Braucher v. Durrani

[Cite as Braucher v. Durrani, 2026-Ohio-3467.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO MELISSA BRAUCHER, : APPEAL NO. C-250100 TRIAL NO. A-1506956 Plaintiff-Appellee, : and : SCOTT BRAUCHER, : Plaintiff, : vs. : ABUBAKAR ATIQ DURRANI, M.D., : and : CENTER FOR ADVANCED SPINE : TECHNOLOGIES, INC., : Defendants-Appellants, : and : WEST CHESTER HOSPITAL, LLC, : UC HEALTH, : and : JOURNEY LITE OF CINCINNATI, : Defendants. : GWEN EARLS, Administrator of the : APPEAL NO. C-250357 Estate of Darrell Earls, TRIAL NO. A-1706431 : Plaintiff-Appellee, : JUDGMENT ENTRY  OHIO FIRST DISTRICT COURT OF APPEALS vs. : ABUBAKAR ATIQ DURRANI, M.D., : and : CENTER FOR ADVANCED SPINE : TECHNOLOGIES, INC., : Defendants-Appellants, : and : WEST CHESTER HOSPITAL, LLC, : and : UC HEALTH, : Defendants. : This cause was heard upon the appeals, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgments of the trial court are affirmed in part and reversed in part, and the cause is remanded. Further, the court holds that there were reasonable grounds for these appeals, allows no penalty, and orders that costs be taxed 50% to appellants and 50% to appellees. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27. To the clerk: Enter upon the journal of the court on 9/4/2026. Pursuant to App.R. 30, the clerk is directed to send all parties, or their counsel if represented, a copy of the court’s judgment and note such action on the docket. By:_______________________ Administrative Judge [Cite as Braucher v. Durrani, 2026-Ohio-3467.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO MELISSA BRAUCHER, : APPEAL NO. C-250100 TRIAL NO. A-1506956 Plaintiff-Appellee, : and : SCOTT BRAUCHER, : Plaintiff, : vs. : ABUBAKAR ATIQ DURRANI, M.D., : and : CENTER FOR ADVANCED SPINE : TECHNOLOGIES, INC., : Defendants-Appellants, : and : WEST CHESTER HOSPITAL, LLC, : UC HEALTH, : and : JOURNEY LITE OF CINCINNATI, : Defendants. : GWENS EARLS, Administrator of the : APPEAL NO. C-250357 Estate of Darrell Earls, TRIAL NO. A-1706431 : Plaintiff-Appellee, : vs. OPINION :  OHIO FIRST DISTRICT COURT OF APPEALS ABUBAKAR ATIQ DURRANI, M.D., : and : CENTER FOR ADVANCED SPINE TECHNOLOGIES, INC., : Defendants-Appellants, : and : WEST CHESTER HOSPITAL, LLC, : and : UC HEALTH, : Defendants. : Civil Appeals From: Hamilton County Court of Common Pleas Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Cause Remanded Date of Judgment Entry on Appeal: September 4, 2026 Statman Harris, LLC, Alan J. Statman, and Benjamin Maraan, II, for Plaintiffs- Appellees, Taft Stettinius & Hollister LLP, Aaron M. Herzig, Philip D. Williamson, Russell S. Sayre, and Jared T. Snow, for Defendants-Appellants.  OHIO FIRST DISTRICT COURT OF APPEALS MOORE, Judge. {¶1} Defendants-appellants Dr. Abubakar Atiq Durrani and the Center for Advanced Spine Technologies, Inc., (“CAST”) (collectively, “Durrani”), appeal the judgments of the Hamilton County Court of Common Pleas in favor of plaintiffs- appellees Melissa Braucher and Gwen Earls, Administrator of the Estate of Darrell Earls (collectively, “plaintiffs”). Following a one-week trial, the jury found in favor of plaintiffs on their claims of negligence, lack of informed consent, battery, and fraudulent misrepresentation. This court has consolidated the appeals for purposes of argument and opinion.1 {¶2} Durrani now raises three assignments of error. First, Durrani contends that the court erred when it denied Durrani’s motion for a judgment notwithstanding the verdict (“JNOV”) or, in the alternative, a new trial, and asserts that the trial court committed several evidentiary errors. Durrani also alleges that the court erred by consolidating plaintiffs’ cases for trial. Second, Durrani argues that the court erred by denying their JNOV motion challenging the jury’s damages awards, asserting that they were entitled to a setoff based on plaintiffs’ settlements with other defendants. Third, Durrani argues that the trial court erred by awarding Braucher past medical damages absent independent evidence of the amount of her past medical expenses. {¶3} For the reasons set forth below, we hold that Durrani’s arguments concerning their JNOV motion as it relates to their entitlement to a setoff and to the joinder of the trials are meritorious. However, the record does not establish that the improper joinder prejudiced Durrani. Therefore, the judgments of the trial court are affirmed in part and reversed in part, and the cause is remanded for the limited 1 We sua sponte consolidate these separate appeals into a single opinion and judgment. 5  OHIO FIRST DISTRICT COURT OF APPEALS purpose of determining the proper amount of the setoff on plaintiffs’ damages awards based on plaintiffs’ settlements with other tortfeasors. I. Factual and Procedural History A. Plaintiffs File Their Actions {¶4} Both plaintiffs initially brought their actions in Butler County, Ohio. They each voluntarily dismissed their actions and filed their claims in the Hamilton County Common Pleas Court against Dr. Durrani, CAST, West Chester Hospital, LLC, and UC Health. Braucher also named Journey Lite of Cincinnati in her complaint. Plaintiffs voluntarily dismissed their claims against all parties except for Durrani. {¶5} Plaintiffs alleged negligence, battery, lack of informed consent, and fraud, regarding the surgeries that Dr. Durrani performed on them, which plaintiffs asserted were unnecessary. Plaintiffs also asserted that Dr. Durrani’s use of the BMP- 2/Infuse procedure was negligent and fraudulent. B. Braucher Joins the Durrani Plaintiffs’ Motion to Consolidate the Cases {¶6} In November 2016, Braucher,2 along with numerous other Durrani plaintiffs, moved to consolidate the cases on Judge Ruehlman’s docket in the Hamilton County Court of Common Pleas. They argued that consolidation would provide judicial economy, reduce litigation costs, expedite trial proceedings, and foster consistency in the rulings. {¶7} In December 2016, Braucher filed another motion to consolidate the trials and transfer them to Judge Ruehlman’s docket. During the hearing on this motion, Braucher emphasized reasons why Judge Ruehlman should hear the 2 The record is not clear as to whether Earls joined this motion, only that the trial court issued its seventh joint trial schedule, which consolidated Earls’s and Braucher’s cases. 6  OHIO FIRST DISTRICT COURT OF APPEALS consolidated cases, including consistent rulings, group trials, expedited trials, settlement efforts, case management, costs and the burden of costs, and the fact that the cases were consolidated in Butler County. Braucher added that other judges’ dockets would not allow trials for two years while Judge Ruehlman had cleared his docket for 2017. {¶8} Durrani opposed the motion, arguing that the plaintiffs’ cases were each unique, having different issues, facts, and circumstances. Durrani further argued that the court had previously failed to explain its basis for consolidating the Durrani trials. During this hearing, Durrani also moved to limit the testimony of Earls’s family members, evidence regarding past medical expenses and medical expenses not paid by insurance, Dr. Saini’s opinion on the surgical standard of care, and the cumulative testimony of plaintiffs’ experts, Drs. Wilkey, Bloomfield, Tayeb, and Saini. C. The Trial {¶9} On the first day of trial, counsel for plaintiffs informed the court that he had made a settlement demand of $500,000 on each plaintiff’s behalf. {¶10} Before conducting voir dire, the trial court ruled on Durrani’s motion in limine and plaintiffs’ motions to consolidate. Durrani had withdrawn their request to exclude evidence of past and other unpaid medical expenses and presented arguments on the remaining issues in their motion in limine. The trial court denied their remaining requests, except as they related to plaintiffs’ experts, and cautioned plaintiffs’ counsel to adhere to the Ohio Rules of Civil Procedure. {¶11} As to plaintiffs’ motion to consolidate the cases, the trial court asked the parties whether their witnesses were the same, to which each party answered in the affirmative. The court stated that, as judicial economy is not necessarily a basis to consolidate the cases, it is “certainly a consideration,” and that the court had “taken 7  OHIO FIRST DISTRICT COURT OF APPEALS steps to ensure that the jurors are able to keep the cases in their separate compartments.” 1. Plaintiffs’ Testimony a. Gwendolyn Earls {¶12} Gwendolyn “Gwen” Joyce Earls testified as the sister and eventual caregiver of Darrell Earls. Gwen operates a developmental disabilities center in Idaho and is a trained intensive behavioral interventionist working with adults and children with disabilities. Gwen explained that she and Earls were close and that she visited him in Cincinnati two to three times a year. Gwen added that she and Earls discussed his health issues “very candidly.” {¶13} Gwen testified that, before seeing Dr. Durrani in 2012, Earls was active and functional. He worked as a pastor, rode motorcycles and motor scooters, hunted, attended concerts around the country, and engaged in family activities like horseshoes and swimming. He also lost 50 pounds in 2011 and had been exercising at the YMCA. When he saw Dr. Durrani, Earls was working at the church and helping to homeschool his daughter. When asked about the list of health problems that Earls had before seeing Dr. Durrani, Gwen testified that, before Dr. Durrani’s procedures, Earls did not have the “long list of problems” that Durrani’s counsel named in their opening statement; he only had diabetes and high blood pressure. {¶14} Gwen testified that Earls’s June 12, 2012 CAST intake form showed that Earls needed no assistance with daily activities and had only tried pain medication for his back problems. He had no prior chiropractic care, physical therapy, or injections. Gwen did not attend Earls’s first surgery, but she saw him a couple of months afterward. She testified that she communicated with Earls “nearly every day” between Earls’s first and second surgeries. 8  OHIO FIRST DISTRICT COURT OF APPEALS {¶15} Dr. Durrani performed the first surgery on Earls in July 2012, which included a lumbar laminectomy, foraminotomy, and decompression. Contrary to Dr. Durrani's notes stating Earls was “doing absolutely awesome” after the first surgery, Gwen testified that Earls was “absolutely miserable” when she visited him in late August 2012. She witnessed Earls make several calls to Dr. Durrani’s office regarding the pain, but the staff accused Earls of seeking drugs. Gwen refuted Dr. Durrani’s indication in the December 2012 postsurgical note again, stating that Earls was “doing absolutely awesome at this point,” particularly because he needed a cane, which he had not needed before Dr. Durrani operated on him. The second surgery was performed in December 2012, which was a lumbar fusion. {¶16} Gwen recalled next seeing Earls in May 2013. By then, he was also using a walker, which he had never needed before the surgeries. At age 46-47, he needed assistance walking downhill and was unable to participate in family activities. Gwen testified that Earls had not been feeling well, had not been sleeping well, and his pain had increased. Gwen testified that, by October 2013, Earls was “in a tremendous amount of pain” by the time he went to see another spine surgeon, who had ceased operations in mid-2013. His condition continued to deteriorate, and he required help with dressing, putting on socks, toileting, and all activities of daily living. During this period, Earls developed a serious infection requiring multiple hospitalizations. {¶17} In 2015, Gwen arrived in Cincinnati to find that Earls was in the ICU and had just been resuscitated from becoming septic. Gwen stayed with Earls during his hospital stay, during which Earls was intubated, hallucinating, and in tremendous pain such that he was moved to different beds to manage his discomfort. After several weeks in the hospital, Earls was discharged to his own home and required a peripherally inserted central catheter, also known as a “PICC line,” in a vein in his 9  OHIO FIRST DISTRICT COURT OF APPEALS upper arm to receive his medications. Gwen explained that Earls was still sick. He was pale for a few days after being discharged, had slurred speech, and struggled to get his pain under control. Gwen began to say that the infection was “flat out infection that was caused by” the surgery, though the court sustained objections to this testimony. {¶18} Earls’s condition progressively worsened. He transitioned from a cane to a walker to a standard wheelchair to a fully mechanical electric reclining wheelchair. He could no longer sleep in a bed and slept in a wheelchair in the living room. His wife called Gwen on Christmas Day in 2016 to inform her that she no longer wanted to help care for Earls. The wife permitted Earls to stay in the home until Gwen took him with her to Idaho in June 2017. Gwen became his primary caregiver at that point. {¶19} As Earls’s caregiver in Idaho, Gwen testified that she provided extensive daily care, including toileting, help with dressing and medications, meal preparation, bathing assistance, and transportation to medical appointments. She would leave work to assist him with his bathroom needs and had to bathe him by hand while he sat on the toilet, as he could not get into the tub due to mobility limitations. Gwen testified that she eventually placed Earls in a skilled-nursing facility when Earls developed another infection and his care needs exceeded her capabilities. {¶20} In Idaho, Earls was treated by Dr. Toomey as his primary care physician and consulted neurosurgeon Dr. Little regarding his continued pain. Gwen explained that Dr. Little determined that the screws Dr. Durrani placed had come out because the hardware was not secured. However, Dr. Little refused to perform revision surgery, expressing concern about Earls’s ongoing infections and determining that the risks outweighed the benefits. {¶21} Gwen explained that, in Earls trying to “do the best he could,” he engaged in online gaming, took online Bible courses, and communicated with people 10  OHIO FIRST DISTRICT COURT OF APPEALS from his congregation after the surgeries. Earls passed away on July 2, 2020, never having improved from his postsurgical condition. Gwen was appointed administrator of his estate. Gwen testified that Earls’s medical bills and costs for his care were paid out of his estate. However, she provided no specific details about the amounts or types of medical expenses incurred. b. Melissa Braucher {¶22} Braucher was 57 years old at the time of trial. She explained that she had scoliosis as a teenager, which led to the placement of a Harrington rod at age 17 at Shriners Hospital in Lexington, Kentucky. After that surgery, she did well and returned to normal activities, including cheerleading and bowling. Braucher testified that she experienced no significant limitations from the rod. {¶23} Braucher testified that she began experiencing lower back pain between 2007 and 2008, which gradually worsened. She initially managed the pain with hot baths, heating pads, and ice, as advised by her primary care physician, Dr. Shoba. When conservative measures failed, Dr. Shoba referred her to Dr. Khan, a pain- management specialist. Braucher saw Dr. Khan approximately every other month, primarily for medication management (Relafen, Neurontin, Ultram, Vicodin), and did not receive injections or physical therapy before seeing Dr. Durrani. {¶24} Dr. Khan referred Braucher to Dr. Durrani once pain developed in her lower back and hips. Despite her pain, Braucher continued working full-time, performed household chores and yard work, and participated in a bowling league. She described her ability to enjoy life as “fair to good.” {¶25} Braucher testified that Dr. Durrani told her the Harrington rod was “antique” and the screws were coming loose, threatening paralysis if not fixed. The first surgery was an L5-S1 facet fusion using screws and bone graft, performed at West 11  OHIO FIRST DISTRICT COURT OF APPEALS Chester Hospital. She understood the surgery would reconnect the rod, not involve facet fusion. {¶26} Braucher testified that Dr. Durrani did not show her imaging studies or explain findings in detail. Her visit lasted 15-20 minutes. On intake forms for Dr. Durrani, she described pain in her lower back and hip, as indicated on her intake form, but denied leg pain or radicular symptoms before surgery. Braucher testified that no discussion occurred regarding conservative treatment options, physical therapy, or injection alternatives. Braucher also stated that Dr. Durrani did not review her imaging with her, explain the details of the planned procedures, or discuss risks, benefits, or alternatives. Braucher testified that she agreed to surgery based on Dr. Durrani’s assurance that he would “fix her like new.” {¶27} Braucher eventually underwent a second surgery by Dr. Durrani, which was initially planned as a decompression at both L4-L5 and L5-S1. Braucher testified that Dr. Durrani only performed the L4-L5 decompression while claiming to have done both levels in postoperative notes. Braucher did not recall being informed that the second surgery, a hemilaminectomy, would address only L4-L5 and not L5-S1, or any discussion of the use of the Baxano saw or any changes to the surgical plan. {¶28} Braucher’s condition did not improve following Dr. Durrani's surgeries. She testified that she was worse after the surgeries, with daily pain, and unable to perform previous activities (such as bowling, gardening, and housework). She had an ongoing need for pain management. She developed new symptoms, including bilateral leg pain that began approximately six months after the first surgery, which she had never experienced before. Braucher’s postoperative records showed continued significant pain requiring ongoing pain management with Percocet. Braucher testified that she incurred medical bills for the surgeries and for ongoing care with other 12  OHIO FIRST DISTRICT COURT OF APPEALS doctors, but she was not specific about dollar amounts. {¶29} Braucher recalled being in a 2013 motor vehicle accident that caused neck and upper back pain. She testified this did not significantly affect her lower back condition. She continues to be treated by pain management physician Dr. Atluri every other month and takes regular pain medications. c. Scott Braucher {¶30} Braucher’s husband, Scott Braucher (“Scott”), testified that Braucher experienced mild back and hip pain that gradually worsened, leading her regular doctor to refer her to a pain management doctor, Dr. Khan. Scott acknowledged that Braucher had a prior scoliosis surgery and believed it might be related to her pain, though he was not certain. He stated that, before seeing Dr. Durrani, Braucher’s pain was primarily in her lower back and hip, with no significant issues going down her legs to her feet. Scott explained that the treatment with Dr. Khan consisted mostly of medications, which initially helped but became less effective as Braucher’s condition worsened. He testified that Braucher had not undergone injections, physical therapy, or chiropractic therapy before seeing Dr. Durrani, that her treatment was limited to medications. Scott recalled that, despite her pain, Braucher was working full time and rated her ability to enjoy life as between fair and good before Dr. Durrani’s surgery. Although activities such as bowling and boating became harder for her, she was still attempting them before surgery. {¶31} Scott testified that Dr. Durrani initially told them that Braucher had an “antique Harrington rod” in her back that needed to be reconnected to her spine, and that without surgery, she risked paralysis or being in a wheelchair. Scott understood that the first step was to perform facet blocks to confirm the source of pain, followed by surgery to “reattach the rod.” He explained that he and Braucher decided to proceed 13  OHIO FIRST DISTRICT COURT OF APPEALS with surgery based on Dr. Durrani’s recommendations and warnings. {¶32} Scott described the preoperative visit for the first surgery as “odd” because Dr. Durrani would not allow Scott to review the imaging, stating that he would not understand it. Scott stated that Braucher’s recovery was slow after the first surgery, with little improvement and continued pain. Braucher underwent a second surgery at Journey Lite, which involved further procedures described to Scott by an anesthesiologist as “shaving off” parts of the discs. Scott did not recall any discussion with Dr. Durrani before or after the second surgery about changes to the surgical plan or specific risks, nor did Dr. Durrani go over the imaging studies with them. {¶33} Scott also testified that use of the Baxano saw during Braucher’s second procedure was not discussed with them. Scott recalled that Braucher was in significant pain and did not experience substantial improvement after the second surgery. Braucher had briefly tried physical therapy but discontinued it after not seeing improvements, and it interfered with her part-time work schedule. Over time, Braucher’s condition worsened and limited her from doing housework and activities she previously enjoyed, such as bowling, boating, and walking short distances. Scott testified that Braucher’s condition also negatively affected their sexual relations. 2. Expert Testimony {¶34} Both parties offered expert testimony regarding whether Dr. Durrani deviated from the standard of care in treating the plaintiffs. D. Motion for a Directed Verdict {¶35} Durrani moved for a directed verdict, arguing that the evidence in Braucher’s case did not establish the elements needed to request that the jury determine whether she suffered catastrophic loss pursuant to R.C. 2315.18(B)(2). Counsel for plaintiffs responded that the evidence clearly established that Braucher 14  OHIO FIRST DISTRICT COURT OF APPEALS has a permanent injury to her spine that is a physical-functional injury that prevents her from doing daily activities, which is supported by Braucher’s intake form and the testimony of Braucher and her husband. The trial court denied Durrani’s motion. E. Past Medical Expenses {¶36} Durrani also raised the issue of each plaintiff’s past medical expenses during trial, asserting there may have been insurance liens paid by “others” who have not formally entered appearances, and uncertainties as to whether liens have been satisfied in full. Counsel for the plaintiffs responded that the trial court ensured that Durrani would be protected against double payment by ordering that the funds be held by the court until the status of all liens had been determined. The court denied this motion. F. The Jury’s Verdict {¶37} The jury found Dr. Durrani liable for all claims—negligence, lack of informed consent, battery, and fraudulent misrepresentation—in both cases. The jury awarded economic and noneconomic damages as follows: Plaintiff Compensatory Past Future Past and Past Loss Loss of Damages Medical Medical Future Pain of Enjoyment Expenses Expenses and Suffering Enjoyment of Life of Life Braucher $4,929,733.73 $36,933.73 $250,000 $2,321,400 $613,200 $1,708,200 Earls $1,010,871.25 $116,284.51 $447,293.373 $447,293.37 {¶38} Following jury instructions on punitive damages requiring clear and convincing evidence of actual malice or aggravated/egregious fraud, the jury awarded Earls $10 million, finding Dr. Durrani acted with conscious disregard for the rights and safety of others. Braucher was awarded $15 million in punitive damages for the 3 There was no future pain and suffering award in Earls’s case. 15  OHIO FIRST DISTRICT COURT OF APPEALS same conduct. As the jury found in favor of plaintiffs regarding punitive damages, the jury awarded each plaintiff attorney’s fees. The parties stipulated that plaintiffs should receive a combined total of $75,000. G. Posttrial Motions and Court Decisions {¶39} Durrani filed a motion for judgment notwithstanding the verdict, a new trial, and/or remittitur, and an application for setoff. The trial court applied the statutory damage caps to reduce each plaintiff’s noneconomic damage award to $500,000 and punitive damage award to $350,000 but denied Durrani’s motion in all other respects. {¶40} In its decision granting plaintiffs’ requests for prejudgment interest, the trial court recounted plaintiffs’ counsel’s testimony during the evidentiary hearing on plaintiffs’ motion for prejudgment interest regarding the global $4,000,000 offer to settle the cases that Durrani made to the remaining Durrani plaintiffs—including Braucher and Earls—plaintiffs’ initial $1,000,000 demands, and plaintiffs’ $500,000 demands. The court found plaintiffs’ counsel’s testimony credible, including his assertion that Durrani never responded to his demand that he put the verbal global settlement offer in writing. Counsel testified that Dr. Durrani’s insurance carrier, Medical Protection (“MedPro”), would only put the settlement in writing if certain preconditions were met. {¶41} In January 2025, the trial court entered a final appealable order in both cases. The court noted in its decision that it reduced each plaintiff’s damages due to statutory caps, and otherwise denied Durrani’s motion for JNOV, new trial, and/or remittitur, and application for setoff. {¶42} This appeal followed. 16  OHIO FIRST DISTRICT COURT OF APPEALS II. Analysis A. Motion for a New Trial {¶43} In their first assignment of error, Durrani asserts that they are entitled to a new trial based on an improper absent-defendant instruction, improperly admitted expert testimony, and improper consolidation of the trials. Citing Frazier v. Swierkos, 2009-Ohio-3353, ¶ 8 (7th Dist.), Durrani asserts that we review a trial court’s decision on a Civ.R. 59(A) motion under the manifest-weight-of-the-evidence standard because “the purpose of Civ.R. 59(A) is to empower the trial court to prevent a miscarriage of justice.” This and other courts have concluded otherwise. {¶44} A trial court may grant a motion for a new trial under Civ.R. 59(A) for a variety of reasons. Civ.R. 59(A)(1)-(9). The standard of review of a trial court’s ruling on a Civ.R. 59 motion depends upon the grounds for the motion. See Berardo v. Felderman-Swearingen, 2020-Ohio-4271, ¶ 7 (1st Dist.); Yenni v. Yenni, 2022-Ohio- 2867, ¶ 60 (8th Dist.); Harrison v. Horizon Women’s Healthcare, LLC, 2019-Ohio- 3528, ¶ 11 (2d Dist.). {¶45} Here, Durrani’s motion raised Civ.R. 59(A)(1), (3), (4), (6), (7), and (9). The trial court’s decision on the motion for a new trial raised under Civ.R. 59(A)(1)- (6) and (8) is reviewed for an abuse of discretion. Harrison at ¶ 11; Berardo at ¶ 7. When reviewing the grant or denial of a motion for a new trial based upon Civ.R. 59(A)(7) or (9), we must decide whether the trial court erred as a matter of law. Id. In that regard, a trial court’s ruling is reviewed de novo. Id. As with previous appeals, Durrani does not specify which subsections of Civ.R. 54(A) apply to each argument, so we apply the applicable standard of review based on the nature of the issue under review. See Clark v. Durrani, 2025-Ohio-3096, ¶ 29 (1st Dist.). 17  OHIO FIRST DISTRICT COURT OF APPEALS 1. The Absent-Defendant Instruction and Jones {¶46} Durrani continues to maintain that the trial court’s absent-defendant instruction was not a harmless error. Durrani again asks this court to overturn Jones v. Durrani, 2024-Ohio-1776 (1st Dist.), regarding its adverse-inference holding. They continue to assert that, contrary to the holding in Jones, the general instruction regarding inferences does not cure the erroneous absent-defendant instruction. See Ravenscraft v. Durrani, 2025-Ohio-2335, ¶ 85-87 (1st Dist.). {¶47} Durrani further requests that this court answer two questions that they raised in previous Durrani appeals: (1) whether Hounchell and Jones conflict on their reasoning related to the improper adverse-inference instruction, and (2) if not, how should litigants read Hounchell and Jones in harmony when drafting future jury instructions? {¶48} This court has previously addressed these claims, and we again decline to overturn our holding in Jones. Here, as in Jones, the instruction, as a whole, did not prejudice Durrani because it was apparent that the inference was permissive, not required, and that it also “clearly set forth what evidence should be considered by the jury in rendering its decision.” Jones at ¶ 38; see Boggs v. Durrani, 2026-Ohio-210, ¶ 87-88 (1st Dist.); Clark, 2025-Ohio-3096, at ¶ 20 (1st Dist.); Ravenscraft at ¶ 135-136. We have also rejected Durrani’s argument that Hounchell conflicts with Jones and do so here. See Weisman v. Durrani, 2026-Ohio-2639, ¶ 125-126 (1st Dist.). 2. Dr. Saini’s Testimony {¶49} Expert testimony is governed by Evid.R. 702. A witness may testify as an expert when he is “qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony.” Evid.R. 702(B). In Ohio, a witness testifying in a medical-malpractice case need not 18  OHIO FIRST DISTRICT COURT OF APPEALS practice in the same specialty as the defendant-physician; rather, the scope of the witness’s knowledge, not the artificial classification by title, should govern the threshold question of his qualifications. Adams v. Durrani, 2022-Ohio-60, ¶ 50 (1st Dist.). So long as the expert witness demonstrates knowledge of the standards of the specialty, and that knowledge enables the witness to provide expert testimony involving whether the defendant’s conduct conformed with that specialty’s particular standards, the witness is competent to testify as an expert. Id. {¶50} Durrani continues to maintain that, based on Stephens v. Durrani, 2023-Ohio-2500, ¶ 71–73 (1st Dist.), Dr. Saini cannot testify regarding how surgeons dictate notes, the differences between surgeries, and what certain surgeons do that others do not. Id. at ¶ 73. Durrani also challenges Dr. Saini’s “repeated[] state[ments] that Dr. Durrani stretched and exaggerated findings in this case in his recommendation for surgery.” We continue to hold that this testimony was permissible. See Haggard v. Durrani, 2025-Ohio-5327, ¶ 52-56 (1st Dist.) (holding that Dr. Saini was permitted to testify as to whether surgery was medically indicated and to interpret a surgeon’s operative reports); Wheeler v. Durrani, 2026-Ohio-2475, ¶ 99-102 (1st Dist.) (holding that Dr. Saini’s testimony describing how a procedure was performed, the purpose of the procedure, and issues with the placement of screws and rods was permissible so long as it is based on the medical imaging and the opinion of the original reading radiologist). {¶51} Durrani asserts that Dr. Saini should not have been permitted to testify as to whether Dr. Durrani performed plaintiffs’ surgeries correctly or well. However, Dr. Saini’s testimony that the surgeries were not performed correctly was echoed by other experts. The admission of this testimony, therefore, was harmless. {¶52} Durrani also asserts that Dr. Saini’s remarks regarding the infection that 19  OHIO FIRST DISTRICT COURT OF APPEALS Earls developed were improperly admitted, arguing that the opinion is untrue based on Dr. McCormick’s testimony that Earls’s infection was caused by the bacteria that cause acne. The jury, however, was free to believe plaintiffs’ experts over Dr. McCormick. Dr. Saini explained that Earls’s postsurgical imaging showed inflammation and infection, and that Earls would never have been exposed to the infection had he not undergone what Dr. Saini concluded was an unnecessary medical procedure. These sentiments were echoed by Dr. Wilkey, whom the jury heard first. In fact, Durrani’s own expert, Dr. Purcell, agreed that the infection stemmed from hardware placed in Durrani’s second surgery on Earls. Therefore, although permitting Dr. Saini’s testimony regarding Earls’s infection was an abuse of discretion, it was harmless error. 3. Consolidation {¶53} Durrani challenges the trial court’s consolidation of plaintiffs’ trials, arguing that the court erred in joining these cases for trial. Based on our holding in Wilson v. Durrani, 2026-Ohio-2279, ¶ 51-52, 84 (1st Dist.), Durrani is correct.4 {¶54} In Wilson, the majority examined the language within Civ.R. 42(A). It concluded that the rule’s reference to “common question of law or fact” requires that a party seeking to join cases must demonstrate that the cases present common questions that a single common answer can answer. Id. at ¶ 58, 77. The majority explained that a common question of law concerns the defendant’s liability and is capable of uniform resolution across the consolidated cases. Id. at ¶ 57. This is distinct from common questions of fact, which concern overlapping material facts that can be 4 While acknowledging my dissent in Wilson, the majority obviously did not adopt my reasoning. Wilson is now the law of this court and therefore is adopted for purposes of determining the instant appeal, my disagreement with that decision notwithstanding. See Wilson at ¶ 95-125 (Moore, J., dissenting). 20  OHIO FIRST DISTRICT COURT OF APPEALS resolved uniformly at once. Id. at ¶ 68. It is not enough that the cases contain common allegations, nor is it enough that there are overlapping insignificant facts that do not bear on the disposition of the cases. Id. at ¶ 68. Questions that require unique, individualized proof are uncommon in nature. Id. at ¶ 76. {¶55} Where common questions do not link the cases, then joinder is improper, and we must then assess whether the court’s improper joinder constituted harmless error. Id. at ¶ 84.