Clark v. Durrani

[Cite as Clark v. Durrani, 2025-Ohio-3096.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

CHRIS CLARK, : APPEAL NO. C-240294

TRIAL NO. A-1302874

and :

KATHY CLARK, :

JUDGMENT ENTRY

Plaintiffs-Appellants, :

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, LLC,

:

Defendants. ;

:

This cause was heard upon the appeal, the record, the briefs, and arguments.

For the reasons set forth in the Opinion filed this date, the judgment of the trial

court is affirmed.

Further, the court holds that there were reasonable grounds for this appeal,

allows no penalty, and orders that costs be taxed under App.R. 24.

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 8/29/2025 per order of the court.

By:_______________________

Administrative Judge

[Cite as Clark v. Durrani, 2025-Ohio-3096.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

CHRIS CLARK, : APPEAL NO. C-240294

TRIAL NO. A-1302874

and :

KATHY CLARK, :

OPINION

Plaintiffs-Appellees, :

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, LLC,

:

Defendants.

:

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 29, 2025

Statman Harris, LLC, and Alan J. Statman, for Plaintiffs-Appellees,

Taft Stettinius & Hollister LLP, Philip D. Williamson, Aaron M. Herzig and Russell S.

Sayre, for Defendants-Appellants.

OHIO FIRST DISTRICT COURT OF APPEALS

MOORE, Judge.

{¶1} Defendants-appellants Dr. Abubaker Atiq Durrani and Center for

Advanced Spine Technologies, Inc., (“CAST”) (together, “Durrani”) appeal the trial

court’s judgment denying Durrani’s motions for judgment notwithstanding the verdict

or, in the alternative, for a new trial.

{¶2} On appeal, Durrani argues the trial court (1) should have given a

comparative-negligence jury instruction, (2) improperly instructed the jury to draw a

negative inference from Dr. Durrani’s absence at trial, (3) improperly permitted Dr.

Keith Wilkey to testify as an expert, and (4) erred by allowing plaintiffs to pursue

claims for past medical expenses. Durrani asserts that these errors by the trial court in

denying their posttrial motions were not harmless.

I. Factual and Procedural History

{¶3} This case is one of the numerous cases that have come before this court

which are commonly referred to as the “Durrani Cases.” While the legal questions

raised in these appeals are often the same or similar, each plaintiff has their own story

of how they came under Dr. Durrani’s care.

{¶4} Here, plaintiff-appellee Chris Clark worked as a machinist and, later, as

a carpet cleaner. When Clark was 19, a semi-truck rear-ended the car he was driving

and Clark experienced back pain for years afterward.

{¶5} Clark’s family physician, Dr. Deborah Pillow, referred him to Dr. Set

Shahbabian and for an MRI, which revealed disc bulges, protrusions, and herniations

up and down the lumbar region of Clark’s spine. Clark took pain medication daily and

received steroid injections on three occasions. Neither the pain medication nor the

injections improved his back pain.

{¶6} In November 2012, Dr. Pillow referred Clark to Dr. Abubaker Atiq

OHIO FIRST DISTRICT COURT OF APPEALS

Durrani at CAST for treatment of his low back pain. On December 7, 2012, Dr. Durrani

performed surgery on Clark’s lumbar spine at the L4-L5 region.

Clark and his wife file a complaint against defendants.

{¶7} Clark filed a complaint and jury demand against Dr. Durrani and his

medical practice, CAST. The complaint also named a number of other defendants who

were all eventually voluntarily dismissed from the case.

{¶8} With respect to Durrani, the complaint alleged (1) that Dr. Durrani

negligently performed the surgery, improperly diagnosed Clark’s condition, and

medically mismanaged and mistreated Clark, (2) that CAST was vicariously liable for

Dr. Durrani’s actions, (3) that CAST was negligent in hiring, retaining, credentialing,

and supervising Dr. Durrani due to foreknowledge that Dr. Durrani’s privileges at

other hospitals had been terminated, (4) that Dr. Durrani committed battery by

performing an unnecessary surgery, (5) that Dr. Durrani committed fraud, (6)

intentional infliction of emotional distress, (7) spoliation of medical records evidence,

(8) that Kathy Clark, Clark’s wife, suffered loss of consortium and medical expenses,

and (9) negligence per se.

Pretrial Filings

{¶9} In March 2020, plaintiffs filed a motion to join United Healthcare as an

involuntary plaintiff because of its subrogation interest with respect to payments it

made for portions of Clark’s treatment. The motion noted that while all parties with a

possible subrogation interest had been notified of the lawsuit filed by their insured,

they had chosen not to be involved.

{¶10} The court responded by ordering that plaintiffs make United

HealthCare a party plaintiff. They did. And, although United Healthcare was served

with a summons and the complaint, it never entered an appearance.

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OHIO FIRST DISTRICT COURT OF APPEALS

The Trial

{¶11} Prior to the start of trial, defendants filed a motion in limine to exclude

testimony regarding Dr. Durrani absconding to Pakistan amid the pending medical

malpractice cases against him. The trial court stated that it would not allow testimony

regarding Dr. Durrani’s departure, but it would not restrict comments about him

residing in Pakistan, and there would be a jury instruction regarding such testimony.

{¶12} The matter proceeded to a jury trial in August 2021.

Dr. Keith Wilkey’s Testimony

{¶13} At trial, Clark relied on the expert medical testimony of Dr. Keith

Wilkey. Dr. Wilkey is a board-certified orthopedic spine surgeon and a member and

fellow of the American Academy of Orthopedic Surgeons, and holds memberships in

the North American Spine Society and the European Spine Society. He received

training in offering or recommending spine surgeries from the Leatherman Spine

Institute and had performed “[p]robably tens of thousands” of spine surgeries.

{¶14} Prior to COVID, Dr. Wilkey was an orthopedic spine surgeon in New

York where he dedicated more than 50 percent of his professional time to the active

clinical practice of medicine. Then, in July 2020, New York shut down all elective

surgeries—seven years after Clark’s complaint had been filed. At the time of trial, Dr.

Wilkey was a medical director at United Healthcare, and his duties included reviewing

medical records and deciding whether surgery was appropriate.

{¶15} Defendants objected to Dr. Wilkey’s testimony at trial, arguing that Dr.

Wilkey did not spend 50 percent of his professional time in the active clinical practice

of medicine or instructing at an accredited university. Defendants cited Johnson v.

Abdullah, 2021-Ohio-3304, for the proposition that a medical expert must meet these

requirements at the time of trial.

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶16} Plaintiffs responded that, but for COVID, at the time of the originally

scheduled trial date, Dr. Wilkey would have been practicing full time and therefore

would have dedicated more than 50 percent of his professional time to the active

clinical practice of medicine. Plaintiffs further argued Dr. Wilkey’s affidavit of merit,

which was filed with the complaint, shows he had been involved with the case since its

filing over eight years prior.

{¶17} The trial court overruled the objection based on Evid.R. 601’s purpose

in preventing professional witnesses from testifying. It cited the rule’s exception that

if the trial been conducted at the originally scheduled time, and the delay “wasn’t the

fault of the person calling the witness, and the doctor would have been qualified to

testify at that time, there [was] no reason for [the court not to allow] that witness to

testify.” The court concluded that, had it not been for COVID, Dr. Wilkey would have

been able to testify had the trial been conducted at the scheduled time, and that the

lapse of time was not plaintiffs’ fault. The court added Dr. Wilkey was not a

“professional witness” because he was competent to testify prior to COVID and

remained competent to testify after the COVID restrictions were lifted.

{¶18} At trial, Dr. Wilkey explained the applicable standard of care as it relates

to the type of surgery Dr. Durrani performed on Clark. He testified that Dr. Durrani’s

performance of the surgery on and his subsequent treatment of Clark deviated from

that applicable standard of care and Clark was damaged as a result.

Jury Instructions

{¶19} The trial court denied defendants’ request for a comparative-negligence

instruction. In explaining its decision, the court stated that there is no comparative

negligence in Ohio, and plaintiffs needed only to prove their claims by a

preponderance of the evidence. Defendants objected to the court’s decision, arguing

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OHIO FIRST DISTRICT COURT OF APPEALS

that comparative negligence applied under R.C. 2315.33.

{¶20} With respect to Durrani’s absence, the court provided the following

instructions to the jury:

The defendant, Dr. Durrani, has not attended these proceedings in

person. He is represented by counsel. You shall not speculate on why he

is not present or consider his absence for any purpose except as

instructed below . . . Dr. Durrani has voluntarily left the jurisdiction

removing himself from plaintiff’s ability to subpoena him to trial . . .

When a party, such as Dr. Durrani, has relevant evidence or testimony

within his or her control, and the party fails to produce that relevant

evidence or testimony, that failure gives rise to an inference that the

evidence or testimony is unfavorable to that party.

The trial court further instructed the jury as to inference:

To infer or to make an inference is to reach a reasonable conclusion of

fact which you may, but are not required to, make from other facts which

you find have been established by direct evidence. Whether an inference

is made rests entirely with you . . . You may not build one inference upon

another inference. But you may make more than one inference from the

same facts or circumstances.

Defendants objected to both instructions.

The Jury’s Verdicts

{¶21} The jury returned verdicts in plaintiffs’ favor on the claims of

negligence, fraudulent misrepresentation, and loss of consortium. The jury found in

favor of defendants as to the claims of failure to obtain informed consent and battery.

{¶22} The jury awarded Clark $485,000 in compensatory damages: $75,000

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OHIO FIRST DISTRICT COURT OF APPEALS

in past medical expenses, $10,000 in future medical expenses, $300,000 in past pain

and suffering, $50,000 in future pain and suffering, $40,000 in past loss of enjoyment

of life, and $10,000 in future loss of enjoyment of life. Kathy Clark was awarded

$10,000 on her loss-of-consortium claim. The jury also awarded Clark attorney’s fees

and $200,000 in punitive damages.

{¶23} Defendants filed two separate motions for judgments notwithstanding

the verdict (“JNOV”), or, pursuant to Civ.R. 59(A)(1)-(9), for a new trial in the

alternative. The trial court denied these motions in a January 6, 2023 entry.1

{¶24} On March 20, 2024, defendants filed a memorandum in support of their

motions based on Hounchell v. Durrani, 2023-Ohio-2501 (1st Dist.), in which this

court held that the jury instruction regarding Dr. Durrani’s absence allowed the jury

to infer that Dr. Durrani was absent because of a consciousness of guilt.

{¶25} On April 22, 2024, the trial court entered a final, appealable judgment

based on the jury verdicts and its final decisions on the remaining posttrial motions.

As discussed below, the trial court again denied Durrani’s JNOV motions.

{¶26} This appeal followed. Each issue raised on appeal was raised in

defendants’ post-trial motions and thus preserved for review by this court.

II. Analysis

{¶27} In the sole assignment of error, Durrani argues the trial court should

have granted the post-trial motions because the court (1) failed to instruct the jury on

comparative negligence, (2) improperly instructed the jury to draw a negative

inference from Dr. Durrani’s absence, (3) improperly permitted Dr. Wilkey to testify

as an expert, despite his lack of active clinical practice, and (4) erred by allowing Clark

1 Plaintiffs’ motions for prejudgment interest and attorney’s fees remained pending after the trial

court made the January 6, 2023 entry.

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OHIO FIRST DISTRICT COURT OF APPEALS

to pursue claims for past medical expenses at trial. Durrani also argues these errors

were not harmless.

JNOV Motions

{¶28} Under Civ.R. 50(B)(1), a party may move for a JNOV after the trial court

enters judgment on the jury’s verdict. Moving for JNOV challenges “the legal

sufficiency of the evidence.” Alonso v. Thomas, 2021-Ohio-341, ¶ 55 (9th Dist.).

Indeed, “[a] motion for [JNOV] is used to determine only one issue: whether the

evidence is totally insufficient to support the verdict.” (Citations omitted.) Grieser v.

Janis, 2017-Ohio-8896, ¶ 15 (10th Dist.). Here, Durrani fails to articulate an argument

challenging the sufficiency of Clark’s evidence. We “will not create an argument in

support of an assignment of error where an appellant fails to develop one.” Fontain v.

Sandhu, 2021-Ohio-2750, ¶ 15 (1st Dist.).

Motions for a New Trial

{¶29} 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.). While Durrani fails to specify which subsections of Civ.R. 59(A)

apply to each issue raised on appeal, as discussed below, we will apply the applicable

standard of review based on the nature of the issue being reveiwed.

A. The denial of the comparative-negligence instruction was not an

abuse of discretion.

{¶30} Durrani claims to be entitled to a new trial based on the trial court’s

refusal to instruct the jury on comparative negligence. A trial court should give a

requested instruction if (1) the instruction is a correct statement of the law, (2) it is

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OHIO FIRST DISTRICT COURT OF APPEALS

applicable to the facts of the case, and (3) a reasonable jury could reach the conclusion

sought by the instruction. Niehaus v. Durrani, 2023-Ohio-4818, ¶ 34 (1st Dist.), citing

Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591 (1991). A trial court will not

instruct the jury where there is no evidence to support an issue. Sanders v. Fridd,

2013-Ohio-4338, ¶ 17 (10th Dist.), quoting Murphy at 591. A trial court’s decision to

grant or deny a proposed jury instruction is reviewed for an abuse of discretion.

Niehaus at ¶ 35. A trial court abuses its discretion when its decision is unreasonable,

unconscionable, or arbitrary. Id.

{¶31} Ohio law recognizes contributory negligence as a defense in medical

malpractice cases. Viox v. Weinberg, 2006-Ohio-5075, ¶ 13 (1st Dist.). A defendant

doctor must prove the plaintiff patient breached a duty, proximately causing his own

injury. Segedy v. Cardiothoracic & Vascular Surgery of Akron, Inc., 2009-Ohio-2460

(9th Dist.), quoting Brinkmoeller v. Wilson, 41 Ohio St.2d 223, 226 (1975). Thus, the

defendant must show the plaintiff’s own “want of ordinary care . . . which combined

and concurred with the defendant’s negligence and contributed to the injury as a

proximate cause thereof, and as an element without which the injury would not have

occurred.” (Emphasis added.) Id. In other words, “[t]he contributory negligence of the

patient must have been an active and efficient contributing cause of the injury that is

the basis of the patient’s claim.” Viox at ¶ 13.

{¶32} In its January 6, 2023 entry, the trial court distinguished Dr. Durrani’s

recommendation that Clark engage in postsurgical physical therapy from requiring

him to do so. The court further concluded Clark could not be deemed to have been

contributorily negligent for failing to complete physical therapy prescribed by the

same surgeon who recommended and performed an unnecessary surgery.

{¶33} In his merit brief, Durrani references Dr. Horn’s recommendation that

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Clark do physical therapy and Dr. Kaloostian’s testimony that physical therapy was an

appropriate recommendation after Clark’s back surgeries. Durrani asserts that

recommending physical therapy and requiring physical therapy were the same thing.

Durrani further argues that a physician cannot “require” a patient to do anything, and

whether his advice was an “order” or a “recommendation” is irrelevant. Durrani

contends that, as this would be a fact for the jury to decide, the trial court incorrectly

concluded that a jury instruction was not warranted.

{¶34} Clark complained of postsurgical pain running down his legs,

headaches, swelling in the incision, and fluid leaking from his back, which was

accumulating at the surgical site. Clark testified he did not have any of these symptoms

before being treated by Dr. Durrani. Clark also testified that, before the surgery, he

only experienced pain going up his back.

{¶35} While defense experts testified that the physical therapy prescribed by

Dr. Durrani was appropriate, there was no evidence to suggest Clark’s failure to fully

comply with physical therapy caused or contributed to the postsurgical injuries he

complained of. Reasonable minds, therefore, could not have concluded that Clark

contributed to the pain and discomfort he experienced after the unnecessary surgery

was performed on him. Accordingly, the trial court did not abuse its discretion in

denying Durrani’s request for a comparative-negligence instruction.

B. The trial court’s instructions did not cause the jury to draw negative

inferences from Dr. Durrani’s absence.

{¶36} In addition to arguing that the trial court failed to give the previously

discussed jury instruction, Durrani claims that the instruction regarding Dr. Durrani’s

absence was also improper. On appeal, “‘[t]he question of whether a jury instruction

is legally correct and factually warranted is subject to de novo review.’” Jones v.

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OHIO FIRST DISTRICT COURT OF APPEALS

Durrani, 2024-Ohio-1776, ¶ 29 (1st Dist.), quoting Cromer v. Children’s Hosp. Med.

Ctr. of Akron, 2015-Ohio-229, ¶ 22.

{¶37} An adverse-inference instruction “‘has its origin in the theory that the

failure to produce evidence which a fearless claimant would naturally produce permits

the inference that the tenor of the evidence would be unfavorable to such claimant.’”

Id. at ¶ 33, quoting Silveous v. Rensch, 20 Ohio St.2d 82, 84 (1969).

{¶38} In Jones, the trial court instructed the jury using the exact verbiage as

in the instant matter. Id. at ¶ 30. The Jones court initially concluded that the trial court

erred in giving the jury instruction because it “was not permissive nor limited to

evidence that would naturally be produced” as it “permit[ted] only the inference that

the testimony or evidence in Dr. Durrani’s possession would be unfavorable to him.”

Id. at ¶ 34. This court then considered the instruction as a whole to determine whether

it misled the jury such that it materially affected defendants’ substantial rights. Id. at

¶ 35. This court ultimately held that the instruction, as a whole, did not prejudice

defendants 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.” Id. at ¶ 38. We further held that a thorough review of the entire

proceeding revealed that the jury was not misled; as in the instant matter, we noted

the jury found for Durrani on some claims. Id. at 39. That, combined with jury

interrogatories which showed the jury relied on actual evidence in the record,

demonstrated the trial court’s instruction did not affect the jury’s verdict. Id.

{¶39} Here, as in Jones, the trial court informed the jury that it had discretion

as to what inferences it drew, including inferences from Dr. Durrani’s absence. There

is no indication on the face of the record that this permissive inference misled the jury

or tainted its decision. Accordingly, we hold the trial court did not abuse its discretion

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OHIO FIRST DISTRICT COURT OF APPEALS

by giving the jury instruction regarding Dr. Durrani’s absence.

C. Dr. Wilkey was an expert qualified to testify at the time of the trial.

{¶40} To establish his medical malpractice claim, Clark relied on the expert

testimony of Dr. Wilkey. Over defendants’ objection at trial, Dr. Wilkey testified that

Dr. Durrani breached the standard of care and that the breach caused Clark’s injuries.

Durrani now argues the trial court erred in allowing Dr. Wilkey’s expert testimony.

{¶41} A trial court has discretion to determine whether a witness is competent

to testify as an expert under Evid.R. 601, and the trial court’s decision will not be

reversed absent a clear showing that the court abused its discretion. Celmer v.

Rodgers, 2007-Ohio-3697, ¶ 19. On appeal, Durrani argues that the trial court abused

that discretion by permitting Dr. Wilkey to testify.

{¶42} Under the 2022 version of Evid.R. 601(B), a witness can testify as a

medical expert “on the issue of liability in any medical claim” if the witness is licensed

to practice medicine, devotes “at least one-half of his or her professional time to the

active clinical practice in his or her field of licensure, or to its instruction in an

accredited school,” and “the person practices in the same or substantially similar

specialty as the defendant.”

{¶43} The Celmer Court reasoned that Evid.R. 601(B)’s use of the present

tense did not preclude the trial court from exercising its discretion where the physician

“satisfied the requirements of Evid.R. 601(D) at the time the cause of action accrued,

at the time of filing suit, and during the first three years of this litigation.” (Emphasis

added.) Celmer at ¶ 26. The Court concluded the trial court was not unreasonable or

arbitrary when it found that the doctor’s hiatus from the practice of medicine did not

render him incompetent to testify and turn him into the “professional witness” that

Evid.R. 601 guards against. Id.

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{¶44} In Johnson, the Ohio Supreme Court declined to expand the Celmer

exception but expressly reiterated the general rule that “the witness must meet the

active-clinical-practice requirement of Evid.R. 601 at the time the testimony is offered

at trial.” (Emphasis added.) Johnson, 2021-Ohio-3304, at ¶ 20, quoting Celmer at ¶

27. The Court held that “Celmer sets forth a limited exception to that rule, and the

exception is clearly confined to the particular facts of that case.” Id. Thus, if the limited

exception announced in Celmeris inapplicable, the proponent of expert testimony

must show that the proposed expert “was engaged in the active clinical practice of

medicine at the time of trial.” Id. at ¶ 29. Our analysis, however, does not end here.

{¶45} Evid.R. 601(B)(5)(b) was amended in July 2023 to require a medical

expert to “devote[] at least one-half of his or her professional time to the active clinical

practice in his or her field of licensure, or to its instruction in an accredited school, at

either the time the negligent act is alleged to have occurred or the date the claim

accrued.” (Emphasis added.) The staff notes state, “Division (B)(5)(b) [was] amended

to clarify the time at which the active clinical practice requirement is needed to qualify

the witness as an expert witness, in response to the Supreme Court of Ohio’s ruling in

Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304.” Staff Notes, Evid.R. 601.

{¶46} Durrani asserts Johnson controls as it forbids a trial court from creating

new exceptions outside of the one laid out in Celmer. Durrani further argues that the

July 1, 2023 amendment to Evid.R. 601(B)(5)(b) does not apply because the trial

occurred in September 2021. This court has previously rejected this argument.

{¶47} Adopting Durrani’s position would create a requirement that “would

preclude anyone from taking a temporary leave of absence for any number of reasons,

including maternity or paternity leave, a sabbatical, or in this case, a global pandemic.”

Miles v. Cleveland Clinic Health Sys.-East Region, 2023-Ohio-2582, ¶ 19 (8th Dist.).

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Further, the holding in Johnson and amendments to Evid.R. 601 do not implicate such

strict application; even the dissent in Celmer at ¶ 35 (Cupp, J., dissenting)—which

concluded there was no exception to Evid.R. 601—stated that a temporary absence of

a short duration, such as a sabbatical, would not “automatically render an otherwise

qualified medical expert incompetent to testify.” Id. at ¶ 19.

{¶48} Additionally, Evid.R. 1102(Y) provides that the amended version of

Evid.R. 601(B)(5)(b) applies to cases that were pending when the amendment came

into effect, unless its application “would not be feasible or would work injustice, in

which event the former procedure applies.” Nothing in the record suggests that

permitting Dr. Wilkey’s testimony was infeasible or would work injustice.

{¶49} Further, the amendment became effective prior to the trial court’s April

2024 entry of final judgment on all posttrial motions—including Durrani’s revived

JNOV motion filed in March 2024—and this matter has remained pending throughout

this appeal. See Courtney v. Durrani, 2025-Ohio-2335, ¶ 72-75 (1st Dist.);

Ravenscraft/Bowling v. Durrani, 2025-Ohio-2900, ¶ 43-46 (1st Dist.). Dr. Wilkey,

therefore, was qualified to testify as an expert under Evid.R. 601(B)(5)(b), as amended.

{¶50} We, therefore, once again, reject Durrani’s challenge to Dr. Wilkey’s

qualifications as an expert. Accordingly, the trial court did not abuse its discretion

when it permitted Dr. Wilkey’s testimony.

D. The trial court did not err in awarding past medical expenses

{¶51} Durrani argues that, because Clark failed to join United Healthcare, the

trial court should have vacated Clark’s damages for past medical expenses. Durrani

further argues that Clark was not the real party in interest because United Healthcare

paid Clark’s past medical expenses.

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Real Party in Interest and Joinder

{¶52} The record shows that plaintiffs followed the trial court’s order to join

United Healthcare as an involuntary plaintiff. United Healthcare chose not to enter an

appearance. Although the trial court concluded in its January 2023 entry that United

Healthcare “could and should have been joined as a party to this action under Civ.R.

19(A),” it was unwilling to grant defendants’ request to vacate Clark’s award for past

medical expenses as “Defendants did not raise the real-party-in-interest issue until

less than one week before the trial commenced,” when it was “no longer possible for

[the] Court to cause United Healthcare to join this action before the scheduled trial

date.” The entry further stated, “. . . in order to prevent Defendants from being

prejudiced by the failure to join United Healthcare as a party to this action before trial,

[this Court] orders that the $75,000 award to Plaintiff for past medical expenses will

not be paid to Plaintiff without the release that is necessary from Defendants in this

case.”

{¶53} Actions must be prosecuted by “the real party in interest.” Bender v.

Durrani, 2024-Ohio-1258, ¶ 129 (1st Dist.), quoting Civ.R. 17(A). “The purpose behind

the real party in interest rule is . . . to enable the defendant to avail himself of evidence

and defenses that the defendant has against the real party in interest, and to assure

him finality of the judgment, and that he will be protected against another suit brought

by the real party at interest on the same matter.” Setters v. Durrani, 2020-Ohio-6859,

¶ 54 (1st Dist.), quoting Shealy v. Campbell, 20 Ohio St.3d 23, 24-25 (1985). Thus, the

real-party-in-interest rule concerns proper party joinder. McCann v. Durrani, 2023-

Ohio-3953, ¶ 21 (1st Dist.). Further, under Civ.R. 19(A), a person who “has an interest

relating to the subject of the action as an assignor, assignee, subrogor, or subrogee” is

a necessary party. Id.

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{¶54} In McCann, the plaintiff’s medical expenses were paid by her insurer.

Id. at ¶ 15, 17. We held that “in a case where the insurer only paid part of a plaintiff’s

damages, the plaintiff has standing and is also a real party in interest along with her

insurer.” Id. at ¶ 27.

{¶55} Of note, the parties stipulated that the amount of past medical expenses

was correct in that United Healthcare made medical payments in the amount of

$67,413.21. United Healthcare had a subrogation agreement with Clark, which gave

United Healthcare a contractual subrogation claim, which entitled it to collect a share

of the damages awarded to Clark as reimbursement for medical payments it made on

Clark’s behalf. See R.C. 2323.44. Clark, therefore, had standing regarding past medical

expenses and it was not necessary to join United Healthcare. See Bender at ¶ 122-134

(holding appellee was the real party in interest where the insurance company only paid

a portion of appellee’s past medical expenses and had a lien against appellee’s damages

for reimbursement of expenses paid by the insurance company).

Defendants were not exposed to double damages.

{¶56} Further, the subrogation lien against Clark’s awarded damages

protected Durrani’s interest; as stated by the trial court, defendants were not subject

to double liability because United Healthcare can only collect from Clark’s verdict

against defendants. See id. at ¶ 132; see also Courtney, 2025-Ohio-2335, at ¶ 96 (1st

Dist.) (the trial court cured the insurers’ absence from the trial by protecting Durrani

from the risk of double damages).

{¶57} The trial court did not err in awarding past medical expenses to Clark.

III. Conclusion

{¶58} As the trial court did not err, this court declines to address Durrani’s

harmless-error argument.

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶59} Construing the evidence in the light most favorable to plaintiffs, the trial

court did not err in denying defendants’ JNOV motions. Reasonable minds could not

conclude in defendants’ favor, and the weight of the evidence was not contrary to the

judgment and no reason for good cause to grant the motion was shown. The trial court

did not abuse its discretion by rejecting defendants’ request for a comparative-

negligence instruction, permitting Dr. Wilkey to testify as an expert, or granting

Clark’s motion for past medical expenses. The trial court did not err in giving its

instruction on Dr. Durrani’s absence. Accordingly, Durrani’s motion for a new trial

was properly denied. Durrani’s sole assignment of error is overruled. The judgment of

the trial court is affirmed.

Judgment affirmed.

ZAYAS, P.J., and BOCK, J., concur.

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