Jones v. Durrani ( 2024 )

[Cite as Jones v. Durrani, 2024-Ohio-1776.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JOAN JONES, : APPEAL NO. C-220426
TRIAL NO. A-1706486
Plaintiff-Appellee, :
vs. :
ABUBAKAR ATIQ DURRANI, M.D., :
and :
CENTER FOR ADVANCED SPINE :
TECHNOLOGIES,
Defendants-Appellants. :
__________________________________________________________
DANA CONLEY, : APPEAL NO. C-220427
TRIAL NO. A-1706427
Plaintiff-Appellee, :
vs. :
ABUBAKAR ATIQ DURRANI, M.D., : O P I N I O N.
and :
CENTER FOR ADVANCED SPINE :
TECHNOLOGIES,
Defendants-Appellants. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in Part and Reversed in Part
Date of Judgment Entry on Appeal: May 10, 2024
Benjamin M. Maraan II, Statman Harris, LLC, and Alan Statman, for Plaintiffs-
Appellees.
Taft Stettinius & Hollister LLP, Philip D. Williamson, Aaron M. Herzig, Russell S.
Sayre, Reminger Co., LPA, and Rick L. Weil, for Defendants-Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Defendants-appellants Abubakar Atiq Durrani, M.D., and the Center for
Advanced Spine Technologies (“CAST”) (collectively referred to as “defendants”)
appeal from the judgments of the trial court entering final judgment in each
underlying action in favor of plaintiffs-appellees Joan Jones and Dana Conley
(collectively referred to as “plaintiffs”). In two assignments of error, defendants argue
that the trial court should have granted them a new trial in each action and should not
have awarded the plaintiffs prejudgment interest. For the reasons that follow, we
reverse the judgments of the trial court in part as to the award of prejudgment interest
in each case but affirm the judgments of the trial court in all other respects.
I. Brief Procedural History
{¶2} Plaintiffs each filed a separate medical-malpractice action against the
defendants, arising from a spine surgery performed on them by Dr. Durrani.1 The
complaints each asserted claims against Dr. Durrani for negligence, battery, lack of
informed consent, and fraud, and against CAST for vicarious liability. In essence, the
complaints asserted that, while an employee and/or agent of CAST, 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.
{¶3} Each action was maintained as a separate action below, but the trial
court ultimately joined the actions for trial. A seven-day jury trial was held, and
1Each complaint also asserted claims against West Chester Hospital, LLC, and UC Health.
However, these defendants were subsequently dismissed from each action.
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OHIO FIRST DISTRICT COURT OF APPEALS
verdicts were ultimately entered in favor of each plaintiff on their negligence and
fraudulent-misrepresentation claims. The jury awarded Ms. Jones $280,133.28 in
compensatory damages and $1 in punitive damages, and Mr. Conley $420,331.82 in
compensatory damages and $1 in punitive damages. Further, after a postjudgment
request from each plaintiff, the trial court awarded Ms. Jones $44,790.62 in
prejudgment interest and Mr. Conley $67,207.02 in prejudgment interest.
II. The Joint Trial
A. Testimony of Joan Jones
{¶4} At trial, Ms. Jones testified that she experienced back pain on and off
since 1959 and went to see Dr. Durrani in 2012 after trying various treatments and
medications that never provided lasting relief. At the visit, Dr. Durrani told her he
could do surgery and it would “take the pain away.” Dr. Durrani asked her to obtain
her previous x-ray and MRI images and bring them to him. He put the MRI up on the
screen and said, “[R]ight there is your problem.” She testified, “The only thing he said
is, there’s your problem, and I can take away the pain.” She denied that Dr. Durrani
ever told her what surgery he was going to do. Ms. Jones ultimately underwent spinal
surgery in the L5-S1 area. She testified that her back condition was worse after the
surgery and is worse today than it was before surgery and her ability to enjoy life is
worse after the surgery. She said that she was never able to walk or do things after the
surgery like she could before and is still in constant pain and has never been able to
stop taking pain medications.
B. Testimony of Dana Conley
{¶5} Mr. Conley testified that he experienced back pain for over 30 years and
went to see Dr. Durrani in 2012 for back and neck pain after physical therapy and
chiropractic treatment were unsuccessful. After ordering an MRI, Dr. Durrani
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OHIO FIRST DISTRICT COURT OF APPEALS
reviewed the MRI with Mr. Conley and told him that “if we didn’t do something, he
pointed out the bad areas, that if I was in, like, an accident or any further injuries to
myself, that I could possibly become paralyzed.” Surgery was successfully performed
on his neck first. He had spine surgery two months later in the L5-S1 area. He testified
that he was miserable after the spine surgery, and when asked if it ever got better, he
said, “[N]ot really.” He denied that the surgery fixed his pain. He said he has more
symptoms (numbness and irritation) now than he did prior to surgery. He has been
doing pain management for over eight years since the surgery and had to stop the
neighborhood mowing business he had before the surgery. He can no longer take long
walks, be intimate with wife, “hang out” in the garage with his friends, or be happy
without medication.
C. Testimony of Lisa Conley
{¶6} Mr. Conley’s wife testified that Mr. Conley was able to drive, walk, stand,
go up and down stairs, do some household chores, and do yard work prior to surgery.
She testified that, at the first visit, Dr. Durrani said, “I can fix it,” in reference to Mr.
Conley’s lower back. Further, she said, at the visit after the MRI, Dr. Durrani said that
Mr. Conley would lose the ability to be mobile on his legs if he did not get surgery. She
testified, “[B]asically what he told us is he’s done the surgery several times, and he’s
been successful, and that he could fix [Mr. Conley.] And that’s what we were hearing.
He could fix him. He would be able to, you know, do things without having any kind
of pain.” When asked how Dr. Durrani explained the alternative to not have surgery,
she said, “That [Mr. Conley] would lose the ability to use his legs and be able to walk.”
She testified that she did not observe any improvement in Mr. Conley after the surgery.
Rather, “it got worse.”
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OHIO FIRST DISTRICT COURT OF APPEALS
D. Testimony of Plaintiffs’ Experts
{¶7} Dr. Steven Bloomfield, a neurosurgeon, testified as to his opinion that
Dr. Durrani breached the standard of care in each case by misrepresenting,
exaggerating, and/or fabricating certain history and imaging impressions in order to
justify surgery that was not medically necessary. He testified separately regarding
each plaintiff and his opinion as to the specific misrepresentations, exaggerations,
and/or fabrications that were made by Dr. Durrani to each plaintiff and testified that
no flexion/extension study was conducted by Dr. Durrani on either plaintiff.
{¶8} Dr. Keith Wilkey, an orthopedic surgeon, testified as to his comparison
of the original radiologist’s impressions of each plaintiff’s imaging versus Dr. Durrani’s
impressions and expressed his opinion as to why he agreed with the radiologist’s
impressions and felt that Dr. Durrani’s impressions were inaccurate or false.
Regarding Ms. Jones, he testified that Dr. Durrani breached the standard of care by
performing a surgery that “wasn’t addressing a problem that she actually had.” He
opined that Dr. Durrani lied about the existence of certain conditions to induce Ms.
Jones into having surgery. Regarding Mr. Conley, he testified as to his opinion that
Dr. Durrani breached the standard of care by performing a surgery that “was not
necessary. It was not indicated. And it resulted in significant harm.” When discussing
Dr. Durrani’s impressions of Mr. Conley, he said, “So this should look very similar.
Very similar to what our last patient had. And I’m going to tell you this is a template.
These [impressions] are exactly what our last patient had. Because this is what it takes
to get surgery approved.” He said that the surgery performed on each plaintiff was
“exactly the same.” He also testified that no flexion/extension study was conducted
by Dr. Durrani for either plaintiff. When asked if he believed in both cases that Dr.
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OHIO FIRST DISTRICT COURT OF APPEALS
Durrani knowingly deceived the plaintiffs into having surgery, he answered, “Beyond
any doubt.”
{¶9} Dr. Ranjiv Sanai, a radiologist, testified as to his opinion of each
plaintiff’s imaging in comparison to the original radiologist’s and Dr. Durrani’s
impressions, and opined that Dr. Durrani breached the standard of care by performing
surgery on Ms. Jones as, “the area that Dr. Durrani operated on, there is nothing
significantly wrong with the patient at those levels to warrant surgery, at least not the
type of surgery that was warranted [sic]. There were other things wrong at other levels,
but Dr. Durrani did not address those.” He testified that Dr. Durrani misread the
radiology and put Ms. Jones through unnecessary surgery. As to Mr. Conley, he was
asked at the conclusion of his direct testimony if his opinion regarding the breach of
the standard of care was the same for Mr. Conley as it was for Ms. Jones’s case, and he
agreed that it was and agreed that it was his opinion that the radiology was not
appropriately read, and unnecessary surgery was recommended. He also said,
regarding Mr. Conley, that no flexion/extension study was ever completed.
E. Testimony of Defense Experts
{¶10} Dr. Paul Kaloostian, a neurosurgeon, testified as to his impression of a
2007 MRI that was done on Ms. Jones, as well as the 2012 MRI. He opined that he
agreed with Dr. Durrani’s impressions of the 2012 MRI based on both MRIs and Ms.
Jones’s history. He testified that his opinion, based on both MRIs and Ms. Jones’s
history, was that Dr. Durrani’s treatment and surgery was “very appropriate and
within the standards of care of any spinal surgery.” However, he conceded on cross-
examination that he did not know if Dr. Durrani ever requested or obtained Ms.
Jones’s preexisting records and said that he “believed” plaintiff’s counsel was correct
that Dr. Durrani did not obtain her preexisting records. As to Mr. Conley, he similarly
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OHIO FIRST DISTRICT COURT OF APPEALS
testified as to his findings of Mr. Conley’s MRI and opined that he agreed with Dr.
Durrani’s findings based on the MRI and the patient’s history. Specifically, when
asked if it was his opinion that, based on Mr. Conley’s history and imaging, the surgery
was reasonable, appropriate, and within the standard of care, he said, “100 percent
yes.” Further, he was asked if the surgeries performed on each plaintiff “actually”
helped them, he said, “They clearly did.” On cross-examination, he conceded that Dr.
Durrani did not do flexion/extension studies.
{¶11} Dr. Mark Younis, a diagnostic radiologist, testified as to his impressions
from each plaintiff’s MRI and his opinion of Dr. Durrani’s impressions of each
plaintiff’s imaging. He opined that the impressions based on the imaging were correct
but seemed reluctant to opine on “clinical” impressions or answer any “clinical”
questions. When asked if he saw any evidence to support a claim that either plaintiff
sustained an injury to his or her spine as a result of the surgeries, he replied, “I saw
nothing radiographically to support that.” When asked if Dr. Durrani, in his review
and interpretation of the radiology images for both plaintiffs, met the standard of care
with regard to his impressions, he replied, “Yes. His interpretations met the standard
of care.” On cross-examination, he clarified that his opinion was “limited to the
imaging because that’s all I’ll do. Nothing else. Not surgery, not followup [sic], not
prognosis.”
III. The Verdicts
A. Joan Jones
{¶12} First, the jury found that Dr. Durrani was negligent in his care and
treatment of Ms. Jones and that such negligence was a proximate cause of harm to
her. In the interrogatory asking the jury to explain in what respects Dr. Durrani was
negligent, the jury responded, “No flexion extensions film/study performed. Dr.
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OHIO FIRST DISTRICT COURT OF APPEALS
Durrani did not explore non-surgical options within standard of care.” Next, the jury
did not find that Dr. Durrani failed to acquire informed consent from Ms. Jones for
the surgery or committed battery on Ms. Jones by performing the surgery. Finally, the
jury found that Dr. Durrani fraudulently misrepresented to Ms. Jones the necessity or
medical indication for surgery and that such fraudulent misrepresentation was a
proximate cause of harm to her. The jury awarded Ms. Jones $280,133.28 in
compensatory damages: $160,133.28 for past medical expenses, $80,000 for past
pain and suffering, $40,000 for past loss of enjoyment of life, and $0 for future loss of
enjoyment of life. Additionally, the jury found that Dr. Durrani acted with actual
malice or aggravated or egregious fraud, due to, “Fraudulent misrepresentation of
patient’s condition resulting in the conscious disregard for safety of the patient.” The
jury consequently awarded Ms. Jones $1 in punitive damages and awarded Ms. Jones
attorney fees.
A. Dana Conley
{¶13} First, the jury found that Dr. Durrani was negligent in his care and
treatment of Mr. Conley and that such negligence was a proximate cause of harm to
him. In the interrogatory asking the jury to explain in what respects Dr. Durrani was
negligent, the jury responded, “No flexion extensions film/study performed. Dr.
Durrani did not explore non-surgical options within standard of care.” Next, the jury
did not find that Dr. Durrani failed to acquire informed consent from Mr. Conley for
the surgery or committed battery on Mr. Conley by performing the surgery. Finally,
the jury found that Dr. Durrani fraudulently misrepresented to Mr. Conley the
necessity or medical indication for surgery and that such fraudulent misrepresentation
was a proximate cause of harm to him. The jury awarded Mr. Conley $420,331.82 in
compensatory damages: $125,331.82 for past medical expenses, $25,000 for past pain
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OHIO FIRST DISTRICT COURT OF APPEALS
and suffering, $200,000 for future pain and suffering, $20,000 for past loss of
enjoyment of life, and $50,000 for future loss of enjoyment of life. Additionally, the
jury found that Dr. Durrani acted with actual malice or aggravated or egregious fraud,
due to, “Fraudulent misrepresentation of patient’s condition resulting in the conscious
disregard for safety of the patient.” The jury consequently awarded Mr. Conley $1 in
punitive damages and awarded Mr. Conley attorney fees.
IV. Postjudgment Proceedings
{¶14} Defendants subsequently filed motions for judgment notwithstanding
the verdict and/or a new trial in each case. In substantially identical motions, they
argued that the cumulative effect of comments from counsel at trial regarding Dr.
Durrani’s absence and the negative-inference instruction given to the jury regarding
Dr. Durrani’s absence was prejudicial and warranted a new trial. In substantially
identical judgment entries, the trial court denied the motions, finding that it did not
err in allowing counsel to comment on Dr. Durrani’s absence or by giving a negative-
inference jury instruction.
{¶15} Plaintiffs each subsequently filed motions for prejudgment interest. In
substantially identical motions, they argued they are entitled to an award of
prejudgment interest under R.C. 1343.03(C) from the time of the original complaint
to present as defendants failed to make a good-faith effort to settle the case. The
motions asserted that Dr. Durrani’s maintained defense has been that the case was
“defensible” as evidenced by their retained experts, but the consistent jury verdicts
against them in other cases against Dr. Durrani (12 out of 14 in 2021) prove that juries
consistently believe the plaintiffs. The motions further asserted that the defense
acknowledged they had “little chance” of prevailing and that the verdict could exceed
$1 million, yet they never offered to settle. The motion claimed that the only
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OHIO FIRST DISTRICT COURT OF APPEALS
settlement the defendants were willing to consider was a “global settlement,” which
was “ridiculously low.” Lastly, the motions asserted that the court was “quite familiar”
with the growing number of verdicts that are exceeding “coverage limits covered by
the caps.”
{¶16} After holding a hearing on the motions, the trial court—in substantially
identical judgment entries—granted the motions for prejudgment interest “for the
reasons set forth by the plaintiff at the May 26th hearing.” The trial court ultimately
awarded Ms. Jones $44,790.62 in prejudgment interest and Mr. Conley $67,207.02 in
prejudgment interest.
{¶17} After resolution of all postjudgment issues, the trial court entered a final
judgment in each case on August 8, 2022. Defendants timely appealed from each final
judgment.2
V. Law and Analysis
{¶18} In their first assignment of error, defendants argue that the trial court
should have granted them a new trial in each case as (1) the trial court should not have
conducted a multiplaintiff trial and (2) should not have issued a negative-inference
jury instruction.
A. The Joint Trial
{¶19} “If actions before the court involve common questions of law or fact, the
court may * * * join for * * * trial any or all matters at issue in the actions.” Civ.R.
42(A)(1)(a).
2 This court consolidated the appeals after briefing as the briefing was identical in each case and
both appeals arise from issues related to the joint trial in which all parties were involved and/or
postjudgment issues that were raised in each case, which involved substantially identical briefing
and proceedings and substantially identical judgments.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} The decision to consolidate or join cases under Civ.R. 42(A) is within
the discretion of the trial court and the decision will not be reversed absent an abuse
of discretion. Siuda v. Howard, 1st Dist. Hamilton Nos. C-000656 and C-000687,
2002-Ohio-2292, ¶ 10.
{¶21} When making the decision whether to join the matters for trial, the
court “must determine if there is sufficient commonality of issues and parties to
warrant [joining] the cases.” Id., citing Jamestown Village Condominium Owners
Assn. v. Market Media Research, Inc., 96 Ohio App.3d 678, 687, 645 N.E.2d 1265 (8th
Dist.1994), and Waterman v. Kitrick, 60 Ohio App.3d 7, 14, 572 N.E.2d 250 (10th
Dist.1990).
{¶22} Defendants argue that joining the instant cases for trial was improper
under Civ.R. 42 as the cases do not involve common questions of law or fact. On the
other hand, plaintiffs argue that the joinder was proper as each case involved surgeries
on the lumbar spine at L5-S1, and involved the same claims, issues, and experts.
{¶23} A review of the record reveals that the underlying crux of each action
was certain “impressions” or representations that Dr. Durrani made regarding surgery
after reviewing each patient’s history and imaging. The representations and/or
impressions were set forth in respective letters drafted by Dr. Durrani after evaluating
each patient. For Ms. Jones, Dr. Durrani represented in her letter that the imaging
showed “severe disk degeneration at the L5-S1 level. There are multiple levels of old
compression fractures. There is spinal stenosis at the L3-L4 levels as well. Axial
images show L5-S1 left foraminal stenosis, moderate category.” Additionally, he set
forth eight specific impressions based on Ms. Jones’s history and imaging: (1) lumbar
spinal stenosis, L5-S1, L3-L4; (2) prior lumbar fractures at L1 and subacute at T12; (3)
back pain with radicular pain in the L5 distribution bilaterally; (4) symptoms of
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OHIO FIRST DISTRICT COURT OF APPEALS
neurogenic claudication; (5) very significant functional impairment; (6)
anterolisthesis of L5 on S1; (7) central stenosis, lateral recess stenosis at L3-L4 and
L5-S1; and (8) failure of conservative treatment for over 40 years. From these
findings, Dr. Durrani recommended an “L5-S1 TLIF” on the left side “with a posterior
spinal instrumentation and fusion.” He stated, “I told her that it will take care of some
of her pain. She has other issues in the back that may still linger on to have some pain
issues but where she is complaining of most of her pain is L5-S1.”
{¶24} For Mr. Conley, Dr. Durrani represented in his letter that the imaging
showed “grade 1 listhesis of L5 on S1, severe lumbar spinal stenosis, L5-S1 with large
disk herniation. This is causing severe stenosis bilaterally in both the nerve roots
which is causing the radiculopathy he has been suffering from.” Further, he set forth
eight specific impressions from Mr. Conley’s history and imaging: (1) lumbar spinal
stenosis, L5-S1, bilateral; (2) lumbar degenerative spondylolisthesis, L5-S1; (3) back
pain with severe radicular pain in the L5 distribution bilaterally; (4) very significant
functional impairment; (5) anterolisthesis of L5 on S1; (6) central stenosis; (7)
bilateral advanced lateral recess stenosis; and (8) failure of conservative treatment for
many, many months. From these findings, Dr. Durrani recommended a “lumbar
anterior interbody fusion at L5-S1 with posterior spinal instrumentation and fusion,
lumbar laminectomy and decompression, bilateral foraminotomy.”
{¶25} A review of these largely-overlapping impressions by the jury—in large
part—concerned the various forms of possible spinal stenosis and other similar
conditions that may be present in the L5-S1 area generally and whether those
conditions existed—and warranted surgery—for each plaintiff. The impressions of the
original radiologist who first reviewed each plaintiff’s imaging was also included as
evidence and used as a comparison to Dr. Durrani’s findings. Further, each expert
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OHIO FIRST DISTRICT COURT OF APPEALS
testified as to his or her own opinion on whether these conditions existed in each
plaintiff based on the imaging. Consequently, the jury’s understanding of the specific
conditions at issue in the L5-S1 area of the spine was pertinent and predominated in
both cases. Hence, a large amount of the expert testimony went to explaining the spine
and these conditions generally and what would need to be present in a patient’s
imaging to warrant such representations. Accordingly, we fail to see how we could
hold that there was no common question of fact between the two cases when the
technicality of understanding these conditions was a predominate issue in each case.
Additionally, each case presented the same claims against the same defendants based
on the same theory of malpractice and/or fraud surrounding these conditions. See
Suida, 1st Dist. Hamilton Nos. C-000656 and C-000687, 2002-Ohio-2292, at ¶ 12.
{¶26} Civ.R. 42(A) does not require that all questions of law and fact be
identical, see Clemente v. Gardner, 5th Dist. Licking No. 2002CA00120, 2004-Ohio-
2254, ¶ 18, and the trial court reminded the jury that each plaintiff’s case should be
considered on its own merit. We presume the jury followed that instruction. See, e.g.,
Pang v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313 (1990), paragraph four of the
syllabus (“A presumption always exists that the jury has followed the instructions
given to it by the trial court.”). Further, the jury’s verdicts—in which some claims by
each plaintiff prevailed and some did not—indicate that the jury was able to
successfully parse through the evidence and reach independent conclusions as to both
the common and unique questions of law and fact.
{¶27} Accordingly, we hold that the trial court did not abuse its discretion
under Civ.R. 42 when joining the instant cases for trial. Therefore, we overrule this
portion of the first assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
B. Absent-Defendant Jury Instruction
{¶28} Defendants next argue that the trial court erred in giving a negative-
inference jury instruction regarding Dr. Durrani’s absence and that such error was
prejudicial to the point that a new trial is warranted.
{¶29} “We review a trial court’s decision granting or denying a proposed jury
instruction for an abuse of discretion.” Hounchell v. Durrani, 1st Dist. Hamilton No.
C-220021, 2023-Ohio-2501, ¶ 65, citing State v. Houston, 1st Dist. Hamilton No. C-
190598, 2020-Ohio-5421, ¶ 34. However, “[t]he question of whether a jury instruction
is legally correct and factually warranted is subject to de novo review.” Cromer v.
Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d
921, ¶ 22.
{¶30} The trial court instructed the jury as follow:
The defendant, Dr. Durrani, did not attend 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 plaintiff’s ability to subpoena him to trial. When a party such as
Dr. Durrani has relevant evidence or testimony within his or her control,
and the party failed to produce that relevant evidence or testimony, that
failure gives rise to an inference that the evidence or testimony is
unfavorable to that party.
(Emphasis added.)
{¶31} This court has recently held that the trial court erred when instructing
a jury on Dr. Durrani’s absence from trial where the instruction given permitted the
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OHIO FIRST DISTRICT COURT OF APPEALS
jury to draw any inference it wished to from Dr. Durrani’s absence, even impermissible
or negative inferences such as consciousness of guilt or implicit biases. Hounchell at
¶ 65-70. Here, the instruction at issue is more limited. It permits only the inference
that the testimony or evidence in Dr. Durrani’s possession would be unfavorable to
him. Nevertheless, a question arises as to whether this inference is a permissible
inference.
{¶32} In giving this instruction, the trial court relied on the general rule that
“if it appears from the evidence that a litigant knows of the existence of a witness and
such witness is within the control of the litigant whose interest it would naturally be
to produce him, and without satisfactory explanation he fails to do so, the jury may
draw an inference that the testimony of the witness would not have been favorable to
him.” (Emphasis added.) Llewellyn v. Cincinnati St. Ry. Co., 66 Ohio App. 107, 32
N.E.2d 33 (1st Dist.1940).
{¶33} In Silveous v. Rensch, 20 Ohio St.2d 82, 253 N.E.2d 758 (1969), the
Ohio Supreme Court addressed whether a jury instruction stating this rule was proper.
The court said, “This category of special instruction has its origin in the theory that the
failure to produce evidence which a fearless claimant would naturally produce permits
the inference that the tenor of the evidence would be unfavorable to such claimant.”
(Emphasis added.) (Citation omitted.) Silveous at 84. The underlying litigation in the
action was a personal-injury action, and the question presented was whether such an
instruction was appropriate as to the failure of the treating physician to testify in the
action. Id. at 82, 84. The court said:
Neither the controverted instruction given in the case at bar, nor
any part of the court’s instructions, advised the jury regarding
guidelines to be observed in determining the application of the word
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OHIO FIRST DISTRICT COURT OF APPEALS
‘naturally’ as used in the instruction. Ordinarily, it could not be said
that such a claimant would ‘naturally’ call a witness whose testimony
would be merely cumulative or inferior to that offered by other
witnesses. If there is adequate relevant evidence on a particular issue,
any additional evidence on that issue complained of as being absent is
only cumulative, and its character as plaintiff’s ‘natural’ evidence is
palled. To allow an unfavorable inference to be drawn from the
nonproductivity of such evidence would serve to emasculate the
historical basis for allowing the instruction.
Counsel, in argument and in their briefs, have focused on [the
treating physician] as the object of the instruction because he was not
produced at trial. In view of the introduction of evidence from the
summary sheet of the hospital records that [the treating physician]
diagnosed plaintiff’s condition as a sprain of the neck and lacerations, it
is unfair to allow the jury, by instruction, an opportunity to infer that
plaintiff would naturally call the doctor, and to also infer that his
testimony would have been unfavorable to his patient. There is nothing
in the record from which the court or jury could have found that [the
treating physician]’s testimony would not be inferior, cumulative, or
evidence which plaintiff would naturally produce.
(Emphasis sic.) Id. at 84.
{¶34} Here, the wording of the given instruction indicates that Dr. Durrani’s
failure to produce relevant evidence or testimony “gives rise” to an inference that the
relevant evidence is adverse. In other words, the instruction necessarily requires the
inference to be made in such a circumstance, rather than simply permitting the
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OHIO FIRST DISTRICT COURT OF APPEALS
inference to be made if the jury so chooses. Additionally, the instruction allowed the
inference to be made based on the failure to be produce any relevant evidence in his
possession and did not limit the instruction to only that evidence which Dr. Durrani
would “naturally” produce, i.e., evidence that was not cumulative or inferior to other
evidence already produced. Because the instruction was not permissive nor limited to
evidence that would naturally be produced, we hold that the trial court erred in giving
this instruction to the jury.
{¶35} Nevertheless, an “affirmatively erroneous portion of a jury charge does
not inevitably constitute reversible error.” Hounchell, 1st Dist. Hamilton No. C-
220021, 2023-Ohio-2501, at ¶ 72, quoting Cromer, 142 Ohio St.3d 257, 2015-Ohio-
229, 29 N.E.3d 921, at ¶ 35. “Rather, ‘[i]f there is no inherent prejudice in the inclusion
of a particular jury instruction, prejudice must be affirmatively shown on the face of
the record, and it cannot be presumed.’ ” Id., citing Cromer at ¶ 35.
{¶36} “ ‘In examining errors in a jury instruction, a reviewing court must
consider the jury charge as a whole and “must determine whether the jury charge
probably misled the jury in a matter materially affecting the complaining party’s
substantial rights.” ’ ” Cromer at ¶ 35, quoting Kokitka v. Ford Motor Co., 73 Ohio
St.3d 89, 93, 652 N.E.2d 671 (1995). “If the complete set of instructions by the trial
court otherwise fairly and correctly lays out the relevant law, and if it is apparent in
the context of the complete instructions that an isolated error did not prejudice a
party’s substantial rights, reversal on the error is not warranted.” Id., citing Centrello
v. Basky, 164 Ohio St. 41, 128 N.E.2d 80 (1955), paragraph eight of the syllabus. “The
general rule is that an erroneous instruction does not necessarily mislead a jury.” Id.
at ¶ 36, citing Cleveland Elec. Illum. Co. v. Astorhurst Land Co., 18 Ohio St.3d 268,
274-275, 480 N.E.2d 794 (1985). “The same rule applies in a medical-malpractice
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case.” Id., citing Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d
238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 33.
{¶37} Here, a review of the jury instructions as whole does not indicate that
the jury was probably misled by the erroneous instruction. Of relevance, the trial court
instructed the jury as follows on evidence and inferences:
Evidence is all of the testimony received from the witnesses and
the exhibits admitted during the trial and facts agreed upon by counsel
and any fact which the Court requires you to accept as true. Evidence
may be direct or circumstantial or both. Direct evidence is the
testimony given by a witness who has seen or heard the facts to which
he or she testifies. It includes exhibits admitted into evidence during
the trial. Circumstantial evidence is the proof of facts or circumstances
by direct evidence from which you may reasonably infer other related
connected facts which naturally and logically follow according to the
common experiences of humankind.
To infer or to 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.
Whether an inference is made rests entirely on you. You may not build
one inference upon another inference, but you may make more than one
inference from the same facts or circumstances. You may consider both
direct and circumstantial evidence. You must decide from all the direct
and circumstantial evidence taken together whether a party who has the
burden of proof has met that burden.
(Emphasis added.)
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{¶38} Thus, although the absent-defendant instruction erroneously said that
Dr. Durrani’s absence “gives rise” to the inference in the instruction, the jury
instructions as a whole make clear that an inference is permissive and not required to
be made. The instructions also clearly set forth what evidence should be considered
by the jury in rendering its decision.
{¶39} Additionally, a thorough review of the entire proceedings reveals that
the jury was not misled. The jury found in favor of the defendants on two of each
plaintiff’s claims. Further, the jury interrogatories show that the jury relied on actual
evidence that was presented at trial when making its findings in favor of the plaintiffs.
{¶40} Consequently, we see no indication on the face of the record that the
erroneous instruction was so prejudicial as to require reversal. See Hayward, 139
Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, at ¶ 25 (“To conclude that a party’s
substantial rights were materially affected, an appellate court must find that the jury
charge was so misleading and prejudicial as to result in an erroneous verdict.”).
Therefore, this portion of the first assignment of error is overruled.
C. Prejudgment Interest
{¶41} In their second assignment of error, defendants argue that the trial
court should have entered judgment in their favor on the issue of prejudgment
interest. In essence, they argue that there was insufficient evidence to support the trial
court’s factual findings under R.C. 1343.03(C).
{¶42} R.C. 1343.03(C) allows certain prejudgment interest if, upon motion,
“the court determines at a hearing held subsequent to the verdict or decision in the
action that the party required to pay the money failed to make a good faith effort to
settle the case and that the party to whom the money is to be paid did not fail to make
a good faith effort to settle the case.” “A party has not ‘failed to make a good faith effort
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to settle’ under R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings,
(2) rationally evaluated his risks and potential liability, (3) not attempted to
unnecessarily delay any of the proceedings, and (4) made a good faith monetary
settlement offer or responded in good faith to an offer from the other party.” Kalain
v. Smith, 25 Ohio St.3d 157, 159, 495 N.E.2d 572 (1986). “If a party has a good faith,
objectively reasonable belief that he has no liability, he need not make a monetary
settlement offer.” Id. “The decision as to whether a party’s settlement efforts indicate
good faith is generally within the sound discretion of the trial court.” (Citation
omitted.) Id. The decision will not be overturned unless the trial court’s actions
indicate an abuse of discretion. Id.{¶43} The record reflects that, while the trial court did hold a hearing on this
issue, no “evidence” was taken at the hearing nor was any evidence submitted with the
motions for prejudgment interest. Unsworn allegations cannot constitute “evidence”
for purposes of R.C. 1343.03(C). Cunning v. Windsor House, Inc., 2023-Ohio-352,
208 N.E.3d 246, ¶ 125 (11th Dist.). Consequently, there is no “evidence” in the record
to establish any facts regarding settlement efforts by the parties. See id. at ¶ 119-130.
Therefore, we hold that the trial court abused its discretion in awarding prejudgment
interest as there is no evidence in the record to support its factual findings under R.C.
1343.03(C). The second assignment of error is accordingly sustained.
VI. Conclusion
{¶44} For all the foregoing reasons, we overrule the first assignment of error
and sustain the second assignment of error. The judgments of the trial court are
reversed in part as to the awards of prejudgment interest but affirmed in all other
respects.
Judgments affirmed in part and reversed in part.
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CROUSE and KINSLEY, JJ., concur.
Please note:
The court has recorded its own entry this date.
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