[Cite as Worley v. Durrani, 2025-Ohio-2245.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
DEBORAH WORLEY, as Executrix of : APPEAL NO. C-240386 the Estate of Fay Roseberry, TRIAL NO. A-1700331
Plaintiff-Appellee, : JUDGMENT ENTRY vs. :
ABUBAKAR ATIQ DURRANI, M.D., :
and :
CENTER FOR ADVANCED SPINE : TECHNOLOGIES, INC.,
Defendants-Appellants, :
WEST CHESTER HOSPITAL, LLC, et : al.,
Defendants. :
This cause was heard upon the appeal, the record, the briefs, and arguments. The judgment of the trial court is reversed and the cause is remanded for the reasons set forth in the Opinion filed this date. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs are taxed under App.R. 24. The court further orders that 1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and 2) the mandate be sent to the trial court for execution under App.R. 27. To the clerk: Enter upon the journal of the court on 6/27/2025 per order of the court. By:_______________________ Administrative Judge [Cite as Worley v. Durrani, 2025-Ohio-2245.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
DEBORAH WORLEY, as Executrix of : APPEAL NO. C-240386 the Estate of Fay Roseberry, TRIAL NO. A-1700331
Plaintiff-Appellee, : OPINION vs. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 27, 2025
Statman Harris, LLC, and Alan J. Statman, for Plaintiff-Appellee,
Taft Stettinius & Hollister LLP, Russel S. Sayre, Aaron M. Herzig, Philip D. Williamson and Annie M. McClellan, for Defendants-Appellants. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} This appeal arises from a jury verdict in favor of plaintiff-appellee
Debrah Worley, as Executrix of the Estate of Fay Rosebery (“plaintiff”), on her claims
against defendants-appellants Abubaker Atiq Durrani, M.D., and Center for Advanced
Spine Technologies, Inc., (“CAST”) for negligence, lack of informed consent, and
fraudulent misrepresentation.
{¶2} In two assignments of error, Durrani and CAST challenge the trial
court’s decision denying their post-judgment motions for judgment notwithstanding
the verdict, a new trial, and a set off. For the reasons that follow, we sustain the first
assignment of error in part and hold that the trial court abused its discretion in
denying Durrani and CAST’s motion for a new trial. Therefore, we reverse the
judgment of the trial court and remand the cause for a new trial. We decline to address
the remaining arguments and the second assignment of error as moot.
I. Factual and Procedural History
{¶3} After a referral from her primary care physician, 72-year-old Fay
Rosebery sought treatment from Durrani for ongoing back pain. As a former truck
driver, Ms. Rosebery had a history of lifting boxes and “things of that nature” that led
to the start of her pain. Plaintiff—Ms. Rosebery’s daughter who had lived with her for
many years—accompanied Ms. Rosebery to her appointments with Durrani.
According to plaintiff, Durrani told them at the first office visit that Ms. Rosebery had
mild scoliosis and “went down the spine on the X-ray and showed a little curve at the
bottom and a tiny bit at the top.” Ms. Rosebery knew she had this condition for “many
years” but was not receiving any treatment. Durrani recommended surgery and told
them Ms. Rosebery “would come out of surgery feeling 100 percent better.” An
informed-consent form was signed, but Durrani told them he would fill in the OHIO FIRST DISTRICT COURT OF APPEALS
procedure on the form “later.”
{¶4} Ultimately, Durrani performed two spine surgeries on Ms. Rosebery at
West Chester Hospital in September and October 2010. However, according to
plaintiff, Ms. Rosebery never got better after the surgeries. Plaintiff described the
surgeries as “[a] waste of time,” and “very painful” for her mother. She specifically
denied that Ms. Rosebery ever got any relief from the surgeries, or “gained any
improvement at all from Durrani.” Instead, Ms. Rosebery had “continuous pain and
suffering following the surgeries,” and her ability to enjoy life “diminished rapidly.”
{¶5} Ms. Rosebery initiated this medical-malpractice action against Durrani,
CAST, West Chester Hospital, and UC Health in July 2014, asserting that the surgeries
performed by Durrani were medically unnecessary for Ms. Rosebery’s condition. After
extensive pretrial proceedings, Ms. Rosebery’s claims against Durrani and CAST—now
prosecuted by plaintiff—proceeded to a nine-day jury trial in April 2019.1
{¶6} Plaintiff proceeded with her claims under the theory that Durrani
deviated from the standard of care by lying about Ms. Rosebery’s condition and need
for surgery in his interpretations of Ms. Rosebery’s medical imaging and performing
unnecessary surgery that ultimately caused harm to Ms. Rosebery. Each side
presented extensive expert testimony, as well as other evidence, in support of their
respective positions. Of particular relevance to this appeal, plaintiff presented a video
compilation to the jury of various depositional excerpts of Durrani, who was absent
from trial.
{¶7} The jury ultimately returned a verdict in favor of plaintiff on all claims
and awarded plaintiff compensatory damages in the amount of $899,431.45. The
1 The claims against West Chester Hospital and UC Health were ultimately dismissed after a
confidential settlement was reached.
4 OHIO FIRST DISTRICT COURT OF APPEALS
compensatory-damages award consisted of economic and noneconomic damages, and
the jury allocated the noneconomic damages as follows: negligence, 20 percent; lack
of informed consent, 30 percent; and fraudulent misrepresentation, 50 percent.
Beyond that, the jury awarded plaintiff punitive damages in the amount of $1 and
found that plaintiff was entitled to recover attorney fees.
{¶8} Durrani and CAST filed two post-judgment motions relevant to this
appeal: (1) a motion for “judgment notwithstanding the verdict, and/or (in the
alternative) for a new trial, and/or (in the alternative) for a remittitur,” and (2) a
motion for “set-off or credit and related discovery.”
{¶9} In the first motion, Durrani and CAST argued that admission of the
various Durrani depositional excerpts, i.e., the “Durrani Collage,” was prohibited by
Evid.R. 404 or unduly prejudicial under Evid.R. 403. They asserted that “[n]one of
the specific instances of conduct bore any conceivable relationship to Dr. Durrani’s
medical decision making with [Ms.] Rosebery. Instead, this evidence was merely an
effort at character assassination and to vilify Dr. Durrani and inflame the jury.”
Durrani and CAST also specifically argued that testimony regarding Durrani’s license
revocations was “grossly improper,” as it was irrelevant, unduly prejudicial, improper
character evidence, or otherwise inadmissible. Durrani and CAST further argued that
(1) the jury’s finding of permanent injury was against the manifest weight of the
evidence, (2) the cumulative effect of the “multiple errors” amounted to character
assassination and unfair prejudice that warranted a new trial, and (3) they were
entitled to a remittitur under R.C. 2323.43 reducing the noneconomic loss to
$500,000. In the set-off motion, Durrani and CAST argued that a set-off was
warranted based on “settlement with any other party,” including West Chester
Hospital and UC Health, under R.C. 2307.28 to prevent plaintiff from recovering twice
5 OHIO FIRST DISTRICT COURT OF APPEALS
for the same injury.
{¶10} Ultimately, the trial court denied their request for judgment
notwithstanding the verdict and/or a new trial and denied their request for a setoff but
granted the remittitur under R.C. 2323.43(A)(3). The trial court later entered final
judgment in favor of plaintiff, and Durrani and CAST now appeal.
{¶11} Under the first assignment of error, Durrani and CAST first argue for a
new trial, asserting that the trial court erred in admitting the depositional excerpts of
Durrani, i.e., the “Durrani Collage,” and statements about Durrani’s medical-license
revocations and asserting that such errors were not harmless where this was a close
case and the improper admissions “tipped the scales” in plaintiff’s favor. Durrani and
CAST additionally argue under the first assignment of error that plaintiff did not
establish that Durrani caused Ms. Rosebery permanent injury that justified a higher
cap on noneconomic damages. Under the second assignment of error, Durrani and
CAST argue that Durrani is entitled to a setoff—i.e., a reduction in the jury’s verdict—
by the amount for which plaintiff settled with West Chester Hospital and UC Health.
II. First Assignment of Error
A. Standard of Review
{¶12} “Civ.R. 50 governs motions for judgment notwithstanding the verdict.”
Hounchell v. Durrani, 2023-Ohio-2501, ¶ 30 (1st Dist.), citing Adams v. Durrani,
2022-Ohio-60, ¶ 19 (1st Dist.). “We review the trial court’s ruling on such a motion de
novo and must construe the evidence in the light most favorable to the nonmoving
party and only grant the motion if reasonable minds could come to but one conclusion
which is in favor of the moving party.” Id., citing Adams at ¶ 19.
{¶13} “A motion for a new trial is governed by Civ.R. 59.” Id. at ¶ 31, citing
Adams at 20. “‘A court may grant a motion for a new trial for, among other things, an
6 OHIO FIRST DISTRICT COURT OF APPEALS
irregularity in the proceedings of the court, if the judgment is not sustained by the
weight of the evidence, or any reason “for good cause shown.”’” Stephenson v.
Durrani, 2023-Ohio-2500, ¶ 15 (1st Dist.), quoting Adams at ¶ 20. “Upon a trial
court’s denial of a motion for a new trial, ‘we “construe the evidence in a light most
favorable to the trial court’s action,”’ while applying an abuse of discretion standard of
review.” Id. at ¶ 16, citing Adams at ¶ 20. “An abuse of discretion occurs when ‘a court
exercis[es] its judgment, in an unwarranted way, in regard to a matter over which it
has discretionary authority.’” Id. at ¶ 16, quoting Johnson v. Abdullah, 2021-Ohio-
3304, ¶ 35.
B. The Durrani Collage
{¶14} Durrani and CAST first argue that the trial court erred in admitting the
depositional excerpts of Durrani that have routinely been dubbed the “Durrani
Collage” in Durrani-related cases.
{¶15} “A trial court has broad discretion regarding the admission of evidence,
and, absent an abuse of discretion and proof of material prejudice, we will not reverse
a trial court’s ruling on an evidentiary issue.” Mann v. Durrani, 2023-Ohio-2672, ¶
17 (1st Dist.), citing Hayes v. Durrani, 2021-Ohio-725, ¶ 13 (1st Dist.).
{¶16} This court has routinely considered this issue and held that the trial
court abused its discretion in admitting the Durrani Collage—as a whole—where it
covered topics—spanning Durrani’s Pakistani heritage, unrelated malpractice
lawsuits, medical-license revocations, and resume inflation—that purported to attack
Durrani’s credibility and were unrelated to the actual case at hand. See, e.g., Niehaus
v. Durrani, 2023-Ohio-4818, ¶ 38-39 (1st Dist.); Stephenson, 2023-Ohio-2500, at ¶
41-43 (1st Dist.); Mann, 2023-Ohio-2672, at ¶ 16-20 (1st Dist.); Stratman v. Durrani,
2023-Ohio-3035, ¶ 18 (1st Dist.); Greene v. Durrani, 2023-Ohio-3069, ¶ 16 (1st Dist.).
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Durrani and CAST supplemented the record with a transcript of the
collage version played at this trial, which they assert was the same version as that
addressed by this court in Niehaus. Plaintiff has not disputed that this transcript is
the correct transcript. The transcript confirms that the collage discussed topics similar
to that which this court has held to be improper regarding Durrani, including that
Durrani is not a United States citizen, that he grew up and went to school in Pakistan
and other topics related to his heritage and upbringing in Pakistan, that his licenses
were revoked, that he failed to disclose a criminal charge for assault in his applications
for admission, that he was suspended from Medicare and Anthem as a medical
provider, that he was previously sued for malpractice five times, and that he
improperly inflated his resume in a number of specific ways and circumstances.
{¶18} Stare decisis dictates that we adhere to this court’s previous holding
regarding the Durrani Collage. See, e.g., Liberty Mut. Ins. Co. v. Three-C Body Shop,
Inc., 2020-Ohio-2694, ¶ 13 (10th Dist.) (“Under the legal doctrine of stare decisis,
courts follow controlling precedent, thereby creating stability and predictability in our
legal system.”). Therefore, on the authority of the above-cited cases, we hold that the
trial court similarly abused its discretion in admitting the Durrani Collage in this case.
C. Statements Regarding Durrani’s License Revocations
{¶19} Durrani and CAST next argue that, outside of the Durrani Collage, the
trial court erred in allowing the jury to hear prejudicial statements throughout the trial
about Dr. Durrani’s license revocations.
{¶20} This court has also routinely considered this issue and held that the trial
court abused its discretion in allowing frequent or extensive statements and
questioning regarding Durrani’s medical-license revocations throughout trial. See,
e.g., Stephenson, 2023-Ohio-2500, at ¶ 38-40; Hounchell v. Durrani, 2023-Ohio-
8 OHIO FIRST DISTRICT COURT OF APPEALS
2501, ¶ 35-49 (1st Dist.); Stratman, 2023-Ohio-3035, at ¶ 14-17 (1st Dist.); Greene,
2023-Ohio-3069, at ¶ 12-15 (1st Dist.).
{¶21} In this case, references to the license revocations occurred in voir dire,
opening statement, during the playing of the Durrani Collage, twice on cross-
examination, and in closing argument. Thus, like in the above-referenced cases, the
license revocations were extensively referenced in this case.
{¶22} Consequently, in conformity with stare decisis, we hold that, on the
authority of the above-cited cases, the trial court similarly abused its discretion in
allowing the statements regarding Durrani’s license revocations in this case.
D. Harmless-Error Analysis
{¶23} Because the trial court abused its discretion in admitting the Durrani
Collage and in allowing the license-revocation statements, this court must next
consider whether the errors were harmless or were errors that warrant a new trial.
{¶24} “An improper evidentiary ruling constitutes reversible error only when
the error affects the substantial rights of the adverse party or the ruling is inconsistent
with substantial justice.” Niehaus, 2023-Ohio-4818, at ¶ 40 (1st Dist.), citing Setters
v. Durrani, 2020-Ohio-6859, ¶ 22 (1st Dist.), and Mann, 2023-Ohio-2672, at ¶ 21 (1st
Dist.). “In determining whether substantial justice has been done, a reviewing court
must weigh the prejudicial effect of the errors and determine whether the trier of fact
would have reached the same conclusion had the errors not occurred.” Id., citing
Setters at ¶ 22.
{¶25} This court has held that multiple improper evidentiary rulings,
including admission of the Durrani Collage and evidence of Durrani’s license
revocations, resulted in cumulative prejudicial error that warranted a new trial where
the errors were extensive and interrelated and shifted the jury’s attention away from
9 OHIO FIRST DISTRICT COURT OF APPEALS
the issue of medical malpractice and toward improper character issues concerning
Durrani, and where the liability issues were “hotly contested in a close case.”
Stephenson, 2023-Ohio-2500, at ¶ 77-85 (1st Dist.); accord Hounchell, 2023-Ohio-
2501, at ¶ 71-75 (1st Dist.) (holding that there was cumulative reversible error where
the jury was likely to consider Durrani’s credibility when rendering its verdict due to
competing expert testimony and where the improper evidence “directly impacted the
jury’s assessment of credibility”); Stratman, 2023-Ohio-3035, at ¶ 21-28 (1st Dist.)
(holding that there was cumulative reversible error where the case “was a close one”
based on battle of the experts, evidence of improvement of the plaintiff’s condition
following surgery, and potential intervening causes); Greene, 2023-Ohio-3069, ¶ at
19-28 (1st Dist.) (holding that there was cumulative reversible error where the
evidentiary record, jury interrogatories, and the jury’s verdict rendered the case a close
call).
{¶26} Here, Durrani and CAST assert that the Durrani Collage in this case was
identical to the collage played in Niehaus and that, because this case was a close call
with expert witness testimony presented from both sides and evidence from both sides
indicating a successful surgery with no complications, a new trial is warranted as the
improper evidence “tipped the scales” and turned Durrani “into a cartoon villain” that
the jury intended to punish, as indicated by the punitive-damages award. In support
of this assertion, Durrani and CAST claim that the evidence shows that Ms. Rosebery’s
pain was “no worse off” after surgery, her post-surgical injuries (a fall and a car
accident) would have “much more to do with her post-surgery life” than the surgery
itself, and Ms. Rosebery had “many other diseases” and smoked, which shows that the
case was the “quintessential close call that could have gone either way.” Further, they
argue that counsel’s emphasis on the improper topics from the collage and use of the
10 OHIO FIRST DISTRICT COURT OF APPEALS
collage to depict Durrani as a liar renders the prejudicial effect “especially true.”
{¶27} The issue of Durrani’s credibility and the depiction of him as a liar began
with voir dire in this case. One of the very first questions to the potential jurors by
plaintiff’s counsel was whether they would have an issue with the fact that plaintiff was
going to call Durrani “a liar” for putting Ms. Rosebery through surgeries that were not
medically indicated and should never have been recommended. Counsel told the jury
that they intended to prove that Durrani was not an “honest doctor” and that was why
it was important to know if any members of the jury put doctors “up on a pedestal.”
Counsel then proceeded to question the potential jurors about any prior spine
surgeries and whether any of them had experiences—good or bad—that would impact
their ability to be fair and impartial on the issues in the case.
{¶28} Throughout this questioning, counsel made certain statements to
reference back to the credibility issue. (“Any issue with the fact that we’re going to
point out that a physician didn’t tell the truth?”); (“Anything about the fact that we’re
going to put on a case about someone that misrepresented–a physician that
misrepresented the radiology and the need for other tests in order to induce our client
to have surgery?”); (“[W]as there any time during that process of that particular
surgery from start to finish that you doubted the truthfulness of [that doctor]?”); (“Do
you believe, though, that there’s an occasional bad apple in the bunch that even though
doctors are taught to do no harm that there could be a doctor that isn’t completely
truthful?”); (“Can we all agree that that’s an overriding factor, that everybody wants to
know they’re being told the truth by a physician? Well, in this case, as I earlier
indicated, we’re not just saying that Dr. Durrani made a mistake, we’re saying that he
intentionally misled [Ms. Rosebery] into two surgeries that were not indicated.”).
{¶29} Plaintiff’s counsel also brought up the fact that Durrani was no longer
11 OHIO FIRST DISTRICT COURT OF APPEALS
licensed in Ohio or Kentucky. He said,
You’re also going to be told that Dr. Durrani no longer has a
medical license in Ohio or Kentucky. And you’ll have to decide for
yourselves what that means to you. He did not lose it based upon this
case, but he no longer has a medical license. Okay? Anybody have an
issue with no medical license, not here, but we’re going to make
decisions about what he did or didn’t do? Again, I’m getting paranoid.
You’ll let the evidence take you where it takes you, right?
In response, a juror asked, “He had one then?” Counsel replied, “He had one then,
yes.”
{¶30} Defense counsel did attempt to mitigate the impact of these issues
during voir dire. First, defense counsel questioned a potential juror as to how he felt
hearing that Durrani is no longer licensed and informed the juror that the licensing
issues “had nothing to do with this case at all.” Therefore, he confirmed with the juror
that he or she could keep whatever “negative feeling” they were feeling on the issue
“out of the box” of evidence to decide the case. Further, defense counsel questioned
another potential juror about the depiction of Durrani as a liar and asked what he or
she thought when plaintiff’s counsel said they were going to prove as much. When the
juror responded that, to him or her, it went toward intent to deceive, defense counsel
clarified and distinguished between lying on imaging studies and Durrani giving his
own interpretation of the imaging, “with which perhaps the plaintiff’s experts
disagree.” In other words, defense counsel distinguished between an opinion based
on “something made up” or something based on “factual information for the patient.”
Defense counsel then confirmed that the juror was okay with evaluating the
information to determine whether Durrani intentionally made up pathology or
12 OHIO FIRST DISTRICT COURT OF APPEALS
whether the patient “truly had pathology that could have been interpreted different
ways by different spine surgeons or neurosurgeons.” The juror responded, “That’s
probably going to be a central part of the case.” Defense counsel also questioned
another potential juror on these issues and reaffirmed that the license revocations
were outside the box of evidence to be considered in the case and that whether Durrani
was lying is an issue to be decided based on the evidence presented in the case.
{¶31} Nevertheless, plaintiff’s counsel told a potential juror in response that
the license revocations were “inside the box” and suggested that jurors should wait to
hear from the judge about what the law is before making any decisions as “it’s not just
what [defense counsel] says goes in the box.” Further, plaintiff’s counsel discussed the
lying issue and confirmed with a potential juror that he or she agreed that when a
doctor tells you that imaging depicts something when it actually doesn’t, it is not a
difference of opinion; rather, it is a misrepresentation of the imaging. He then said,
“So in looking at the diagnostic techniques that doctors use and comparing it to what
they say, it’s possible to mete out whether something is just a difference of opinion or
an outright lie, right?”
{¶32} Ultimately, while there was some back and forth on these issues during
voir dire, a potential juror’s comments toward the end of voir dire indicate that the
jury likely understood that there were two sides being presented, with each side having
a different opinion on what goes “in the box.” (“[B]oth of you have done a good job of
trying to say we’re going to try and put things in the box and we hope you keep an open
mind and consider it. That seems to be a good course to follow.”); (“[W]e’ve gotten
two sides of this, first from [plaintiff’s counsel] and then from [defense counsel]. As
long as the law is settled and the judge gives us a set of instructions, then it doesn’t
matter.”); (“I know when you both started talking, you’re giving me two sides of the
13 OHIO FIRST DISTRICT COURT OF APPEALS
story. As long as everybody ultimately agrees that it does not matter what his medical-
license situation was, then it doesn’t matter to me.”).
{¶33} So, by the end of voir dire, it does not appear that the jury was
predisposed to determine the case based on any improper consideration of Durrani’s
character. However, credibility was certainly established as a key issue in the case.
{¶34} At the start of opening statement, plaintiff’s counsel identified the issues
as showing that Durrani deviated from the standard of care and lied to Ms. Rosebery
about her condition. Counsel pointed out Durrani’s license revocations and paired
this information with Durrani’s refusal to attend trial. However, the remainder of the
opening statement focused on the evidence and what it would show. There was no
other mention of the license revocations, depictions of Durrani being a liar (outside of
the suggestion that the surgeries were not medically indicated), or any other improper
character comments.
{¶35} The trial progressed with the testimony from plaintiff and expert
testimony from each side. The central issue in the case was whether Durrani
misrepresented the findings from the imaging for Ms. Rosebery that allegedly
warranted the surgeries performed. Notably, the presentation of the expert testimony
fell right in line with how the case was represented to the jury during voir dire.
Plaintiff’s experts supported the idea that Durrani intentionally misrepresented his
findings. On the other hand, defense experts supported the idea that Durrani’s
interpretation of the imaging was a reasonable interpretation. In other words, the
issue came down to whether Ms. Rosebery’s imaging could have been reasonably
interpreted in a manner consistent with Durrani’s findings or whether nothing in the
imaging supported such representations.
{¶36} The Durrani Collage was played around the middle point of this
14 OHIO FIRST DISTRICT COURT OF APPEALS
evidence. Further, Durrani and CAST point to two instances where the license
revocations were mentioned during trial, outside of what was mentioned in the
Durrani Collage. In the first instance, plaintiff’s counsel asked a defense expert on
cross-examination, “Again, in terms of background, you’re aware that Dr. Durrani’s
medical license was revoked by both Ohio and Kentucky, is that right?” In the second
instance, plaintiff’s counsel asked another defense expert on cross-examination, “You
also know that his medical license in Ohio and Kentucky was revoked; is that right?”
{¶37} Plaintiff’s counsel then presented a closing argument in which he
extensively referenced the topics from the Durrani Collage. Counsel began by pointing
out plaintiff’s burden in the case and discussing credibility. He then said,
[Defense expert] came in here and he contradicted everybody,
including the Defense’s own witnesses. And I would dare say that he
could have just gotten up here and said, You know what, Dr. Durrani is
awesome. He’s awesome. Because that’s pretty much all he said, he’s
awesome.
Well, if Dr. Durrani is so certain and so awesome, where is he?
We have an empty chair. But their experts will tell you, I don’t know
where he is, I don’t know what he’s doing, I didn’t talk to him, I don’t
need to talk to him.
Well, I think it would be nice if you had heard directly from Dr.
Durrani on this case.
So what did I have to do on this issue of credibility? So right now
I have this ‘X’ moves over here (indicating) and this one (indicating) is
out in some other galaxy, not even a different universe.
What I had to do is I had to put together a video of Dr. Durrani
15 OHIO FIRST DISTRICT COURT OF APPEALS
to bring him in here and give you some idea of who we’re talking about
and what [Ms. Rosebery] and [plaintiff] dealt with and who he is.
It’s their client (indicating), but I had to introduce you to Dr.
Durrani.
And what did we learn about Dr. Durrani? He’s a liar. The most
important aspect of his medical life as an orthopedic spine surgeon is
maintaining a medical license. In order to do that, you have to fill out
an application. It’s multiple pages. It is signed under oath and
everything you are representing to the Ohio and Kentucky Medical
Board is the truth, but he couldn’t do that.
You got to observe his manners, his body language. You got to
observe his evasive nature of how he dealt with every question. And
what you got to see is the fact that Dr. Durrani denied knowing that he
had been sued more than half a dozen times for medical malpractice
back when he did his licensure. I didn’t know anything about any
lawsuits pending.
And he didn’t know, that at the time he filled it out, that he had
a criminal case pending in Mason Municipal Court up the road. He
didn’t know that he had been sued by Dinsmore & Shohl for failing to
pay attorneys’ fees to them. He didn’t know any of the things.
And when you point it out to him that it wasn’t just whether there
was a finding against him, that these were things that had to be pending
at the time, he said, I don’t know, I don’t remember, somebody else
takes care of that stuff for me, but you know, he has to do it every two
years. So it’s not like I forgot something 10 years ago. Every two years
16 OHIO FIRST DISTRICT COURT OF APPEALS
he had a chance to fix that. He chose not to.
And why does somebody lie on his application? For the same
reason they lie on a resume. We told them all of the wonderful things
that his website said about him: Best spine surgeon in Pakistan. Where
did it come from, Dr. Durrani? I don’t know. I don’t know how that
stuff gets there.
You asked him about his resume. I don’t remember if I did that.
I didn’t put dates down. I was once a member, maybe I’m not anymore.
We had to bring that to you.
It’s just a lesson in judging credibility from my point of view. You
may see it differently, but the way that I see it is if that’s what he’s all
about, he is willing to lie on the most important thing in his professional
life, maintaining his medical license, the most important thing. Without
it, he loses his practice, he loses everything he worked for through his
education, and he loses his identity.
He couldn’t even spend the time to correct what was wrong if it
was a mistake, and I say it was a flatout [sic] lie because he was served
with every one of those lawsuits. He knew about them. He knew exactly
what was going on.
So on the credibility front, Durrani ends upon our side
(indicating) because I think he proves exactly what [plaintiff’s expert]
said. [Plaintiff’s expert] said there was a lot of lying going on in terms
of Dr. Durrani’s reputation for truthfulness and honesty in the
community back in 2010 to 2012. [Plaintiff’s expert] said there was a
lot of dishonesty.
17 OHIO FIRST DISTRICT COURT OF APPEALS
{¶38} Later in his closing, plaintiff’s counsel continued,
[Plaintiff’s expert] tells you exactly what that spine looked like.
You have all of the other reading radiologists, and you’ll see their names
on their reports. And you can look at those reports and you can decide
whether they are consistent and do they agree with what Dr. Durrani
was saying in that series of letters. You can just look at it, and you can
use your common sense to make that comparison.
You don’t need me and you don’t need an expert to say that if
someone says mild but Dr. Durrani says, severe, who’s lying, a treater
or someone that is going to do two major surgeries and make a bunch
of money?
{¶39} Counsel pointed out that plaintiff’s experts “all agree with the treaters.”
Counsel later said, “So as you look at this case, I think there’s a clear path to a verdict,
whether that verdict is for the empty chair or whether that verdict is on behalf of the
administration of [Ms. Rosebery]’s estate.” Counsel concluded the burden portion of
his argument by stating,
So I submit to you that when you look at all of this and you
consider the credibility of the witnesses, you consider the fact that I was
the one that had to bring Dr. Durrani in here through a videotape to
introduce him to you, that he has chosen—not chosen—has refused to
come to the trial and that events led to him losing his license.
He didn’t lose his license because of this case but events led to
him losing his license, that you can only come to one conclusion, that is
that we met our burden of a preponderance of the evidence and the
verdict should be for the Plaintiff.
18 OHIO FIRST DISTRICT COURT OF APPEALS
{¶40} Further, counsel concluded his rebuttal argument by stating,
And start thinking about that video that you watched of Dr.
Durrani and think about him telling a hundred percent, I’m a God – or
[plaintiff’s expert], I’m the king of surgery, and you decide whether
those are sideshows or that all feeds into the fact that this poor woman
was deceived, fraudulently induced and negligently treated which
directly and proximately caused injuries to her. I think the only verdict
that you can conclude is for the Plaintiff.
{¶41} Based on the foregoing, this is not a case in which improper evidence
was just limitedly referenced during trial. Compare, e.g., Potts v. Durrani, 2023-
Ohio-4195, ¶ 20, 42 (1st Dist.), and Bender v. Durrani, 2024-Ohio-1258, ¶ 120 (1st
Dist.) (holding that improper evidentiary rulings constituted harmless error where the
improper evidence was only limitedly referenced during trial and the record did not
indicate that the defendants were deprived of a fair trial or that the trier of fact may
have reached a different result had the errors not occurred).
{¶42} Rather, plaintiff’s counsel first used voir dire to set the tone for trial and
identify Durrani’s credibility as a key issue in the case. Then, plaintiff presented the
Durrani Collage midtrial, injecting various topics into the minds of the jury regarding
Durrani’s character that would influence the issue of Durrani’s credibility in the midst
of the jury choosing which side to believe. Finally, plaintiff’s counsel used closing
argument to tie all the pieces together and exemplify to the jury that plaintiff’s side is
correct as Durrani—as a person—is a liar.
{¶43} The jury then found in plaintiff’s favor on all claims based on
misrepresentations, attributing 50 percent of the damages specifically to the
fraudulent-misrepresentation claim and explicitly awarding punitive damages and
19 OHIO FIRST DISTRICT COURT OF APPEALS
attorney fees on the basis of misrepresentation.
{¶44} In such a situation, “[t]he jury’s assessment of Durrani’s credibility was
assuredly impacted by the admission of the evidence in the collage, and we cannot say
that the outcome of the trial would have been the same but for its admission.”
Neihaus, 2023-Ohio-4818, at ¶ 42 (1st Dist.), citing Mann, 2023-Ohio-2672, at ¶ 25
(1st Dist.).
{¶45} Further, the improper admission of the collage and the references to
Durrani’s license revocations shifted the jury’s attention away from the issue at hand
and towards improper character issues concerning Durrani. The jury verdict was not
unanimous, indicating that this was not a one-sided case. Rather, the case centered
on Durrani’s credibility and the opinions of the experts on each side as to whether
Durrani’s representations were fabricated or reasonable. In such a situation, this court
cannot say that the jury would have reached the same conclusion had the errors—
which go straight to the heart of Durrani’s credibility—not occurred.
{¶46} Based on the foregoing, we hold that the trial court abused its discretion
in denying Durrani and CAST’s motion for a new trial based on cumulative error
regarding the improper admission of the Durrani Collage and references to Durrani’s
license revocations. Accordingly, we sustain the first assignment of error in part as to
the trial court’s failure to grant a new trial.
E. Catastrophic Injury
{¶47} Durrani and CAST additionally argue that plaintiff did not establish that
Durrani caused Ms. Rosebery permanent injury justifying a higher cap on
noneconomic damages. However, because this court is sustaining the first assignment
of error in part and reversing for a new trial, this part of the first assignment of error
is moot and need not be addressed. See, e.g., Greene, 2023-Ohio-3069, at ¶ 30-31 (1st
20 OHIO FIRST DISTRICT COURT OF APPEALS
Dist.).
III. Second Assignment of Error
{¶48} In the second assignment of error, Durrani and CAST argue that
Durrani is entitled to a setoff—i.e., a reduction in the jury’s verdict—by the amount for
which plaintiff settled with West Chester Hospital and UC Health. However, because
this court is sustaining the first assignment of error in part and reversing for a new
trial, the second assignment of error is moot and need not be addressed. See, e.g.,
Greene at ¶ 30-31.
IV. Conclusion
{¶49} For the foregoing reasons, we sustain the first assignment of error in
part as to the trial court’s denial of the motion for a new trial, reverse the judgment of
the trial court, and remand the cause for a new trial.
{¶50} Beyond that, we decline to address the remaining arguments made
moot by our resolution of the first part of the first assignment of error.
Judgment reversed and cause remanded.
CROUSE and NESTOR, JJ., concur.