoting Gertz v. Robert Welch, Inc., 418 U.S.
323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Thus, because punitive damages were
separate from any remedy for plaintiff’s injuries, the court held that the defendants
were not entitled to a setoff. Atwood at 23. The focus in Atwood was on the injury or
loss, as is required by R.C. 2307.28.
{¶62} Ms. McCann argues that the causes of action alleged against the hospital
defendants in the complaint would have entitled her to seek punitive damages. She
contends that the settlement with the hospital defendants resolved the punitive-
damages claim and therefore was not compensation for the same injury. However, we
have no information in the record that the settlement with the hospital defendants also
included punitive damages.
{¶63} The trial court did not err in granting appellants a setoff. However, the
trial court erred in determining the amount of the setoff. Pursuant to our current
precedent, appellants may apply a setoff to the portion of the jury’s award for the
unintentional tort, but not to the intentional tort. We therefore sustain Ms. McCann’s
cross-assignment of error in part and overrule it in part. Based on the jury’s findings,
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appellants’ setoff is limited to half of the jury’s compensatory-damages award, or
$104,038.20.
III. Conclusion
{¶64} In the appeal numbered C-220025, we reverse the judgment of the trial
court granting Ms. McCann’s motion for prejudgment interest and court costs and
affirm the trial court’s judgment in all other respects. In the appeal numbered
C-220033, we modify the judgment to reduce appellants’ setoff from $157,530.83 to
$104,038.20. As modified, Ms. McCann’s total compensatory-damages award is
Judgment accordingly.
BERGERON and KINSLEY, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.