Potts v. Durrani , 2023 Ohio 4195 ( 2023 )

[Cite as Potts v. Durrani, 2023-Ohio-4195.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CHERYL MARIE POTTS, Individually : APPEAL NOS.C-220024
and as Executrix of the Estate of Jeffrey C-220034
Potts, : TRIAL NO. A-1206877
Plaintiff-Appellee/Cross- :
Appellant, O P I N I O N.
:
vs.
:
ABUBAKAR ATIQ DURRANI, M.D., :
and :
THE CENTER FOR ADVANCED :
SPINE TECHNOLOGIES, INC.,
:
Defendants-Appellants/Cross-
Appellees. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
in C-220024; Appeal Dismissed in C-220034
Date of Judgment Entry on Appeal: November 22, 2023
Robert A. Winter Jr., James F. Maus and Benjamin M. Maraan, II, for Plaintiff-
Appellee/Cross-Appellant,
Taft Stettinius & Hollister LLP, Aaron M. Herzig, Russell S. Sayre, Philip D.
Williamson, Anna M. Greve, David C. Roper, Lindhorst & Dreidame Co., L.P.A.,
Michael F. Lyon, James F. Brockman and Paul J. Vollman, for
Defendants-Appellants/Cross-Appellees.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Presiding Judge.
{¶1} Defendants-appellants Abubakar Atiq Durrani, M.D., and the Center for
Advanced Spine Technologies, Inc., (“CAST”) (collectively, “appellants”) appeal the
trial court’s judgment entered in favor of plaintiff-appellee Cheryl Marie Potts
individually and as Executrix of the Estate of Jeffrey Potts (“appellee”) following a jury
trial.1
{¶2} In two assignments of error, appellants contend that the trial court
should have granted their motion for a new trial due to a host of evidentiary issues,
and that the damages award is erroneous. For the reasons that follow, we hold that the
evidentiary issues identified by appellants were harmless, but we agree that the trial
court erred in its award of prejudgment interest and court costs. Accordingly, we
affirm the trial court’s judgment in part, reverse it in part, and remand the cause for
the trial court to recalculate the damages award.
I. Factual and Procedural Background
{¶3} Jeffrey Potts was a patient of Dr. Durrani. Throughout his adult life, Mr.
Potts dealt with back and leg pain stemming from a football injury in the 1980s. Prior
to seeing Dr. Durrani, he had a laminectomy in 1982 and 1991, and a posterior spinal
fusion in 1994. After his 1994 surgery, Mr. Potts managed his pain through non-
surgical means, including physical therapy, injections, and prescribed pain
medication. In 2010, Mr. Potts went to CAST to see Dr. Zeeshan Tayeb, a pain-
management specialist. Dr. Tayeb recommended additional nonsurgical interventions
and sent Mr. Potts to get an MRI. Soon after his visit with Dr. Tayeb, Mr. Potts received
1 Pursuant to Civ.R. 25, Cheryl Potts was substituted for plaintiff Jeffrey Potts on January 15, 2021,
due to Mr. Potts’s death in December 2020. Mrs. Potts was also a named plaintiff in the complaint.
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OHIO FIRST DISTRICT COURT OF APPEALS
a phone call from Dr. Durrani. Mr. Potts testified that Dr. Durrani told him on that
phone call that “we had to go in and see him right away.” Mr. and Mrs. Potts met with
Dr. Durrani to review the findings of his MRI. Mr. Potts alleged that during that
appointment, Dr. Durrani misread the MRI and exaggerated the findings to justify an
additional surgery on his lumbar spine. Mr. Potts testified that Dr. Durrani assured
both him and his wife that surgery would “absolutely take care of [his] pain a hundred
percent.”
{¶4} On October 15, 2010, Dr. Durrani performed a laminectomy,
foraminotomy, and a direct lateral interbody fusion (“DLIF”) on Mr. Potts. Dr. Durrani
also performed a dural repair to address a dural tear that occurred during the surgery.
After the surgery, Mr. Potts claimed that his pain was significantly worse. He remained
in the hospital until October 18. The day after his discharge, he returned to the
emergency room for a spiked fever, intense pain, and complications with his abdomen,
including fecal material seeping through his incision site. He was diagnosed with
sepsis and underwent surgery to repair his colon. Doctors removed a portion of his
colon. The operative report explained that Mr. Potts had a “[t]hrough-and-through
ascending colon injury from trocar placement.” Dr. Stephen Bloomfield explained in
his testimony that trocars are instruments used during spine surgery for radiologic
imaging purposes and that he was “convinced” that the injury occurred during Dr.
Durrani’s surgery. After surgery, Mr. Potts’s left lung collapsed and he developed a
bone infection. He remained in the hospital for these complications until November
12, 2010. Mr. Potts subsequently developed breast cancer, though his legal claims do
not allege that the surgery led to his cancer diagnosis.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} On August 29, 2012, Mr. and Mrs. Potts filed suit against Dr. Durrani
and CAST asserting various claims, including medical negligence, failure to obtain
informed consent, battery, fraud, and loss of consortium.2 The case proceeded to a jury
trial in July 2019.
{¶6} On August 1, 2019, the jury returned verdicts in favor of Mr. and Mrs.
Potts, concluding that Dr. Durrani was negligent in the care and treatment of Mr.
Potts, failed to obtain informed consent, committed battery by performing the surgery,
and fraudulently misrepresented the need for surgery. The jury also found that Mr.
Potts suffered a catastrophic injury under R.C. 2323.43(A)(3). In addition, the jury
awarded attorney fees to Mr. and Mrs. Potts. The jury’s damage award included over
$9 million in compensatory damages, $26 million in punitive damages, and $4 million
for Mrs. Potts’s loss-of-consortium claim.
{¶7} On October 11, 2019, appellants filed a motion for judgment
notwithstanding the verdict, and/or in the alternative a new trial, and/or in the
alternative for a remittitur (“JNOV/new-trial motion”). On June 26, 2020, the court
denied the motion.
{¶8} On October 21, 2020, the court entered judgment for Mr. and Mrs.
Potts. On November 16, 2020, appellants filed a notice that purported to refile their
previously-filed JNOV/new-trial motion.
{¶9} On December 14, 2021, after additional post-trial motion practice, the
court entered final judgment, and in a companion entry, summarized its decision on
the various issues raised by appellants. The court reduced the total compensatory
2 The complaint was originally filed in Butler County, but was later dismissed.
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OHIO FIRST DISTRICT COURT OF APPEALS
damages award from $9,146,091.53 to $1,299,588.92. This reduction included a
reduction in noneconomic damages from $8 million to $500,000 to conform with the
statutory cap. The court reduced damages for past medical expenses from $746,091.53
to $404,378.65. The court also granted a setoff of $2,049.73 for appellants against the
judgment rendered against them. The court reduced the punitive damages award to
$350,000, and awarded $71,259.50 in attorney fees and $420,632.72 in prejudgment
interest. The damages award for Mrs. Potts’s loss-of-consortium claim was reduced to
$250,000. Finally, the court ordered appellants to pay $3,638.50 in court costs.
{¶10} On January 12, 2022, appellants timely appealed. Appellee
subsequently filed a cross-appeal but did not raise any cross-assignments of error in
her brief. Accordingly, the appeal numbered C-220034 is dismissed. See State v.
Harris, 2017-Ohio-5594, 92 N.E.3d 1283, ¶ 43 (1st Dist.) (“[T]o receive consideration
on appeal, trial court errors must be raised by assignment of error and must be argued
and supported by legal authority and citation to the record.”).
II. First Assignment of Error: The Trial
{¶11} In their first assignment of error, appellants argue that the trial court
should have granted their motion for a new trial. Pursuant to Civ.R. 59(A), a new trial
may be granted “for, among other things, an 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.’ ” Adams v. Durrani, 2022-Ohio-60, 183 N.E.3d 560, ¶ 20 (1st
Dist.). When this court reviews a trial court’s denial of a motion for a new trial, it
“ ‘construe[s] the evidence in a light favorable to the trial court’s action rather than to
the original jury’s verdict.’ ” Id., quoting Kreller Group, Inc. v. WFS Fin., Inc., 155 Ohio
App.3d 14, 2003-Ohio-5393, 798 N.E.2d 1179, ¶ 30 (1st Dist.). We review for an abuse
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OHIO FIRST DISTRICT COURT OF APPEALS
of discretion and will only reverse where the ruling was unreasonable, arbitrary, or
unconscionable. Id.{¶12} Appellants insist that certain testimony and comments from opposing
counsel were erroneously admitted, that expert testimony was improper, and that the
cumulative effect of these errors requires a new trial.
A. License Revocation and Comments at Trial
{¶13} Appellants first contend that the trial court violated Evid.R. 403(A) and
404(B) by allowing certain comments from the Pottses’ counsel, primarily during voir
dire, opening statement, and closing argument.
{¶14} Evid.R. 403(A) prohibits the admission of evidence if its “probative
value is substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.” The trial court has “broad discretion” in deciding
whether to admit evidence under Evid.R. 403(A). Setters v. Durrani, 2020-Ohio-
6859, 164 N.E.3d 1159, ¶ 14 (1st Dist.) (hereinafter “Setters I”), quoting Cincinnati v.
Triton Servs., 2019-Ohio-3108, 140 N.E.3d 1249, ¶ 45 (1st Dist.).
{¶15} Evid.R. 404(B) provides that “[e]vidence of any other crime, wrong or
act is not admissible to prove the person’s character in order to show that on a
particular occasion the person acted in accordance with the character,” but that such
evidence may “be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack
of accident.”
{¶16} Opening statements and closing arguments are not evidence. See
Capeheart v. O’Brien, 1st Dist. Hamilton No. C-040223, 2005-Ohio-3033, ¶ 6; Burns
v. Adams, 4th Dist. Scioto No. 12CA3508, 2014-Ohio-1917, ¶ 65. Thus, counsel is
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OHIO FIRST DISTRICT COURT OF APPEALS
generally afforded “wide latitude” in opening statement and closing argument, though
this is not without its limits. Viox v. Weinberg, 169 Ohio App.3d 79, 2006-Ohio-5075,
861 N.E.2d 909, ¶ 35 (1st Dist.), citing Pesek v. Univ. Neurologists Assn., 87 Ohio St.3d
495, 501, 721 N.E.2d 1011 (2000); Capeheart at ¶ 7.
{¶17} A trial court’s 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.” Setters I, 2020-Ohio-6859, 164 N.E.3d 1159, at ¶ 22, quoting
Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323,
¶ 35. To make that determination, we “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. Pursuant to Civ.R. 61, should we determine that the same
outcome would have been reached had the error not occurred, we deem the error
harmless.
{¶18} First, appellants contend that it was unfairly prejudicial for opposing
counsel to reference the permanent revocation of Dr. Durrani’s medical license during
the trial. In Setters I, this court held that, “[i]n a medical-malpractice case, evidence
that a defendant-doctor’s medical license was revoked is by its very nature prejudicial.
It predisposes the jury to find that the doctor acted outside acceptable bounds of
competence.” Setters I at ¶ 20. However, this does not necessarily equate to unfair
prejudice. Id. We must examine the context to determine how the evidence was used,
and whether it was presented to encourage the fact-finder to draw an improper
inference. For instance, in Setters I, evidence of Dr. Durrani’s license being revoked
was mentioned on only three occasions: once during opening and closing, and in two
identical questions on cross-examination. Id. at ¶ 24. We held the error harmless
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OHIO FIRST DISTRICT COURT OF APPEALS
“[g]iven the significance of the other evidence, the limited nature of the disclosure, and
the otherwise lengthy impeachment of Durrani’s credibility.” Id. at ¶ 26.
{¶19} We recently explained in Stephenson v. Durrani, 1st Dist. Hamilton
Nos. C-220020 and C-220036, 2023-Ohio-2500, ¶ 44-46, that based on Setters I, the
trial court abused its discretion in admitting evidence of license revocation included
in a so-called “collage” of Dr. Durrani’s video depositions. We reasoned that, unlike
Setters I, the evidence of license revocation was much more significant in the
Stephenson trial, and that it was “designed to lead the jury to draw negative
conclusions about [Durrani’s] abilities as a surgeon.” Id. at ¶ 46.
{¶20} However, the collage at issue in Stephenson is not at issue in this case.3
Rather, appellants take issue with references to the revocation of Dr. Durrani’s license
during voir dire (“You’re also going to learn in 2013/2014 he lost his Ohio license to
practice medicine and his Kentucky license.”) and during opening statement (“and
then his Ohio and Kentucky license [sic] were permanently revoked”). Appellants have
not drawn our attention to any other instances where the license revocations were
mentioned during the trial. Thus, this case is more like Setters I than it is Stephenson:
the reference was made only twice during a week-long trial, in which substantial
competent evidence was presented to support the jury’s verdict, including other
evidence that shed light on Dr. Durrani’s credibility. Accordingly, we hold that any
error in the admission of these statements was harmless.
3 There is no indication in the record that the collage was played during the trial, even though after
this case was submitted, the parties stipulated to a version of the collage that they claim was played
during the trial. Notably, appellants have not assigned error to the admission of the collage, nor did
they draw our attention to any erroneous material within the collage. In fact, appellants represented
at oral argument and in their reply brief that the collage was not introduced during the trial. For
these reasons, our analysis is based not on the collage, but on those portions of the record to which
appellants have drawn our attention in their brief. See App.R. 16(A)(7).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} Next, appellants insist that the trial court erred by allowing the jury to
hear “evidence that the Pottses’ counsel deposed Dr. Durrani about a dismissed assault
charge brought by his ex-wife.” Appellants argue that this prejudice was compounded
when counsel referenced other malpractice suits against Dr. Durrani. In support of
their argument, appellants reference portions of the record that do not seem to exist.4
A diligent search of the record does not reveal the complained-of errors. Pursuant to
App.R. 16(A)(7), we disregard this portion of appellants’ argument.
{¶22} Appellants also take issue with several comments made by opposing
counsel during closing argument. They argue counsel for Mr. Potts improperly alluded
to other malpractice suits filed against Dr. Durrani by commenting that he “likes to do
surgery to fix people. And he gave them hope that caused them, based upon this
severity, to jump right in and rely upon it.” Appellants do not explain, and we fail to
see, how this comment alluded to other malpractice suits. Moreover, appellants do not
explain how this comment violated the rules of evidence.
{¶23} Appellants assign error to other portions of the closing argument as
well, including opposing counsel’s reference to Dr. Durrani’s diagnoses as “outright
lies,” criticisms of the defense strategy, a suggestion that Dr. Durrani could not find
local expert witnesses to testify in his defense, and a comment about Dr. Durrani’s
absence from trial. Appellants did not raise objections when these comments were
made, so any potential error is waived. See Hounchell v. Durrani, 1st Dist. Hamilton
No. C-220021, 2023-Ohio-2501, ¶ 63, citing Adams, 2020-Ohio-60, 183 N.E.3d 560,
at ¶ 39.
4 Mrs. Potts highlighted this error in her appellate brief, and yet appellants failed to address it in
their reply brief.
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OHIO FIRST DISTRICT COURT OF APPEALS
B. Dr. Wilkey’s Testimony
{¶24} We next turn to appellants’ contention that testimony from one of the
Pottses’ expert witnesses, Dr. Keith Wilkey, unfairly prejudiced the jury by referencing
Mr. Potts’s post-surgery cancer diagnosis, in violation of the court’s pretrial order.
{¶25} The trial transcript reveals that Dr. Wilkey’s video deposition was
played for the jury. However, the court reporter did not transcribe what was played.
At some point, the court stopped the video deposition and stated to the parties, “I’m
sure that wasn’t supposed to be there. I don’t know what else to do but to take a break
and figure this out.” The court then dismissed the jury.
{¶26} After an off-the-record discussion, the court stated on the record:
[W]e had a portion of the video that should have been edited out where
Dr. Wilkey was referencing the Affidavit of Merit that he prepared in
this case. It was just a piece of it, and the Affidavit was – appeared on
the screen.
I don’t know that it was legible and large enough for the jury to read.
However, we stopped the video, gave the audiovisual person an
opportunity to make some repairs and then we came back into the
courtroom.
Before the video was restarted, I gave the jury an instruction that they
should disregard the last few seconds of the video before I stopped it,
and then we proceeded to play the video again.
Now, we’ve recently reached a point where there was another problem
with the video with edits not being removed or at least appearing on the
screen, and we stopped the video again.
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OHIO FIRST DISTRICT COURT OF APPEALS
I’ve asked the audio/visual person to try to repair the entire transcript
– or the entire video so that we don’t have this problem again for the
remainder.
{¶27} After discussion outside of the jury’s presence, appellants moved for a
mistrial and argued they were unfairly prejudiced. The court denied the motion for a
mistrial and instructed the jury as follows:
Prior to this trial, the parties stipulated that there would be no claims
related to the plaintiff’s cancer, and it is not part of this case. In the video
that was played before lunch, Dr. Wilkey made a statement regarding
cancer that was supposed to be edited out. The statement is not relevant
to this case, and you shall not consider it for any purpose.
{¶28} As stated above, the court reporter did not transcribe Dr. Wilkey’s video
deposition that was played for the jury. Instead, a transcript of Dr. Wilkey’s deposition
is in the record, which includes several references to Mr. Potts’s cancer diagnosis.
However, the on-the-record discussion and the provided jury instruction only
reference one statement about cancer that was played for the jury. Furthermore, the
only statement appellants specifically quote in their brief is the following: “And then
finally this patient had a medicine called Infuse used. And that caused other problems,
such as his subsequent breast cancer.”
{¶29} The record suggests that after the judge stopped the video and
admonished the jury, an edited version of Dr. Wilkey’s video deposition, without any
other cancer references, was played for the jury. Thus, we presume that the jury heard
just one of Dr. Wilkey’s cancer comments and the transcript in the record is the
unedited version that contains multiple references to cancer.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶30} Appellants argue that the curative instruction notwithstanding, the jury
erroneously relied on Dr. Wilkey’s cancer comment in returning its verdict and in
awarding punitive damages.
{¶31} While we agree that the portion of the deposition discussing cancer
should not have been played, the trial court appropriately handled the issue. The video
was immediately stopped, and the jury was instructed accordingly. Courts consistently
presume curative instructions to be effective. See Hippely v. Lincoln Elec. Holdings,
Inc., 8th Dist. Cuyahoga No. 96439, 2011-Ohio-5274, ¶ 18; State v. Zuern, 32 Ohio
St.3d 56, 61, 512 N.E.2d 585 (1987) (“To assert that the jury was hopelessly prejudiced
by” a witness’s inadmissible comment “undermines the presumption of the
effectiveness of the trial court’s curative instructions, [and] calls into question the
effectiveness of the jurors’ oaths.”). Moreover, Mr. and Mrs. Potts never attempted to
link the cancer diagnosis to the surgery or to any of the claims, and the jury did not
mention cancer in any of the jury interrogatories. Appellants have not demonstrated
that, but for this comment, the jury would not have reached the same result. For these
reasons, we hold that any error in the admission of the cancer testimony was harmless.
{¶32} Appellants also take issue with Dr. Wilkey’s alleged speculation on Dr.
Durrani’s character, including allegations that Dr. Durrani was a liar and a fraud. We
confronted nearly this exact issue in Adams, 2022-Ohio-60, 183 N.E.3d 560, at ¶ 36.
In Adams, this court stated, “[i]t is clear from Wilkey’s testimony that he disliked
Durrani on a personal level, and nothing in this opinion should condone the ad
hominem attacks in his testimony.” Id. at ¶ 38. Nevertheless, we held that there was
no abuse of discretion in admitting the testimony because it related to the patient-
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OHIO FIRST DISTRICT COURT OF APPEALS
plaintiff’s “claim that Durrani fraudulently misrepresented the nature of her condition
and the necessity of surgery.” Id.
{¶33} The same is true here. We recognize that Dr. Wilkey’s comments could
be read to suggest a personal disdain for Dr. Durrani, but appellants have not
demonstrated that they rise to the level of reversible error. In fact, the majority of Dr.
Wilkey’s comments that used the word “lie,” related to the claim that Dr. Durrani
fraudulently misrepresented Mr. Potts’s need for surgery. (“I believe this person has
been lied to, and the reason that Dr. Durrani lied was so that he could operate on this
patient.”) Therefore, we hold the court did not abuse its discretion in admitting the
complained-of portions of Dr. Wilkey’s testimony. To the extent that any comments
were unrelated to Mr. Potts’s claim for fraudulent misrepresentation, we hold any
error in their admission was harmless.
C. Dr. Saini’s Testimony
{¶34} We next consider appellants’ argument that one of the Pottses’ experts,
Dr. Ranjiv Saini, went beyond the scope of his expertise as a radiologist, by opining on
the need for surgery and the surgery’s associated complications. Appellee counters by
pointing to this court’s decision in Adams for the proposition that an expert witness
does not need to practice in the exact specialty of the defendant-physician to qualify
as an expert.
{¶35} “It is a general rule that the expert witness is not required to be the best
witness on the subject.” Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 159,
383 N.E.2d 564 (1978). In Adams, this court held that the trial court did not err in
admitting Dr. Saini’s expert testimony about the necessity of the surgery and Dr.
Durrani’s informed consent. Adams, 2020-Ohio-60, 183 N.E.3d 560, at ¶ 57, 60. The
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OHIO FIRST DISTRICT COURT OF APPEALS
court reasoned that “[w]here ‘fields of medicine overlap and more than one type of
specialist may perform the treatment, a witness may qualify as an expert even though
he does not practice the same specialty as the defendant.’ ” Id. at ¶ 51, quoting
Alexander at 158. For radiologists like Dr. Saini, and orthopedic surgeons like Dr.
Durrani, this overlap includes at least the standard of care in reviewing diagnostic
images and deciding whether that image indicates a need for surgery. Id. at ¶ 55, 57.
And where certain issues, like informed consent, cut across all specialty areas, any
trained medical doctor regardless of specialty, could be qualified to testify. Id. at ¶ 60.
{¶37} Appellants distinguish Dr. Saini’s testimony in this case from the
testimony in Adams by arguing that Dr. Saini’s “testimony went far beyond the
implications of Mr. Potts’s MRI and included his opinions on Dr. Durrani’s clinical
evaluation of Mr. Potts and the quality of the surgery[.]”5
{¶38} Dr. Saini testified that Dr. Durrani’s reading of the MRI was exaggerated
and, in certain instances, incorrect. Dr. Saini also testified about the shortcomings of
the consent form and that the surgery’s complications were not adequately
communicated. This testimony fits squarely within the framework we provided in
Adams. We hold there was no error in admitting this portion of his testimony.
{¶39} However, Dr. Saini also testified that a dural tear occurred during Mr.
Potts’s surgery because Dr. Durrani was being “too aggressive.” He suggested that Dr.
Durrani’s technique caused the bowel perforation, testifying that Dr. Durrani used a
“nonstandard technique” by placing Mr. Potts with his right side up during surgery,
which is “exactly where they’re saying the that the trocar hit.” We agree that this
5 Appellants also argue that Dr. Saini was testifying based on incomplete information. However,
this issue has been waived because they did not object on this basis at trial.
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OHIO FIRST DISTRICT COURT OF APPEALS
testimony from Dr. Saini goes beyond a radiologist’s area of expertise and is not the
type of basic medicine that all physicians are qualified to testify about. The court erred
in admitting it.
{¶40} But testimony from the Pottses’ other experts indicated that the actual
performance of the surgery was not problematic. Dr. Stephen Bloomfield testified that
neither the dural tear nor the colon puncture would have been a breach of the standard
of care had the surgery been medically indicated. Dr. Wilkey opined that the dural tear
and corresponding repair was a normal complication of surgery. Furthermore, in
closing arguments, counsel for appellee did not discuss the dural tear or the colon
puncture issues at all. Instead, counsel focused on whether Dr. Durrani
misrepresented the need for surgery—not whether he botched the surgery. Thus,
because Dr. Saini’s erroneous expert testimony was sparse, was balanced with other
expert testimony suggesting the surgery itself was performed properly, and was not
raised again by Mr. Potts, we hold that this error was harmless.
D. Cumulative Error
{¶41} Appellants argue that the cumulative effect of these evidentiary errors
warrants a new trial. This court has recognized that the cumulative-error doctrine
applies in civil cases where there are multiple instances of harmless error. Setters I,
2020-Ohio-6859, 164 N.E.3d 1159, at ¶ 60. Under the doctrine, “ ‘a conviction will be
reversed where the cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial even though each of numerous instances of trial court
error does not individually constitute cause for reversal.’ ” State v. Leach, 150 Ohio
App.3d 567, 2002-Ohio-6654, 782 N.E.2d 631, ¶ 57 (1st Dist.), quoting State v.
Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶42} In this case, despite identifying multiple instances of harmless error,
appellants have failed to demonstrate that these errors, even when considered
together, deprived them of a fair trial. Dr. Wilkey’s comments about Dr. Durrani’s
untruthfulness related to Mr. Potts’s fraud claim and his single comment about cancer
was cured with an instruction. Dr. Saini’s testimony veered beyond the bounds of his
expertise, but his two erroneous comments were counterbalanced by other expert
testimony. The license revocation was only referenced in voir dire and opening
statement, and Mr. Potts’s attacks on Dr. Durrani’s credibility in closing arguments
avoided the license-revocation issue entirely.
{¶43} Accordingly, we overrule the first assignment of error.
III. Second Assignment of Error: Damages
{¶44} In appellants’ second assignment of error, they take issue with six
different parts of the damages award: the setoff, the statutory damages cap, past and
future damages, prejudgment interest, and court costs. They contend that this court
should remand the cause to the trial court with instructions to correct the damages
award.
{¶45} “The assessment of damages is a function that falls squarely within the
jury’s purview, and on appeal we will not substitute our judgment for that of the jury.”
Hollingsworth v. Time Warner Cable, 168 Ohio App.3d 658, 2006-Ohio-4903, 861
N.E.2d 580, ¶ 48 (1st Dist.). Yet, where the calculation of damages involves issues of
law, such as the application of a statute, we review de novo. Johnson v. Abdullah, 166
Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 38 (holding that “courts apply a
de novo standard when reviewing issues of law”).
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OHIO FIRST DISTRICT COURT OF APPEALS
A. The Setoff
{¶46} The first damages-related issue for our review concerns the setoff.
Generally, a nonsettling party is entitled to a setoff under R.C. 2307.28 when a settling
defendant is liable for any of the tort plaintiff’s damages. See Setters I, 2020-Ohio-
6859, 164 N.E.3d 1159, at ¶ 62. Here, the trial court granted appellants a setoff in the
amount of $2,049.73. But appellants contend that the court erred in not allowing them
to view the settlement agreements. They rely on this court’s decision in Setters v.
Durrani, 1st Dist. Hamilton Nos. C-210428 and C-210437, 2022-Ohio-1022, ¶ 28-32
(hereinafter “Setters II”) for the proposition that they “have a due process right to
notice of the evidence supporting the set-off amount and a meaningful opportunity to
object to it.” Appellee argues that appellants are not entitled to a setoff at all. However,
appellee has not cross-appealed on this issue. Appellants assign error only to the trial
court’s refusal to allow them to view the settlement agreements.
{¶47} Once a trial court determines that a setoff is appropriate, it looks to the
settlement agreements between the plaintiffs and the settling defendants to determine
the proper amount to credit. In Setters II, we held that to make this determination, a
trial court cannot simply “accept[] the amount provided by plaintiffs’ counsel and
counsel for [the settling defendants] without independently verifying its accuracy or
allowing defendants to test its accuracy.” Setters II at ¶ 31. We made clear that “[t]here
are multiple methods which, either employed together or standing alone, may be
sufficient for due-process purposes, such as an in camera inspection, protective order,
and/or filing a redacted version of the settlement agreement under seal.” Id. at ¶ 32.
We left open the question of “whether defendants should have access to the entire
settlement agreement.” Id.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶48} Here, the trial court ordered the Pottses to submit, for an in camera
review, the amounts they received from the settlement agreements, in addition to all
settlement agreements, releases, and other documents evidencing settlements “from
any source that relates to the care and treatment Plaintiff[] received which is the
subject of th[is] lawsuit[].”6 The record demonstrates that the court received those
amounts and documents, conducted the in camera review, and determined that a
setoff of $2,049.73 was appropriate. Rather than relying solely on counsel’s
representations as the trial court did in Setters II, the court was able to independently
verify the amounts received to determine an appropriate amount for setoff. Appellants
have not demonstrated that the trial court’s in camera review was insufficient, nor did
they provide this court with any reason to believe that the trial court’s setoff
determination was inaccurate. Appellants simply argue that they must always be
permitted to view the settlement agreements in order to determine whether the trial
court’s setoff determination is accurate. As set forth in Setters II, we decline to state
such a blanket rule.
{¶49} There is nothing in the record to indicate that the trial court failed to
review the documents to the extent necessary to arrive at the proper setoff amount.
Accordingly, we hold that the trial court did not err in failing to disclose the settlement
agreements.
6 After the court ordered the Pottses to make that submission, appellants filed a motion for
disclosure of the settlement agreements wherein they argued, as they do here, that such a procedure
would not provide them the opportunity to review the agreements and/or to present arguments as
to the proper setoff amount. The settling defendants opposed the disclosure. The record before us
does not make clear whether the trial court ever ruled on this motion.
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OHIO FIRST DISTRICT COURT OF APPEALS
B. Catastrophic Injury
{¶50} Next, appellants contend that the trial court erred in applying the
heightened cap for noneconomic damages because there was insufficient evidence to
demonstrate that Mr. Potts suffered a catastrophic injury. Appellants seek a remittitur
for the court to apply the reduced cap of $350,000. Appellee argues that the jury was
presented with conflicting evidence on the matter and there is no reason to disturb the
factual findings of the jury.
{¶51} Generally, the recovery of economic damages in medical malpractice
cases is unlimited. R.C. 2323.43(A)(1). However, the recovery of noneconomic
damages is limited to the greater of $250,000 or three times the plaintiff’s economic
loss, not to exceed $350,000 for each plaintiff, or $500,000 for each occurrence. R.C.
2323.43(A)(2). Where a plaintiff suffers a certain type of injury, commonly known as
a “catastrophic injury,” the limit is raised to $500,000 for each plaintiff or $1,000,000
for each occurrence. R.C. 2323.43(A)(3); Setters I, 2020-Ohio-6859, 164 N.E.3d 1159,
at ¶ 31. The statute provides that the heightened cap applies where the noneconomic
losses are for either: “(a) Permanent and substantial physical deformity, loss of use of
a limb, or loss of a bodily organ system; [or] (b) Permanent physical functional injury
that permanently prevents the injured person from being able to independently care
for self and perform life sustaining activities.” R.C. 2323.43(A)(3)(a)-(b). See
generally Setters I at ¶ 31.
{¶52} In applying this cap, the trial court’s role is to “determine whether there
is enough evidence to meet the basic evidentiary threshold.” Fairrow v. OhioHealth
Corp., 10th Dist. Franklin No. 19AP-828, 2020-Ohio-5595, ¶ 68. “Once that threshold
is met, it is for the trier of fact, not the court, to determine whether” the plaintiff’s
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OHIO FIRST DISTRICT COURT OF APPEALS
damages are the sort provided in the statute. Id; accord Arbino v. Johnson & Johnson,
116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 41, quoting Estate of Sisk v.
Manzanares, 270 F.Supp.2d 1265, 1277-1278 (D.Kan.2003) (explaining that the trial
court does not “impose its own factual determination regarding what a proper award
might be”); Ohle v. DJO, Inc., N.D.Ohio No. 1:09-cv-02794, 2012 U.S. Dist. LEXIS
140020, 8 (Sept. 28, 2012) (“[T]he court’s fact-finding role is limited to the threshold
determination of whether there is sufficient evidence to submit the issue of the nature
of the injury to the jury.”). We review a trial court’s decision to submit a jury
interrogatory for an abuse of discretion. Fairrow at ¶ 65, 78 (holding that the trial
court did not abuse its discretion in submitting catastrophic-damages issue to jury).
{¶53} In this case, the jury found that Mr. Potts suffered a “permanent
physical functional injury that permanently prevents Jeff Potts from being able to care
for himself and perform life-sustaining activities” under R.C. 2323.43(A)(3)(b). The
statute does not define “permanent physical functional injury” or “life sustaining
activities.”
{¶54} Examples of injuries that qualify under R.C. 2323.43(A)(3)(b) are
sparse, but the Tenth District provided some guidance in Dillon v. OhioHealth Corp.,
2015-Ohio-1389, 31 N.E.3d 1232 (10th Dist.). In Dillon, the court was focused on
whether the plaintiff-patient was prevented from performing “life-sustaining
activities.” Id. at ¶ 52. In that case, the evidence at trial showed that the plaintiff could
not walk significant distances, and could not bathe, do tasks around the house, or get
to the bathroom on his own. Id. at ¶ 56. The court held that this evidence was sufficient
to overcome a directed verdict on the catastrophic-injury issue.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶55} Federal courts have analyzed the issue as well, though under R.C.
2315.18(B), the catastrophic-injury statute for tort actions generally. In one such case,
Sheffer v. Novartis Pharmaceuticals Corp., S.D.Ohio No. 3:12-cv-238, 2014 U.S. Dist.
LEXIS 184614 (July 14, 2014), the Southern District of Ohio held that a plaintiff’s jaw
injury was insufficient as a matter of law to be considered a permanent physical
functional injury under R.C. 2315.18(B)(3)(b). Id. at 7. In that case, the plaintiff alleged
that her use of a prescription drug caused her to develop osteonecrosis of the jaw. Id.
at 1. Notably, the plaintiff did not put forth any evidence to support her contention
that her injury was catastrophic under either exception. Id. at 4. The court looked to
the deposition testimony of the plaintiff and her husband, which showed that the
plaintiff still bathed and dressed herself, could still drive, and did all the household
cooking. Id. at 6-7. The evidence also showed that she was active in the community,
danced at weddings, babysat her grandchildren, and took care of livestock. Id. at 7.
Thus, her jaw injury was insufficient as a matter of law to constitute a permanent
physical functional injury. Id. See Weldon v. Presley, N.D.Ohio No. 1:10-cv-1077, 2011
U.S. Dist. LEXIS 95248, 23 (Aug. 9, 2011), adopted by 2011 U.S. Dist. LEXIS 95247(Aug. 25, 2011) (holding plaintiff, suffering from neck pain and stiffness after an
automobile accident, had not suffered a permanent physical functional injury as a
matter of law where she testified that her day-to-day life had not changed since the
accident). But see Giebel v. Lavalley, N.D.Ohio No. 5:12-cv-750, 2013 U.S. Dist. LEXIS
181887, 33-34 (Dec. 31, 2013) (holding there was a genuine issue of material fact where
plaintiff, suffering from PTSD, suicidal ideation, and depression after a brain injury
caused by an automobile accident, suffered permanent physical functional injury).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶56} In this case, Mr. Potts testified that his ability to walk even short
distances was diminished after surgery, and that he could not do any chores around
the house that involved bending over, could not drive or ride in the car for long periods
of time, could not walk upstairs, and could not sleep due to his pain. While Mr. Potts
admitted that he had pain prior to seeing Dr. Durrani and that he had been on
permanent disability, he testified that his situation was significantly worse after the
surgery. Mr. Potts testified that his pain prevented him from sleeping in the same
room as Mrs. Potts, and that he was diagnosed with post-traumatic stress disorder
“from the surgery and everything that I had to go through.” Mrs. Potts testified that
Mr. Potts was no longer able to care for their family by performing household chores
like he routinely did before the surgery. Drs. Bloomfield, Wilkey, and Saini agreed that
Mr. Potts was in a worse condition after surgery than he was before. Yet, Mrs. Potts
also testified that Mr. Potts was able to “get up and get a shower, and get dressed and
get down [to the courthouse]” for the trial. Conflicting evidence was also presented as
to how far Mr. Potts was able to walk after the surgery.
{¶57} The fact that there was conflicting evidence though, is not dispositive.
Rather, our inquiry is whether there was sufficient evidence to submit the issue to the
jury. While there was evidence that Mr. Potts’s activity level was already subdued prior
to surgery, both Mr. and Mrs. Potts testified that his ability to complete even basic
tasks was severely diminished after his surgery. They also testified about the severe
mental-health struggles that Mr. Potts dealt with post-surgery. The Pottses’ experts all
agreed that Mr. Potts’s condition was made worse by the surgery. Considering the
evidence presented at trial and the applicable case law, we hold that there was
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OHIO FIRST DISTRICT COURT OF APPEALS
sufficient evidence to submit the issue to the jury, and that the trial court did not abuse
its discretion in doing so.
C. Future Damages
{¶58} Next, appellants argue that the jury’s award of future damages was not
supported by the weight of the evidence, and that the evidence of future damages
should not have been admitted. “Future damages are limited to losses which the
plaintiff is reasonably certain to incur from the injuries.” Setters I, 2020-Ohio-6859,
164 N.E.3d 1159, at ¶ 40. “A plaintiff’s claim for future medical expenses must be
supported by evidence that reasonably establishes the amount to be incurred in the
future.” Id. “ ‘[T]he jury cannot be allowed to speculate or guess in making allowance
for future medical expenses, and, to this end, there must be some data furnished to the
jury upon which to predicate an estimate of future costs.’ ” Id., quoting Waller v.
Phipps, 1st Dist. Hamilton No. C-000758, 2001 Ohio App. LEXIS 4119, 10-11 (Sept.
14, 2001). In Setters I, this court determined that “evidence of how long [plaintiff]
would require visits, how often she would require visits, and the costs associated with
these types of procedures,” was sufficient evidence of future medical expenses. Id. at ¶
45.
{¶59} In this case, Mr. Potts was awarded $400,000 for future medical
expenses. A review of the record reveals, as in Setters I, that there was evidence from
which the jury could predicate an estimate of future costs. Dr. Bloomfield testified that
the human body has exhausted all chance of getting better one to two years after
surgery and that Mr. Potts, “as of 2013 * * * had reached any possible height of recovery
from the injuries that he sustained at the time of that surgery by Dr. Durrani.” Dr.
Bloomfield opined that Mr. Potts would continue to need medical care in the future
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OHIO FIRST DISTRICT COURT OF APPEALS
from pain-management providers like he had received in the past. Bills from some of
those providers were admitted into evidence for the jury’s consideration. Dr. Wilkey
testified that Mr. Potts’s spine would “undoubtedly” never be the same again and that
he would need “very specific spinal care” that likely would only be available at “a major
spine center like the Cleveland Clinic.” Dr. Wilkey estimated that the costs associated
with any future treatment would be $200,000 for the surgeon’s fee and between
$100,000 and $150,000 for the hospital costs.
{¶60} Appellants rely on Gillespie v. Sever, 8th Dist. Cuyahoga No. 61002,
1992 Ohio App. LEXIS 3706, 10 (July 16, 1992) for the proposition that evidence of
future expenses, “must be given in terms of ‘probability’ and not mere ‘possibility.’ ”
Id., quoting Logan v. Stovall, 8th Dist. Cuyahoga No. 50069, 1986 Ohio App. LEXIS
5491 (Jan. 30, 1986). However, in Gillespie, a personal-injury case involving a knee
injury, the trial court admitted a physician’s testimony about the cost of a future knee
replacement, but excluded evidence of other medical costs where the physician
testified that “the costs were ‘possible’ and made no estimate of any specific total
amount.” Id.{¶61} Unlike the testimony in Gillespie, Dr. Wilkey testified definitively that
Mr. Potts was “going to need very specific spinal care,” and he provided specific
estimates for both the surgeon’s fee and hospital costs. This testimony, combined with
Dr. Bloomfield’s testimony and the evidence of past medical expenses, provided a
reasonable basis for the jury to estimate future medical expenses. The court did not
err in admitting this evidence. Likewise, the court did not err in awarding future
damages.
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OHIO FIRST DISTRICT COURT OF APPEALS
D. Past Medical Expenses
{¶62} Appellants also assign error to the court’s award of past medical
expenses. Appellants contend that Mr. Potts only had $26,201.90 in out-of-pocket
expenses and $2,540 in outstanding medical bills. Appellants argue that the trial court
erred when it awarded Mr. Potts $404,378.65 in past medical expenses because the
rest of his past medical expenses were paid by Humana and Medicare. While
appellants frame their issue for review as one of standing, their actual argument is that
Mr. Potts was not the real party in interest as to the rest of the past medical expenses.
{¶63} “The concepts of standing and real party in interest are related, but the
interests being served and consequences for their absences are distinct.” McCann v.
Durrani, 1st Dist. Hamilton Nos. C-220025 and C-220033, 2023-Ohio-3953, ¶ 19. In
McCann, we discussed and contrasted these two concepts. With respect to standing,
we explained that it “refers to whether a party has a sufficient stake in an otherwise
justiciable controversy to obtain judicial resolution of that controversy.” Id. at ¶ 20,
quoting Davet v. Sheehan, 8th Dist. Cuyahoga No. 101452, 2014-Ohio-5694, ¶ 22,
citing Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-
5017, 979 N.E.2d 1214, ¶ 21. Standing is necessary to invoke the trial court’s
jurisdiction, and it must be determined at the time that the action is filed. Id. Lack of
standing is not a defect that can be resolved at a later time by substitution of a party
with proper standing. Id. If no party with standing has initiated the lawsuit, the
complaint must be dismissed. Id.{¶64} Turning to the concept of real party in interest, “the civil rules provide
that ‘[e]very action shall be prosecuted in the name of the real party in interest.’ ” Id.
at ¶ 21, quoting Civ.R. 17(A). As we explained in McCann:
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OHIO FIRST DISTRICT COURT OF APPEALS
The question of whether a party has standing to sue is distinct from
whether the party is the real party in interest. “The purpose behind the
real party in interest rule is * * * to enable the defendant to avail himself
of evidence and defenses that the defendant has against the real party
in interest, and to assure him finality of the judgment, and that he will
be protected against another suit brought by the real party at interest on
the same matter.” (Internal quotations omitted.) Setters v. Durrani,
2020-Ohio-6859, 164 N.E.3d 1159, ¶ 54 (1st Dist.), quoting Shealy [v.
Campbell], 20 Ohio St.3d [23,] 24, 485 N.E.2d 701 [(1985)]. The central
concern of the real-party-in-interest rule is proper party joinder. Id. at
¶ 56, citing Schwartzwald at ¶ 33. Under Civ.R. 19(A), a person who
“has an interest relating to the subject of the action as an assignor,
assignee, subrogor, or subrogee” is a necessary party to be joined, if
feasible. Id. However, because this rule is procedural, it must be timely
raised, or else it will be waived. Id.
Id.
{¶65} It is the concept of real party in interest that applies to appellants’
argument, as their assertion that it was error to award Mr. Potts past medical expenses
that were paid by Humana and Medicare is a contention that Mr. Potts was not the
real party in interest as to these expenses.
{¶66} The record demonstrates that Medicare had settled its liens with Mr.
Potts, and that Humana had entered into a confidential settlement agreement with
Mr. Potts wherein he was obligated to reimburse Humana from the funds that he
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OHIO FIRST DISTRICT COURT OF APPEALS
received. Thus, the real-party-in-interest issue was resolved and Mr. Potts was entitled
to seek the full amount of past medical expenses.
{¶67} The Ohio Supreme Court has “declined to adopt a categorical rule that
the reasonable value of medical services is either the amount billed or the amount
paid.” Moretz v. Muakkassa, 137 Ohio St.3d 171, 2013-Ohio-4656, 998 N.E.2d 479,
¶ 90, citing Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195,
¶ 17. “Instead, the reasonable value of medical services is a matter for the jury to
determine from all relevant evidence. * * * The jury may decide that the reasonable
value of medical care is the amount originally billed, the amount the medical provider
accepted as payment, or some amount in between.” Robinson at ¶ 17-18.
{¶68} In support of its award for past medical expenses, the court looked to
the amounts originally billed by Humana and Medicare, Mr. Potts’s record of his out-
of-pocket expenses, and billing records from Integrated Behavioral Services. The court
reasoned that the jury’s initial award for past medical expenses exceeded the
maximum amount supported by the record. The court reduced the award to an amount
supported by the medical bills. Thus, the court did not err in awarding $404,378.65 in
past medical expenses.
E. Prejudgment Interest and Court Costs
{¶69} Finally, appellants assign error to the court’s award of prejudgment
interest and court costs. In addition to their attack on the merits of the awards,
appellants contend that appellee voluntarily withdrew the motions and the trial court
had no authority to reinstate them.
{¶70} On August 20, 2019, appellee filed a motion to tax court costs. On
October 22, 2019, appellee filed a motion for prejudgment interest. On October 23,
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OHIO FIRST DISTRICT COURT OF APPEALS
2019, appellee filed a “motion and proof of Deters Law staff and statement of
attorneys’ fees to be submitted on award of punitive damages and fees.” On June 26,
2020, the court ordered the parties to come to an agreement on costs and attorney
fees, while contemplating a future hearing on the issue, and denied appellee’s motion
for prejudgment interest. On July 9, 2020, appellee filed a motion to reconsider the
court’s decision on prejudgment interest.
{¶71} On March 5, 2021, appellee filed a notice of withdrawal of the motions
for prejudgment interest, attorney fees, and court costs.7 On March 30, 2021,
appellants filed a notice of appeal that was assigned the appeal number C-210211.
Meanwhile, litigation continued below on the issue of past medical expenses.
{¶72} This court ordered briefing on the issue of whether there was a final,
appealable order given the unresolved issues below. On July 29, 2021, we dismissed
the appeal numbered C-210211 for lack of a final, appealable order. In the order
dismissing the appeal, we reasoned that the appellee’s withdrawal of her motion for
attorney fees was precluded by Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142,
2008-Ohio-5276, 897 N.E.2d 126 (holding that a party may not create finality for
appeal after the resolution of one claim by dismissing the remaining claims against the
same party). Thus, we treated the withdrawal as a nullity and held that the motion was
still outstanding.8
7 While the notice of withdrawal purports to withdraw a motion for attorney fees, we note that
appellee did not file a motion for attorney fees in this case because the jury’s verdict included an
award of attorney fees. After the jury’s verdict was entered, appellee filed a motion evidencing the
amount of those fees. Thus, we presume the subsequent withdrawal of the motion for attorney fees
to be erroneous. Likewise, appellants do not take issue with the attorney-fee award.
8 While the dismissal order only refers to appellee’s withdrawal of the motion for attorney fees,
appellee had also withdrawn the motions for prejudgment interest and court costs.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶73} Our recently-decided case, McCann, 1st Dist. Hamilton Nos. C-220025
and C-220033, 2023-Ohio-3953, contained a similar procedural posture. The first
appeal in McCann was likewise dismissed due to the lack of a final, appealable order
based on this court’s determination that McCann’s withdrawal of a motion for
prejudgment interest was precluded by Pattison. Id. at ¶ 45, citing McCann v.
Durrani, 1st Dist. Hamilton No. C-210212 (July 29, 2021). However, after the initial
dismissal and once a later appeal was perfected, we subsequently explained in McCann
that our reference to Pattison in this context was erroneous “because Pattison referred
solely to ‘claims’ and a motion for prejudgment interest and court costs is not a ‘claim.’
” Id. at ¶ 46. We stated in McCann that our opinion in Nichols v. Durrani, 1st Dist.
Hamilton No. C-210224, 2021-Ohio-2973, controlled a determination as to whether a
final, appealable order existed in this situation. Id. at ¶ 51.
{¶74} Nichols similarly involved the plaintiffs’ withdrawal of a motion for
prejudgment interest and attorney fees. In Nichols, we observed that when the time to
file an appeal has been tolled by the filing of a motion for prejudgment interest and
attorney fees, the time for filing a notice of appeal does not begin to run until “the trial
court enters an order resolving the last of these post-judgment filings.” (Emphasis sic.)
Id. at ¶ 4, quoting App.R. 4(B)(2). Thus, we held that even though the Nicholses had
withdrawn their motions for prejudgment interest and attorney fees, the time to
appeal had not begun to run because the trial court had not yet entered an order
resolving the motions. Id. at ¶ 5. We held that the notice of appeal was premature and
dismissed the appeal. The appeal was dismissed rather than remanded under App.R.
4(B) because the order appealed from was not otherwise a final appealable order due
to its failure to mention damages. Id. at ¶ 6. We stated, “We encourage the trial court
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OHIO FIRST DISTRICT COURT OF APPEALS
to expeditiously resolve the damages issue and enter an appropriate judgment—as
well as to enter an order resolving the Nichols’ postjudgment motion—so that a timely
appeal may be perfected and the parties can receive appellate guidance and certainty.”
(Emphasis added.) Id. at ¶ 7.
{¶75} McCann argued that even if this court’s reasoning in dismissing her
appeal was erroneous, the law-of-the-case doctrine applied and we were required to
stand by our earlier decision. McCann at ¶ 49. We first recognized in McCann that
“[t]here is an exception to the law-of-the-case doctrine that compels a lower court to
‘take notice of an intervening decision, by a superior court, that is inconsistent with
the law of the case.’ ” Id. at ¶ 51, quoting Dean v. Grange Mut. Cas. Co., 5th Dist. Stark
No. 2004CA00133, 2005-Ohio-857, ¶ 10. We then held that given the timing of our
order dismissing the McCann appeal (July 29, 2021), the release of the Nichols
opinion (August 27, 2021), and the trial court’s order reinstating the withdrawn
postjudgment motions (August 30, 2021), the law-of-the-case doctrine was
inapplicable on this issue because Nichols was an intervening decision. Id. at ¶ 51. We
held that under those circumstances, “the trial court should have followed the
guidance of Nichols rather than the erroneous reasoning of the dismissal entry,” and
that because McCann’s motion for prejudgment interest had been withdrawn, the trial
court’s reinstatement of it was erroneous. Id. at ¶ 51-52.
{¶76} The procedural posture here is nearly identical to McCann. One month
after the dismissal of appellee’s 2021 appeal (July 29, 2021), this court issued the
opinion in Nichols (August 27, 2021). The trial court then reinstated the Pottses’
postjudgment motions on August 30, 2021, and subsequently granted the Pottses’
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OHIO FIRST DISTRICT COURT OF APPEALS
motions for prejudgment interest and court costs. Given this timing, the trial court
should have followed the intervening decision of Nichols.
{¶77} In light of our reasoning in McCann, we hold that because the Pottses’
motions for prejudgment interest and court costs were withdrawn, the trial court did
not have authority to reinstate them. See McCann, 1st Dist. Hamilton Nos. C-220025
and C-220033, 2023-Ohio-3953, at ¶ 52. Accordingly, we sustain appellants’ second
assignment of error to the extent that the trial court erred in granting prejudgment
interest and court costs and overrule it in all other respects. We remand the cause to
the trial court to recalculate damages in this respect.
IV. Conclusion
{¶78} For the foregoing reasons, we overrule the first assignment of error, but
sustain the second assignment of error in part and overrule it in part. Accordingly, in
the case numbered C-220024, we affirm the trial court’s judgment in part, reverse it
in part, and remand the cause for the trial court to recalculate the damages award as
it relates to prejudgment interest and court costs, consistent with the law and this
opinion. The appeal numbered C-220034 is dismissed.
Judgment accordingly.
BERGERON and KINSLEY, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
31