Pierce v. Durrani
35 N.E.3d 594
Ohio Ct. App.2015Background
- Pierce had prior C6–C7 fusion (2007) and persistent symptoms; sought second opinion from Dr. Durrani in 2009.
- Durrani performed a C5–C6 anterior cervical discectomy/fusion on Jan 28, 2009 and a posterior cervical laminoplasty (including hardware) on Jan 30, 2009; Pierce awoke in severe pain and later imaging showed a displaced screw.
- Pierce’s pain persisted until Dr. Paul Cohen removed Durrani’s hardware in Oct 2009, after which her pain resolved.
- Pierce sued Durrani for malpractice, lack of informed consent, and fraud; at trial Durrani was absent (had fled the state) and had prior unrelated criminal matters excluded from evidence.
- The jury awarded economic, noneconomic, and punitive damages; the trial court reduced noneconomic damages and entered judgment for $790,000; Durrani’s post-trial motions for JNOV and new trial were denied.
- On appeal, Durrani challenged denial of a new venire/new trial for alleged juror misconduct, alleged attorney misconduct by Pierce’s counsel, alleged inconsistency between interrogatory findings (informed consent vs. fraud), and sufficiency of lost-wage damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror misconduct/new trial | Any outside discussion was limited and did not prejudice the verdict | Prospective juror heard others discussing why Durrani was criminally charged; venire should have been dismissed | No prejudice shown; trial court didn’t abuse discretion denying new trial |
| Attorney misconduct/new trial | Counsel’s references to Durrani’s absence were fair commentary on evidence | Counsel inflamed jury with improper remarks about Durrani’s absence and flight | Remarks were largely responsive to defense, not grossly prejudicial; no new trial |
| Interrogatory inconsistency/JNOV (fraud vs informed consent) | Interrogatories conflict: jury found informed consent but also fraudulent inducement; verdict inconsistent | Answers can be harmonized: informed consent (technical/validity of written form) distinct from fraudulent misrepresentation about necessity | Interrogatories and general verdict harmonizable; JNOV denied; fraud and informed-consent claims can coexist |
| Lost wages/JNOV | Plaintiff testified about one-year unemployment and hourly wage; lost wages $40,000 | No competent evidence of $40,000 lost wages | Award supported by testimony ($19.18/hr × one year ≈ $40,000); JNOV denied |
Key Cases Cited
- Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512 (2002) (standard for JNOV review explained)
- Osler v. Lorain, 28 Ohio St.3d 345 (1986) (denial of JNOV where substantial evidence supports nonmoving party)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion standard for appellate review of trial court decisions)
- Colvin v. Abbey’s Restaurant, 85 Ohio St.3d 535 (1999) (treatment of inconsistent interrogatories versus general verdict)
- Nickell v. Gonzalez, 17 Ohio St.3d 136 (1985) (elements of informed consent)
- Burr v. Stark County Board of Commissioners, 23 Ohio St.3d 69 (1986) (elements of fraud)
- Shemo v. Mayfield Heights, 88 Ohio St.3d 7 (2000) (requirements for proving damages with reasonable certainty)
- Gallick v. Baltimore & Ohio Railroad, 372 U.S. 108 (1963) (courts must attempt to harmonize jury findings before disregarding verdict)