The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
VICTORIA LANDRUM : Case Nos. 1:18-cv-807
Plaintiff, : Judge Susan J. Dlott
v. ORDER DENYING DEFENDANT’S
: RENEWED MOTION FOR
ABUBAKAR ATIQ DURRANI, : JUDGMENT ON THE PLEADINGS,
: STRIKING DETERS’ AFFIDAVIT,
Defendant. : AND CONTINUING THE TRIAL
: SCHEDULE PENDING STATE
: RESOLUTION OF THE ISSUE
This matter is before the Court on Defendant Abubakar Atiq Durrani’s Renewed Motion
for Judgment on the Pleadings or Reconsideration (Doc. 58) and Defendant’s Motion to Strike
the Affidavit of Eric Deters Regarding Durrani’s Travels Out of the State of Ohio (Doc. 60).
Plaintiff opposes the Renewed Motion for Judgment on the Pleadings (Doc. 61) but filed no
response to the Motion to Strike Deters’ Affidavit. For the reasons set forth below, the Court
will DENY WITHOUT PREJUDICE Durrani’s Renewed Motion for Judgment on the
Pleadings, GRANT Durrani’s Motion to Strike the Deters Affidavit, and CONTINUE the final
pretrial conference and trial in this matter.
I. BACKGROUND
A. Facts
Following a car accident, Plaintiff Victoria Landrum sought treatment from Defendant
Durrani, then a licensed medical doctor with a specialization in spine surgery. Durrani
recommended surgery, which he allegedly performed improperly and unsuccessfully in June
2010. Landrum alleges that Durrani lied about the necessity and outcome of the surgery and
injected her with an off-label morphogenetic bone protein (“BMP-2”) without her consent.
According to Landrum, the BMP-2 Durrani allegedly injected during her surgery caused injuries
including ectopic bone growth and increased risk of cancer. In late 2013, Durrani—while on
bond awaiting trial on related criminal charges—escaped Ohio for Pakistan, where he remains to
this day. The Ohio Medical Board permanently revoked Durrani’s medical license on March 12,
2014. This case is one of hundreds of similar cases filed against Durrani in both state and federal
court.
B. Procedural Posture
On October 30, 2015, Landrum filed suit in the Hamilton County Court of Common
Pleas against Durrani, his spinal center, and the hospital where he performed the surgery. (Doc.
31 at PageID 317.) She voluntarily dismissed that suit on December 11, 2017. (/d. at PagelD
317-18.) On November 19, 2018, she initiated this action against the same defendants. (Jd. at
PagelID 318.)
On March 25, 2020, the Court granted judgment on the pleadings to the spinal center and
the hospital because Ohio’s statute of repose, Ohio Rev. Code 2305.113(C), bars claims—
including Landrum’s—filed more than four years after the disputed medical procedure.' (Doc.
38.) However, the Court concluded that Durrani’s December 2013 escape to Pakistan tolled the
running of the time limit against him pursuant to Ohio’s absent defendant statute, Ohio Rev.
Code 2305.15. (/d.) Thus, the Court permitted Landrum’s claims against Durrani to proceed.
Landrum moved the Court to reconsider its March 25, 2020 Order, but the Court denied
Landrum’s motion. (Doc. 48.)
On December 23, 2020, the Ohio Supreme Court issued an opinion in another case,
Wilson v. Durrani, _N.E.3d___, 2020-Ohio-6827. In that case, the Ohio Supreme Court held
Statute of repose contains explicit exceptions not applicable here. See, e.g., Ohio Rev. Code 2503.113(C) and
that Ohio’s savings statute did not permit plaintiffs to refile medical claims after the expiration of
the medical statute of repose. Jd.
Based on the Ohio Supreme Court’s decision in Wilson, Durrani now contends that this
Court should have granted him judgment on the pleadings because Landrum’s claims are barred
by Ohio’s statute of repose and Ohio’s absent defendant statute, Ohio Rev. Code 2305.15, does
not toll the time limitation. (Doc. 58.) Landrum disagrees. (Doc. 61.) In addition, Durrani
moves to strike the Affidavit of Eric Deters Regarding Dr. Durrani’s Travels Out of the State of
Ohio (Doc. 57) for lack of personal knowledge, among other reasons. (Doc. 60.)
This matter is set for final pretrial conference on August 4, 2021. Trial is scheduled to
commence September 13, 2021.
Il. LEGAL STANDARDS
Courts analyze a Federal Rule of Civil Procedure 12(c) motion for judgment on the
pleadings in the same way as a Rule 12(b)(6) motion. Atwood v. UC Health, No. 1:16cv593,
2018 WL 3956766, at *2 (S.D. Ohio Aug. 17, 2018) (citing Penny/Ohlmann/Nieman, Inc. v.
Miami Valley Pension Corp., 399 F.3d 692, 697 (6th Cir. 2005)). Rule 12(b)(6) allows a party to
move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(6)(6). To withstand a motion to dismiss, a complaint must comply with Federal
Rule of Civil Procedure 8(a), which requires “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting
Rule 8(a)).
A complaint must include sufficient facts to state a claim that is plausible on its face and
not speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 US. at
678. Mere “labels and conclusions [or] a formulaic recitation of the elements of a cause of
action” will not suffice. Twombly, 550 U.S. at 555. A complaint must contain “either direct or
inferential allegations respecting all material elements to sustain a recovery under some viable
legal theory.” DiGeronimo Aggregates, LLC v. Zemla, 763 F.3d 506, 509 (6th Cir. 2014)
(citation omitted). However, it “does not need detailed factual allegations” or “heightened fact
pleading of specifics.” Twombly, 550 U.S. at 555, 570. A district court examining the
sufficiency of a complaint must accept well-pleaded facts as true, but not legal conclusions or
legal conclusions couched as factual allegations. Jgbal, 556 U.S. at 678-79; DiGeronimo
Aggregates, 763 F.3d at 509.
Il, ANALYSIS
A. Renewed Motion for Judgment on the Pleadings or Reconsideration
The Court previously concluded that Ohio’s medical statute of repose, Ohio Rev. Code
2305.113(C), barred Landrum’s claims in this case, but Durrani’s December 2013 escape to
Pakistan tolled the running of the time limit against him pursuant to Ohio’s absent defendant
statute, Ohio Rev. Code 2305.15. (Doc. 38.) In concluding that Ohio’s saving statute does not
apply to save a medical claim recommenced outside the four-year statute of repose, the Ohio
Supreme Court stated:
R.C, 2305.11(C) is a true statue of repose that, except as expressly
stated in R.C. 2305.113(C) and (D), clearly and unambiguously
precludes the commencement of a medical claim more than four
years after the occurrence of the alleged act or omission that forms
the basis of the claim. Expiration of the statue of repose precludes
the commencement, pursuant to the saving statute, of a claim that
has previously failed otherwise than on the merits in a prior action.
Had the General Assembly intended the saving statute to provide an
extension of the medical statute of repose, it would have expressly
2 Ohio’s savings statute is contained in Ohio Rev. Code 2305.19, but it does not apply to the instant case.
said so in R.C. 2305.113(C), as it did in the R.C. 2305.10(C), the
statute of repose that governs product-liability claims.
Wilson, 2020-Ohio-6827 at { 38.
Relying on this language, Durrani contends that the Ohio Supreme Court would similarly
find that Ohio’s absent defendant statute, Ohio Rev. Code 2305.15, does not toll the four-year
time limitation in the medical statute of repose. Thus, according to Durrani, all claims in this
case must be dismissed because Landrum filed them outside the four-year period that
commenced in June 2010. The Court disagrees.
First, as the Court fully explained in its March 25, 2020 Order, Ohio’s absent defendant
statute, Ohio Rev. Code 2305.15(A), states:
When a cause of action accrues against a person, if the person is out
of the state, has absconded, or conceals self, the period of limitation
for the commencement of the action as provided in sections 2305.04
to 2305.14, 1302.98, and 1304.35 of the Revised Code does not
begin to run until the person comes into the state or while the person
is so absconded or concealed. After the cause of action accrues if the
person departs from the state, absconds, or conceals self, the time of
the person's absence or concealment shall not be computed as any
part of a period within which the action must be brought.
The tolling provision at 2305.15(A) expressly applies to “2305.04 to 2305.14,” thus
encompassing the statute of repose contained at 2305.113(C).? The Sixth Circuit Court of
Appeals has upheld application of 2305.15(A) to toll the statute of limitations applicable to
medical claims under 2305.113 without differentiating the four-year statute of repose contained
in that same section. Garber v. Menendez, 888 F.3d 839 (6th Cir. 2018). In addition, since the
Court issued its March 25, 2020 Order, other judges in this district have reached the same
conclusion. See, e.g., Mahlenkamp v. Durrani, No. 1:18-cv-817, 2021 WL 2012939 (S.D. Ohio
May 19, 2021) (Black, J.) (Tolling the statute of repose as to Durrani based on the date he fled to
3 According to the numerical system utilized in the Ohio Revised Code, 2305.113 is between 2305.11 and 2305.12.
Pakistan); Powers v. Durrani, No. 1:18-cv-788, 2020 WL 5526401 (S.D. Ohio Sept. 15, 2020)
(McFarland, J.) (Tolling the statute of repose as to Durrani on the date he absconded to
Pakistan).
Second, on March 2, 2021, the Ohio Supreme Court granted a motion for reconsideration
in Wilson v. Durrani on the exact issue presented here: whether, pursuant to Ohio Rev. Code §
2305.15(A), Durrani’s flight to Pakistan tolled the repose period contained in § 2305.113(C).
Wilson v. Durrani, 161 Ohio St.3d 1453, 2021-Ohio-534 (table). The Ohio Supreme Court
remanded the Wilson case to the First District Court of Appeals to consider the issue. /d. The
matter is now set for oral argument before the First District Court of Appeals on July 19, 2021.
Therefore, contrary to Durrani’s contention, the Ohio Supreme Court’s decision in Wilson clearly
did not settle this issue, and Defendant’s Renewed Motion for Judgment on the Pleading or
Reconsideration is not well taken.
B. Trial Schedule
It is undisputed that this Court, exercising diversity jurisdiction, must apply Ohio
substantive law in this case. “In resolving issues of [Ohio] law, we look to the final decisions of
the state’s highest court, and if there is no decision directly on point, then we must make an Erie
guess to determine how that court, if presented with the issue, would resolve it.” Conlin v.
Mortg. Elec. Registration Sys., Inc., 714 F.3d 355, 358-59 (6th Cir. 2013); Innovation Ventures,
LLC v. Custom Nutrition Lab., LLC, 912 F.3d 316, 334 (6th Cir. 2018). Intermediate appellate
decisions persuasively inform this prediction, “unless it is shown that the state’s highest court
would decide the issue differently.” Conlin, 714 F.3d at 359.
Only one issue stands between this case and trial: whether the absent defendant statute
contained at Ohio Rev. Code 2305.15(A) tolls the medical statute of repose contained in Ohio
Rev. Code 2305.113(C) when a defendant absconds to another jurisdiction. Last year, this Court
reviewed relevant rulings from Ohio appellate courts and predicted that the Ohio Supreme Court,
if presented with this issue, would conclude that it does. (Doc. 38.) The Court then set this
matter for final pretrial conference on August 4, 2021 with trial to commence September 13,
2021.
Fortunately, the Ohio Supreme Court—or at least Ohio’s First District Court of
Appeals—is now poised to determine the exact issue remaining in the case at bar. The First
District will hear oral argument on this issue in less than three weeks, and the losing party is
likely to appeal the issue to the Ohio Supreme Court. Thus, this Court need not attempt to
predict the outcome again. In the interest of judicial economy, the Court will continue the trial
schedule until the First District—or if its decision is appealed, the Ohio Supreme Court—finally
determines this issue.
C. Motion to Strike the Deters Affidavit
Turning to a separate issue, Landrum filed the Affidavit of Eric Deters Regarding Dr.
Durrani’s Travels Out of the State of Ohio (Doc. 57-1). In his brief Affidavit, Deters purports to
have examined a calendar Defendant produced and Durrani’s earlier sworn testimony to
determine that “from 2005 through 2013 before his flight, Dr. Durrani was out of the state of
Ohio: 504 plus 46 days or 550 total days or 1 year and 185 days.” (Deters Aff., Doc. 57-1 at
PageID 581.) Durrani now moves to strike Deters’ Affidavit. (Doc. 60.) Landrum filed no
response to Durrani’s motion.
Pursuant to Federal Rule of Evidence 602, unless testifying as an expert (which Deters is
not), “(a] witness may testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter.” Nothing in Deters’ Affidavit
indicates that he has personal knowledge of Durrani’s travels. Indeed, he acknowledges that his
entire calculation is based on his review of third party documents. (Doc. 57-1 at 4 1,5.) Thus,
he is incompetent to testify as to Durrani’s travels.
In addition, even if offered as a summary to prove content pursuant to Federal Rule of
Evidence 1006, Deters’ Affidavit and the attached Exhibit 2 fail to meet the minimum criteria for
admission. For admissibility under Rule 1006, a summary or calculation must meet five criteria:
(1) the underlying documents must be so voluminous that they
cannot be conveniently examined in court, (2) the proponent of the
summary must have made the documents available for examination
or copying at a reasonable time and place, (3) the underlying
documents must be admissible in evidence, (4) the summary must
be accurate and nonprejudicial, and (5) the summary must be
properly introduced through the testimony of a witness who
supervised its preparation.
United States v. Smith, 516 F.App’x 592, 594-95 (6th Cir. 2013) (quoting United States v.
Jamieson, 427 F.3d 394, 409 (6th Cir. 2006)). In this case, Deters has failed to demonstrate any
of the five required criteria.
Finally, while relevant evidence is generally admissible pursuant to Federal Rule of
Evidence 402, evidence is not relevant unless “(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in determining
the action.” Deters’ conclusion/opinion regarding the number of days from 2005 through 2013
Durrani left Ohio is utterly irrelevant to this case. Durrani allegedly performed Landrum’s
surgery in June 2010. Durrani’s travels prior to her surgery are of no consequence here. Indeed,
even Exhibit 2 to Deters’ Affidavit—which purports to list specific travel dates by year—fails to
differentiate between travel before and after Landrum’s June 2010 surgery. (Doc. 57-1 at
PageID 587.)
The statute of repose issue is very clear in this case, rendering Durrani’s purported travel
schedule meaningless. If the absent defendant statute tolls the statute of repose, this matter
proceeds to trial. If not, then the only remaining claims are time-barred and must be dismissed.
Either way, Deters’ Affidavit is irrelevant and inadmissible and must be stricken,
IV. CONCLUSION
Accordingly, the Court hereby DENIES Defendant's Renewed Motion for Judgment on
the Pleadings or Reconsideration (Doc 58), GRANTS Defendant’s Motion to Strike Affidavit of
Eric Deters Regarding Dr. Durrani’s Travels Out of the State of Ohio (Doc. 60), and
CONTINUES INDEFINITELY the final pretrial and trial in this matter pending a state
appellate ruling in Wilson vy. Durrani. Both parties are ORDERED to file status reports within
30 days of the First District’s decision in Wilson v. Durrani or February 1, 2022, whichever is
earlier.
IT IS SO ORDERED.
Dated: Gee. 2021 GQ (Lar tm /
Judge Susan J. Dlott
United States District Court