Key Points

  • The First District reversed a $75,000 attorney-fee award because Johnson prevailed only on negligence and no statute, contract, punitive-damages award, or bad-faith finding supported fees.
  • The court held the trial court abused its discretion in admitting Dr. Saini's testimony on the standard of care for operative notes, but the error was harmless because the jury interrogatories rested the verdict on screw placement and the risk-benefit evaluation.
  • Counsel's misstatement of the adverse-inference rule in closing and the erroneous adverse-inference instruction did not require a new trial, because the defense did not object to the closing and a separate instruction cured the instruction error.
  • The court could not review the joinder of Johnson's and M.B.'s cases because the record lacked M.B.'s claims and allegations, and it affirmed the $61,388.52 prejudgment-interest award.
  • In footnotes, the court criticized Johnson's appellee brief and warned that future deficient briefing risks sanctions such as barring oral argument or striking the brief.

An Ohio appeals court on Oct. 14 upheld a $520,000 negligence judgment against spine surgeon Abubakar Atiq Durrani but threw out the $75,000 in attorney fees the trial court had added, holding that the former patient who sued him won only on a claim that does not allow fee-shifting.

A three-judge panel of the First District Court of Appeals in Hamilton County rejected the bid by Dr. Durrani and his co-defendant, Center for Advanced Spine Technologies, Inc., for a new trial. The panel also left in place $61,388.52 in prejudgment interest awarded to the patient, Karen Johnson. Judge Bock wrote the opinion, and Presiding Judge Kinsley and Judge Crouse concurred.

The court found two errors at trial, one in the testimony of a plaintiffs' expert and one in a jury instruction. It held both harmless because the jury's written answers to interrogatories showed which acts of negligence it relied on. In a footnote, the panel also warned that deficient briefing like Johnson's could draw sanctions.

Johnson sued in 2015 over two spinal-fusion surgeries Dr. Durrani performed, the first in October 2012, asserting negligence, battery, lack of informed consent, intentional infliction of emotional distress, fraud, negligent hiring and supervision, and violations of Ohio's Consumer Sales Practices Act. According to the opinion, counsel for Johnson and "hundreds of Dr. Durrani's other former patients" sought group trials, and the trial court eventually tried her case jointly with that of another patient, identified as M.B.

According to the opinion, after 15 minutes with Johnson, Dr. Durrani told her she needed three surgeries or she would "be in a wheelchair." Other physicians later found that two pieces of hardware had moved out of her spine and were compressing part of her kidney, and her kidneys were eventually removed. A 2019 operative note identified "multiple misplaced screws."

The jury found Dr. Durrani negligent and awarded Johnson $1,195,000. Its interrogatory answer cited "misplaced screws, screw in the nerve, and risk/benefit evaluation did not warrant surgery." The jury rejected Johnson's other claims and all of M.B.'s claims. The trial court denied a new trial but reduced the award to $520,000 before adding interest and fees.

On fees, the panel applied the American Rule, under which each side ordinarily pays its own lawyers unless a statute or contract provides otherwise, the losing party acted in bad faith, or a jury awards punitive damages. "No contract or statute authorized attorney fees," Judge Bock wrote. The jury awarded no punitive damages, and the trial court made no bad-faith finding, so "the trial court lacked authority to make that award."

The panel also faulted Johnson's appellate brief. The brief "lacks citations to the record as required by App.R. 16(B), appears to be an exercise in analytical minimalism, and misrepresents First District precedent," the court wrote in that footnote. "Future deficient briefing like the one in this case risks sanctions, such as the Court prohibiting participation in oral argument or striking the offending party's brief."

The expert error involved Dr. Ranjiv Saini, a neuroradiologist who testified that surgeons rely on his reading of imaging taken during and after surgery. The panel held that the trial court abused its discretion by letting him testify that Dr. Durrani breached the standard of care by failing to write an operative note. Unlike the records in two earlier Durrani appeals, the record here "fails to reveal any knowledge or experience that would qualify Dr. Saini as an expert on this issue," the court wrote.

The error did not matter, the panel held, because the jury tied its verdict to screw placement and the decision to operate. "In other words, the jury did not find that Dr. Durrani's failure to author an operative note was negligent," Judge Bock wrote. The court upheld Dr. Saini's testimony on screw placement and informed consent, noting that he advises spinal surgeons on "whether they got it right."

Dr. Durrani did not attend trial. The trial court barred derogatory comments about his heritage and flight to Pakistan but allowed limited references to his absence, and the panel found the references made at trial matter-of-fact. Johnson's lawyer told jurors in closing that they had to infer that Dr. Durrani's testimony would have hurt him, which the panel called a misstatement of the law. The defense did not object, however, and the court held that "this is not an exceptional case of an error undermining the legitimacy of the judicial process."

The jury instruction on that adverse inference, the conclusion that a party's failure to produce evidence it controls means the evidence would have been unfavorable to it, also misstated the law under the court's earlier ruling in Jones v. Durrani. The panel held the error was cured by a separate instruction that an inference is one jurors "may, but are not required, to make."

The panel declined to review the decision to try Johnson's and M.B.'s cases together. It held that the defense, as appellant, had to supply a complete record but had left M.B.'s case number off its notice of appeal. "We have scoured the pretrial record, and M.B.'s claims and allegations are nowhere to be found," the court wrote, and it presumed the trial court acted regularly.

The defense also argued that Johnson never made a pretrial settlement offer, a factor under Ohio's prejudgment-interest statute, which asks whether each side made a good-faith effort to settle. The panel pointed to an affidavit from defense trial counsel reporting an $11,600,000 pretrial demand and a $500,000 oral demand on the first day of trial. "The Durrani parties cannot argue the opposite now," the court wrote.

Lawyers for Johnson included Alan J. Statman of Statman Harris, LLC. Lawyers for Dr. Durrani and Center for Advanced Spine Technologies included Philip D. Williamson of Taft Stettinius & Hollister LLP.

The court found reasonable grounds for the appeal, split costs evenly between the parties, and ordered its mandate sent to the Hamilton County Court of Common Pleas for execution.