2024 Ohio 1258
Ohio Ct. App.2024Background
- Plaintiff Mackenzie Bender, diagnosed at 10 with mild scoliosis, saw significant spinal curve progression but no pain until a controversial surgery.
- After showing improvement in a brace, Durrani, a spine surgeon, recommended and performed a vertebral-stapling surgery, telling Bender to stop wearing her brace.
- Post-surgery, Bender experienced severe back pain, permanent scarring, and further progression of her scoliosis.
- A jury found Durrani and his clinic liable for negligent treatment and fraudulent misrepresentation, awarding compensatory and punitive damages to the Benders.
- Defendants filed post-trial motions, including for judgment notwithstanding the verdict (JNOV), a new trial, remittitur, prejudgment interest, and credit for settlements with other defendants; the trial court denied these motions.
- On appeal, the central issues involved evidentiary rulings, expert testimony scope, prejudgment interest, and the calculation and allocation of damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of character/other acts evidence | Evidence of Durrani's license revocation and lawsuits showed pattern relevant to credibility/intent | References to license revocations and other lawsuits irrelevant and prejudicial; cumulative error undermined fair trial | Some evidence erroneously admitted but error was harmless; verdict affirmed |
| Expert qualification and scope | Neuroradiologist/orthopedic experts could opine on standard of care, experimentality, and necessity | Only surgeons should opine on necessity of surgical decisions; radiologist testimony exceeded expertise | Experts properly qualified; no abuse of discretion |
| Prejudgment interest | Defendants did not act in good faith; motion for prejudgment interest properly before the court | Plaintiffs withdrew motion; defendants acted in good faith/no evidence of failure to settle | Prejudgment interest granted; no reversible error found |
| Credit for settlements with other defendants (setoff) | Defendants not entitled to setoff due to intentional tort verdict | Entitled to credit against judgment for settlements with co-defendants for same injury | No setoff; intentional tortfeasor cannot claim contribution |
Key Cases Cited
- Setters v. Durrani, 2020-Ohio-6859, 164 N.E.3d 1159 (character evidence of license revocation inadmissible but harmless error)
- Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 635 N.E.2d 331 (standards for granting prejudgment interest)
- Kalain v. Smith, 25 Ohio St.3d 157, 495 N.E.2d 572 (definition of good faith in settlement context)
- Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 383 N.E.2d 564 (expert qualification focus on scope of knowledge)
- Hallworth v. Republic Steel Corp., 153 Ohio St. 349, 91 N.E.2d 690 (harmless error: jury would have reached same verdict)