Wheeler v. Durrani

• Court: Ohio Court of Appeals
• Decided: June 30, 2026
• Docket: C-250095, C-250206
• Status: Published

Opinion

[Cite as Wheeler v. Durrani, 2026-Ohio-2475.]

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

DEBRA ANN WHEELER and : APPEAL NO. C-250095 RICHARD J. BROREIN, TRIAL NO. A-1706556 Successor Coexecutors of the Estate of : Richard and Eileen Brorein, : Plaintiffs-Appellees, : vs.

ABUBAKAR ATIQ DURRANI, M.D., :

and :

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

KYRA MCCLENDON, : APPEAL NO. C-250206 TRIAL NO. A-1506695 Plaintiff-Appellee, :

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

Defendants-Appellants. :

This cause was heard upon the appeals, the records, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgments of the trial court are reversed and the cause is remanded. OHIO FIRST DISTRICT COURT OF APPEALS

Further, the court holds that there were reasonable grounds for these appeals, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 6/30/2026 per order of the court.

By:_______________________ Administrative Judge [Cite as Wheeler v. Durrani, 2026-Ohio-2475.]

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

DEBRA ANN WHEELER and : APPEAL NO. C-250095 RICHARD J. BROREIN, TRIAL NO. A-1706556 Successor Coexecutors of the Estate of : Richard and Eileen Brorein, : Plaintiffs-Appellees, : vs.

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

KYRA MCCLENDON, : APPEAL NO. C-250206 TRIAL NO. A-1506695 Plaintiff-Appellee, :

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

Civil Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 30, 2026 OHIO FIRST DISTRICT COURT OF APPEALS

Statman Harris, LLC, Alan J. Statman and Benjamin M. Maraan II, for Plaintiffs- Appellees,

Taft Stettinius & Hollister LLP, Philip D. Williamson, Aaron M. Herzig and Russell S. Sayre, for Defendants-Appellants. [Cite as Wheeler v. Durrani, 2026-Ohio-2475.]

CROUSE, Judge.

{¶1} In these consolidated appeals, we are again confronted with the issue of

whether the trial court erred in joining for trial two medical-malpractice actions

against defendants-appellants Dr. Abubakar Atiq Durrani and the Center for

Advanced Spine Technologies, Inc., (“CAST”) (collectively referred to as

“Appellants”).1

{¶2} Following our review of the record, we hold that the claims brought by

plaintiffs-appellees Debra Ann Wheeler and Richard J. Brorein, Successor

Coexecutors of the Estate of Richard and Eileen Brorein, and Kyra McClendon

(collectively referred to as “Appellees”) did not share common questions of law or fact

and that the trial court erred in joining them for trial. We further hold that the trial

court erred in admitting testimony about a surgery performed by Durrani on

McClendon that was not the basis of the medical-malpractice action; in allowing Dr.

Ranjiv Saini, an expert witness for Appellees, to testify outside the bounds of his

expertise; and in allowing the jury to see a slide in Dr. Saini’s PowerPoint presentation

that referred to unrelated surgeries performed by Durrani.

{¶3} Collectively, these errors cannot be found harmless. We accordingly

reverse the trial court’s judgments and remand this cause for new, separate trials for

the plaintiffs.2

1 We sua sponte consolidate these separate appeals into a single opinion and judgment. 2 Appellees filed motions to dismiss their fraud claims, which were denied by a motions panel of

this court because the motions failed to state with particularity the grounds upon which they were based and because they appeared to request relief that this court cannot afford. Both Appellants and Appellees filed supplemental briefs on the issues raised in the motions. Appellees also filed “notice[s] of withdrawal” of their motions to dismiss the fraud claim, which were struck by a motions panel of this court. We decline to revisit our denial of the motions. If Appellees wish to withdraw their fraud claims, they may do so in the trial court. OHIO FIRST DISTRICT COURT OF APPEALS

I. Factual and Procedural History

{¶4} On December 9, 2015, McClendon, along with her parents Tonya and

Tony McClendon, filed a medical-malpractice action against Durrani and CAST.3 The

complaint alleged that Durrani performed a stapling procedure on McClendon’s

thoracic spine to correct her scoliosis, and that when the curvature of her spine

subsequently worsened, he performed a spinal fusion on her. It further alleged that

the surgeries were medically unnecessary and improperly performed.

{¶5} On December 7, 2017, an amended complaint was filed by Richard

Brorein, as Executor of the Estate of Eileen Brorein, against Durrani and CAST.4 The

complaint alleged that Durrani performed a thoracic spinal fusion on Eileen5 that was

medically unnecessary and that the surgery was improperly performed, requiring

Durrani to perform a revision surgery to correct the deficiencies.

{¶6} In October 2018, following the death of Richard Brorein, Debra Ann

Wheeler and Richard J. Brorein were substituted as the coexecutors of the estate of

Richard and Eileen Brorein.

A. Consolidation and Pretrial Filings

{¶7} Over Durrani and CAST’s objection, the claims asserted by Eileen’s

estate and McClendon were joined for trial.

{¶8} Prior to trial, Durrani and CAST filed a motion in limine to preclude, as

relevant to this appeal, the admission of (1) evidence of other malpractice lawsuits

against Durrani, as well as evidence of Durrani’s treatment of other patients, (2)

3 The complaint also asserted claims against Cincinnati Children’s Hospital Medical Center, UC

Health, and West Chester Hospital, LLC, but McClendon settled with these defendants and the claims against them were dismissed. 4 Claims were also filed against UC Health and West Chester Hospital, LLC, but a settlement was

reached with these defendants and the claims against them were dismissed. 5 Because there are multiple persons involved in the action with the surname Brorein, we refer to

Eileen Brorein by her first name to avoid confusion.

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surgical-standard-of-care testimony from Dr. Saini, (3) evidence of Durrani’s flight to

Pakistan and his absence from trial, and (4) evidence about the medical criminal

action against Durrani. They filed a second motion in limine to preclude the

McClendons from presenting the testimony of Dr. Charles Mehlman because he had

only been identified as an expert “on all Children’s cases” and McClendon’s treatment

at Cincinnati Children’s Hospital Medical Center (“CCHMC”) was no longer at issue,

as the claims against CCHMC had been dismissed.

{¶9} The trial court orally ruled on the motions in limine at the beginning of

trial. It granted the first motion in limine with respect to the admissibility of evidence

regarding Durrani’s treatment of other patients, other malpractice lawsuits, and the

medical criminal action against Durrani. But the trial court denied the motion in

limine with respect to Dr. Saini’s testimony on surgical standards of care and Durrani’s

absence from trial. With respect to Dr. Saini, it stated, “Well, pursuant to the Court of

Appeals’ decision stating that based upon Dr. Saini’s background and his training of

orthopedic surgeons, he was qualified to testify as to surgical standards to a certain

degree. And the Court will allow him to so testify.”

{¶10} The trial court heard further arguments from the parties on the motion

in limine regarding the testimony of Dr. Mehlman, and it held that it would allow Dr.

Mehlman to testify. The court also denied Durrani and CAST’s renewed objection to

the joinder of the two cases for trial. A jury trial was then held on the claims of

McClendon and Eileen’s estate for negligence, fraudulent misrepresentation, battery,

and lack of informed consent.

B. Trial Testimony

1. Eileen Brorein

{¶11} The evidence presented at trial established Eileen had suffered back

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pain for well over a decade before being referred to Durrani. She had already seen

multiple doctors for this pain and had treated it with conservative care, including

medication, physical therapy, and steroid injections. Eileen was able to obtain only

temporary relief from these treatments. At the time she presented to Durrani, she

suffered pain in her back and her right shoulder. Her ability to enjoy life was good, but

she needed assistance with many household tasks.

{¶12} The evidence established that during his initial consultation with Eileen,

Durrani recommended surgery. Based on his examination of her medical images, he

determined that she suffered a significant kyphotic deformity, thoracic spinal and

foraminal stenosis, and a large disc herniation at T5-6, T6-7, and T7-8 that was causing

very significant spinal cord compression. Durrani subsequently performed a

laminectomy and a fusion of Eileen’s spine from levels T3 to T10.

{¶13} Following the surgery, Eileen developed complications related to the

hardware that Durrani had placed. She could feel the rods poking into her skin and

experienced much discomfort. Imaging studies showed that the screws in her spine

were starting to back out. Durrani recommended a revision surgery to correct this

issue, which allegedly resulted from osteoporosis in Eileen’s bones. Durrani performed

the revision, removing the hardware that had been placed during the first surgery and

putting in different screws. Following the second surgery, Eileen experienced pain

worse than what she had suffered prior to either surgery.

{¶14} Eileen passed away from unrelated causes approximately two years

after the second surgery.

2. Kyra McClendon

{¶15} The evidence presented at trial established that in 2008, McClendon,

then age ten, was referred to CCHMC by her primary-care physician for concerns of

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scoliosis. She was seen by Durrani at CCHMC, where he worked at the time.

{¶16} After ordering and examining an X-ray of McClendon’s spine, Durrani

presented the McClendons with three options: (1) ignore the curvature, which would

eventually cause McClendon’s spine to collapse her lung, (2) have McClendon wear a

back brace nearly 24/7 for the rest of her life, or (3) have McClendon undergo a

noninvasive surgery involving the stapling of her spine. The McClendons felt that

surgery was their only option. Unbeknownst to them, McClendon’s surgery was the

first time that the stapling procedure had been performed at CCHMC.

{¶17} After a few post-surgery visits, McClendon did not see Durrani for a two-

year period. In 2010, after her primary-care physician noticed that her scoliosis had

progressed, McClendon followed up with Durrani at CAST, where he was employed at

the time. Durrani viewed updated images of McClendon’s spine and told her that she

needed a spinal fusion. He said that she would be able to return to her activities of

choice, tumbling and cheerleading, several months after surgery. Durrani performed

a spinal fusion on McClendon from levels T3 to L2, although, prior to surgery, he had

indicated that the fusion would extend to L3. During the surgery, he fused only six of

the 11 impacted segments of McClendon’s spine. He also used a bone morphogenetic

protein on McClendon during the surgery, despite not informing McClendon or her

parents that he intended to do so.

{¶18} After her surgery, McClendon experienced pain in the area around her

hip. Durrani believed the pain was caused by an issue with her hips and that it was not

related to the fusion surgery. McClendon also treated with two other doctors for this

pain. One attributed the pain to her spine, while the other attributed it to the weight

of the hardware Durrani had placed in her back. The pain eventually improved after

McClendon participated in physical therapy. She was able to return to gymnastics, but

9 OHIO FIRST DISTRICT COURT OF APPEALS

not on the competitive level that she had participated in prior to surgery. McClendon,

who was 25 at the time of trial, stated that she had “good days and bad days” and that

she had experienced pain off and on for the past 15 years.

C. Appellees’ Expert Testimony

{¶19} Appellees presented expert testimony from three witnesses, Dr. Stephen

Bloomfield, Dr. Mehlman, and Dr. Saini.

1. Dr. Bloomfield

{¶20} Dr. Bloomfield opined that Durrani had exaggerated the findings on

Eileen’s medical images and that Durrani’s reading of those images was outside of the

standard of care. He testified that, contrary to Durrani’s representations, Eileen’s

medical images did not show that her spinal cord was compressed. Dr. Bloomfield also

opined that it was a violation of the standard of care for Durrani to recommend surgery

for Eileen on her first visit. He also testified that Durrani breached the standard of care

by performing surgery to decompress a spinal cord that was not significantly

compressed, and that Eileen’s pain and suffering was directly and proximately caused

by Durrani’s deviation from the standard of care.

2. Dr. Mehlman

{¶21} Prior to Dr. Mehlman’s testimony, Durrani and CAST asked the trial

court to verify that Dr. Mehlman would not be permitted to testify about whether the

stapling procedure that Durrani performed on McClendon at CCHMC met the

standard of care, because the claim related to that surgery had been settled with

CCHMC and was no longer part of the case. Appellees’ counsel argued that Dr.

Mehlman would need to comment on the first surgery to explain why it led to the

necessity for the second surgery.

{¶22} The trial court instructed Appellees’ counsel not to question Dr.

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Mehlman about whether the first surgery met the standard of care.

{¶23} Dr. Mehlman testified about the curvature of McClendon’s spine upon

her initial presentation to Durrani. He stated that she would have been a candidate for

bracing and that “[t]he standard of care for the country would be to offer bracing for

that child.” Durrani and CAST objected. The trial court sustained the objection and

instructed the jury to disregard the previous question and answer.

{¶24} Dr. Mehlman testified that when the stapling procedure was performed

on McClendon, it was not a procedure that was regularly performed by pediatric

orthopedic surgeons. Dr. Mehlman subsequently repeated this sentiment, stating that

the stapling procedure never “caught on” and was never regularly performed. Upon

objection from Durrani and CAST, the trial court told the jury, “There is a lot of

discussion here about the first surgery that was performed on this plaintiff. Testimony

is being allowed because it’s necessary to set the basis for the surgery that’s involved

in this case, which was the second surgery. So please keep that in mind.”

{¶25} Dr. Mehlman testified that Durrani breached the standard of care when

performing the fusion surgery on McClendon because he did not fuse all 11 segments

in McClendon’s spine and because he used a bone morphogenetic protein off-label on

her. He explained that the bone morphogenetic protein had not been approved by the

FDA for use on minors, and that it carried side effects such as infertility, cancer, and

excessive bone growth in abnormal places. He further testified that the fusion surgery

left McClendon at risk for adjacent segment disorder, and that there was a high

likelihood she would have future problems and pain associated with the spinal fusion.

{¶26} Dr. Mehlman’s testimony addressed the staples that Durrani had used

in the stapling procedure on McClendon’s spine. He stated that Durrani’s use of

Medtronic staples was “completely off-label.” Dr. Mehlman also opined that the

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informed-consent form for McClendon’s spinal fusion did not meet the standard of

care because it did not list the name of the procedure that was to be performed and

did not discuss any risks or complications associated with the procedure. He further

stated that a separate form signed by McClendon’s mother, referred to as an

“acknowledgement of consent,” also failed to list the risks and benefits of the surgery.

3. Dr. Saini

{¶27} Dr. Saini, a neuroradiologist, provided opinions about the surgeries

performed on both Eileen and McClendon. He utilized a PowerPoint presentation

during his testimony. As the parties agree, one of Dr. Saini’s slides contained

statements from a physician not involved in the lawsuit indicating that Durrani had

performed unnecessary surgeries and was engaged in criminal activity. When that

slide was presented, Appellees’ counsel immediately said, “Let’s take that down for a

second, please.”

{¶28} At a sidebar, Appellees’ counsel explained that he noticed that the slide

had not been redacted and that he needed to “black out the information about

[Durrani’s] unnecessary surgeries.” Appellants’ counsel moved for a mistrial, arguing

that there was a high likelihood that the jury saw the slide, which counsel represented

had stated that “[i]t is noted that since that time he has been charged with criminal

activity regarding unnecessary surgeries.” The trial court denied the motion for a

mistrial, stating, “Number one, the Court was looking at the exhibit also, and I don’t

know what it said. I realize that my reading it, and looking at it, observing it may not

be the same as the jurors. But the length of time that it was up and the opportunity to

observe it was, in the Court’s opinion, insignificant.”

{¶29} Upon resumption of his testimony, Dr. Saini opined that Durrani

breached the standard of care when reading Eileen’s medical images. He testified that

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Eileen did not have severe central canal stenosis, that her spinal cord had room to

move, and that the images did not show that she suffered from severe kyphosis.

{¶30} With respect to McClendon, Dr. Saini testified that the stapling

procedure Durrani performed on her was experimental at the time it was performed,

and that it was the first procedure of that nature performed at CCHMC. He also

testified that Durrani used Medtronic staples, rather than Nitinol staples, and that this

contributed to the failure of the stapling procedure. Dr. Saini criticized Durrani’s

decision to only fuse six of the levels in McClendon’s spine during the fusion surgery.

He stated that without pedicle screws at each level, motion between the segments

could not be stopped to allow fusion to occur.

{¶31} Dr. Saini testified that the informed-consent form signed by

McClendon’s mother for the spinal fusion did not meet the standard of care because it

did not list the name of the procedure to be performed or the risks and benefits and

pros and cons of the surgery.

D. Appellants’ Expert Testimony

{¶32} Durrani and CAST presented expert testimony from two witnesses, Dr.

Michelle Hansman Whiteman and Dr. Paul Kaloostian.

1. Dr. Hansman Whiteman

{¶33} Dr. Hansman Whiteman, a neuroradiologist, testified that Durrani’s

interpretation of Eileen’s medical images was reasonable and within the standard of

care. She stated that Durrani correctly determined that Eileen’s spinal cord was

compressed at three levels, and that he did not exaggerate radiographic findings.

{¶34} With respect to the stapling procedure that Durrani performed on

McClendon, Dr. Hansman Whiteman testified that, at the time that it was performed,

stapling was equally as efficacious as bracing. She stated that McClendon’s scoliosis

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improved significantly after the stapling before it began to progress again two years

later. Dr. Hansman Whiteman discussed the fusion surgery performed on McClendon

and stated that Durrani had obtained a “very beautiful result” compared to

McClendon’s preoperative curvature.

2. Dr. Kaloostian

{¶35} Dr. Kaloostian, a neurosurgeon, testified that Durrani met the

applicable standard of care in his treatment of both Eileen and McClendon. With

respect to Eileen, he stated that it was reasonable to recommend a spinal fusion and

that the procedure was medically indicated based on Eileen’s presentation to Durrani,

including the facts that she had osteophytes pushing on her spinal cord and significant

kyphotic deformity. He further testified that it was not against the standard of care to

recommend surgery to Eileen on her first visit, particularly because she had exhausted

conservative-care treatment.

{¶36} With respect to McClendon, Dr. Kaloostian testified that stapling was a

recognized procedure at the time it was performed. As for the spinal fusion Durrani

had performed on McClendon, Dr. Kaloostian stated that it was not a breach of the

standard of care to use a bone morphogenetic protein on a minor scoliosis patient. Dr.

Kaloostian further testified that Durrani’s surgery improved McClendon’s condition

and did not proximately cause her any harm.

E. Motion for Directed Verdict for Eileen’s Estate

{¶37} After Durrani and CAST rested, they moved for a directed verdict on the

claims brought by Eileen’s estate. They argued that Debra Ann Wheeler and Richard

J. Brorein, the successor coexecutors of Eileen’s estate, were not proper plaintiffs

because the estate had been closed. In support, Durrani and CAST introduced a

certified copy of a January 2021 judgment entry from an Auglaize County Probate

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Court closing Eileen’s estate. They also filed a written memorandum arguing that the

successor coexecutors lacked standing to maintain the action once the estate was

closed.

{¶38} The trial court gave Appellees one day to respond. The trial then

proceeded with closing arguments and jury instructions.

{¶39} When the parties returned to court the following day, Appellees

introduced an amended judgment entry from the Auglaize County Probate Court. The

entry provided that “[t]he Court nun[c] pro tunc reopens the estate at the date it was

closed.” (Emphasis in original.)

{¶40} Appellants objected to the late filing, arguing that no additional

evidence could be introduced because the jury had already begun deliberating. They

contended that although Eileen’s estate had standing when the case was initiated,

standing had to be maintained throughout the action, and it was not.

{¶41} Upon further questioning from the trial court, counsel for Durrani and

CAST stated that he had learned of the estate’s closure on August 4, 2022, which was

four days prior to trial. The trial court questioned whether defense counsel had invited

any error by waiting until the conclusion of trial to raise the issue.

{¶42} The court ultimately denied the motion for a directed verdict on the

issue of standing. It stated,

The issue is whether or not they maintain standing to pursue the

action after January of 2021. And the Court is going to rely on its

understanding of what a nunc pro tunc entry does. And it relates back

to the date that’s stated there, and the judge has stated that it was error

or a mistake to dismiss the action in a nunc pro tunc, reinstates the

action to the date that was on the initial dismissal or termination entry.

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F. Jury Instructions

{¶43} Included in the jury instructions were both an instruction regarding

Durrani’s absence from trial and an instruction regarding the stapling procedure

performed on McClendon at CCHMC.

{¶44} With respect to Durrani’s absence, the trial court instructed the jury

that,

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

in person. He is represented here by counsel. You shall not speculate on

why he is not present or consider his absence for any purpose except as

instructed below. Dr. Durrani has voluntarily left the jurisdiction,

removing himself from plaintiffs’ ability to subpoena him for trial.

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

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

evidence or testimony, that failure give[s] rise to an inference that the

evidence or testimony is unfavorable to that party.

Regarding its ability, in general, to make an inference, the court instructed the jury,

“Whether an inference is made rests entirely with you” and “[t]o infer or make an

inference is to reach a reasonable conclusion of facts which you may, but are not

required to, make from other facts which you find have been established by direct

evidence.”

{¶45} And with respect to the stapling procedure performed on McClendon,

the following instruction was given to the jury:

In Kyra McClendon’s case, you’ve heard some testimony

regarding the surgery she underwent at Cincinnati Children’s Hospital

Medical Center on May 2nd, 2008. You may not consider that surgery

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for the award of damages. That testimony was provided to form the

basis for the surgery of March 25th, 2011, at West Chester Hospital,

which is the cause before you.

G. Jury Verdicts

{¶46} The jury returned verdicts finding in favor of McClendon on her claims

for negligence, lack of informed consent, battery, and fraudulent misrepresentation.

It found that Durrani was negligent for recommending and performing the first

surgery on McClendon, for having inadequate and inaccurate documentation, for

using a bone morphogenetic protein on a minor, and for failing to meet the standard

of care in the second surgery. The jury awarded McClendon a total $807,757.67 in both

economic and noneconomic damages.

{¶47} With respect to Eileen, the jury returned verdicts in favor of her estate

on the claims for negligence and fraudulent misrepresentation. It found that Durrani

was negligent for exaggerating the amount of compression on Eileen’s spinal cord and

exaggerating her pain level during the initial diagnosis to justify surgery. The jury

found in favor of Durrani on the claims for lack of informed consent6 and battery.

Eileen’s estate was awarded a total of $500,246.04 in economic and noneconomic

damages.

{¶48} While the jury deliberated on the issue of punitive damages, the parties

discussed the jury’s finding that Durrani was negligent in his care and treatment of

McClendon for recommending and performing the spinal stapling surgery. Counsel

for Durrani and CAST argued that they had objected repeatedly throughout trial to the

introduction of evidence about the stapling procedure and that “the jury returned a

6 Because the jury found in favor of Appellants on the informed-consent claim brought by Eileen’s

estate, we have omitted testimony pertaining to this claim from the opinion.

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verdict against the instruction that you’re not to award damages for the first surgery.”

{¶49} In response, Appellees’ counsel argued that the jury had been instructed

that it could not consider the stapling procedure for purposes of damages, and that the

jury’s finding that Durrani was negligent in recommending and performing the

stapling procedure did not establish that it had violated that instruction.

{¶50} The trial court elected to send the jury a question asking if it had

considered the first surgery performed on McClendon when awarding damages. The

jury answered that question in the negative.

{¶51} With respect to punitive damages, the jury returned verdicts awarding

both McClendon and Eileen’s estate $3,000,000 in punitive damages.

H. Post-Verdict Motions

{¶52} Appellees filed motions for prejudgment interest. Durrani and CAST

filed motions for a new trial and/or for judgment notwithstanding the verdict and for

remittitur. As relevant to these appeals, the motions argued that the trial court erred

by (1) joining the plaintiffs’ cases, (2) denying Durrani and CAST’s motion for a

mistrial based on the display of an exhibit mentioning unnecessary surgeries and

criminal charges against Durrani, (3) allowing Dr. Mehlman to testify, (4) denying

Durrani and CAST’s motion for a directed verdict on the issue of standing and the

closure of Eileen’s estate, (5) failing to direct a verdict on McClendon’s claim for future

medical expenses, and (6) providing an adverse-inference instruction to the jury.

Durrani and CAST also filed post-trial motions for a setoff.

{¶53} The trial court denied the motions for a new trial and/or judgment

notwithstanding the verdict. With respect to the issue of joinder, it found that there

was sufficient commonality of issues and parties to warrant joinder. It noted that the

evidence presented in both cases was that Durrani had exaggerated or falsified

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diagnostic findings and that both cases involved the thoracic spine. It also found that

no prejudice had resulted from the joinder because it had instructed the jury to

consider each case separately and because the jury’s finding in favor of Durrani and

CAST on the claims brought by Eileen’s estate for failure to obtain informed consent

and battery demonstrated that the jury was able to parse through the evidence and

reach independent conclusions.

{¶54} But the trial court found that Durrani and CAST were entitled to a

reduction of the jury’s award of noneconomic damages pursuant to R.C.

2323.43(A)(2), as well as a reduction of the award of punitive damages pursuant to

R.C. 2315.21(D)(2)(b). The court also denied Durrani and CAST’s motions for a setoff

and, following a hearing, granted Appellees’ motions for prejudgment interest.

{¶55} The trial court issued “final, appealable, orders” on January 22, 2025.

But those orders did not include a final calculation of prejudgment interest, so the trial

court issued entries setting forth the amount of prejudgment interest awarded on

March 18, 2025. It also issued an order dismissing the claims of Tonya and Tony

McClendon on April 2, 2025.

{¶56} Durrani and CAST now appeal, raising five assignments of error for our

review. We address these assignments out of order.

II. Standing/Real Party in Interest

{¶57} In their second assignment of error, Appellants argue that the trial court

erred in failing to grant their motion for a directed verdict on the claims brought by

Eileen’s estate because there was no real party in interest who had standing to bring

the claims after January 2021.

{¶58} As previously explained, Appellants moved for a directed verdict on the

claims brought by Eileen’s estate on the ground that the estate had been closed, so

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there was no longer a real party in interest to assert the claims. They introduced a

document from the Auglaize County Probate Court, dated January 20, 2021, reflecting

that Eileen’s estate was closed as of that date. The trial court gave Appellees overnight

to respond, and, in the interim, allowed the jury to begin deliberating on all claims,

including those brought by Eileen’s estate. The following day, Appellees presented the

trial court with an “amended judgment entry” from the Auglaize County Probate Court

reflecting that the “[t]he Court nun[c] pro tunc reopens the estate at the date it was

closed.” (Emphasis in original.) The trial court denied the motion for a directed

verdict, stating that it accepted the nunc pro tunc entry and the representations

contained therein and concluding that the plaintiffs had maintained standing.

{¶59} We review a trial court’s ruling on a motion for a directed verdict de

novo. Lally v. Mukkada, 2011-Ohio-3681, ¶ 5 (1st Dist.). Pursuant to Civ.R. 50(A)(4),

where “the trial court, after construing the evidence most strongly in favor of the party

against whom the motion is directed, finds that upon any determinative issue

reasonable minds could come to but one conclusion upon the evidence submitted and

that conclusion is adverse to such party,” the court shall direct a verdict for the moving

party. See also Lally at ¶ 5.

{¶60} Appellants argue that this was not the proper use of a nunc pro tunc

entry by the Auglaize County Probate Court. While we are sympathetic to this

argument, we have no jurisdiction to review an entry issued by a lower court in a

different county. See R.C. 2501.02(C) (an appellate court has jurisdiction “to review,

affirm, modify, set aside, or reverse judgments or final orders of courts of record

inferior to the court of appeals within the district” (Emphasis added.)); Ohio Const.,

art. IV, § 3(B)(2). In our review, we must accept the entry for what it purports to be.

The trial court was required to do so as well.

20 OHIO FIRST DISTRICT COURT OF APPEALS

{¶61} This assignment of error implicates the concepts of both real party in

interest and standing. In McCann v. Durrani, 2023-Ohio-3953 (1st Dist.), this court

engaged in a detailed discussion of both concepts. We explained that the party

bringing suit must have standing to sue, that standing is a prerequisite to invoking the

trial court’s jurisdiction, and that “[s]tanding to sue must be determined at the time

the action is filed, and its absence requires that the complaint be dismissed.” Id. at

¶ 20. We further explained, “In addition to the standing necessary to invoke the

jurisdiction of the court, the civil rules” require that all actions be prosecuted in the

name of the real party in interest. Id. at ¶ 21; see Civ.R. 17(A) (“Every action shall be

prosecuted in the name of the real party in interest.”).

{¶62} On December 17, 2017, when the complaint pertaining to Eileen was

filed, Richard Brorein, as the executor of the estate of Eileen Brorein, had standing to

sue, and the jurisdiction of the trial court over the lawsuit was properly invoked. At

that time, Richard Brorein was the real party in interest. When Richard Brorein passed

away, his children Debra Ann Wheeler and Richard J. Brorein were named as

successor coexecutors of the estate. They became the real parties in interest and were

substituted as plaintiffs in this action. The estate was subsequently closed on January

20, 2021. Upon the closure of the estate, the former coexecutors of the estate were no

longer real parties in interest. See Schmidt v. Hicks, 28 Ohio App. 413, 418 (1st Dist.

1928) (when an estate is closed, the executor is no longer a real party in interest and

cannot bring or prosecute an action). So, at the time that the trial began on August 8,

2022, there was no real party in interest to pursue the claims. The question we must

resolve is whether Appellees cured the real-party-in-interest issue with the nunc pro

tunc entry from the Auglaize County Probate Court.

{¶63} Lierenz v. Bowen, 1994 Ohio App. LEXIS 43 (6th Dist. Jan. 14, 1994),

21 OHIO FIRST DISTRICT COURT OF APPEALS

addressed a similar situation. In Lierenz, the plaintiff, “in her capacity as the executrix

of an estate,” filed a breach-of-contract lawsuit against defendants. Id. at *2. While the

litigation was pending, the probate court approved an entry that settled the decedent’s

account and discharged plaintiff as the executrix of the estate. Id. at *3. The defendants

moved to dismiss the plaintiff’s complaint on the ground that she lacked authority to

maintain the action after she was discharged as the executrix of the estate. Id. The trial

court denied the motion to dismiss, the case proceeded to trial, and the jury awarded

plaintiff damages. Id.7

{¶64} The plaintiff then filed a motion to reopen the estate, upon which the

probate court “vacated its prior order discharging her as executrix retroactive to the

date of her original appointment.” Id. Defendants appealed the judgment in the

contract action, challenging the trial court’s denial of their motion to dismiss. Id. at

*4. The Sixth District reversed the lower court’s judgment. It held that after the

probate court order approved the settling of the estate over which plaintiff was the

executrix, the plaintiff “was no longer the executrix of the estate and did not have the

authority to maintain an action on behalf of the estate.” Id. at *5. The appellate court

rejected plaintiff’s argument that the probate court’s order reopening the estate and

vacating its discharge of plaintiff as executrix gave her authority to maintain the

lawsuit. Id. at *4-5.

{¶65} Lierenz lends credence to Appellants’ argument that the trial court

erred in failing to find that Debra Ann Wheeler and Richard J. Brorein no longer had

authority to maintain the action on behalf of Eileen’s estate. But we cannot fully

endorse the reasoning of that court. While Lierenz seemingly implicated the concept

7 The procedural history of this case is much more complicated, but it is not necessary to include

the full history here.

22 OHIO FIRST DISTRICT COURT OF APPEALS

of real party in interest, the opinion never referenced or cited Civ.R. 17, an error

pointed out by the dissenting judge to that opinion. See Lierenz at *7-8 (Resnick, J.,

dissenting). And based on our reading of Civ.R. 17(A), we do not believe that reversal

is warranted in this case.

{¶66} In addition to providing that all actions must be brought in the name of

the real party in interest, Civ.R. 17(A) further states, “No action shall be dismissed on

the ground that it is not prosecuted in the name of the real party in interest until a

reasonable time has been allowed after objection for ratification of commencement

of the action by, or joinder or substitution of, the real party in interest.” (Emphasis

added.) Courts have held that “an action may not be dismissed because it has not

[been] brought in the name of the real party in interest, unless the defendant first

raises the objection and the plaintiff is thereafter afforded an opportunity to seek

ratification by, or substitution or joinder of, the real party in interest.” Mikolay v.

Transcon Builders, Inc., 1981 Ohio App. LEXIS 11690, *7 (8th Dist. Jan. 22, 1981); see

Foster v. Blue Cross/Blue Shield of Ohio, 1997 Ohio App. LEXIS 5606, *5-6 (10th Dist.

Dec. 11, 1997) (“Under this rule, once the trial court has sustained a challenge based

on failure to prosecute in the name of the real party in interest, the named claimant

must take prompt and immediate action to cure. If there is no attempt at cure, then

the action should be dismissed.”).

{¶67} Here, after Appellants raised the issue that the successor coexecutors

were no longer the real parties in interest, the trial court gave Appellees time to

respond. In accordance with the plain language of Civ.R. 17(A), this was an appropriate

response. Further, the trial court’s failure to rule on this issue as soon as it was raised

cannot be evaluated in a vacuum. Durrani and CAST stated on the record that they

learned the estate had been closed approximately four days before the trial began. Yet

23 OHIO FIRST DISTRICT COURT OF APPEALS

rather than bring the issue to the court’s attention at that time, they waited until the

close of evidence to move for a directed verdict. This was plainly gamesmanship. In

fact, the trial court questioned whether Appellants had invited any potential error by

failing to timely notify the court and opposing party that the estate had been closed.

{¶68} On this record and the circumstances before us, we find no error in the

trial court’s acceptance of the nunc pro tunc entry reopening the estate as of the date

that it was closed and in the court’s implicit determination that Appellees had cured

the real-party-in-interest issue. We accordingly hold that the trial court did not err in

denying Appellants’ motion for a directed verdict and overrule the second assignment

of error.

III. Motions for a Mistrial, New Trial, and Judgment Notwithstanding the Verdict

{¶69} In their first assignment of error, Appellants argue that the trial court

should have ordered new trials with single plaintiffs. This assignment of error raises a

challenge to the denial of their motions for a new trial on the ground of improper

joinder. In their third assignment of error, Appellants argue that the trial court should

have granted their motions for a mistrial, new trial, or judgment notwithstanding the

verdict based on evidentiary issues. We address these assignments together.

{¶70} A motion for a new trial pursuant to Civ.R. 59(A) may be granted for a

variety of reasons, and the scope of our review is dependent upon the argument

advanced in the motion. Ravenscraft v. Durrani, 2025-Ohio-2900, ¶ 95 (1st Dist.).

Where the trial court’s exercise of its discretionary authority is challenged, we employ

a typical abuse-of-discretion standard of review. But where the motion for a new trial

raises a legal issue, we conduct a de novo review. Id.

{¶71} In a civil case, a motion for a mistrial is generally treated as a motion for

24 OHIO FIRST DISTRICT COURT OF APPEALS

a new trial pursuant to Civ.R. 59(A). Schultz v. Mayfield Neurological Inst., 2013-

Ohio-4146, ¶ 10 (1st Dist.). A trial court’s ruling on a motion for a mistrial is reviewed

for an abuse of discretion. Id.

{¶72} We review de novo a trial court’s ruling on a Civ.R. 50 motion for

judgment notwithstanding the verdict. Courtney v. Durrani, 2025-Ohio-2335, ¶ 61

(1st Dist.). In doing so, we must view the evidence presented in the light most favorable

to the nonmoving party. A Civ.R. 50 motion challenges the sufficiency of the evidence,

and it should not be granted unless reasonable minds can reach only one conclusion

and that conclusion is in favor of the moving party. Id.

{¶73} Appellants raise multiple challenges to the denial of their motions under

these assignments of error. We address each in turn.

A. Joinder

{¶74} We review the trial court’s denial of the motion for a new trial on the

grounds of improper joinder for an abuse of discretion, as the ruling implicates the

trial court’s exercise of its discretionary authority. Ravenscraft, 2025-Ohio-2900, at

¶ 95 (1st Dist.).

{¶75} Consolidation and joinder of civil actions is governed by Civ.R. 42(A)(1),

which provides in relevant part that a court “may” join two actions for trial if they

“involve a common question of law or fact.” The rule requires two steps. First, a court

must identify at least one common question—if no such question exists, the rule simply

does not apply. Second, the court must make a determination that joinder is

warranted. See Wilson v. Durrani, 2026-Ohio-2279, ¶ 51 (1st Dist.) (“In this regard,

Civ.R. 42(A) establishes a two-step inquiry in determining when cases may be

consolidated.”) As indicated by the rule’s use of permissive “may . . . [j]oin” language,

this latter decision is discretionary. As part of that discretionary determination, a trial

25 OHIO FIRST DISTRICT COURT OF APPEALS

court may consider the potential for prejudice resulting from joinder. See, e.g.,

Stephenson v. Family Solutions of Ohio, Inc., 2024 U.S. Dist. LEXIS 220512, *7-8

(N.D. Ohio Dec. 5, 2024) (in determining whether to grant consolidation under

Fed.R.Civ.P. 42, “courts weigh the interests of judicial economy against the potential

for new delays, expense, confusion, or prejudice”).

{¶76} Appellants argue that the trial court erred in determining that joinder

was appropriate in the first instance, and that they were prejudiced by the improper

joinder. Appellees provide no substantive response to these arguments, other than to

simply state that joinder was appropriate. Their appellate brief is silent as to what

common question of law or fact was present in the cases at bar to support joinder.

{¶77} Beginning with Jones v. Durrani, 2024-Ohio-1776 (1st Dist.), this court

has upheld the joinder for trial of two or three medical-malpractice actions against

Appellants in multiple cases. In Jones, we held that the trial court did not abuse its

discretion in finding a common question of fact between the two joined cases where

each case involved “the jury’s understanding of the specific conditions at issue in the

L5-S1 area of the spine,” where “a large amount of the expert testimony went to

explaining the spine and these conditions generally,” and where each plaintiff

“presented the same claims against the same defendants based on the same theory of

malpractice and/or fraud surrounding these conditions.” Id. at ¶ 25.

{¶78} Jones was followed by a myriad of cases in which this court found no

error in joinder. See, e.g., Courtney v. Durrani, 2025-Ohio-2335 (1st Dist.);

Ravenscraft, 2025-Ohio-2900 (1st Dist.); Fenner v. Durrani, 2025-Ohio-4477 (1st

Dist.); Boggs v. Durrani, 2026-Ohio-210 (1st Dist.). While our prior cases found the

presence of a common question of law or fact, until recently we never explicitly

discussed what, in fact, constitutes a common question of law or fact. In Wilson, 2026-

26 OHIO FIRST DISTRICT COURT OF APPEALS

Ohio-2279 (1st Dist.), we endeavored to explain the meaning of this term.

{¶79} As we recognized in Wilson, there is a dearth of case law in Ohio

defining the term “common question of law or fact” as used in Civ.R. 42(A). Id. at ¶

49. In attempting to define this term, Wilson turned to Director of Hwys. v. Kleines,

38 Ohio St.2d 317 (1974), and Fed.R.Civ.P. 42. See Wilson at ¶ 54 and 58. In Kleines,

the Ohio Supreme Court held that a trial court had erred in ordering consolidation of

cases for trial when the cases did not share a common question of law or fact, but the

court never defined that term. Kleines at 320.

{¶80} Wilson noted that, from Kleines, we can discern that any common

question of fact will not suffice to support consolidation. Rather, the fact at issue must

be material, rather than incidental or tangential. The Kleines Court also signaled that

if a question of law is involved, the question should be one that is able to resolved in

common, or uniformly, for all parties. See Wilson at ¶ 54 and 68.

{¶81} Fed.R.Civ.P. 42(a) contains language nearly identical to Ohio’s Civil

Rule regarding consolidation and joinder, as do other states’ versions of Civ.R. 42.

Like in Wilson, we find guidance in federal law and decisions from our sister states

interpreting and discussing the various versions of Rule 42.

{¶82} In Reedus v. McDonough, 2022 U.S. Dist. LEXIS 37552 (N.D.Ind. Mar.

3, 2022), the court considered whether two actions that were separately filed by the

same plaintiff should be consolidated under Fed.R.Civ.P. 42(a). It explained, “Though

Rule 42 does not define a common question of law or fact, the plain meaning of this

phrase indicates that a common question is one that must be answered identically in

each case in which it is presented.” (Cleaned up.) Id. at *6. The court found common

questions of fact between the two cases regarding “Dr. Buckley’s alleged harassment

of Plaintiff and the VA’s response or lack thereof.” Id. at *7.

27 OHIO FIRST DISTRICT COURT OF APPEALS

{¶83} In Habitat Edn. Ctr., Inc. v. Kimbell, 2008 U.S. Dist. LEXIS 46377, *11

(E.D.Wis. June 5, 2008), the court similarly held that, for purposes of Fed.R.Civ.P.

42(a), “a common question is one that must be answered identically in each case in

which it is presented.” In Habitat, the plaintiffs filed an action against various

defendants challenging the approval of a timber project in a National Forest in

Wisconsin. Id. at *4. The plaintiffs had also filed four additional actions against the

defendants raising challenges to other timber projects, and they moved to consolidate

four of the actions pursuant to Fed.R.Civ.P. 42(a). Id. at *4-5. The District Court found

that the actions presented common questions of law and fact, explaining,

First, all four cases raise the question of whether defendants should

have considered the cumulative impacts of each project throughout the

[Chequamegon-Nicolet National Forest], instead of focusing on a

smaller region within the [National Forest]. While theoretically there

could be different answers to this question depending on the project, in

fact the answers will be the same because the projects’ [Environmental

Impact Statements] contain nearly identical discussions of the issue and

rely on identical environmental data. Second, all four cases raise the

question of whether defendants violated [the National Forest

Management Act] by relying solely on habitat data, rather than actual

population counts, in analyzing the projects’ effects on the viability of

sensitive species. The cases also present the issue of whether the habitat

model provides accurate population estimates. Because the answers to

these questions will not turn on differences in the projects’

administrative records, the answers will be the same in each case.

28 OHIO FIRST DISTRICT COURT OF APPEALS

(Cleaned up.) Id. at 15-16. After finding these common questions, the court proceeded

to consider whether the benefits of consolidation outweighed the costs, and it

determined that they did not. Id. at *16. It stated that a court must review each project

based on its own administrative record, and that “[d]espite their similarities, the

projects are different enough to require independent review,” that “[c]onsolidated

briefs and other filings would only complicate this already complex litigation by

blurring the distinctions between the projects,” and that “the cases are in slightly

different procedural postures, and consolidation might delay the projects that are

farthest along and might unnecessarily delay an appeal in a particular case.” Id.

{¶84} In Ex parte Novartis Pharmaceuticals Corp., 991 So.2d 1263, 1274-

1275 (Ala. 2008), the Alabama Supreme Court considered whether the State of

Alabama’s fraud claims against two pharmaceutical companies were properly

consolidated. It held, “The mere fact that two cases assert similar or the same theories

of recovery does not constitute a common question of law so as to warrant

consolidation.” (Emphasis added.) (Cleaned up.) Id. at 1275. The court ultimately

found that consolidation was appropriate based upon the “common question of fact as

to whether the pricing information published in the third-party publications was

material and whether the State, in fact, relied on that information.” Id. This was a

question that could be answered uniformly.

{¶85} Other cases that have held that there was a common question of law or

fact have involved a single event with multiple victims. See, e.g., Ferrari v. Impath,

Inc., 2004 U.S. Dist. LEXIS 13898, *8-9 (S.D.N.Y. July 15, 2004) (finding common

questions of both law and fact where all plaintiffs purchased shares of the defendants’

stock and “relied upon materially false or misleading statements or omissions

contained in various public, shareholder, and investor reports, released and prepared

29 OHIO FIRST DISTRICT COURT OF APPEALS

by Defendants” and where each complaint was “premised on the same facts and

statutory provisions” (Emphasis added.)); Thayer v. Shearson, Loeb, Rhoades, Inc.,

99 F.R.D. 522, 523 (W.D.N.Y. Feb. 3, 1983) (cases shared a common question of law

or fact supporting consolidation, specifically, whether a stockbroker engaged in

“churning” of the plaintiffs’ stocks and whether the brokerage firm was aware of the

individual broker’s conduct); Campbell v. Boston Science Corp., 882 F.3d 70, 74-75

(4th Cir. 2018) (upholding consolidation of four products-liability cases upon a finding

of common questions of law or fact, including whether the product’s design had been

defective and whether its “directions for use provided sufficient warnings”).

{¶86} We can glean from the above case law that a common question of law or

fact is one that can be answered uniformly in each action. Wilson, 2026-Ohio-2279, at

¶ 59 and 68 (1st Dist.). Under this reasoning, a common question of law or fact would

not be present merely because two actions brought by different plaintiffs involved the

same claims against the same defendants or because two actions involved plaintiffs

who had received a similar diagnosis or had surgery on the same or a similar area of

the spine. These are common facts between two cases, but they do not present a

common question of fact or law to be answered.

{¶87} We accordingly hold that when determining whether joinder is

appropriate under Civ.R. 42(A)(1), a court must first determine whether the cases

share a common question of law or fact, i.e., a question that may be answered

uniformly without resorting to separate factual proof. Id. at ¶ 51. Only once it has found

a common question can the trial court consider whether, in its discretion, it deems

joinder to be warranted. Id. In exercising that discretion, the trial court might look at

whether the joined actions will involve overlapping witnesses, the same core evidence,

or facts arising out of the same interconnected events, and then weigh such efficiencies

30 OHIO FIRST DISTRICT COURT OF APPEALS

against the risks of prejudice or administrative complications. See Waterman v.

Kitrick, 60 Ohio App.3d 7, 14 (10th Dist. 1990) (after a common question of law or fact

is found, “the court must determine if there is enough commonality of issues to

warrant consolidation and if the parties are substantially the same”); Campbell, 882

F.3d at 74. Our prior cases addressing joinder have focused on the second step of this

test, without analyzing the first.

{¶88} The claims brought by Eileen’s estate and McClendon do not share a

common question of law or fact to support joinder. The main theory underlying the

claims brought by Eileen’s estate was that Durrani had exaggerated the findings on

Eileen’s medical images to convince her to undergo an unnecessary surgery. In

contrast, the theory underlying McClendon’s claims was that Durrani had improperly

performed her spinal fusion, specifically by failing to fuse all 11 levels of her spine that

were involved in the fusion. None of the questions confronting the jury were amenable

to a single answer applicable to both plaintiffs, based on identical evidence. Because

the two actions do not present a question that can be answered uniformly or identically

in each case, they lack the commonality required for joinder under Civ.R. 42(A). See

Reedus, 2022 U.S. Dist. LEXIS 37552, at *6.

{¶89} Further, even if a common question of law or fact were present, the two

actions simply lacked “sufficient commonality of issues and parties to warrant joining

the cases.” (Cleaned up.) See Jones, 2024-Ohio-1776, at ¶ 21 (1st Dist.); Eghnayem v.

Boston Science Corp., 873 F.3d 1304, 1314 (11th Cir. 2017) (consolidation is proper

“where there is clearly substantial overlap in the issues, facts, evidence, and witnesses”

involved in each case (Cleaned up.)). McClendon was a teenager who suffered from

severe scoliosis. Durrani first performed a spinal stapling procedure on her, and then

a spinal fusion on her thoracic and lumbar spine when the curvature in her spine

31 OHIO FIRST DISTRICT COURT OF APPEALS

continued to worsen. The main allegations supporting her negligence claim were that

Durrani used a bone morphogenetic protein off-label on a minor, he failed to fuse all

affected segments of her spine with hardware, and he stopped the fusion at a different

level of her spine than he had preoperatively indicated.

{¶90} In contrast, Eileen was in her mid-seventies and had experienced back

pain for over a decade before seeking treatment with Durrani. Durrani diagnosed her

as suffering from a significant kyphotic deformity, stenosis, and a large disc herniation

at multiple levels of her thoracic spine that was causing very significant spinal cord

compression. A laminectomy and fusion were performed on Eileen’s spine. And when

the hardware placed during the fusion began to loosen, Durrani had to perform a

revision surgery. The main allegations supporting the negligence claim brought by

Eileen’s estate were that Durrani exaggerated the findings on her medical images to

justify surgery and exaggerated her pain upon initial presentation, and that the fusion

should not have been performed because of Eileen’s osteoporosis.

{¶91} So, while McClendon and Eileen’s estate advanced the same causes of

action against the same defendants, the differences between their two underlying

conditions and presentation were numerous (i.e., different ages, largely differing

diagnoses, differing presurgery symptoms and treatment, and one had received a prior

surgery while one necessitated a revision surgery). Compare Courtney, 2025-Ohio-

2335, at ¶ 49 (1st Dist.) (holding that joinder was proper where plaintiffs “had similar

diagnoses,” “received essentially the same surgery,” and alleged very similar conduct

that led their surgeries). Further, the two plaintiffs did not rely on identical expert

testimony. See id. Dr. Saini offered expert testimony on behalf of both McClendon and

Eileen’s estate, but because they had different diagnoses and suffered from different

conditions, his testimony was not the same for each plaintiff. The Appellees’ other two

32 OHIO FIRST DISTRICT COURT OF APPEALS

experts did not testify for both plaintiffs. Dr. Mehlman testified that Durrani did not

meet the standard of care with respect to McClendon, and Dr. Bloomfield testified that

Durrani did not meet the standard of care with respect to Eileen.

{¶92} We accordingly hold that the trial court abused its discretion in finding

that the claims brought by McClendon and Eileen’s estate shared a common question

of law or fact and in joining them for trial. A trial court’s erroneous joinder will only

serve as grounds for a new trial where the error was not harmless and where the party

opposing joinder establishes prejudice. See Luri v. Republic Servs., Inc., 2014-Ohio-

3817, ¶ 9 (8th Dist.) (holding that a trial court’s error in failing to bifurcate a claim

pursuant to Civ.R. 42(B) required reversal only where the error was not harmless);

Adams v. Szczerbinski, 2009 U.S. App. LEXIS 9899, *6 (7th Cir. May 6, 2009)

(harmless-error standard in Fed.R.Civ.P. 61 required the court to disregard an

erroneous consolidation of cases if the error was harmless and did not affect a litigant’s

substantial rights).

{¶93} However, we need not determine whether the trial court’s error in

joinder, standing alone, was harmless. Rather, we examine the impact of the error in

conjunction with the other evidentiary errors that we hold the trial court committed,

as discussed below. See Setters v. Durrani, 2020-Ohio-6859, ¶ 60 (1st Dist.) (“the

doctrine of cumulative error applies in the civil context”).

B. Dr. Saini’s PowerPoint Presentation

{¶94} Appellants argue that the trial court erred in failing to grant a mistrial

after a slide in Dr. Saini’s PowerPoint presentation stating that Durani had performed

unnecessary surgeries and was engaged in criminal activity was displayed to the jury.

The trial court declined to grant a mistrial, finding that the slide had been displayed

for an “insignificant” amount of time and stating that the court itself, during the time

33 OHIO FIRST DISTRICT COURT OF APPEALS

that the slide was displayed, had not comprehended or observed what it said.

{¶95} Prior to trial, the trial court granted Durrani and CAST’s motion in

limine to exclude any evidence that Durrani had been charged in a medical criminal

action, as well as evidence regarding other malpractice lawsuits against Durrani. The

display of the offending slide, as all parties agreed below, was in contravention of the

trial court’s ruling on the motion in limine and in error.

{¶96} As with the trial court’s error regarding consolidation, we consider the

impact of this error in conjunction with the other evidentiary errors committed by the

court.

C. Dr. Saini’s Testimony

{¶97} Appellants argue that the trial court improperly allowed Dr. Saini to

testify beyond his expertise as a radiologist in violation of Evid.R. 702.

{¶98} Evid.R. 702 provides that, among other requirements, a witness may

testify as an expert when “qualified as an expert by specialized knowledge, skill,

experience, training, or education regarding the subject matter of the testimony.”

Evid.R. 702(B). An expert testifying in a medical-malpractice action “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.” (Cleaned up.) Ravenscraft, 2025-Ohio-

2900, at ¶ 139 (1st Dist.). Whether a witness is qualified to testify as an expert is within

the trial court’s discretion. Adams v. Durrani, 2022-Ohio-60, ¶ 44 (1st Dist.),

overruled on other grounds by Fenner, 2025-Ohio-4477 (1st Dist.).

{¶99} Challenges to Dr. Saini’s testimony on this ground are not new to this

court, as both the trial court and the parties are aware. When denying Appellants’

motion in limine on this ground, the trial court stated, “[P]ursuant to the Court of

34 OHIO FIRST DISTRICT COURT OF APPEALS

Appeals’ decision stating that based upon Dr. Saini’s background and his training of

orthopedic surgeons, he was qualified to testify as to surgical standards to a certain

degree. And the Court will allow him to so testify.” This is a broad generalization of

our prior holdings. A careful review of our case law on the issue of Dr. Saini testifying

beyond his expertise does not establish a blanket rule on the permissibility of Dr.

Saini’s testimony. Rather, it establishes that the testimony must be evaluated on a

case-by-case basis to determine whether it exceeds the scope of Dr. Saini’s expertise

as a radiologist. Compare Potts v. Durrani, 2023-Ohio-4195, ¶ 35-39 (1st Dist.)

(determining that parts of Dr. Saini’s testimony in that case exceeded the bounds

permitted under Adams), with Stephenson v. Durrani, 2023-Ohio-2500, ¶ 72-73 (1st

Dist.) (finding no error where “the trial court allowed Dr. Saini to testify within the

bounds of Adams, while also appropriately striking improper testimony” beyond those

bounds), and Ravenscraft at ¶ 141-144 (reviewing various statements in Dr. Saini’s

testimony at that trial and finding that all “fell within the scope of his expertise as a

neuroradiologist”).

{¶100} Appellants challenge multiple statements made by Dr. Saini. We find

several of their challenges to be without merit, including their contention that Dr. Saini

was improperly permitted to describe the clinical, rather than radiological, purposes

for Eileen’s surgeries. Dr. Saini explained the purpose of a laminectomy and what the

procedure involved. He testified that he was a neuroradiologist, that he looked at films

that occurred before, during, and after surgical procedures, and that he was tasked

with having knowledge about the procedures to be performed. He stated that he was

familiar with “the surgical process and procedure in various neurosurgical or spinal

surgery techniques.” We hold that the testimony describing how a laminectomy was

performed, as well as the purpose of the surgery, was within his field of expertise.

35 OHIO FIRST DISTRICT COURT OF APPEALS

{¶101} We further hold that Appellants’ argument that trial court erred in

allowing Dr. Saini to testify that Durrani improperly placed screws during Eileen’s first

surgery is without merit. On this point, Dr. Saini testified that a different radiologist

had examined X-rays taken of Eileen after the first surgery and noted that the screws

were not in place. Dr. Saini then used medical images to show where the screws had

moved. He also testified that Durrani’s post-operative statement identifying

“prominence of proximal screws and rods” was an understatement because “[t]he top

screws, especially on the right-hand side” had backed out a little bit. Appellants argue

that Dr. Saini did not limit his screw-placement testimony to his experience as a

radiologist.

{¶102} We cannot agree. First, Dr. Saini testified that it was a “daily routine”

for him to opine whether an orthopedic spine surgeon correctly placed screws and

rods. Second, Dr. Saini did not actually state that the surgery was improperly

performed. Rather, he testified that a different radiologist examining Eileen’s medical

images had found that the screws were not in place. And he stated that, based on his

own view of the images, the screws had moved out.

{¶103} Appellants raise several additional challenges to Dr. Saini’s testimony,

and we agree with their contention that, in offering this testimony, Dr. Saini exceeded

the bounds of his expertise as a radiologist.

{¶104} Specifically, we hold that both Dr. Saini’s testimony that correcting a

kyphotic deformity “is hard to do” and his testimony criticizing the spinal fusion that

Durrani performed on McClendon were improper. With respect to McClendon’s

fusion, Dr. Saini was critical of Durrani’s failure to place pedicle screws at each level.

He stated that this could result in “an aggravation of the scoliosis,” “a lot of

degenerative changes,” or “problems with the nerves coming out.” This testimony did

36 OHIO FIRST DISTRICT COURT OF APPEALS

not fall within an area of knowledge that “cut across all specialty areas,” but rather

within the knowledge of a surgeon, and it exceeded the scope of Dr. Saini’s expertise

as a radiologist. See Potts, 2023-Ohio-4195, at ¶ 35 (1st Dist.).

{¶105} Appellants’ final challenge to Dr. Saini’s testimony pertains to his

testimony about the stapling procedure performed on McClendon, including his

criticism of the staples Durrani used and his statement that the surgery was

experimental at the time that it was performed. We agree that this testimony was

improperly admitted. Dr. Saini provided no testimony to establish that he was trained

in identifying various types of staples used in neurological procedures or in the

different types of surgeries used to treat scoliosis in 2008 based on the curvature of a

patient’s spine. Nor have Appellees made an argument that this information was

within the expertise of a radiologist. Further, not only did this testimony fall outside

the bounds of Dr. Saini’s expertise, but, as discussed below, any testimony about

whether Durrani failed to meet the standard of care when performing the stapling

procedure was improper.

{¶106} We accordingly find that the trial court abused its discretion in allowing

Dr. Saini to offer testimony outside the bounds of his expertise as a radiologist.

D. Jury Instruction on Durrani’s Absence

{¶107} Appellants next argue that the trial court improperly instructed the jury

on Durrani’s absence. This court has reviewed identical instructions in multiple cases,

including Jones, 2024-Ohio-1776, at ¶ 30-40 (1st Dist.), Courtney, 2025-Ohio-2335,

at ¶ 84-87 (1st Dist.), Ravenscraft, 2025-Ohio-2900, at ¶ 130-137 (1st Dist.), and

Fenner, 2025-Ohio-4477, at ¶ 69-74 (1st Dist.). In all cases, we held that the

instruction on Durrani’s absence were erroneous, but determined that the error was

harmless because the jury instructions as a whole did not mislead the jury. Jones at ¶

37 OHIO FIRST DISTRICT COURT OF APPEALS

37; Courtney at ¶ 86-87; Ravenscraft at ¶ 136; Fenner at ¶ 74. We conclude likewise

here, and we find no reversible error in the trial court’s issuance of this instruction on

Durrani’s absence.

E. Dr. Mehlman’s Testimony

{¶108} Appellants contend that the trial court should not have allowed Dr.

Mehlman to testify in McClendon’s case because Appellees failed to disclose him as an

expert until “mere days before trial.”

{¶109} As previously set forth in this opinion, Appellants filed a motion in

limine to preclude Dr. Mehlman from testifying because, they argued, he had only

been identified as an expert “on all Children’s cases” and McClendon’s treatment at

CCHMC was no longer at issue. They further contended that they were not provided

an expert report from Dr. Mehlman and had not deposed him on this particular case.

Appellants acknowledged that they had not deposed any of Appellees’ expert

witnesses in the case. But they explained that the other experts were deposed multiple

times in the past, whereas Dr. Mehlman had never been deposed as a liability expert.

{¶110} Appellees argued that Dr. Mehlman had been initially identified as an

expert on August 10, 2018. They argued that they had not received expert reports from

any of the Appellants’ experts on these cases and that the parties had agreed “that there

would be no expert depositions.” Appellees told the trial court that Appellants,

similarly, had informed Appellees within the previous two weeks that Appellants

would be calling a radiologist from Florida to testify, and that they had neither received

a report from, nor deposed, this radiologist.

{¶111} Appellants conceded that Dr. Mehlman had been identified in the

August 2018 filing, but they noted that he was identified as an expert on “all Children’s

cases” and that he had never been identified as someone who would comment on the

38 OHIO FIRST DISTRICT COURT OF APPEALS

second surgery performed on McClendon. The trial court ultimately denied the motion

in limine.

{¶112} We find no abuse of discretion here. The record indicates that Dr.

Mehlman was listed as an expert on McClendon’s case in an August 2018 filing. This

filing stated that “[d]efense already have [Dr. Mehlman’s] CV. Plaintiff previously

disclosed Dr. Charles Mehlman as an expert on all Children’s cases as a non-retained,

non-paid expert based upon his deposition testimony.” At the time of this filing,

McClendon’s claims against CCHMC were still pending. But in February 2020, all

claims against CCHMC were dismissed.

{¶113} Even though Dr. Mehlman was listed in the August 2018 filing,

Appellees seemingly agreed with Appellants’ assertion that he was not disclosed as an

expert witness in this case until several days before trial. Their argument that

Appellants themselves had similarly disclosed an expert witness shortly before trial

evinces this concession. Despite the apparent last-minute disclosure of Dr. Mehlman

as an expert witness, the unique circumstances of this case support the trial court’s

decision to allow him to testify.

{¶114} The record establishes that the parties had, collectively, agreed not to

depose the expert witnesses or to exchange expert reports. And Appellants never

requested a continuance to depose Dr. Mehlman—they simply asked to have him

excluded from testifying. These facts, coupled with the inclusion of Dr. Mehlman as an

expert witness in the August 2018 filing, lead us to conclude that Appellants have failed

to demonstrate how they were harmed by any last-minute disclosure of Dr. Mehlman.

We therefore find no abuse of discretion in the trial court’s decision to allow Dr.

Mehlman to testify.

39 OHIO FIRST DISTRICT COURT OF APPEALS

F. Testimony About the Stapling Procedure Performed on McClendon

{¶115} Appellants’ final argument is that the trial court erred in allowing

testimony about a surgery not at issue in the trial, specifically the stapling procedure

performed on McClendon at CCHMC. They argue that because McClendon had settled

with CCHMC, any testimony regarding the stapling procedure was not relevant.

{¶116} Before Dr. Mehlman testified, the trial court ruled that testimony

regarding the stapling procedure could be offered to provide background and context

for the second surgery that was the subject of McClendon’s claims, but that no

testimony was allowed about whether Durrani met the standard of care when

performing the stapling procedure. Despite this ruling, the court allowed McClendon

to present testimony regarding the stapling procedure that exceeded the provision of

background and context information.

{¶117} When discussing the stapling procedure, Dr. Mehlman testified that the

“industry norm” and standard of care would have been to offer McClendon bracing.

The trial court sustained an objection to this statement. Dr. Mehlman also testified

that pediatric orthopedic surgeons were not regularly offering the stapling procedure

to patients at that time and that the procedure never “caught on.” He criticized the

staples that Durrani had used during the procedure, stating that “this was a completely

off-label use to put staples in the spine like this.” He further testified, “[T]he staple

procedure at the time this was done was experimental and highly questionable. And

this has since been abandoned. No one does this procedure.”

{¶118} Dr. Saini’s testimony also addressed the stapling procedure. Like Dr.

Mehlman, he testified that the procedure was experimental at the time that Durani

performed it on McClendon. He also criticized the staples that Durrani used during

the procedure and seemingly blamed the staples for the growth of McClendon’s

40 OHIO FIRST DISTRICT COURT OF APPEALS

scoliosis, stating that because of the staples used, “there is no arrest of bone on this

side here.” The trial court sustained an objection to this last statement.

{¶119} Recognizing the potential prejudice that this testimony could cause, the

trial court gave a curative instruction to the jury in the middle of trial, explaining that

testimony about the stapling procedure was being offered “to set the basis for the

surgery that’s involved in this case, which was the second surgery.” It also provided a

jury instruction reiterating that instruction and telling the jury that the stapling

procedure could not be considered when awarding damages.

{¶120} This testimony offered about the stapling procedure was improper and

irrelevant. The trial court recognized as much when it instructed Appellees that they

could not elicit standard-of-care testimony regarding the stapling procedure. But the

actual testimony admitted strayed far beyond the parameters that the trial court had

set. We accordingly hold that the trial court abused its discretion in allowing the jury

to hear repeated criticism of a surgery, performed on a minor, that was not the subject

of any claims at trial.

G. Cumulative Error

{¶121} We have found error in (1) the trial court’s improper joinder of the

claims asserted by McClendon and Eileen’s estate for trial, (2) the jury’s viewing of a

slide in Dr. Saini’s PowerPoint presentation stating that Durani had performed

unnecessary surgeries and was engaged in criminal activity, (3) the trial court allowing

Dr. Saini to testify beyond the bounds of his expertise in multiple instances, and (4)

the trial court allowing testimony regarding the stapling procedure performed on

McClendon. Appellants argue that the cumulative effect of these errors warrants a new

trial.

{¶122} “An improper evidentiary ruling constitutes reversible error only when

41 OHIO FIRST DISTRICT COURT OF APPEALS

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

with substantial justice.” Beard v. Meridia Huron Hosp., 2005-Ohio-4787, ¶ 35. To

determine whether an error affected a party’s substantial rights, we must weigh the

prejudicial effect of the error and ask whether the jury probably would have reached

the same result had the error not occurred. Bender v. Durrani, 2024-Ohio-1258, ¶ 93

(1st Dist.).

{¶123} Collectively, these errors cannot be found harmless. The cases put on by

both McClendon and Eileen’s estate were close. The jury returned verdicts in favor of

Durrani and CAST on several of the claims brought by Eileen’s estate. Both cases

essentially involved a “battle of the experts,” with experts for each plaintiff criticizing

Durrani’s performance and experts for Durrani and CAST defending it.

{¶124} The trial court’s improper joinder allowed the jury to hear claims from

another plaintiff that would not otherwise have been admissible. See Stephenson,

2023-Ohio-2500, at ¶ 47 (1st Dist.) (“Ohio courts tend to recognize that absent a

finding of malpractice, evidence of the existence of a prior medical malpractice case is

properly excluded, as unfairly prejudicial.” (Cleaned up.)). A jury deciding

McClendon’s claims heard otherwise inadmissible information regarding the surgery

performed on Eileen, including that the surgery was not performed correctly and

required a revision. It also heard about the extensive pain Eileen suffered. And in

deciding the claims brought by Eileen’s estate, the jury was allowed to hear otherwise

inadmissible testimony that Durrani unsuccessfully performed a spinal fusion on a

minor and that he used a bone morphogenetic protein off-label on her.

{¶125} Add in the improper testimony about the stapling procedure performed

on McClendon and the improper testimony from Dr. Saini, and the resulting prejudice

is even greater. Not only did the jury hear evidence about Durrani’s alleged

42 OHIO FIRST DISTRICT COURT OF APPEALS

malpractice against a second plaintiff, but it heard extensive, critical testimony about

a surgery that was not the subject of the claims at trial. The resulting prejudice from

this is reflected in the record, as the jury returned an interrogatory finding that

Durrani was negligent for, among other reasons, recommending and performing the

stapling procedure on McClendon. In other words, the jury found negligence based on

a surgery that was not the subject of the claims at trial. Although the trial court issued

a jury instruction on the stapling procedure in an attempt to avoid any resulting

prejudice from the testimony about that procedure, the instruction was plainly

ineffective. It only told the jury that the stapling procedure could not be considered

when determining the award of damages, not in its determination of negligence. This

was counter to the curative instruction that the court had provided to the jury during

trial, which had stated that testimony about the stapling procedure was offered only

for background and context.

{¶126} On this record, we cannot hold that the jury would have reached the

same result had these errors not occurred. Because, cumulatively, the errors cannot be

considered harmless, we hold that the trial court erred in denying Appellants’ motions

for a new trial and in failing to order new trials with single plaintiffs.

{¶127} We accordingly sustain the first assignment of error and the third

assignment of error in part as to the trial court’s denial of Appellants’ motions for a

new trial. The third assignment of error is overruled in all other respects. Appellants’

remaining assignments of error, in which they challenge the trial court’s failure to

allow a setoff, the award of future medical damages to McClendon, and the awards of

prejudgment interest, are therefore moot and we do not address them.

IV. Conclusion

{¶128} For the foregoing reasons, the trial court’s judgments are reversed. This

43 OHIO FIRST DISTRICT COURT OF APPEALS

cause is remanded for new trials consistent with the law and this opinion.

Judgments reversed and cause remanded.

BOCK, J., concurs. ZAYAS, P.J., concurs in part and concurs in judgment only in part.

ZAYAS, P.J., concurring in part and concurring in judgment only in part.

{¶129} I concur with the judgment of the court, and I concur with most of the

majority opinion. I write separately to articulate the proper analysis for determining

when a “common question of law or fact” exists under Civ.R. 42. Rather than adopting

a new framework for applying Civ.R. 42, I adhere to the plain meaning of the phrase

“common question of law or fact” as the standard governing a trial court’s exercise of

its discretion to join matters for hearing or trial, consolidate actions, or issue any other

orders to avoid unnecessary cost or delay.

{¶130} Applying ordinary definitions, two actions involve a common question

of law when they share an issue concerning the interpretation or application of legal

principles. Likewise, two actions involve a common question of fact when they share

an issue requiring the resolution of a factual dispute. The existence of such a shared

legal or factual issue satisfies the threshold inquiry under Civ.R. 42.

{¶131} Consistent with the purpose of the rule, trial courts have broad

discretion to determine whether a common question of law or fact exists and whether

resolving that question through a joint proceeding will promote efficiency without

unfairly prejudicing the parties. Nothing more is required. Common questions are

those capable of being addressed through the same procedure, thereby advancing

judicial economy and reducing unnecessary expense or delay. Civ.R. 42 does not

require that the common question ultimately yield the same answer in each action.

44 OHIO FIRST DISTRICT COURT OF APPEALS

The rule contains no such limitation and imposing one would add language not found

in the text of Civ.R. 42.

{¶132} Moreover, even if such a requirement were imposed, this court’s prior

precedent would satisfy that heightened standard. Accordingly, even under the

majority’s added requirements our existing case law would remain sound, controlling,

and fully consistent with this newly determined application of Civ.R. 42.

{¶133} As this court has held in the past, where two malpractice actions present

the same theory of malpractice based on identical representations made from the same

defendant doctor regarding each plaintiff’s respective medical imaging and history,

and where competing expert testimony, from the same witnesses, is presented on the

applicable standard of care for making such representations, a common issue of fact

is created between the actions. See, e.g., Jones v. Durrani, 2024-Ohio-1776, ¶ 25-26

(1st Dist.); Courtney v. Durrani, 2025-Ohio-2335, ¶ 49 (1st Dist.); Ravenscraft v.

Durrani, 2025-Ohio-2900, ¶ 88 (1st Dist.); Fenner v. Durrani, 2025-Ohio-4477, ¶ 49

{¶134} Nevertheless, where, like here, the applicable standard of care for each

plaintiff’s theory of malpractice is different and the overlap in witnesses at trial for

each action was miniscule in comparison to past cases that have come before this

court, joining of the actions for trial strayed from this court’s precedent and was

improper where the actions lacked sufficient commonality to warrant the joint trial

under Civ.R. 42.

{¶135} Accordingly, I concur with the judgment of the majority on the first

assignment of error challenging the joint trial as I agree with the majority that the joint

trial here was improper where the actions lacked sufficient commonality to warrant a

joint trial, as more-fully explained below. I simply disagree with how to reach this

45 OHIO FIRST DISTRICT COURT OF APPEALS

result. Beyond that, I concur with the remainder of the majority opinion.

I. A Common Question of Law or Fact

A. The Plain Language of Civ.R. 42

{¶136} Civ.R. 42(A) provides, “If actions before the court involve a common

question of law or fact, the court may: (a) join for hearing or trial any or all matters at

issue in the actions; (b) consolidate the actions; or (c) issue any other orders to avoid

unnecessary cost or delay.”

{¶137} Under the plain language of the rule, a trial court may take action under

the rule when actions before it “involve a common question of law or fact.”

{¶138} “Involve” is defined as “to have within or as part of itself,” or “to require

as a necessary accompaniment.” Merriam-Webster Online, https://www.merriam-

webster.com/dictionary/involve (accessed May 21, 2026) [https://perma.cc/NS87-

ZFUX].

{¶139} “Common” is defined as “belonging to or shared by two or more

individuals or things or by all members of a group.” Merriam-Webster Online,

https://www.merriam-webster.com/dictionary/common (accessed May 21, 2026)

[https://perma.cc/GZY2-G2VX].

{¶140} “A ‘question of law’ is ‘“[a]n issue to be decided by the judge, concerning

the application or interpretation of the law.”’” Wray v. Wessell, 2016-Ohio-8584, ¶ 42

(4th Dist.), citing Henley v. Youngstown Bd. of Zoning Appeals, 2000-Ohio-493, ¶ 25,

citing Black’s Law Dictionary (7th Ed. 1999).

{¶141} “[A] ‘question of fact’ [is] ‘[a]n issue involving the resolution of a factual

dispute and hence within the province of the jury in contrast to a question of law.’” Id.,

quoting Black’s Law Dictionary.

{¶142} Utilizing these plain-language definitions, two actions would “involve a

46 OHIO FIRST DISTRICT COURT OF APPEALS

common question of law” where both actions have within them a shared issue

concerning the application or interpretation of the law. See Director of Hwys. v.

Kleines, 38 Ohio St.2d 317, 320 (1974) (holding that where, by statute, the parties must

consent to the court’s consolidation of appropriation cases for trial, the trial court

cannot bypass this requirement and force the parties to join two appropriation actions

for trial under Civ.R. 42 where “there appear[ed] to be no issues of law requiring

judicial interpretation which [were] common to all the property owners.”).

{¶143} Whereas two actions would “involve a common question of . . . fact”

where both actions have within them a shared issue involving the resolution of a

factual dispute. See id. at 320 (holding that where, by statute, the parties must consent

to the court’s consolidation of appropriation cases for trial, the trial court cannot

bypass this requirement and force the parties to join two appropriation actions for trial

under Civ.R. 42 where there was “no common interest in the ownership of the property

to be appropriated” and the properties were not “being used for a common purpose.”).

{¶144} Notably, by its plain language, Civ.R. 42 only requires that actions

before the trial court involve a single common question of law or fact. See Jones, 2024-

Ohio-1776, at ¶ 26 (1st Dist.), citing Clemente v. Garnder, 2004-Ohio-2254, ¶ 18 (5th

Dist.) (“Civ.R. 42(A) does not require that all questions of law or fact be identical.”).

{¶145} However, the existence of a common question of law or fact does not

automatically warrant the joining of matters for hearing or trial, consolidation of

actions, or the issuance of any other order under Civ.R. 42. The rule authorizes such

measures only when they promote expedition, economy, or both. These

considerations therefore serve as practical limitations on the exercise of a trial court’s

authority under Civ.R. 42.

{¶146} Civ.R. 42 applies broadly to “any or all matters at issue” and the

47 OHIO FIRST DISTRICT COURT OF APPEALS

permitted actions under the rule are all governed by the same threshold requirement,

a “common question of law or fact.” Whether a particular action under the rule will

advance judicial economy or efficiency necessarily depends upon the circumstances

presented. For example, conducting a single qualification hearing for multiple cases

involving the same expert and the same area of expertise may conserve judicial

resources and avoid duplicative proceedings, even though full consolidation of these

cases may not be warranted.

{¶147} Accordingly, “the thrust of Civ.R. 42(A) is to vest discretion in the [trial

court] to determine whether consolidation [or any other action under the rule] is to be

permitted where the circumstances specified in the rules exist.” Kleines, 38 Ohio St.2d

at 319. A construction of “common question of law or fact” that is unduly narrow

would unnecessarily restrict a trial court’s ability to utilize the various case-

management tools provided by Civ.R. 42.

{¶148} Ultimately, the management of cases remains committed to the sound

discretion of the trial court, provided that the rights of the parties are protected and

the requirements of the rule are satisfied. Id. at 319-320; see, e.g., Givens v. Longwell,

2024 U.S. Dist. LEXIS 55074, *4-5 (S.D. Ohio Mar. 27, 2024), quoting Advey v.

Celotex Corp., 962 F.2d 1177, 1180 (6th Cir. 1992) (discussing the analogous

Fed.R.Civ.P. 42 and stating, “‘The underlying objective is to administer the court’s

business “with expedition and economy while providing justice to the parties.”’”).

B. A Common Question of Law or Fact Under Other Civil Rules

{¶149} Use of the word “common” in relation to a “question of law or fact” is

not unique to Civ.R. 42. Similar language is found in Civ.R. 20, 23, and 24.

{¶150} Under Civ.R. 20, a requirement for joinder of parties is that “any

question of law or fact common to all plaintiffs will arise in the action.” (Emphasis

48 OHIO FIRST DISTRICT COURT OF APPEALS

added.)

{¶151} Under Civ.R. 23(A)(2), a prerequisite to a class action is that “there are

questions of law or fact common to the class.”8 (Emphasis added.)

{¶152} Under Civ.R. 24(b), a requirement for permissive intervention is that

the proposed intervenor “has a claim or defense that shares with the main action a

common question of law or fact.” (Emphasis added.)

{¶153} Note that, while these phrases may be similar, no two phrases under the

rules are identical.

C. The Importance of Considering the Purpose Behind the Rule at Issue

{¶154} Because no two similar phrases under the rules are identical, it is

important to consider the purpose for each rule when applying the phrase within the

context of each rule as each phrase cannot be read in isolation or assumed to mean the

same thing in each circumstance.

{¶155} For Civ.R. 42, the purpose “is ‘to avoid unnecessary costs or delay’ in the

interests of judicial efficiency.” Kleines, 38 Ohio St.2d at 319; see 2005 Staff Note,

Civ.R. 42 (“The obvious purpose of Rule 42(A) is for convenience of trial, for

preventing multiplicity of actions, and for the saving of costs.”). Accordingly, the rule

only requires that two or more actions involve a single common question of law or fact

before the court may take action under the rule. Importantly, even where two actions

are consolidated under the rule, they retain their individual identity. See Hall v. Hall,

584 U.S. 59 (2018) (discussing the analogous Fed.R.Civ.P. 42).

{¶156} A comparison with Civ.R. 23, governing class actions, is instructive. A

8 Because the commonality must be to the class, and there must be typicality in the class, it stands

to expect that the common question of law or fact will have the same answer in this context. See generally Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). However, the same result is not warranted within the context of Civ.R. 42 as the rules support two completely different purposes. See Wilson v. Durrani, 2026-Ohio-2279, ¶ 99-113 (1st Dist.) (Moore, J., dissenting).

49 OHIO FIRST DISTRICT COURT OF APPEALS

class action is “‘an exception to the usual rule that litigation is conducted by and on

behalf of the individual named parties only.’” Wal-Mart Stores, 564 U.S. at 348,

quoting Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979). Because class actions

depart from the ordinary model of individual litigation, Civ.R. 23 imposes stringent

prerequisites before claims may be adjudicated collectively. As the United States

Supreme Court has explained, “‘[A] class representative must be part of the class and

“possess the same interest and suffer the same injury” as the class members.’” Id. at

348-349, quoting East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403

(1977). The rule’s requirements of numerosity, commonality, typicality, and adequacy

of representation serve to ensure that the claims litigated on a class-wide basis are

sufficiently cohesive to warrant collective adjudication. Id. at 349.

{¶157} Consistent with that purpose, Civ.R. 23(A)’s commonality requirement

focuses on whether the members of the proposed class share common questions whose

resolution will advance the claims of the class as a whole. Indeed, the concept of

commonality in the class-action context contemplates that the answer to the common

question will generate a common resolution for the class members’ claims. This

requirement is sensible because a class action binds absent class members and permits

representative litigation on their behalf. Thus, the common question must be capable

of producing a common answer central to the validity of the claims being asserted.

{¶158} Civ.R. 42 serves an entirely different purpose. Unlike Civ.R. 23, it does

not authorize representative litigation or bind absent parties. Rather, it is a case-

management rule designed to promote efficiency and avoid unnecessary cost or delay.

Accordingly, Civ.R. 42 requires only that actions “involve a common question of law

or fact.” Nothing in the rule suggests that the common question must yield the same

answer in each action or produce a uniform outcome for all parties.

50 OHIO FIRST DISTRICT COURT OF APPEALS

{¶159} Consider, for example, 20 separate actions in which the same expert

witness is expected to testify. If a dispute arises regarding the expert's qualifications,

that issue presents a common question of law or fact within the meaning of Civ.R. 42

because the same question is implicated in each action. A trial court could therefore,

in its discretion, conduct a single hearing to resolve that issue. Yet the existence of

that common question would not satisfy Civ.R. 23’s commonality requirement because

the qualification of the expert is not a question where resolution would provide a

common answer central to the merits of the class members’ claims.

{¶160} This comparison illustrates why importing the class-action concept of a

“common answer” into Civ.R. 42 would be misplaced. Contra Wilson, 2026-Ohio-

2279, ¶ 55-57, 65-68 (1st Dist.). The two rules serve different functions and employ

different language. While Civ.R. 23’s commonality requirement may reasonably

demand a question capable of generating a common answer for the class, Civ.R. 42

contains no such requirement. It requires only the existence of a common question of

law or fact, leaving it to the trial court’s discretion to determine whether addressing

that question jointly will promote efficiency and fairness.

D. The Common Question of Law or Fact Must Simply Be Relevant Under Civ.R. 42

{¶161} The majority opinion concludes that the common fact at issue must be

material, rather than incidental or tangential. If the majority opinion simply means

that the fact at issue must be relevant to the actions, i.e., must be a question that will

have some sort of impact on the actions in question, then I agree. However, to the

extent that the majority opinion suggests that a “material” question is a question that

will go beyond this and have some sort of substantial impact on the actions, such as a

question that resolves an element of a claim, then I disagree. Any such requirement

51 OHIO FIRST DISTRICT COURT OF APPEALS

would convolute the requirement of a single question of law or fact with the broad

discretion afforded to trial courts under the rule to consider whether consolidation or

other permissible actions would prevent unnecessary costs or delay.

{¶162} While an issue may need to be more than just relevant to warrant a

largely comprehensive action under Civ.R. 42, such as the joining of actions for trial

or consolidation, this is due to the efficiency element of the rule and not based on any

plain-language requirement. Rather, under the plain language of Civ.R. 42, if the trial

court wanted to hold a joint hearing on an issue that is relevant and common to two

actions, but not substantial, and it would be efficient for the court to do so, there is

nothing in the rule that would prohibit this.

E. A Common Question Will be Answered Uniformly

{¶163} The majority opinion concludes that a common question of law or fact

is one that “may be answered uniformly without resorting to separate factual proof.”

It is unclear if the majority is suggesting that the process of answering the common

question must be a uniform process, or that the common question must result in a

uniform—i.e., identical—answer. To the extent that the majority is suggesting that a

common question must be one that results in a common answer, I disagree as there is

nothing in the plain language of the rule that would warrant such a result.9

{¶164} To the extent that the majority suggests that a uniform process is

involved in answering a common question, I don’t disagree simply based on the reality

of answering a common question. The phrase “answered uniformly” refers to the

process of reaching the answer — i.e., whether the question can be resolved through

9 As stated above, because the commonality must be to the class under Civ.R. 23(A)(2), and there

must be typicality in the class, it stands to expect that the common question of law or fact will have the same answer in this context. See generally Wal-Mart, 564 U.S. 338. However, the same result is not warranted within the context of Civ.R. 42 as each rule supports a completely different purpose. See Wilson, 2026-Ohio-2279, at ¶ 99-113 (1st Dist.), (Moore, J., dissenting).

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common evidence and/or legal analysis. “Answered uniformly” is an action and

focuses on the method of resolution, whereas a uniform “answer” is a noun that would

require the same substantive outcome for all.10 The word “answer” does not appear

anywhere in the rule and I do not join the majority opinion in reading any such

requirement into the plain language where such language does not exist. Rather,

“answered uniformly” implicates that a uniform process is involved in answering a

common question.

{¶165} For example, in Reedus v. McDonough, 2022 U.S. Dist. LEXIS 37552

(N.D.Ind. Mar. 3, 2022), cited by the majority, the United States District Court for the

Northern District of Indiana considered the analogous Fed.R.Civ.P. 42 and stated that

the “plain meaning” of the phrase “a common question of law of fact” indicates that a

common question is one that “must be answered identically in each case in which it is

presented.” Id. at *6. In so stating, the court relied on the decision of the United States

District Court for the Eastern District of Wisconsin in Van Patten v. Wright, 2009 U.S.

Dist. LEXIS 60763 (E.D.Wis. June 30, 2009). In Van Patten, the court stated,

“Although neither Rule 42 nor case law defines ‘common question of law or fact,’ the

plain meaning of this phrase indicates that a common question is one that must be

answered identically in each case in which it is presented.” Id. at *3-4.

{¶166} This same court has held similarly in other cases. E.g., Habitat Edn.

Ctr., Inc. v. Kimbell, 2008 U.S. Dist. LEXIS 46377 (E.D.Wis. June 5, 2008); Kimberly-

Clark Worldwide, Inc. v. First Quality Baby Prods., LLC, 2011 U.S. Dist. LEXIS 67623

(E.D.Wis. June 22, 2011).

10 To answer, when used as a transitive verb, means “to reply in rebuttal, justification, or explanation.” Merriam-Webster Online, https://www.merriam-webster.com/ dictionary/answer (accessed June 1, 2026) [https://perma.cc/37G4-AC4G]. Whereas an answer, when used a noun, means “some spoken or written in reply to a question.” Id.

53 OHIO FIRST DISTRICT COURT OF APPEALS

{¶167} In Habitat, also cited by the majority, the court determined that four

actions against certain public officials for approval of certain timber projects in the

Chequamegon-Nicolet National Forest in violation of the National Environmental

Policy Act and the National Forest Management Act presented some common

questions of law or fact where all four appeals raised three identical questions

concerning each project that would be resolved by looking to nearly identical or

identical evidence and would not depend on “differences in the projects’

administrative records.” Habitat at 4-5, 15. Thus, the court found the presence of

common questions of law of fact where the common questions between the actions

could be uniformly answered through the same procedure, thus favoring expediency

and economy. As specifically cited in the majority opinion, in doing so, the court even

acknowledged that there “could be different answers to [the] question.” Id. at 15. So,

the court relied on the common process that would be involved in answering the

common questions.

{¶168} While a common question of law or fact may at times lead to a common

answer, there is no such mandatory requirement within the rule, and such heightened

requirements should not be crafted by this court.

{¶169} When serving the purpose of the rule, the trial court should be afforded

the discretion to determine whether there is a “common question of law or fact”

between actions that can be resolved expediently together and without prejudice to the

rights of the parties. Wilson, 2026-Ohio-2279, ¶ 99-102, 107-113 (1st Dist.) (Moore,

J., dissenting).

II. The Actions Presently Before this Court

{¶170} In the instant appeals, this court is once again presented with the

question of whether the joining of two medical-malpractice actions against Durrani

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was appropriate under Civ.R. 42. Durrani and CAST assert under the first assignment

of error that the actions lack a common question of law or fact.

A. Medical Malpractice Generally

{¶171} “‘In order to support a claim for medical negligence, a complainant must

submit evidence establishing the requisite standard of care, show that the physician

negligently diverged from that standard, and demonstrate an injury proximately

resulting from the physician’s actions.’” Bunn v. Hlubek, 2025-Ohio-4563, ¶ 11 (1st

Dist.), quoting Gray v. Cincinnati Children’s Hosp. Med. Ctr., 2024-Ohio-3168, ¶ 16

{¶172} “[T]he standard of care applicable to medical professionals is to exercise

the degree of care that a medical professional of ordinary skill, care, and diligence

would exercise under similar circumstances.” Cromer v. Children’s Hosp. Med. Ctr.

of Akron, 2015-Ohio-229, ¶ 15, citing Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976),

paragraph one of the syllabus. “As part of the standard of care, medical professionals

are expected to be able to recognize certain symptoms of illness and injury, and they

are expected to be aware of the associated risk of harm.” Id. at ¶ 29, citing Berdyck v.

Shinde, 1993-Ohio-183.

{¶173} Any negligent failure to meet that applicable standard of care

constitutes medical malpractice if the negligence proximately results in an injury to

the patient. Berdyck at ¶ 27, citing Bruni at 130. Thus, “[w]hether negligence exists

is determined by the relevant standard of conduct for the physician.” Id. “That

standard is proved through expert testimony.” Id., citing Bruni at 131-132.

{¶174} “The expert testimony must explain what a medical professional of

ordinary skill, care, and diligence in the same medical specialty would do in similar

circumstances.” Schwind v. Ohio Dept. of Rehab. & Corr., 2022-Ohio-3995, ¶ 17 (10th

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Dist.), citing Gibson v. Ohio Dept. of Rehab. & Corr., 2019-Ohio-4955, ¶ 10 (10th

Dist.).

B. This Court’s Opinion in Jones v. Durrani

{¶175} The majority opinion, and recently this court, appears to challenge our

own precedent in Jones, 2024-Ohio-1776 (1st Dist.), and its progeny. See Wilson,

2026-Ohio-2279, ¶ 60-64, 69 (1st Dist.). In Jones, this court was first presented with

the question of whether the joining of two medical-malpractice actions against

Durrani was appropriate under Civ.R. 42. Id. at ¶ 18. Each plaintiff had substantially

the same surgery in the L5-S1 area of the spine. Id. at ¶ 4-5, 8. They each brough suit

against Durrani and alleged that “Dr. Durrani breached the requisite standard of care

when selecting and performing the spine surgeries, failed to obtain proper informed

consent prior to the surgeries, committed battery by performing unnecessary and

uninformed surgery without proper consent, and induced plaintiffs to undergo the

surgeries by fraudulently misrepresenting the need for surgery.” Id. at ¶ 2. At trial, it

was revealed that Durrani made largely overlapping “impressions” or representations

regarding each plaintiff based on each plaintiff’s medical imaging and history in order

to justify the at-issue surgeries. Id. at ¶ 23-24.

{¶176} More specifically, Durrani made seven identical representations for

each plaintiff, including (1) lumbar spinal stenosis, (2) back pain with radicular pain

in the L5 distribution bilaterally, (3) very significant functional impairment, (4)

anterolisthesis of L5 on S1, (5) central stenosis, (6) lateral recess stenosis, and (7)

failure of conservative treatment. Id. Determining whether these impressions were

in fact warranted for each plaintiff encompassed a large amount of competing expert

testimony regarding the standard of care for making such representations. Id. at ¶ 25.

Consequently, this court held that the joining of the two actions for trial was not

56 OHIO FIRST DISTRICT COURT OF APPEALS

improper under Civ.R. 42 where—at a minimum—the standard of care for making

such identical representations was a common issue of fact between the two cases and

where each case presented the same claims against the same defendants based on the

same theory of malpractice and/or fraud surrounding these conditions. Id. at ¶ 25-26.

{¶177} The court has held similarly in other cases where substantially similar

issues were presented in similar cases. See, e.g., Courtney, 2025-Ohio-2335, at ¶ 49

(1st Dist.) (holding that the common-question-of-law-or-fact requirement was met

where the plaintiffs had similar diagnoses and received essentially the same surgery

and expert testimony detailed the complexities of the common diagnoses and

surgeries); Ravenscraft, 2025-Ohio-2900, at ¶ 88 (1st Dist.) (holding that the

common-question-of-law-or-fact requirement was met where the plaintiffs were both

diagnosed with degenerative disc disease, spinal stenosis, and degenerative

spondylolisthesis at the L5-S1 joint and the expert testimony focused on the presence

or absence of any symptoms traceable to the L5-S1 joint); Fenner, 2025-Ohio-4477, at

¶ 49 (1st Dist.) (holding that the common-question-of-law-or-fact requirement was

met where, although the plaintiffs did not have identical surgeries, each case involved

a discussion of the impressions that were made by Durrani to warrant surgery, many

of which were overlapping, including stenosis, spondylolisthesis, anterolisthesis, and

neurogenic claudication).

{¶178} A federal court has also held similarly. See Atwood v. UC Health, 2019

U.S. Dist. LEXIS 216184, *15 (S.D. Ohio Dec. 17, 2019) (finding that Durrani and CAST

were not entitled to a new trial on the basis of the alleged improper joining of six

Durrani malpractice actions for trial where “determination of common questions of

law and fact were borne out by Defendants’ own witnesses” as “experts on both sides

testified as to the many similarities of the symptoms, diagnosis and treatments

57 OHIO FIRST DISTRICT COURT OF APPEALS

rendered.”).

{¶179} The majority opinion suggests that Jones and its progeny merely

encompassed “common facts,” which were insufficient to warrant the joining of

actions under Civ.R. 42. However, the majority opinion fails to acknowledge that these

common facts created a common issue of fact as to the standard of care applicable to

both actions. Each side presented competing expert testimony, through the same

witnesses, on the relevant standard of care in relation to the overlapping

representations made by Durrani for both plaintiffs based on their medical imaging

and history. Notably, the failure to establish the recognized standards of the medical

community is fatal to a claim of malpractice. See generally Yung v. UC Health, LLC,

2023-Ohio-789, ¶ 11 (1st Dist.), citing White v. Summa Health Sys., 2008-Ohio-6790,

¶ 11 (9th Dist.). Thus, even under the requirements that the majority opinion crafts

today for the joining of actions for trial under Civ.R. 42, the standard was met in these

cases as the relevant standard of care was a substantial issue in the malpractice actions

that would be answered uniformly and result in the same answer. Consequently, it

cannot be said that Jones and its progeny were wrongly decided.

C. The Instant Cases

{¶180} Nevertheless, the instant appeals now present this court with a joint

trial that strays from our past precedent. Only one action, Eileen’s, involved the

standard of care surrounding Durrani’s representations of her medical imaging and

history. The other action, McClendon’s, involved the standard of care surrounding the

spinal fusion procedure performed on her by Durrani. Notably, the overlap in

witnesses at trial for each action was miniscule in comparison to past cases that have

come before this court and the essence of the records here shows that, unlike in past

cases where the overlap in expert testimony undoubtedly served judicial efficiency,

58 OHIO FIRST DISTRICT COURT OF APPEALS

each case here was essentially presented separately to the same jury, based on largely

separate evidence. Thus, even assuming that there may have ultimately been a

common question of law or fact between the two actions, the record does not reflect

that the joint trial served any purpose of efficiency sufficient to warrant the joining of

the two malpractice actions for trial under Civ.R. 42. Notably, any judicial efficiency

served by a joint trial in such a situation would seem to be outweighed by the potential

for prejudice and juror confusion. Therefore, I concur in the majority’s judgment that

these actions were wrongly joined for trial under Civ.R. 42.

{¶181} As I have noted in the past, such an error does not automatically result

in a reversal as this court must still assess for harmless error under Civ.R. 61. See

Fenner, 2025-Ohio-4477, at ¶ 145, fn. 14 (1st Dist.) (Zayas, J., concurring in part and

concurring in judgment only in part).

{¶182} Nevertheless, I concur in the majority’s opinion on cumulative error and

thus concur in the majority’s judgment to reverse these causes for new, separate trials

based on the cumulative error reflected by the record and the arguments presented in

these appeals.

III. Conclusion

{¶183} Based on the foregoing, I concur in judgment only on the first

assignment of error challenging the joint trial. Beyond that, I concur with the

remainder of the majority opinion.