2025 Ohio 3096
Ohio Ct. App.2025Background
- Chris Clark had back surgery performed by Dr. Abubakar Atiq Durrani after years of back pain; Clark claimed the surgery was unnecessary and negligently performed.
- Clark and his wife sued Dr. Durrani and his clinic (CAST) for negligence, fraud, battery, loss of consortium, and other claims; all other defendants were eventually dismissed.
- Clark’s insurer, United Healthcare, was joined as an involuntary plaintiff due to its subrogation interest for past medical expenses but did not participate in the case.
- A jury trial held in 2021 resulted in verdicts for Clark on negligence, fraud, and loss of consortium, awarding him compensatory and punitive damages; Durrani filed posttrial motions for judgment notwithstanding verdict (JNOV) or a new trial.
- On appeal, Durrani challenged the exclusion of a comparative negligence instruction, jury instructions regarding his absence, the admissibility of Clark’s expert witness, and the award of past medical expenses.
- The appellate court affirmed the trial court’s judgment, resolving each of Durrani’s asserted errors against him.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Comparative negligence instruction | Not warranted; Clark didn’t contribute to his injuries | Should be given as Clark failed to do recommended therapy | Denial of instruction was not abuse of discretion |
| Jury instruction on Durrani’s absence | Appropriate and permissive; jury not misled | Improper negative inference from absence | Instruction was permissible, not prejudicial |
| Admissibility of Dr. Wilkey as expert | Wilkey was qualified at relevant times; delay not plaintiff’s fault | Wilkey didn’t practice actively at trial; shouldn’t qualify | Wilkey was qualified under amended rules |
| Awarding past medical expenses | Clark had standing; United Healthcare joined involuntarily | Clark not real party in interest, insurer paid expenses | Award was appropriate; double recovery avoided |
Key Cases Cited
- Silveous v. Rensch, 20 Ohio St.2d 82 (failure to produce evidence can give rise to adverse inference).
- Celmer v. Rodgers, 114 Ohio St.3d 221 (trial court’s discretion when witness’s clinical practice status changes during litigation).
- Johnson v. Abdullah, 166 Ohio St.3d 427 (general requirement that expert must practice clinically at time of trial, with limited exceptions).