Ravenscraft v. Durrani

2025 Ohio 2900

• Court: Ohio Court of Appeals
• Decided: August 15, 2025
• Docket: C-240297, C-240298
• Status: Published

Opinion

[Cite as Ravenscraft v. Durrani, 2025-Ohio-2900.]

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

MARY RAVENSCRAFT, : APPEAL NO. C-240297 TRIAL NO. A-1506161 Plaintiff-Appellee, :

and :

GREGORY RAVENSCRAFT, :

Plaintiff, :

: vs. : ABUBAKAR ATIQ DURRANI, M.D., : and : CENTER FOR ADVANCED SPINE TECHNOLOGIES, :

Defendants-Appellants. :

ARLETTA SUE BOWLING, : APPEAL NO. C-240298 TRIAL NO. A-1601973 Plaintiff-Appellee, :

CURTIS BOWLING, :

Plaintiff, : JUDGMENT ENTRY : vs. : ABUBAKAR ATIQ DURRANI, M.D., : and : CENTER FOR ADVANCED SPINE TECHNOLOGIES, :

Defendants-Appellants, : and :

WEST CHESTER HOSPITAL, LLC, :

UC HEALTH :

Defendants. :

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. The court further orders that 1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and 2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 8/15/2025 per order of the court.

By:_______________________ Administrative Judge [Cite as Ravenscraft v. Durrani, 2025-Ohio-2900.]

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

MARY RAVENSCRAFT, : APPEAL NO. C-240297 TRIAL NO. A-1506161 Plaintiff-Appellee, :

: vs. : ABUBAKAR ATIQ DURRANI, M.D., : and : CENTER FOR ADVANCED SPINE TECHNOLOGIES, :

ARLETTA SUE BOWLING, : APPEAL NO. C-240298 TRIAL NO. A-1601973 Plaintiff-Appellee, :

and : OPINION CURTIS BOWLING, :

: vs. : ABUBAKAR ATIQ DURRANI, M.D., : and : CENTER FOR ADVANCED SPINE TECHNOLOGIES, :

UC HEALTH, :

Civil Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: August 15, 2025

Statman Harris, LLC, and Alan J. Statman, for Plaintiffs-Appellees Mary Ravenscraft and Arletta Sue Bowling,

Taft Stettinius & Hollister LLP, Philip D. Williamson, Aaron M. Herzig, Annie M. McClellan, and Russel S. Sayre, for Defendants-Appellants Abubakar Atiq Durrani, M.D. and Center For Advanced Spine Technologies. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} We sua sponte consolidate the appeals of defendants-appellants

Abubakar Atiq Durrani, M.D. and Center For Advanced Spine Technologies (“CAST”)

(collectively “Durrani parties”) from the trial court’s judgments awarding damages to

plaintiffs-appellees Mary Ravenscraft and Arletta Sue Bowling (collectively, “the

patients”).1 The Durrani parties present four assignments of error from the judgments

in favor of the patients. The assignments in the two appeals are nearly identical. We

overrule the Durrani parties’ assignments of error for the following reasons.

{¶2} First, this court’s precedent compels us to hold that the trial court did not

abuse its discretion by holding a joint trial.

{¶3} Second, while the trial court improperly admitted evidence of Dr.

Durrani’s habitual assurances to patients without a proper foundation, that error was

harmless because the patients testified that Dr. Durrani made similar assurances to

them before their surgeries. And there is no indication that the jury relied on that habit

evidence to reach its verdict.

{¶4} Third, Evid.R. 601(B)(5)(b)’s amendment, which altered the timeframe

for the rule requiring witnesses giving expert testimony in medical-malpractice

actions to devote more than half of their professional time to practicing medicine, is

retroactive and applies to this matter, so the patients’ expert was permitted to testify

as he satisfied the amended rule’s clinical-practice requirement.

{¶5} Fourth, the trial court was within its discretion when it declined to

instruct the jury on Bowling’s comparative negligence. The evidence did not show that

1 Gregory Ravenscraft’s claim was ultimately dismissed, and Curtis Bowling had no claims independent of Arletta Sue Bowling’s claims. For the purposes of this opinion, “Ravenscraft” refers to Mary Ravenscraft and “Bowling” refers to Arletta Sue Bowling. OHIO FIRST DISTRICT COURT OF APPEALS

Bowling’s failure to complete physical therapy recommended by Dr. Durrani caused

or contributed to Bowling’s injury.

{¶6} Fifth, the trial court’s erroneous jury instruction that Dr. Durrani’s

absence at trial gave rise to a negative inference was ultimately harmless because the

trial court explained that the decision to draw an inference rested with the jury.

{¶7} Sixth, the trial court was within its discretion to allow Dr. Saini, a

neuroradiologist, to testify about operative reports, explain surgeries and recovery

times, and assess Dr. Durrani’s surgical technique because that testimony involved his

interpretation of the patients’ medical imaging, which falls within the scope of a

neuroradiologist’s area of expertise.

{¶8} Finally, the Durrani parties forfeited their challenge to the trial court’s

omission of their proposed damages-itemization interrogatory when they failed to

object to the omission and did not argue plain error on appeal.

{¶9} Finding no reversible error, we affirm the trial court’s judgments.

I. Factual and Procedural History

{¶10} In 2015, Ravenscraft sued the Durrani parties for damages related to an

array of issues surrounding an allegedly unnecessary spinal-fusion surgery performed

on her by Dr. Durrani in 2013. Ravenscraft raised multiple claims, including

negligence, a lack of informed consent, and fraud.

{¶11} In 2016, Bowling sued Dr. Durrani, CAST, West Chester Hospital, LLC,

and UC Health for damages related to an allegedly unnecessary spinal-fusion surgery

performed on her by Dr. Durrani. Bowling’s claims also included negligence, a lack of

informed consent, and fraud.

{¶12} In 2020, Ravenscraft, Bowling, and many other plaintiffs suing Dr.

Durrani moved for “group trials.” After a hearing, the trial court granted the plaintiffs’

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motions and ordered the Ravenscraft and Bowling cases to be joined for trial.

Joint trial

{¶13} At trial, Ravenscraft’s and Bowling’s testimony, supported by their

medical records, narrated their respective medical journeys that culminated in Dr.

Durrani’s diagnoses and surgical interventions, as well as their post-surgery

conditions. The jury also heard from Dr. Tayeb, a former CAST employee; plaintiffs’

experts—Drs. Bloomfield, Wilkey, and Saini; and defendants’ experts—Drs. Purcell

and Kaloostian.

{¶14} Dr. Durrani submitted nearly identical insurance authorization requests

for Ravenscraft and Bowling to treat lumbar degenerative disc disease and lumbar

spinal stenosis. Spinal stenosis refers to a “narrowing” of the spinal canal and can be

mild, moderate, or severe depending on the compression of the spinal nerves and

symptoms. A “severe” spinal stenosis refers to “[i]mpingement [and] displacement” of

the spinal nerves, which are “squeezed” as the spinal canal narrows.

{¶15} Dr. Durrani also diagnosed Ravenscraft and Bowling with “degenerative

spondylolisthesis” in the L5-S1 spinal joint. Spondylolisthesis is a “slippage or

malalignment of one vertebral body to the other.” Anterolisthesis is slippage or

malalignment where “the top [vertebrae] is forward in relationship to the bottom

[vertebrae].” Retrolisthesis is slippage or malalignment where “the top [vertebrae] can

be backwards in relationship to the bottom [vertebrae].”

{¶16} The two insurance authorization requests sought “L5-S1, TLIF, PSF”

surgeries for both Ravenscraft and Bowling. A “TLIF” is a “transforaminal lumbar

interbody fusion” of the L5-S1 joint, which involves fusing a spinal joint “in [a] . . . way

that the two adjacent bones – in this case L5 and S1 [–] fuse.” The bones “grow

together, and they form one bony fusion.” It is “a combination of two things,” a

7 OHIO FIRST DISTRICT COURT OF APPEALS

“pedicle screw” and “a rod that connects one level below,” and “a bone graft” to replace

the removed disc. Dr. Durrani also planned to perform a “laminectomy,” which

removes part of a vertebrae’s “lamina” (the “roof of the canal”) to relieve pressure.

A. Ravenscraft

i. Before surgery

{¶17} At trial, Ravenscraft first described her condition before seeing Dr.

Durrani: shoulder, upper back, and hip pain that forced her to retire. Sitting “nine

hours a day . . . really started to aggravate” her hip. After her right hip, thigh, and groin

pain kept Ravenscraft up at night, her primary care physician referred her to Dr. Foad,

a rheumatologist, in July 2012.

{¶18} Ravenscraft promptly met with Dr. Foad, complaining of pain in her

right hip, thigh, and groin. A physical exam revealed tenderness in her right hip, back,

and scapular area. Dr. Foad’s notes reflected that she had “no pain in the left hip and

. . . no pain in the lower back.” Dr. Foad noted “off and on” pain in her surgically-

repaired left knee. She also had pain in her “left scapular area,” where she had

undergone a cervical-fusion surgery nine years earlier “for stenosis and degenerative

disc disease.” Dr. Foad’s treatment plan initially included medication and joint

exercises, but the plan later pivoted to right-hip and right-lower-back injections.

Ravenscraft described the therapeutic relief from those injections as fleeting: “from

then on nothing seemed to work.” In October 2012, Dr. Foad noted that, while her

right hip, left neck, and scapular pain persisted, her “left hip [wa]s not painful.”

{¶19} Dr. Foad ordered an MRI. The radiologist saw evidence on Ravenscraft’s

“L5-S1” joint of a “low-grade retrolisthesis and broad posterior disc protrusion

eccentric left flattening left dural sac and posteriorly displacing the left S1 nerve root.”

That MRI led Dr. Foad to refer Ravenscraft to Dr. Durrani.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶20} On her CAST intake form, Ravenscraft identified increased pain in her

right hip, groin, and thigh as the primary concern for her visit. On the diagram, she

indicated burning or aching in her right thigh, stabbing pain in her right groin and hip,

and burning or aching in the middle of her back. She rated her pain a five to seven on

a scale of one to ten. Ravenscraft testified that she met with Dr. Durrani, who did not

discuss her hip injections, intake form, or nonsurgical options. He did not ask her any

questions. Although she had indicated on her intake form that she was a heavy smoker,

Dr. Durrani did not discuss with her the effects of smoking on recovery from spinal-

fusion surgery.

{¶21} Instead, Dr. Durrani showed Ravenscraft an x-ray, “pointed the disc

out,” and “said that he believed this was the cause of [your] pain . . . and that he could

fix it.” He told her that the roughly-one-hour procedure would consist of a small

incision, and implanting a “little cage” as a “spacer” so the “nerves will not be pinched

or irritated.” He told Ravenscraft she would “have no pain” when she woke up.

{¶22} Dr. Durrani wrote to Dr. Foad that Ravenscraft was suffering from

“lumber spinal stenosis [at the] L5-S1,” “lumbar degenerative spondylolisthesis” at the

L5-S1, “back pain with radicular pain in the L5-S1,” “functional impairment,”

“anterolisthesis of L5 on S1,” “[c]entral stenosis with lateral recess stenosis at the L5-

S1,” and “failure of conservative treatment for many months.” But Ravenscraft

testified that Dr. Durrani never told her of those diagnoses. While Dr. Durrani’s letter

to Dr. Foad referenced a physical exam, Ravenscraft said that he did not physically

examine her; instead, he “never got out of the chair.” Dr. Durrani also informed Dr.

Foad that he scheduled “a lumbar foraminal injection at the L5-S1 level on the right

side” for her. But Ravenscraft testified that she never received an injection.

9 OHIO FIRST DISTRICT COURT OF APPEALS

{¶23} Dr. Durrani also wrote to Ravenscraft’s primary-care physician

following another visit, describing his discussion with Ravenscraft about the risks and

benefits of the surgery, post-operative care, and rehabilitation. Ravenscraft testified

that this discussion did not take place, though she did sign the informed-consent form.

While the signed form stated that Dr. Durrani reviewed the risks of the surgery,

Ravenscraft testified that he did not tell her about these risks.

ii. After surgery

{¶24} When Ravenscraft woke up after her surgery, she had no pain. Roughly

30 minutes later, Ravenscraft walked across the room at the direction of Dr. Durrani

and was able to walk out of the hospital without any pain. As the anesthesia wore off,

her “right hip and right thigh and groin were hurting again.”

{¶25} Two weeks after surgery, Dr. Durrani wrote to Ravenscraft’s primary-

care physician that she was “[d]oing very well” despite “complaining of some [tingling

and pain sensations] in the right leg.” He said he physically examined Ravenscraft,

planned to “start her in physical therapy,” and prescribed her medication to help with

the pain. Dr. Durrani’s post-operative note stated that Ravenscraft said she was “doing

ok, still has pain goes from R hip down the leg to the calf.” Ravenscraft testified that

she was “not doing better” and that Dr. Durrani did not examine her. She “still had the

pain going from [her] hip down the knee – down the thigh.”

{¶26} Ravenscraft engaged in physical therapy at the CAST facility, twice a

week, for either six weeks or six visits. She “stopped because [she] was still in pain”

and the “physical therapy, if anything, was making it worse.” Eventually, Ravenscraft

underwent hip-replacement surgery, which fixed the problems that Dr. Durrani

assured Ravenscraft he would fix with his spinal surgery.

10 OHIO FIRST DISTRICT COURT OF APPEALS

iii. Ravenscraft’s experts

a) Dr. Bloomfield

{¶27} Dr. Bloomfield, a board-certified neurosurgeon with decades of

experience in practice, provided opinions about Dr. Durrani’s medical treatment of

Ravenscraft. He testified that Dr. Durrani could have seen that Ravenscraft suffered

from “a hip problem and not a problem from the lumbar spine.” Dr. Bloomfield

determined that Dr. Durrani deviated from the standard of care by recommending

lumbar spine surgery “that he should have known would not have helped her.”

Further, Dr. Durrani “violated the standard of care by operating on the wrong side,

basically, the asymptomatic side.” Dr. Bloomfield explained that Dr. Durrani breached

“the standard of care for both, not having her undergo conservative therapy first before

thinking of surgery, and . . . for performing an operation that was not going to help her

and not medically indicated.” Finally, he testified that Dr. Durrani likely caused “her

pain in her right leg [to] expand[] down into the calf” after it was “irritat[ed] at the

time of the surgery.”

{¶28} Dr. Bloomfield testified that Dr. Durrani fabricated ailments,

exaggerated issues, and misrepresented the results of the MRI scan in his letter to

Ravenscraft’s doctor, and likely to Ravenscraft herself. Dr. Durrani identified “lumbar

spinal stenosis L5-S1 that did not exist; lumbar degenerative spondylolisthesis that did

not exist.” While Dr. Durrani noted “central stenosis with lateral recess stenosis L5-

S1,” Dr. Bloomfield testified that “[t]here was no central stenosis seen on the MRI scan

or in the radiology report.” Dr. Durrani found back pain in Ravenscraft’s L5-S1

distribution, but that pain did not exist. Dr. Bloomfield explained that Ravenscraft

complained of pain in her right hip and right thigh, and a pinched S1 nerve root will

cause “pain going down the back of the left leg all the way to the sole of the foot and

11 OHIO FIRST DISTRICT COURT OF APPEALS

little toe.” Ravenscraft’s “MRI scan didn’t show anything on the right side that could

explain the problem.” Instead, “[i]t was just pathology on the left side, and that was

asymptomatic.”

b) Dr. Saini

{¶29} Dr. Saini, a neuroradiologist, specializes in brain, spinal cord, head,

neck, eye, and ear imaging. He is also board certified in diagnostic radiology.

{¶30} In Ravenscraft’s imaging, Dr. Saini saw evidence of “degenerative disc

disease at just about all levels.” But, Dr. Saini explained, Dr. Durrani made no attempt

to assess her stability. Dr. Saini testified that Dr. Durrani’s reading of the radiology

imaging fell below the standard of care and the radiology did not support Dr. Durrani’s

diagnoses of bilateral foraminal stenosis or degenerative spondylolisthesis on the right

side. Dr. Saini “just d[id]n’t see” severe narrowing and impingement of Ravenscraft’s

central canal around the L1 level. There was “no stenosis there” and “definitely not

Grade-1 spondylolisthesis.” Rather, Dr. Saini interpreted the narrowing of

Ravenscraft’s central canal as “an element of central foraminal stenosis at L4-5.”

{¶31} After reviewing post-surgery imaging of Ravenscraft’s back, Dr. Saini

concluded that Dr. Durrani performed “the wrong type of surgery . . . for a disc

protrusion or herniation.” Indeed, Dr. Saini testified that fusing Ravenscraft’s spine

“probably made [her] condition [] worse” from a neuroradiologic perspective.

iv. Defense experts

a) Dr. Purcell

{¶32} Dr. Purcell, a neuroradiologist and board-certified diagnostic

radiologist, testified in Dr. Durrani’s defense. He reviewed Ravenscraft’s imaging and

discussed Dr. Durrani’s diagnostic interpretations of the films.

12 OHIO FIRST DISTRICT COURT OF APPEALS

{¶33} Dr. Purcell agreed with Dr. Durrani’s diagnosis of lumbar spinal stenosis

at L5-S1 and lumbar degenerative spondylolisthesis at L5-S1. But he disagreed with

Dr. Durrani’s diagnosis of the anterolisthesis of L5-S1 and instead believed it was

retrolisthesis. Dr. Purcell agreed that there was central stenosis with lateral recess

stenosis at L5-S1. Dr. Purcell had seen patients with Ravenscraft’s pathology undergo

surgery to address these issues.

b) Dr. Kaloostian

{¶34} Dr. Kaloostian, a neurosurgeon whose private practice entails “both

surgical and nonsurgical management of patients with brain problems, spinal

problems,” testified in the Durrani parties’ defense.

{¶35} According to Dr. Kaloostian, the fusion surgery that Dr. Durrani

performed was “absolutely” an appropriate procedure to treat Ravenscraft’s

symptoms. He testified that Dr. Durrani’s interpretation of the MRI met the applicable

standard of care for a spine surgeon. Dr. Kaloostian opined that Ravenscraft’s

informed-consent form did not fall below the standard of care due to the use of

abbreviations. He also explained that, “[q]uite clearly, as based on the postoperative

notes of Dr. Durrani and the physical therapist, [Ravenscraft’s] radicular pain

improved or resolved,” and the surgery was successful.

{¶36} Dr. Kaloostian considered the differences between Ravenscraft’s intake

form and Dr. Durrani’s notes unremarkable because “[s]ometimes patients don’t

always list everything that’s bothering them.” After reviewing her medical records, Dr.

Kaloostian concluded that Ravenscraft had a functional impairment “in the back and

the right leg.” He agreed with most of Dr. Durrani’s impressions but disagreed that

there was an “[a]nterolisthesis at L5 on S1” because he saw the slippage as “retro, L5

is going posteriorly, or to the back.”

13 OHIO FIRST DISTRICT COURT OF APPEALS

{¶37} Dr. Kaloostian agreed with Dr. Durrani’s opinions and interpretation of

the imaging studies and testified that Dr. Durrani’s review met the standard of care

and was “appropriate,” “fair,” and “accurate.” Dr. Kaloostian deemed the surgery

“[o]ne hundred percent” appropriate and conservative care unnecessary “because so

much has already been done already.” Dr. Kloostian testified that the medical evidence

“all point[ed] to the L5 region, L5-S1 region as a potential pain generator.”

B. Bowling2

{¶38} Bowling’s testimony and medical records revealed a steady stream of

medical issues and treatments throughout her life. She struggled with obesity, high

blood pressure, diabetes, thyroid disease, osteoarthritis, and depression, and had

survived cancer. Bowling had undergone several surgeries before meeting Dr. Durrani,

including a mastectomy, a removal of a tumor on her back, a laminectomy sometime

around 2002, and rotator cuff surgery.

{¶39} Bowling had an MRI in June 2010 for “mild to moderate” back pain she

had experienced for nearly a decade. In his notes, Bowling’s nurse practitioner noted

that her pain extended in an “L5 distribution, but also affecting her right leg in the

form of tingling but to a lesser degree.” An earlier MRI had revealed “degenerative disk

disease and degenerative joint disease,” with bursitis in her left hip. Bowling

underwent physical therapy and an orthopedic evaluation of her left hip. Days later,

Bowling met with another doctor who planned epidural steroid injections, physical

therapy, and pain medication.

2 Bowling did not testify live; instead, her deposition testimony was read to the jury.

14 OHIO FIRST DISTRICT COURT OF APPEALS

{¶40} A radiologist who interpreted Bowling’s October 2011 MRI saw evidence

of “[m]oderate degenerative disc changes at L3-L4 through L5-S1,” “central and

foraminal stenosis,” and “progression of the disease since June 29, 2010.” Bowling

went to see Dr. Skidmore at the Mayfield Spine Institute that same month. Dr.

Skidmore reviewed the MRI and saw evidence of “Lumbar Spondylosis and

Degenerative Disc Disease,” which did not require surgery. Instead, he recommended

“physical therapy and epidural steroid injections for non-surgical treatment of her

symptoms.” Those injections provided some relief and reduced her pain from a “7/10”

to “2/10.” In December 2011, Bowling had a “[t]herapeutic lumbar discography at L1-

2, L2-3, and L3-4 levels.” This revealed “partial-thickness posterior annular tear[s]” at

the L1-2 and L2-3 levels, and “a full-thickness posterior annular tear.”

{¶41} Bowling visited Dr. Durrani at CAST in September 2012. Her intake

form indicated that she had experienced “severe back pain” for “9 years and it has

gotten worse.” Bowling denied writing that. And although her intake form identified

pain extending down her left leg, Bowling testified that she did not have leg pain and

did not write that on her intake form. Instead, she was experiencing pins and needles

in her shoulder and severe sharp lower back pain. She testified, and her intake form

reveals, that she rated her lower back pain an eight out of ten. Bowling reported on her

intake form that she needed assistance walking, standing, lifting objects, dressing,

shopping, and with housework.

{¶42} According to Bowling, Dr. Durrani told her that “he knew exactly what

was wrong with me and he could fix it.” Dr. Durrani did not discuss or review her MRIs

during their visit. Dr. Durrani did, however, discuss surgery and warned Bowling that

she would be “in a wheelchair if [she] didn’t have the surgery.” During their ten-minute

15 OHIO FIRST DISTRICT COURT OF APPEALS

conversation, Durrani did not discuss with Bowling any non-surgical options, the ins

and outs of the procedure, or the risks and benefits of the surgery.

{¶43} After her visit, Dr. Durrani wrote to Bowling’s physician about his

physical examination of Bowling. He wrote that “[f]orward flexion is painful” and that

Bowling “ha[d] a positive SLR on the right and left side,” “a positive Lasegue test on

the left side,” and “L5 sensory paresthesia.” Dr. Durrani determined that Bowling had

“[l]umbar degenerative disk disease” at L5-S1, “[l]umbar degenerative

spondylolisthesis” at the L5-S1, and “[s]egmental instability [at the] L5-S1.” He saw

“clear evidence of neurogenic claudication and lumbar radiculopathy.”

{¶44} After another MRI, Dr. Durrani sent a follow-up letter to Bowling’s

physician diagnosing her with “lumbar spinal stenosis at L3-L4, L4-L5 which is

moderate to severe,” “bilateral foraminal stenosis at L4-5,” and “grade 1 listhesis of L5

on S1 with left foraminal stenosis at the L5-S1 level.” Citing her lumbar spinal stenosis,

Dr. Durrani planned to “do a lumbar laminectomy, decompression at L3-L4 and L4-

L5 and left sided TLIF at L5-S1.” Dr. Durrani scheduled Bowling for “L5-S1

transforaminal lumbar interbody fusion, posterior spinal fusion,” and “B L3-4, L4-5

laminectomy foraminotomy and decompression.” Bowling saw Dr. Durrani briefly on

the day of the surgery and he repeated that he could fix what was wrong with her back.

{¶45} Bowling recalled seeing Dr. Durrani at a visit a month after surgery. She

explained that Dr. Durrani did not recommend physical therapy, but she would not

have participated in physical therapy even if he had recommended it.

{¶46} Dr. Durrani wrote to her physician after the post-surgery visit, reporting

that he had recommended Bowling engage in physical therapy. Dr. Durrani said

Bowling was “doing very well” and “already doing pretty good.”

16 OHIO FIRST DISTRICT COURT OF APPEALS

{¶47} Bowling, however, testified that after her surgery, she experienced

“severe” back pain, roughly an eight or nine out of ten. A Post-it note attached to Dr.

Durrani’s physical therapy recommendation stated that Bowling was in “too much

pain” and did not want physical therapy.

{¶48} Bowling never went to physical therapy. Instead, she visited her doctor,

a therapist, a chiropractor, and then the Mayfield Clinic in the ensuing months for

persistent back pain. Her chiropractor’s notes revealed that her pain had spread to

both legs following the surgery. Her doctor wrote in 2013 that Bowling still had back

pain and “[t]he operation did not make the back feel any better.” He saw evidence of a

“nonunion.” Eventually, Bowling had a spinal cord stimulator implanted, but that

“didn’t help at all.” As of trial, her back issues rendered her unable to walk.

iii. Bowling’s experts

{¶49} Dr. Bloomfield testified that the “L5-S1 surgery could not have helped

[Bowling]” because her pain was caused by “the upper levels.” And Bowling could not

have consented to a procedure that was unnecessary to treat her problem. The surgery

Dr. Durrani performed on Bowling was not medically indicated, so the risks were not

justified “whatsoever.” Dr. Bloomfield testified that Dr. Durrani’s surgery worsened

Bowling’s existing conditions. Moreover, Dr. Durrani did not perform a laminectomy

on the upper levels, which Bloomfield testified could have helped Bowling.

{¶50} Dr. Bloomfield agreed that Bowling had moderate-to-severe lumbar

spinal stenosis at the L3-4 and L4-5 levels, a bilateral foraminal stenosis at L4-5 level,

and a grade-1 listhesis of L5-S1 with left foraminal stenosis at the L5-S1 level. But he

disagreed that there was instability. Dr. Bloomfield testified that Dr. Durrani

performed the L5-S1 fusion surgery “within the standard of care technically.”

17 OHIO FIRST DISTRICT COURT OF APPEALS

b) Dr. Wilkey

{¶51} Dr. Wilkey was an orthopedic spine surgeon, though at the time of trial

he worked for United Healthcare as a “utilization management physician” reviewing

requests for neurosurgery, spine surgery, and orthopedic surgery. While Dr. Wilkey

was performing spinal surgery “a hundred percent” of the time when Bowling had her

surgery, he had not performed a spinal surgery during the two years before the trial.

{¶52} Dr. Wilkey testified that Bowling “did not need the surgery [Dr. Durrani

performed] and it was improperly performed.” He criticized Dr. Durrani’s diagnoses,

informed-consent form, and his lack of an operating note.

{¶53} Dr. Wilkey questioned Dr. Durrani’s ability to diagnose Bowling with

lumbar degenerative spondylolisthesis L5-S1 because of the poor quality of the film.

He disagreed with Dr. Durrani’s finding of “segmental instability L5-S1 with a one-

tenth millimeter instability” because there was “no flexion and extension views” on the

film. He also testified that Bowling had “no discernible central stenosis.” Dr. Wilkey

believed that Dr. Durrani had diagnosed Bowling with spondylolisthesis and

neurogenic claudication “to get insurance approval.”

{¶54} Dr. Wilkey opined that Bowling had mild “degenerative disc disease and

a little bit of bulging and a little bit of arthritis.” While Dr. Wilkey agreed with Dr.

Durrani that Bowling had “mild to moderate stenosis at L3-4” based on her MRI, he

disagreed that there was “bilateral foraminal stenosis at L4-5.” Dr. Wilkey explained

that the S1 vertebrae controls the left ankle reflex and the L5 vertebrae controls the

foot more than the back. And Bowling testified that she had no leg pain, which was

consistent with her diagnoses before she met Dr. Durrani.

{¶55} Dr. Wilkey criticized Dr. Durrani’s failure to coordinate or pursue

conservative treatment options with Bowling. He pointed out that Dr. Durrani ordered

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an MRI and requested surgery on the same day, which implied that, “[n]o matter what,

he’s already off to surgery.”

{¶56} Turning to Bowling’s informed consent, Dr. Wilkey found the consent

form used by Dr. Durrani inappropriate due to the frequent use of abbreviations,

likening the form’s content to “Morse Code.” So, Dr. Wilkey testified, the informed-

consent form fell below the standard of care. And he found no evidence that Dr.

Durrani explained the risks and benefits of the surgery.

{¶57} Dr. Wilkey believed that Bowling’s surgery did not address the cause of

her pain, which Dr. Wilkey identified as Bowling’s L1-2, L2-3, and L3-4 joints. Plus,

Dr. Durrani used the “Baxano” technique, which Dr. Wilkey described as “an extra

procedure that was not needed and caused harm.” Dr. Wilkey believed Dr. Durrani

used the “Baxano technique” because he could “charge for it.”

{¶58} Dr. Wilkey reviewed the post-surgery imaging and testified that he saw

a “malpositioned . . . right L5 [pedicle] screw” touching Bowling’s nerve root. He

explained that this likely caused Bowling’s right leg pain, which flared up after the

surgery. And Bowling’s severe left leg pain was “probably a postoperative complication

from either the Baxano” or the graft, which likely “irritated the nerve root there.”

{¶59} Dr. Wilkey was not surprised that Bowling did not engage in physical

therapy after her surgery because of the pain caused by Dr. Durrani’s needless surgery.

c) Dr. Saini

{¶60} Dr. Saini testified that Dr. Durrani’s reading of the radiology breached

the standard of care and caused Bowling to have unnecessary surgery. Her “disease

was far greater and far worse at L3-4, at L4-5[,] than it was on [L]5-S1” but “Dr.

Durrani never operated on [those vertebrae].” Dr. Saini agreed that the surgery

“wasn’t done correctly” because of an “improperly placed” screw.

19 OHIO FIRST DISTRICT COURT OF APPEALS

{¶61} Dr. Saini disagreed with Dr. Durrani’s interpretation of Bowling’s x-rays

and MRI film. He saw no indication of lumbar instability and pointed to Dr. Durrani’s

radiologist’s interpretation of Bowling’s MRI, which made no mention of “actual

slippage of L5 on S1.” Plus, there was nothing to implicate the L5 distribution on

Bowling’s intake form. Instead, Dr. Saini believed that it was “either S1 or S2 backside”

causing Bowling’s back pain. And based on the film, Dr. Saini testified that L4-5 had

“more significant disease” than L5-S1, “but Dr. Durrani never addresse[d] that.” Dr.

Durrani only attempted “to look at [] L5-S1, but . . . [it] looks like it’s the best out of all

the levels.”

{¶62} Dr. Saini critiqued the informed-consent form, explaining that Bowling

and any other patient would not understand what “left L5-S1 TLIF, posterior spinal

fusion, bilateral L4-4” means. He explained that an informed-consent form should

explain “what you’re getting yourself into,” alternatives, the chance of success, and the

risks, complications, and rewards. But looking at Bowling’s form, “[t]here’s no way . .

. [Bowling] would know what she’s getting herself into.”

{¶63} Turning to Bowling’s post-operation imaging, Dr. Saini found that Dr.

Durrani implanted the pedicle screw in Bowling’s spine incorrectly. While Dr. Durrani

claimed to have performed a laminectomy at L3-L4 and L4-L5, he “didn’t do anything”

and “the lamina” and “spinous process” should have been removed during the

laminectomy, “but they are still there.”

{¶64} Dr. Purcell noted that a patient’s weight “can influence alignment and

the appearance of discs.” According to Dr. Purcell, Dr. Durrani did not fabricate the

presence of a listhesis. He agreed with Dr. Durrani’s impression that Bowling had

20 OHIO FIRST DISTRICT COURT OF APPEALS

“lumbar spinal stenosis L4-5, L3-4 and L5-S1” and with Dr. Durrani’s diagnosis of a

bilateral lumbar foraminal stenosis bilateral at L3-L4, L4-L5 and left sided L5-S1. Dr.

Purcell further agreed with Dr. Durrani that Bowling had a grade-1 anterolisthesis of

L5 on S1. But Dr. Purcell agreed with Drs. Bloomfield and Saini that Dr. Durrani had

not performed surgery on Bowling’s L4-5 and L3-4 vertebral joints.

{¶65} Dr. Purcell had seen patients with Bowling’s pathology that underwent

surgery, though some had less invasive procedures. Dr. Purcell saw no evidence of a

mispositioned pedicle screw following Bowling’s L5-S1 fusion.

{¶66} Dr. Kaloostian testified that Dr. Durrani’s surgical technique met the

standard of care during Bowling’s surgery and saw no evidence of a “malposition[ed]”

pedicle screw. He explained that Bowling’s post-surgical pain was not unusual and the

surgery did not cause Bowling’s subsequent right leg pain.

{¶67} Dr. Kaloostian testified that physical therapy is necessary to loosen and

strengthen muscles.

{¶68} Regarding Bowling’s informed-consent form, Dr. Kloostian testified

that the abbreviations on the form were appropriate. Further, oral informed consent

is acceptable in Ohio. So, Dr. Durrani received Bowling’s informed consent “twice.”

{¶69} Finally, Dr. Kaloostian testified that Dr. Durrani appropriately

narrowed the scope of the surgery and did not perform procedures other than the L5-

S1 procedure.

C. Dr. Tayeb

{¶70} Dr. Tayeb testified over Dr. Durrani’s objection. He was “an

interventional spine and pain specialist” who worked as “the conservative or spinal

interventionist” with Dr. Durrani at CAST for three years. While not a spinal surgeon,

21 OHIO FIRST DISTRICT COURT OF APPEALS

Dr. Tayeb helped direct CAST’s rehabilitation program and did “therapeutic spinal

injections and other musculoskeletal procedures.”

{¶71} Dr. Tayeb did not provide testimony specific to Ravenscraft or Bowling.

Instead, he recalled that another CAST physician, Dr. Shanti, had described Dr.

Durrani as “[o]veraggressive” with his surgical indications and Dr. Durrani

recommended surgery for “a good percentage of his patients.” Dr. Tayeb saw

“firsthand” Dr. Durrani describe a “mild or moderate” issue “as something as

moderate to severe.” Dr. Tayeb was not surprised that Dr. Durrani told patients that

he would fix them “[b]ecause that was a . . . common phrase that . . . we used to hear.”

Dr. Tayeb recalled shadowing Dr. Durrani and hearing him assure patients that he

could “fix” them. Dr. Tayeb also heard Dr. Durrani tell patients “here and there” that,

without the recommended surgery, the patients risked permanent paralysis.

Jury instructions

{¶72} The Durrani parties requested a comparative-negligence jury

instruction for Bowling, citing her lack of attempt to engage in physical therapy. The

trial court did not give that requested instruction.

{¶73} The trial court did instruct the jury to give “fair consideration as to each

plaintiff’s claim” individually and explained that its instructions “govern the case as to

each individual.” While the trial court’s instructions referred to Ravenscraft and

Bowling collectively as the “plaintiffs,” the jury was told to analyze “each individual

plaintiff and their individual claims.”

{¶74} The trial court also instructed the jury to avoid speculating about Dr.

Durrani’s absence and avoid “consider[ing] his absence for any purpose except as

instructed.” Dr. Durrani “voluntarily left the jurisdiction, removing himself from the

plaintiffs’ ability to subpoena him to trial.” And when a party “has relevant evidence

22 OHIO FIRST DISTRICT COURT OF APPEALS

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

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

testimony is unfavorable to that party.” And earlier, the trial court had instructed the

jury that determining “[w]hether an inference is made rests entirely with you.”

The jury found the defendants liable for both patients’ injuries and awarded compensatory and punitive damages

{¶75} The jury found the Durrani parties liable for negligence, failing to

acquire informed consent, and fraudulently misrepresenting the necessity of the

surgery for both Ravenscraft and Bowling. For Ravenscraft, the jury specified that “Dr.

Durrani, misdiagnosed Ms. Ravenscraft. The defendant should have investigated her

hip pain to determine whether her pain was coming from her hip or her lower back.

Breached the standard of care.” For Bowling, the jury found that “Dr. Durrani was

found negligent as to Arletta Bowling because the TLIF surgery was not medically

indicated. His reading of the MRI and his findings/impressions were outside the

standard of care. The absence of the operative note is negligent.”

{¶76} The jury awarded Ravenscraft $481,618.21 in compensatory damages. It

awarded Bowling $595,700 in compensatory damages. And it awarded both Bowling

and Ravenscraft $6,000,000 in punitive damages and attorney fees. The trial court

reduced those damages awards, lowering Ravenscraft’s compensatory damages to

$250,000 and punitive damages to $503,236.42, and Bowling’s compensatory

damages to $595,00 and punitive damages to $501,520.

Post-trial motions

{¶77} In 2022, the Durrani parties moved, in each case, for a new trial under

Civ.R. 59 and a judgment notwithstanding the verdict under Civ.R. 50(B). The Durrani

parties argued that the trial court’s adverse-inference instruction permitted the jury to

23 OHIO FIRST DISTRICT COURT OF APPEALS

find them liable solely based on Dr. Durrani’s absence from trial and failed to inform

the jury that it “may” make an inference based on his absence. Specific to Bowling, the

Durrani parties argued that Wilkey’s testimony was inadmissible under Evid.R. 601(B)

because he had not been employed as a spine surgeon at the time of trial and that the

trial court erred when it refused to instruct the jury on comparative negligence.

{¶78} The trial court denied the Durrani parties’ motions. Beginning with the

requested comparative-negligence instruction, the trial court found that Dr. Durrani

did not instruct his patients to engage in physical therapy. Instead, he only

recommended it. Plus, the Durrani parties produced no evidence showing that Dr.

Durrani told Bowling her surgery’s success depended on her completion of physical

therapy. Next, the trial court determined that the instruction was proper. Finally,

turning to Dr. Wilkey, the trial court cited Dr. Wilkey’s testimony that the Covid-19

pandemic halted elective surgeries and, “but for the pandemic,” Dr. Wilkey would have

satisfied Evid.R. 601(B)’s active-clinical-practice requirement at the time of trial, and

Dr. Durrani’s flight from the country caused “serious[] delay in this case.”

{¶79} In 2024, the Durrani parties filed new memoranda supplementing their

Civ.R. 59 and Civ.R. 50(B) motions in each case. The Durrani parties argued that this

court’s decisions in Hounchell v. Durrani, 2023-Ohio-2501 (1st Dist.), and Densler v.

Durrani, 2014-Ohio-14 (1st Dist.), supported their objection to Dr. Tayeb’s testimony

at trial. But the trial court found those cases distinguishable and rejected the motions.

II. Analysis

{¶80} On appeal, the Durrani parties challenge several of the trial court’s

procedural and evidentiary decisions in four assignments of error. First, they claim the

trial court should have ordered separate trials for Ravenscraft and Bowling. Second,

they argue that the trial court erred when it denied their motions for judgments

24 OHIO FIRST DISTRICT COURT OF APPEALS

notwithstanding the verdicts or a new trial. Third, they maintain that Dr. Saini

testified beyond his expertise in violation of Evid.R. 702. Finally, they contend that the

trial court should have given “many interrogatories” under Civ.R. 49.

Common questions of law and fact permit a joint trial

{¶81} In their first assignment of error, the Durrani parties argue that the trial

court erred when it jointly tried Ravenscraft’s and Bowling’s cases. First, they claim

that the joint trial was improper due to differences in the patients’ histories,

experiences with Dr. Durrani, and recovery. Second, they argue that Jones v. Durrani,

2024-Ohio-1776 (1st Dist.), was wrongly decided and should be overturned.

{¶82} We review the trial court’s decision to order joint trials for an abuse of

discretion. Jones at ¶ 20, citing Siuda v. Howard, 2002-Ohio-2292, ¶ 10 (1st Dist.). A

trial court abuses its discretion when it “exercise[es] its judgment[] in an unwarranted

way.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35.

{¶83} Under Civ.R. 42(A)(1)(a), actions that “involve common questions of

law or fact” may be joined for trial on “any or all matters at issue in the actions.” The

trial court’s authority to order a joint trial reflects several equitable principles,

including reducing inconvenience and cost to the parties, and preventing “multiplicity

of actions.” See 1970 Staff Note, Civ.R. 42; see also Dir. of Hwys. v. Kleines, 38 Ohio

St.2d 317, 319 (1974) (“The purpose of the rule is ‘to avoid unnecessary costs or delay’

in the interests of judicial efficiency.”). Though the unfair prejudicial effect of joining

trials is relevant to the inquiry, the mere possibility of prejudice will not justify a

reversal of the trial court’s decision to order a joint trial. Courtney v. Durrani, 2025-

Ohio-2335, ¶ 57 (1st Dist.). Separate trials, in contrast, are appropriately ordered

under Civ.R. 42(B) where separating actions will convenience the parties, avoid

prejudice, expedite the resolution of the matter, or further judicial economy.

25 OHIO FIRST DISTRICT COURT OF APPEALS

{¶84} While the trial court must base its decision to order joint trials on a

finding of common questions of law or fact, “Civ.R. 42(A) does not require that all

questions of law and fact be identical.” Jones, 2024-Ohio-1776, at ¶ 26 (1st Dist.). Joint

trials may be appropriate despite the presence of “separate components or [] distinct

factual or legal issues.” Courtney at ¶ 48, citing Clemente v. Gardner, 2004-Ohio-

2254, ¶ 18 (5th Dist.).

{¶85} In Jones, we affirmed the trial court’s decision to order joint trials

because common questions of fact predominated the case. Jones at ¶ 25. Specifically,

“the jury’s understanding of the specific conditions at issue in the L5-S1 area of the

spine was pertinent and predominated in both cases,” and expert testimony focused

on spinal anatomy, Dr. Durrani’s diagnoses, and “what would need to be present in a

patient’s imaging to warrant such representations.” Jones at ¶ 25. Plus, the Jones

plaintiffs raised “the same claims against the same defendants based on the same

theory of malpractice and/or fraud surrounding these conditions.” Id.

{¶86} In Courtney, we cited Jones to affirm the trial court’s decision to order

joint trials because both plaintiffs “had similar diagnoses[,] received essentially the

same surgery,” raised claims that Dr. Durrani “made medically incorrect impressions

of their images to order and perform” unnecessary surgeries, and relied on experts to

explain “how the spine functions, the complexities of their conditions, and the

surgeries [Dr.] Durrani performed.” Courtney, 2025-Ohio-2335, at ¶ 49 (1st Dist.).

{¶87} Here, the Durrani parties did not request, and the trial court did not

make, findings of common questions of fact or law in support of its decision to order

joint trials. While articulating findings would be best practice and allow for a more

meaningful review, Civ.R. 42(A) does not mandate findings and “the trial court’s

exercise of its discretion will be affirmed if it exhibits a sound reasoning process that

26 OHIO FIRST DISTRICT COURT OF APPEALS

would support its decision.” Viox v. Weinberg, 2006-Ohio-5075, ¶ 25 (1st Dist.). And

Jones and Courtney constitute binding precedent that the trial court, and this court,

must follow. Based on that precedent, the trial court did not abuse its discretion by

ordering a joint trial for the two patients.

{¶88} Both patients advanced negligence, fraudulent-misrepresentation, and

informed-consent claims. Dr. Durrani assured both Ravenscraft and Bowling that he

could “fix” their ailments and diagnosed both with degenerative disc disease, spinal

stenosis, and degenerative spondylolisthesis at the L5-S1 joint. The expert testimony

focused on the presence or absence of any symptoms traceable to the L5-S1 joint. The

Durrani parties’ expert testified that Dr. Durrani performed identical surgeries on

Bowling and Ravenscraft. Dr. Durrani used the same informed-consent form for

Ravenscraft and Bowling, and the experts testified about the propriety of

abbreviations and lack of details regarding the risks of the surgery.

{¶89} The Durrani parties claim that the joint trial prejudiced them because

Ravenscraft and Bowling each gained strategic advantages due to improper inferences

raised, and confusion sowed, by evidence of the other’s medical history, diagnosis,

surgical procedure, and recovery.

{¶90} But the trial court instructed the jury to assess each plaintiff’s claims on

their own merits, and “[w]e presume the jury followed that instruction.” Jones, 2024-

Ohio-1776, at ¶ 26 (1st Dist.). And the jury returned different compensatory and actual

damages awards for Ravenscraft and Bowling, suggesting that the jury differentiated

Ravenscraft’s and Bowling’s experiences. While the jury awarded Ravenscraft and

Bowling identical punitive damages awards, punitive damages are meant to “‘punish

and deter certain conduct.’” Sivit v. Village Green of Beachwood, L.P., 2015-Ohio-

1193, ¶ 7, quoting Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 651 (1994).

27 OHIO FIRST DISTRICT COURT OF APPEALS

Identical punitive damages awards are unremarkable because the propriety of Dr.

Durrani’s conduct—his representations, diagnoses, and informed-consent forms—was

a common issue of fact for both patients.

{¶91} The Durrani parties also argue that this court’s opinion in Jones should

be overturned. We rejected this exact argument in Courtney. See Courtney, 2025-

Ohio-2335, at ¶ 50-52 (1st Dist.).

{¶92} Because the trial court did not abuse its discretion when it ordered a

joint trial for Ravenscraft and Bowling, we overrule the first assignment of error.

No reversible error in the trial court’s denial of the Durrani parties’ post-trial motions

{¶93} In their second assignment of error, the Durrani parties contend that

the trial court should have granted their motions for judgments notwithstanding the

verdicts and a new trial due to a host of evidentiary and jury-instruction issues.

{¶94} Under Civ.R. 50(B)(1), a party may move for a judgment

notwithstanding the verdict after the trial court enters judgment on the jury’s verdict.

Moving for judgment notwithstanding the verdict challenges “the legal sufficiency of

the evidence.” Alonso v. Thomas, 2021-Ohio-341, ¶ 55 (9th Dist.). Indeed, “[a] motion

for judgment notwithstanding the verdict is used to determine only one issue: whether

the evidence is totally insufficient to support the verdict.” (Citations omitted.) Grieser

v. Janis, 2017-Ohio-8896, ¶ 15 (10th Dist.). The Durrani parties fail to articulate an

argument challenging the sufficiency of Ravenscraft’s or Bowling’s evidence. We “will

not create an argument in support of an assignment of error where an appellant fails

to develop one.” Fontain v. Sandhu, 2021-Ohio-2750, ¶ 15 (1st Dist.).

{¶95} Moving on, a trial court may grant a motion for a new trial under Civ.R

59(A) for a variety of reasons, including an “[e]rror of law occurring at the trial and

28 OHIO FIRST DISTRICT COURT OF APPEALS

brought to the attention of the trial court by the party making the application” or “for

good cause shown.” Civ.R. 59(A)(9). The scope of our review turns on the argument

advanced in the motion for a new trial. Berardo v. Felderman-Swearingen, 2020-

Ohio-4271, ¶ 7 (1st Dist.). We review a trial court’s exercise of its discretionary

authority under an “abuse-of-discretion standard of review and will reverse only

where the ruling was unreasonable, arbitrary, or unconscionable.” Adams v. Durrani,

2022-Ohio-60, ¶ 20 (1st Dist.). Of course, “no court has the authority, within its

discretion, to commit an error of law.” Wildenthaler v. Galion Community

Hosp., 2019-Ohio-4951, ¶ 26 (10th Dist.). So, where a motion for a new trial raises a

legal issue, our standard of review is de novo. Williams v. Sharon Woods Collision

Ctr., Inc., 2018-Ohio-2733, ¶ 28 (1st Dist.).

A. Admitting Dr. Tayeb’s testimony was harmless error

{¶96} The Durrani parties argue that the trial court abused its discretion when

it admitted Dr. Tayeb’s testimony, which was comprised of hearsay statements,

improper habit and character evidence, and was prejudicial to Dr. Durrani. They take

issue with two portions of Dr. Tayeb’s testimony. First, Dr. Tayeb testified that when

he was shadowing Dr. Durrani, he heard Dr. Durrani tell patients, “here and there,”

that they could be paralyzed without the recommended surgery. Second, Dr. Tayeb

recalled that Dr. Shanti, another CAST physician, had described Dr. Durrani “[]as

significantly more on the aggressive end [of the spectrum when making surgical

indications],” if not “[o]veraggressive.”

i. Evidentiary decisions must be prejudicial to justify reversal

{¶97} We review the trial court’s evidentiary decisions, including its decision

to admit or exclude Dr. Tayeb’s testimony, for an abuse of discretion. Stephenson v.

Durrani, 2023-Ohio-2500, ¶ 27 (1st Dist.). But “‘“[a]n improper evidentiary ruling

29 OHIO FIRST DISTRICT COURT OF APPEALS

constitutes reversible error only when the error affects the substantial rights of the

adverse party or the ruling is inconsistent with substantial justice.”’” Id. at ¶ 78,

quoting Setters v. Durrani, 2020-Ohio-6859, ¶ 22 (1st Dist.), quoting Beard v.

Meridia Huron Hosp., 2005-Ohio-4787, ¶ 35. To determine whether an erroneous

evidentiary ruling is harmless, “‘a reviewing court must weigh the prejudicial effect of

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

conclusion had the errors not occurred.’” Stephenson at ¶ 78, quoting Setters at ¶ 22.

ii. Some of Dr. Tayeb’s testimony should not have been admitted

{¶98} This appeal is not the first time this court has considered the propriety

of Dr. Tayeb’s testimony. See Stephenson at ¶ 27-37; see also Densler v. Durrani,

2024-Ohio-14, ¶ 16-20 (1st Dist.); Bender v. Durrani, 2024-Ohio-1258, ¶ 74-79 (1st

Dist.); Courtney, 2025-Ohio-2335, at ¶ 62-68 (1st Dist.).

{¶99} In Stephenson, Dr. Tayeb recalled hearing “‘here and there,’ that Dr.

Durrani would tell patients things like ‘their heads would fall off’ or ‘they would be

paralyzed’ if they declined to undergo the surgeries he recommended.” Stephenson at

¶ 34. We held that the trial court “abused its discretion in admitting Dr. Tayeb’s

testimony” without establishing a proper foundation of Dr. Durrani’s alleged habitual

statements. Id. at ¶ 37. We reasoned that “here and there” is “remarkably vague about

the frequencies of the occurrences of these comments.” Id. And Dr. Tayeb’s testimony

was unclear regarding both “the particular stimulus that evoked the alleged habitual

response” and “whether Dr. Durrani always, typically, or just sometimes offered the

warning about heads falling off.” Id. Plus, there was evidence in the record that the

trial court’s admission prejudiced Dr. Durrani, as jurors cited “Dr. Tayeb’s testimony

that Dr. Durrani habitually told his patients their heads would fall off” in their

interrogatories. Id. at ¶ 82.

30 OHIO FIRST DISTRICT COURT OF APPEALS

{¶100} Then in Densler, we “h[e]ld that the trial court abused its discretion in

admitting Dr. Tayeb’s testimony for the same reasons provided in Stephenson.”

Densler at ¶ 18. And the admission of Dr. Tayeb’s testimony in Densler was not

harmless “[b]ecause the record provides clear confirmation that the jury relied on the

improperly admitted testimony when making its decision in this case.” Id. at ¶ 20.

Indeed, “Dr. Tayeb’s testimony was the only testimony which established that Dr.

Durrani told his patients that they would lose control of their bodily functions absent

surgery” and the jury’s punitive damages award was based on Dr. Durrani’s statements

to the plaintiff “‘that he would be paralyzed without the surgery and lose control of

bodily functions.’” Id.

{¶101} And in Bender, we addressed Dr. Tayeb’s testimony that Dr. Shanti,

“another CAST surgeon, had told Tayeb that Dr. Durrani’s ‘surgical indications’ were

‘significantly more on the aggressive end, if not over.’” Bender, 2024-Ohio-1258, at

¶ 74 (1st Dist.). We held that this testimony “was admissible under Evid.R. 804(B)(3),

which permits hearsay testimony when the statement is contrary to a party’s interest.”

Id. at ¶ 78. We explained that one “CAST doctor stating that another CAST doctor was

overly aggressive was clearly against CAST’s interest.” Id.

{¶102} Finally, in Courtney, we held that Dr. Tayeb’s “here and there”

testimony was improper under Stephenson and Densler. Courtney, 2025-Ohio-2335,

at ¶ 64 (1st Dist.). But the trial court’s admission of this evidence in Courtney was

harmless because there was no sign that the jury relied on Dr. Tayeb’s testimony to

reach its verdicts and “other testimony in the record supported the notion that Durrani

minimized the risks of surgery.” Id. at ¶ 65-67. Also, we relied on Bender to reject Dr.

Durrani’s hearsay challenge and reasoned that Dr. Tayeb’s recitation of Dr. Shanti’s

opinion was admissible under Evid.R. 804(B)(3) because Dr. Shanti “was an agent of

31 OHIO FIRST DISTRICT COURT OF APPEALS

party-defendant CAST.” Id. at ¶ 68.

iii. Any error in admitting Dr. Tayeb’s testimony was harmless

{¶103} Beginning with Dr. Tayeb’s testimony describing Dr. Durrani’s

habitual assurances to patients, we hold that the trial court erred under Stephenson,

Densler, and Courtney when it allowed Dr. Tayeb to testify that Dr. Durrani told

patients, “here and there,” that Dr. Durrani’s recommended surgery was necessary to

avoid paralysis.

{¶104} The record in this case is more consistent with the record in Courtney

than the records in Stephenson and Densler. And like in Courtney, we hold that Dr.

Tayeb’s “here and there” testimony was ultimately harmless.

{¶105} Dr. Durrani’s habitual assurance was duplicative of the assurances

described by Bowling and Ravenscraft. Bowling recalled Dr. Durrani telling her that

he could fix her and that she would “be in a wheelchair” if she did not have the

recommended surgery. Ravenscraft testified that Dr. Durrani identified the cause of

her pain and assured Ravenscraft, “I can fix this for you.” Moreover, unlike in

Stephenson and Densler, nothing in the record shows that the jury relied on Dr.

Tayeb’s improperly admitted habit testimony.

{¶106} Moving to Dr. Tayeb’s reference to Dr. Shanti’s opinion, we see no

reason to depart from our holdings in Bender and Courtney. This testimony was

admissible under Evid.R. 804(B)(3) as a statement against CAST’s interest.

{¶107} Therefore, while the trial court abused its discretion by admitting Dr.

Tayeb’s habit testimony, that error was harmless. But the trial court did not abuse its

discretion by allowing Dr. Tayeb to describe Dr. Shanti’s opinion of Dr. Durrani’s

aggressiveness in treating patients because that testimony was admissible as a

statement against CAST’s interest under Evid.R. 804(B)(3).

32 OHIO FIRST DISTRICT COURT OF APPEALS

B. Dr. Wilkey was an expert under the 2023 amendment to Evid.R. 601

{¶108} Next, the Durrani parties argue that the trial court erred when it

permitted Dr. Wilkey to testify because he did not qualify as an expert under Evid.R.

601, as he did not, at the time of trial, devote at least half of his time to active clinical

practice or instruction at an accredited school.

{¶109} Under Evid.R. 601(B)(5), a person is disqualified from testifying as an

expert on the issue of a physician’s liability arising out of a medical claim unless that

person meets three requirements. Relevant here, the witness must meet an “active-

clinical-practice requirement” under Evid.R. 601(B)(5)(b). See Johnson, 2021-Ohio-

3304, at ¶ 24. That requirement is satisfied if the witness “devotes at least one-half of

his or her professional time to the active clinical practice in his or her field of licensure,

or to its instruction in an accredited school.” Evid.R. 601(B)(5)(b).

{¶110} When Dr. Wilkey testified in March 2022, former Evid.R. 601(B)(5)(b)

required witnesses testifying as experts in medical cases to “meet the active-clinical-

practice requirement of Evid.R. 601 at the time the testimony is offered at trial.”

Johnson at ¶ 20. Dr. Wilkey testified that he was performing orthopedic spine

surgeries “until COVID did in the hospital.” Indeed, he last performed spine surgery

in July 2020. But when Bowling’s surgery occurred in 2012, Dr. Wilkey devoted all of

his professional time to performing spinal surgeries.

{¶111} The Durrani parties, citing the active-clinical-practice requirement,

argue that Dr. Wilkey was not qualified to testify as an expert in Bowling’s case. The

trial court rejected that argument citing an exception to that rule recognized by the

Supreme Court of Ohio in which a witness is competent under Evid.R. 601(B)(5)(b)

“where the witness would have qualified as an expert but for defense continuances and

a stay of proceedings resulting from the insolvency of a defendant’s carrier.” Celmer v.

33 OHIO FIRST DISTRICT COURT OF APPEALS

Rodgers, 2007-Ohio-3697, ¶ 25. The parties dispute whether the Celmer exception

applies, considering the Supreme Court of Ohio’s opinion in Johnson that confined

Celmer “to the particular facts of that case.” Johnson, 2012-Ohio-3304, at ¶ 20.

{¶112} But we need not determine whether Celmer applies. As the Durrani

parties recognize in their brief, Evid.R. 601 was amended in July 2023. Now, a witness

is competent to testify as an expert in medical cases if they “devote[] at least one-half

of [their] professional time to the active clinical practice in [their] field of licensure, or

to its instruction in an accredited school, at either the time the negligent act is alleged

to have occurred or the date the claim accrued.” (Emphasis added.) Evid.R.

601(B)(5)(b). The staff notes to the 2023 amendment explain that Evid.R.

601(B)(5)(b) was “amended to clarify the time at which the active clinical practice

requirement is needed to qualify the witness as an expert witness, in response to the

Supreme Court of Ohio’s ruling in Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-

Ohio-3304.”

{¶113} So, Dr. Wilkey’s competence turns on whether the July 2023

amendment to Evid.R. 601(B)(5)(b) applies. We hold that it does. See Courtney, 2025-

Ohio-2335, at ¶ 73-75 (1st Dist.). The amendment to Evid.R. 601 applies to “all further

proceedings in actions then pending, except to the extent that their application in a

particular action pending when the amendments take effect would not be feasible or

would work injustice.” (Emphasis added.) Evid.R. 1102(B). The “construction of an

evidentiary rule [] presents a question of law that we review de novo.” State v. Depew,

136 Ohio App.3d 129, 132 (4th Dist. 1999). When interpreting court rules, the “general

principles of statutory construction apply” and “we must read undefined words or

phrases in context and then construe them according to rules of grammar and

common usage.” State ex rel. Law Office of Montgomery Cty. Pub. Defender v.

34 OHIO FIRST DISTRICT COURT OF APPEALS

Rosencrans, 2006-Ohio-5793, ¶ 23. The word “proceeding” generally means “[t]he

regular and orderly progression of a lawsuit,” a “procedural means for seeking

redress,” and “[a]n act or step that is part of a larger action.” Black’s Law Dictionary

(10th Ed. 2014). And “‘“an action or suit is ‘pending’ from its inception until the

rendition of final judgment.”’” Maynard v. Eaton Corp., 2008-Ohio-4542, ¶ 13,

quoting Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 103 (1988), quoting

Black’s Law Dictionary (5th Ed. 1979).

{¶114} Former Evid.R. 601 was in effect during the trial, when the Durrani

parties filed their post-judgment motion in May 2022, and when the trial court denied

that motion in January 2023.

{¶115} But the case was still pending in July 2023, when the current version of

Evid.R. 601 became effective. Indeed, it was still pending well after the amendment

was enacted. In March 2024, the Durrani parties filed a supplemental memorandum

in support of their post-trial motion, which the trial court denied in April 2024. The

amendment applies to cases pending when it became effective. And there is no doubt

that the actions were pending in July 2023.

{¶116} Moreover, the Durrani parties filed their appeal in April 2024. An

“appeal” is “[a] proceeding undertaken to have a decision reconsidered by a higher

authority.” Black’s Law Dictionary (8th Ed. 2004); see State v. Jones, 2024-Ohio-

2719, ¶ 21 (Kennedy, J., concurring).

{¶117} The current version of Evid.R. 601(B)(5)(b) governs our analysis of Dr.

Wilkey’s qualifications to provide expert medical testimony. And Dr. Wilkey was

qualified to testify under the current version of Evid.R. 601(B)(5)(b).

{¶118} We discern no injustice or impracticality in applying the amendment.

In Courtney, we applied the July 2023 amendment to cases pending in the trial court

35 OHIO FIRST DISTRICT COURT OF APPEALS

when current Evid.R. 601(B)(5)(b) took effect. Courtney at ¶ 74. We questioned the

practicality of applying former Evid.R. 601(B)(5)(b) to the plaintiffs’ trials because

“Dr. Wilkey could clearly testify on remand in accordance with the now-applicable

amended rule.” Id. at ¶ 75. This, we explained, would “create such an absurd result.”

Id. So too here.

{¶119} Because Dr. Wilkey was performing surgery “one hundred percent” of

the time when Dr. Durrani operated on Bowling in 2012, Dr. Wilkey satisfies Evid.R.

601(B)(5)(b)’s active-clinical-practice requirement. The trial court did not err when it

found Dr. Wilkey competent to testify as an expert in Bowling’s case.

C. The evidence did not warrant a comparative-negligence jury instruction

{¶120} Next, the Durrani parties argue that the trial court erred by not

instructing the jury to determine whether Bowling was comparatively negligent for her

injuries. We review the trial court’s decision to grant or deny a proposed jury

instruction for an abuse of discretion. Hounchell, 2023-Ohio-2501, at ¶ 65 (1st Dist.).

{¶121} A proposed “jury instruction is proper if it correctly states the law and

if it applies in light of the evidence adduced in the case.” Viox, 2006-Ohio-5075, at ¶ 13

(1st Dist.). When reviewing a proposed jury instruction, a reviewing court must

“‘determine whether the record contains evidence from which reasonable minds might

reach the conclusion sought by the instruction.’” Id., quoting Murphy v. Carrollton

Mfg. Co., 61 Ohio St.3d 585, 591 (1991).

{¶122} In Ohio, contributory negligence is “recognized” as a defense in

medical-malpractice cases. Viox at ¶ 13, quoting Lambert v. Shearer, 84 Ohio App.3d

266, 284 (10th Dist. 1992). If proven, contributory negligence “may serve to diminish

recovery under comparative negligence principles.” Reeves v. Healy, 2011-Ohio-1487,

¶ 70 (10th Dist.).

36 OHIO FIRST DISTRICT COURT OF APPEALS

{¶123} To establish a patient’s contributory negligence, the defendant

physician must show that the patient “breached a duty, proximately causing her own

injury.” Segedy v. Cardiothoracic & Vascular Surgery of Akron, 2009-Ohio-2460,

¶ 61 (9th Dist.). The evidence must show that the plaintiff’s conduct fell below the

standard of ordinary care for her own well-being and “combined and concurred with

the defendant’s negligence and contributed to the injury as a proximate cause thereof,

and as an element without which the injury would not have occurred.” Id. at ¶ 61,

quoting Brinkmoeller v. Wilson, 41 Ohio St.2d 223, 226 (1975).

{¶124} In some instances, a patient’s disregard of physician’s orders may

constitute a breach of her duty to exercise reasonable care. Viox, 2006-Ohio-5075, at

¶ 13 (1st Dist.). Said differently, a patient may be contributorily negligent if the

“‘patient neglects to obey the reasonable instructions of the surgeon, and thereby

contributes to the injury complained of.’” Striff v. Luke Med. Practitioners, Inc., 2010-

Ohio-6261, ¶ 57 (3d Dist.), quoting Geiselman v. Scott, 25 Ohio St. 86 (1874),

paragraph one of the syllabus.

{¶125} The trial court rejected the Durrani parties’ comparative-negligence-

jury-instruction argument for three reasons. First, “Dr. Durrani recommended that

Bowling engage in post-surgery physical therapy, he did not require [her] to complete

post-surgery physical therapy.” (Emphasis in original.) Second, Dr. Durrani failed to

explain to Bowling her surgery’s success “depended significantly on her completion of

post-surgery physical therapy.” Third, it explained that Bowling could not be deemed

to have been contributorily negligent for not completing post-surgery physical therapy

prescribed by the surgeon who recommended and performed unnecessary surgery.

{¶126} We agree with the trial court that the evidence fails to show that Dr.

Durrani or CAST told Bowling that her post-surgical recovery turned on her

37 OHIO FIRST DISTRICT COURT OF APPEALS

completion of physical therapy. For more than 150 years, Ohio courts have recognized

that “[t]he information given by a surgeon to his patient concerning the nature of his

malady, is a circumstance that should be considered in determining whether the

patient, in disobeying the instructions of the surgeon, was guilty of contributory

negligence or not.” Geiselman at paragraph two of the syllabus.

{¶127} A defendant-physician raising contributory negligence must establish

causation—the “contributory negligence of the patient must have been an active and

efficient contributing cause of the injury that is the basis of the patient’s claim.” Viox,

2006-Ohio-5075, at ¶ 13 (1st Dist.). A note attached to Bowling’s physical-therapy

prescription notes that Bowling was “in too much pain” to engage in physical therapy.

That note is consistent with her testimony that she experienced severe pain following

her spinal surgery. Medical records show, and Bowling’s experts testified, that her

surgery resulted in a nonunion—her vertebrae failed to fuse. And Drs. Wilkey and

Saini saw evidence in Bowling’s post-surgery imaging of a mispositioned pedicle screw

in Bowling’s vertebrae.

{¶128} The Durrani parties’ expert testified that it was not abnormal for

Bowling to experience pain following her surgery. He testified, generally, that Dr.

Durrani’s physical-therapy recommendation was appropriate because physical

therapy helps restore a patient’s muscles back to health. And he explained that a

patient who chooses not to engage in physical therapy after surgery risks stiffness and

diminished strength. But Dr. Durrani’s expert did not testify that Bowling’s failure to

attend physical therapy caused her injury.

{¶129} The trial court reasonably found that a rational juror would not

conclude that Bowling’s failure to complete physical therapy contributed to her

injuries. The trial court did not abuse its discretion when it rejected the Durrani

38 OHIO FIRST DISTRICT COURT OF APPEALS

parties’ comparative-negligence jury instruction.

D. The trial court’s adverse-inference jury instruction does not warrant reversal

{¶130} Finally, the Durrani parties challenge the trial court’s jury instructions

regarding Dr. Durrani’s absence from the trial, arguing that the jurors were informed

that Dr. Durrani’s absence created an inference that he was negligent.

{¶131} In an appeal, “‘[t]he question of whether a jury instruction is legally

correct and factually warranted is subject to de novo review.’” Jones, 2024-Ohio-1776,

at ¶ 29 (1st Dist.), quoting Cromer v. Children’s Hosp. Med. Ctr. of Akron, 2015-Ohio-

229, ¶ 22. We must “‘“consider the jury charge as a whole and ‘must determine

whether the jury charge probably misled the jury in a matter materially affecting the

complaining party’s substantial rights.’”’” Id. at ¶ 36, quoting Cromer at ¶ 35, quoting

Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93 (1995), quoting Becker v. Lake Cty.

Mem. Hosp. W., 53 Ohio St.3d 202, 208 (1990).

{¶132} This court has recognized that a jury may draw an unfavorable

inference against a party “‘who has control of the evidence in question’” and “‘fails,

without satisfactory explanation, to provide the evidence.’” Roetenberger v. Christ

Hosp. & Anesthesia Assocs. of Cincinnati, 2005-Ohio-5205, ¶ 21 (1st Dist.), quoting

Brokamp v. Mercy Hosp., 132 Ohio App.3d 850, 870 (1st Dist. 1999).

{¶133} It should come as no surprise that this is not the first time this court

has considered the effect of Dr. Durrani’s absence at trial. See Hounchell, 2023-Ohio-

2501, at ¶ 65 (1st Dist.). In Hounchell, the trial court instructed the jury that it was

“allowed to consider . . . the fact that Dr. Durrani did not attend the trial and testify to

specific facts about the case in his defense. And you may make whatever inference

and conclusion you choose to from that fact.” (Emphasis in original.) Id. We held that

this instruction impermissibly invited the jury to draw “both impermissible and

39 OHIO FIRST DISTRICT COURT OF APPEALS

negative inferences.” Id. at ¶ 69. Specifically, the instruction “allowed the jury to infer

that Durrani was absent because of a consciousness of guilt or because of implicit

biases against those of Pakistani descent, both of which are impermissible.” Id.

{¶134} In Jones, we held that the trial court erred when it gave a jury

instruction identical to the instruction given in this case:

Dr. Durrani has voluntarily left the jurisdiction removing himself from

plaintiff’s ability to subpoena him to trial. When a party such as Dr.

Durrani has relevant evidence or testimony within his or her control,

and the party failed to produce that relevant evidence or testimony, that

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

unfavorable to that party.

Jones, 2024-Ohio-1776, at ¶ 30 (1st Dist.). First, we noted that “instruction necessarily

requires the inference to be made” and did not limit the jury’s inference to evidence

that “Dr. Durrani would ‘naturally’ produce.” Id. at ¶ 34. But we held that this error

was harmless because the jury instructions did not suggest that the jury was misled

because the trial court also told the jury that it was not required to draw inferences

and “[w]hether an inference is made rests entirely on you.” Id. at ¶ 37.

{¶135} Like in Jones, the trial court prefaced its adverse-inference instruction

by defining an “inference” and explained, “Whether an inference is made rests entirely

with you.” The trial court instructed the jury to “not speculate on why [Dr. Durrani] is

not present or consider his absence for any purpose except as instructed.” It informed

the jury that Dr. Durrani “voluntarily left the jurisdiction, removing himself from the

plaintiffs’ ability to subpoena him to trial.” So, it explained to the jury that, when a

party “has relevant evidence or testimony within his or her control and the party fails

40 OHIO FIRST DISTRICT COURT OF APPEALS

to produce that relevant evidence or testimony, that failure gives rise to an inference

that the evidence or testimony is unfavorable to that party.”

{¶136} Because the jury instruction in this case is identical to the instruction

in Jones, that opinion governs our analysis and is determinative in this case. Context

matters and, when read as a whole, the jury instructions informed the jury that it had

discretion to decide what inferences it drew from the evidence. Like in Jones, there is

no indication on the face of the record that the instruction infected the jury’s decision.

{¶137} Because the Durrani parties have failed to prove that the trial court

committed a reversible error, they were not entitled to a new trial or judgments

notwithstanding the verdicts. We overrule the second assignment of error.

Dr. Saini did not testify outside of his area of expertise

{¶138} In their third assignment of error, the Durrani parties argue that the

trial court impermissibly allowed Dr. Saini to testify outside of his area of expertise.

They maintain that Dr. Saini, a neuroradiologist, testified about a surgeon’s use of an

operative report and surgical practices, and about Dr. Durrani’s surgical technique.

{¶139} Expert testimony is governed by Evid.R. 702. A witness may testify as

an expert when he is “qualified as an expert by specialized knowledge, skill,

experience, training, or education regarding the subject matter of the testimony.”

Evid.R. 702(B). In Ohio, a witness testifying in a medical-malpractice case “‘“need not

practice in the exact same specialty as that of the defendant-physician; rather, it is the

scope of the witness’s knowledge and not the artificial classification by title that should

govern the threshold question of his qualifications.”’” Adams, 2022-Ohio-60, at ¶ 50

(1st Dist.), quoting Guiliani v. Shehata, 2014-Ohio-4240, ¶ 42 (1st Dist.), quoting

Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 160 (1978). So long as the

expert witness demonstrates knowledge of the standards of the specialty, and that

41 OHIO FIRST DISTRICT COURT OF APPEALS

knowledge enables the witness to provide expert testimony involving whether the

defendant’s conduct conformed with that specialty’s particular standards, the witness

is competent to testify as an expert. Alexander at 160.

{¶140} In Adams, we recognized that a radiologist’s duties overlap with a

surgeon’s because a surgeon’s minimum standard of care “includes reviewing

diagnostic images before determining whether surgery is necessary.” Adams at ¶ 55.

So, “[a] radiologist is qualified to opine on a surgeon’s standard of care in reviewing

diagnostic images and ordering surgery based on those images.” Id. at ¶ 57. We held

in Adams that issues surrounding informed consent fell within Dr. Saini’s area of

expertise because “[g]etting informed consent is a practice that is standard across all

types of doctors.” Id. at ¶ 60.

{¶141} Here, Dr. Saini explained that, as a neuroradiologist, he “specializes in

imaging of the brain, the spinal cord, the head and neck, eyes, ears.” Unlike general or

diagnostic radiology, he has 17 years of training on “spinal cord abnormalities, with

the head, the neck, the brain.” He has performed “invasive” radiology and procedures

like “putting in lines and doing facet blocks, nerve blocks[,] . . . myleograms.” He has

experience teaching “neurologists and attendings on how to read films,” and training

orthopedic surgeons. He testified that a neuroradiologist’s and orthopedic-spine

surgeon’s interactions are important for diagnosing patients.

{¶142} The Durrani parties argue that Dr. Saini testified outside of his area of

expertise when he discussed “what surgeons typically do with operative reports.” But

that testimony was part of a broader discussion of the information a neuroradiologist

needs when reviewing post-operation film. Dr. Saini testified that neuroradiologists

must be familiar with orthopedic spine surgery processes and procedures because they

must “understand what an orthopedic surgeon is doing to see if the surgery is going

42 OHIO FIRST DISTRICT COURT OF APPEALS

the right way or it’s not going the right way . . . and convey that [to the surgeon].” When

viewing post-operation film, Dr. Saini testified that he consults the operative report to

see “if there’s some discrepancy [between the pre-operation note and the film]” and if

the surgeon deviated from the pre-surgery plan. The operative report communicates

the surgeon’s decision making to others. Accordingly, Dr. Saini’s testimony involving

operative reports did not stray outside of his area of expertise as a neuroradiologist.

{¶143} Next, the Durrani parties argue that Dr. Saini’s discussion of TLIF

surgeries, recovery time, and Dr. Durrani’s technique in Bowling’s surgery fell outside

of his expertise. But Dr. Saini described the purpose of a TLIF to explain that evidence

of a healed fusion appears within “six months to a year . . . through a radiologic study.”

He discussed laminectomies to show why Ravenscraft’s imaging conflicted with Dr.

Durrani’s finding that Ravenscroft had a prior laminectomy. Dr. Saini also testified

that he reviewed Bowling’s post-operation film, which made him “wonder[] whether

this pedicle screw was put in correctly or not, because it looks like it’s more laterally

displaced. These tiny little dots [are] from the anterior spinal fusion. It’s from the

TLIF.” This testimony concerned Dr. Saini’s interpretation of Ravenscraft’s and

Bowling’s imaging, which falls within his area of expertise as a neuroradiologist.

{¶144} In sum, Dr. Saini’s testimony fell within the scope of his expertise as a

neuroradiologist. Therefore, we overrule the third assignment of error.

The record did not support an itemized-damages jury interrogatory

{¶145} The Durrani parties’ final assignment of error asserts that the trial

court erred when it improperly failed to give their requested interrogatories to the

jury. While the Durrani parties maintain that the trial court erred when it failed to

submit “many” interrogatories to the jury, their argument focuses on proposed

interrogatory 15, which states

43 OHIO FIRST DISTRICT COURT OF APPEALS

State in ink the percentage of the total non-economic damages awarded

in Interrogatory #233 that you allocate to each of the following:

1. Negligence in performing [plaintiff’s] surgery________%

2. Lack of informed consent for surgery _________%

3. Battery ______%

4. Fraudulent misrepresentation of the necessity or indication for the

surgery ______%

{¶146} Interrogatories allow parties to “‘test the jury’s thinking in resolving an

ultimate issue so as not to conflict with its verdict.’” Moretz v. Muakkassa, 2013-Ohio-

4656, ¶ 79, quoting Freeman v. Norfolk & W. Ry. Co., 69 Ohio St.3d 611, 613 (1994).

Under Civ.R. 49(B), the trial court “shall submit written interrogatories to the jury . . .

upon request of any party prior to the commencement of argument.” This “mandatory

duty” arises “[w]hen both the content and the form of a proposed interrogatory are

proper.” Moretz at ¶ 79. Yet, a trial court has “discretion to reject interrogatories that

are inappropriate in form or content . . . [and] may reject a proposed interrogatory

that is ambiguous, confusing, redundant, or otherwise legally objectionable.” Freeman

at 613. Typically, we would review the trial court’s decision to reject a proposed

interrogatory for an abuse of discretion. Id. at 614.

{¶147} But the Durrani parties have forfeited all but plain error. When given

the opportunity, a party has a duty at trial to raise an objection to any claimed error to

preserve that error for appeal. WBCMT 2007-C33 Office 7870, LLC v. Breakwater

Equity Partners, LLC, 2019-Ohio-3935, ¶ 34 (1st Dist.), quoting In re J.J., 2006-Ohio-

5484, ¶ 15. A party’s failure to object to any error in the trial court’s jury interrogatories

3 Interrogatory 23 is not in the record.

44 OHIO FIRST DISTRICT COURT OF APPEALS

or instructions forfeits all but plain error on appeal. See Calloway v. McKenna, 2023-

Ohio-3130, ¶ 19 (1st Dist.) (interrogatories); see also City of Westlake v. Y.O., 2019-

Ohio-2432, ¶ 34 (8th Dist.) (instructions).

{¶148} The Durrani parties submitted their interrogatories to the trial court

before trial. After the patients submitted their proposed jury instructions during trial,

the trial court reviewed the jury interrogatories and instructions with the parties. The

trial court invited feedback from the Durrani parties. While they objected to the

adverse-inference instruction and requested “an instruction on comparative fault for

Mrs. Bowling,” the Durrani parties failed to mention their proposed interrogatory 15.

Moreover, the Durrani parties failed to object when the trial court read the

interrogatories to the jury. And after the trial court finished reading the interrogatories

to the jury, the trial court explicitly asked if there were “any exceptions on behalf of . .

. defendants?” The Durrani parties responded, “No, Your Honor.” And before sending

the jury to deliberate, the trial court asked, “Did I forget anything? Anything . . . on

behalf of defendants?” The Durrani parties again responded, “No, Your Honor.”

{¶149} Appellate courts may find plain error when an appellant establishes

that the trial court committed a plain or obvious error, which affected a substantial

right. Cable Busters, LLC v. Mosley, 2020-Ohio-3442, ¶ 7 (1st Dist.). But in civil cases,

plain error is reserved for “‘extremely rare cases where exceptional circumstances

require its application to prevent a manifest miscarriage of justice, and where the error

complained of, if left uncorrected, would have a material adverse effect on the

character of, and public confidence in, judicial proceedings.’” Id., quoting Goldfuss v.

Davidson, 79 Ohio St.3d 116, 121 (1997).

{¶150} On appeal, the Durrani parties do not develop any argument

suggesting that the trial court’s omission of their proposed interrogatory amounts to a

45 OHIO FIRST DISTRICT COURT OF APPEALS

plain error. Under these circumstances, “we will not sua sponte undertake a plain-

error analysis on [a party’s] behalf.” Id. at ¶ 8.

{¶151} Because the Durrani parties failed to object to the trial court’s omission

of their interrogatory and failed to argue plain error on appeal, we overrule their fourth

assignment of error.

III. Conclusion

{¶152} We overrule the assignments of error and affirm the trial court’s

judgments.

Judgments affirmed.

CROUSE, P.J., and MOORE, J., concur.