[Cite as Jones v. Durrani, 2024-Ohio-1776.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

JOAN JONES, 

 Plaintiff-Appellee,

 vs.

ABUBAKAR ATIQ DURRANI, M.D.,

 and

CENTER FOR ADVANCED SPINE

TECHNOLOGIES,

 Defendants-Appellants.

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APPEAL NO. C-220426

TRIAL NO. A-1706486

 

 

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DANA CONLEY, 

 Plaintiff-Appellee,

 vs.

ABUBAKAR ATIQ DURRANI, M.D.,

 and

CENTER FOR ADVANCED SPINE

TECHNOLOGIES,

 Defendants-Appellants.

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APPEAL NO. C-220427 

TRIAL NO. A-1706427

 

 

 O P I N I O N.

Civil Appeals From: Hamilton County Court of Common Pleas

 

Judgments Appealed From Are: Affirmed in Part and Reversed in Part

Date of Judgment Entry on Appeal: May 10, 2024

Benjamin M. Maraan II, Statman Harris, LLC, and Alan Statman, for PlaintiffsAppellees. 

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

Sayre, Reminger Co., LPA, and Rick L. Weil, for Defendants-Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS

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ZAYAS, Presiding Judge.

{¶1} Defendants-appellants Abubakar Atiq Durrani, M.D., and the Center for 

Advanced Spine Technologies (“CAST”) (collectively referred to as “defendants”) 

appeal from the judgments of the trial court entering final judgment in each 

underlying action in favor of plaintiffs-appellees Joan Jones and Dana Conley 

(collectively referred to as “plaintiffs”). In two assignments of error, defendants argue 

that the trial court should have granted them a new trial in each action and should not 

have awarded the plaintiffs prejudgment interest. For the reasons that follow, we 

reverse the judgments of the trial court in part as to the award of prejudgment interest 

in each case but affirm the judgments of the trial court in all other respects. 

I. Brief Procedural History

{¶2} Plaintiffs each filed a separate medical-malpractice action against the 

defendants, arising from a spine surgery performed on them by Dr. Durrani.

1

 The

complaints each asserted claims against Dr. Durrani for negligence, battery, lack of 

informed consent, and fraud, and against CAST for vicarious liability. In essence, the 

complaints asserted that, while an employee and/or agent of CAST, Dr. Durrani 

breached the requisite standard of care when selecting and performing the spine

surgeries, failed to obtain proper informed consent prior to the surgeries, committed 

battery by performing unnecessary and uninformed surgery without proper consent, 

and induced plaintiffs to undergo the surgeries by fraudulently misrepresenting the 

need for surgery. 

{¶3} Each action was maintained as a separate action below, but the trial 

court ultimately joined the actions for trial. A seven-day jury trial was held, and 

1 Each complaint also asserted claims against West Chester Hospital, LLC, and UC Health. 

However, these defendants were subsequently dismissed from each action. 
OHIO FIRST DISTRICT COURT OF APPEALS

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verdicts were ultimately entered in favor of each plaintiff on their negligence and 

fraudulent-misrepresentation claims. The jury awarded Ms. Jones $280,133.28 in 

compensatory damages and $1 in punitive damages, and Mr. Conley $420,331.82 in 

compensatory damages and $1 in punitive damages. Further, after a postjudgment 

request from each plaintiff, the trial court awarded Ms. Jones $44,790.62 in 

prejudgment interest and Mr. Conley $67,207.02 in prejudgment interest. 

II. The Joint Trial

A. Testimony of Joan Jones

{¶4} At trial, Ms. Jones testified that she experienced back pain on and off 

since 1959 and went to see Dr. Durrani in 2012 after trying various treatments and 

medications that never provided lasting relief. At the visit, Dr. Durrani told her he 

could do surgery and it would “take the pain away.” Dr. Durrani asked her to obtain

her previous x-ray and MRI images and bring them to him. He put the MRI up on the 

screen and said, “[R]ight there is your problem.” She testified, “The only thing he said 

is, there’s your problem, and I can take away the pain.” She denied that Dr. Durrani 

ever told her what surgery he was going to do. Ms. Jones ultimately underwent spinal 

surgery in the L5-S1 area. She testified that her back condition was worse after the 

surgery and is worse today than it was before surgery and her ability to enjoy life is 

worse after the surgery. She said that she was never able to walk or do things after the 

surgery like she could before and is still in constant pain and has never been able to 

stop taking pain medications.

B. Testimony of Dana Conley

{¶5} Mr. Conley testified that he experienced back pain for over 30 years and 

went to see Dr. Durrani in 2012 for back and neck pain after physical therapy and 

chiropractic treatment were unsuccessful. After ordering an MRI, Dr. Durrani 
OHIO FIRST DISTRICT COURT OF APPEALS

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reviewed the MRI with Mr. Conley and told him that “if we didn’t do something, he 

pointed out the bad areas, that if I was in, like, an accident or any further injuries to 

myself, that I could possibly become paralyzed.” Surgery was successfully performed

on his neck first. He had spine surgery two months later in the L5-S1 area. He testified 

that he was miserable after the spine surgery, and when asked if it ever got better, he 

said, “[N]ot really.” He denied that the surgery fixed his pain. He said he has more 

symptoms (numbness and irritation) now than he did prior to surgery. He has been 

doing pain management for over eight years since the surgery and had to stop the 

neighborhood mowing business he had before the surgery. He can no longer take long 

walks, be intimate with wife, “hang out” in the garage with his friends, or be happy 

without medication. 

C. Testimony of Lisa Conley

{¶6} Mr. Conley’s wife testified that Mr. Conley was able to drive, walk, stand, 

go up and down stairs, do some household chores, and do yard work prior to surgery. 

She testified that, at the first visit, Dr. Durrani said, “I can fix it,” in reference to Mr. 

Conley’s lower back. Further, she said, at the visit after the MRI, Dr. Durrani said that 

Mr. Conley would lose the ability to be mobile on his legs if he did not get surgery. She 

testified, “[B]asically what he told us is he’s done the surgery several times, and he’s 

been successful, and that he could fix [Mr. Conley.] And that’s what we were hearing. 

He could fix him. He would be able to, you know, do things without having any kind 

of pain.” When asked how Dr. Durrani explained the alternative to not have surgery, 

she said, “That [Mr. Conley] would lose the ability to use his legs and be able to walk.” 

She testified that she did not observe any improvement in Mr. Conley after the surgery.

Rather, “it got worse.” 
OHIO FIRST DISTRICT COURT OF APPEALS

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D. Testimony of Plaintiffs’ Experts

{¶7} Dr. Steven Bloomfield, a neurosurgeon, testified as to his opinion that 

Dr. Durrani breached the standard of care in each case by misrepresenting, 

exaggerating, and/or fabricating certain history and imaging impressions in order to

justify surgery that was not medically necessary. He testified separately regarding 

each plaintiff and his opinion as to the specific misrepresentations, exaggerations, 

and/or fabrications that were made by Dr. Durrani to each plaintiff and testified that 

no flexion/extension study was conducted by Dr. Durrani on either plaintiff. 

{¶8} Dr. Keith Wilkey, an orthopedic surgeon, testified as to his comparison 

of the original radiologist’s impressions of each plaintiff’s imaging versus Dr. Durrani’s 

impressions and expressed his opinion as to why he agreed with the radiologist’s 

impressions and felt that Dr. Durrani’s impressions were inaccurate or false. 

Regarding Ms. Jones, he testified that Dr. Durrani breached the standard of care by 

performing a surgery that “wasn’t addressing a problem that she actually had.” He 

opined that Dr. Durrani lied about the existence of certain conditions to induce Ms. 

Jones into having surgery. Regarding Mr. Conley, he testified as to his opinion that 

Dr. Durrani breached the standard of care by performing a surgery that “was not 

necessary. It was not indicated. And it resulted in significant harm.” When discussing 

Dr. Durrani’s impressions of Mr. Conley, he said, “So this should look very similar. 

Very similar to what our last patient had. And I’m going to tell you this is a template. 

These [impressions] are exactly what our last patient had. Because this is what it takes 

to get surgery approved.” He said that the surgery performed on each plaintiff was 

“exactly the same.” He also testified that no flexion/extension study was conducted 

by Dr. Durrani for either plaintiff. When asked if he believed in both cases that Dr. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Durrani knowingly deceived the plaintiffs into having surgery, he answered, “Beyond 

any doubt.” 

{¶9} Dr. Ranjiv Sanai, a radiologist, testified as to his opinion of each 

plaintiff’s imaging in comparison to the original radiologist’s and Dr. Durrani’s 

impressions, and opined that Dr. Durrani breached the standard of care by performing 

surgery on Ms. Jones as, “the area that Dr. Durrani operated on, there is nothing 

significantly wrong with the patient at those levels to warrant surgery, at least not the 

type of surgery that was warranted [sic]. There were other things wrong at other levels, 

but Dr. Durrani did not address those.” He testified that Dr. Durrani misread the 

radiology and put Ms. Jones through unnecessary surgery. As to Mr. Conley, he was 

asked at the conclusion of his direct testimony if his opinion regarding the breach of 

the standard of care was the same for Mr. Conley as it was for Ms. Jones’s case, and he 

agreed that it was and agreed that it was his opinion that the radiology was not 

appropriately read, and unnecessary surgery was recommended. He also said, 

regarding Mr. Conley, that no flexion/extension study was ever completed. 

E. Testimony of Defense Experts

{¶10} Dr. Paul Kaloostian, a neurosurgeon, testified as to his impression of a 

2007 MRI that was done on Ms. Jones, as well as the 2012 MRI. He opined that he 

agreed with Dr. Durrani’s impressions of the 2012 MRI based on both MRIs and Ms. 

Jones’s history. He testified that his opinion, based on both MRIs and Ms. Jones’s 

history, was that Dr. Durrani’s treatment and surgery was “very appropriate and 

within the standards of care of any spinal surgery.” However, he conceded on crossexamination that he did not know if Dr. Durrani ever requested or obtained Ms. 

Jones’s preexisting records and said that he “believed” plaintiff’s counsel was correct 

that Dr. Durrani did not obtain her preexisting records. As to Mr. Conley, he similarly 
OHIO FIRST DISTRICT COURT OF APPEALS

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testified as to his findings of Mr. Conley’s MRI and opined that he agreed with Dr. 

Durrani’s findings based on the MRI and the patient’s history. Specifically, when 

asked if it was his opinion that, based on Mr. Conley’s history and imaging, the surgery 

was reasonable, appropriate, and within the standard of care, he said, “100 percent 

yes.” Further, he was asked if the surgeries performed on each plaintiff “actually” 

helped them, he said, “They clearly did.” On cross-examination, he conceded that Dr. 

Durrani did not do flexion/extension studies.

{¶11} Dr. Mark Younis, a diagnostic radiologist, testified as to his impressions 

from each plaintiff’s MRI and his opinion of Dr. Durrani’s impressions of each 

plaintiff’s imaging. He opined that the impressions based on the imaging were correct 

but seemed reluctant to opine on “clinical” impressions or answer any “clinical” 

questions. When asked if he saw any evidence to support a claim that either plaintiff 

sustained an injury to his or her spine as a result of the surgeries, he replied, “I saw 

nothing radiographically to support that.” When asked if Dr. Durrani, in his review 

and interpretation of the radiology images for both plaintiffs, met the standard of care 

with regard to his impressions, he replied, “Yes. His interpretations met the standard 

of care.” On cross-examination, he clarified that his opinion was “limited to the 

imaging because that’s all I’ll do. Nothing else. Not surgery, not followup [sic], not 

prognosis.” 

III. The Verdicts

A. Joan Jones

{¶12} First, the jury found that Dr. Durrani was negligent in his care and 

treatment of Ms. Jones and that such negligence was a proximate cause of harm to 

her. In the interrogatory asking the jury to explain in what respects Dr. Durrani was 

negligent, the jury responded, “No flexion extensions film/study performed. Dr. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Durrani did not explore non-surgical options within standard of care.” Next, the jury 

did not find that Dr. Durrani failed to acquire informed consent from Ms. Jones for 

the surgery or committed battery on Ms. Jones by performing the surgery. Finally, the 

jury found that Dr. Durrani fraudulently misrepresented to Ms. Jones the necessity or 

medical indication for surgery and that such fraudulent misrepresentation was a 

proximate cause of harm to her. The jury awarded Ms. Jones $280,133.28 in 

compensatory damages: $160,133.28 for past medical expenses, $80,000 for past 

pain and suffering, $40,000 for past loss of enjoyment of life, and $0 for future loss of 

enjoyment of life. Additionally, the jury found that Dr. Durrani acted with actual 

malice or aggravated or egregious fraud, due to, “Fraudulent misrepresentation of 

patient’s condition resulting in the conscious disregard for safety of the patient.” The 

jury consequently awarded Ms. Jones $1 in punitive damages and awarded Ms. Jones 

attorney fees. 

A. Dana Conley

{¶13} First, the jury found that Dr. Durrani was negligent in his care and 

treatment of Mr. Conley and that such negligence was a proximate cause of harm to 

him. In the interrogatory asking the jury to explain in what respects Dr. Durrani was 

negligent, the jury responded, “No flexion extensions film/study performed. Dr. 

Durrani did not explore non-surgical options within standard of care.” Next, the jury 

did not find that Dr. Durrani failed to acquire informed consent from Mr. Conley for 

the surgery or committed battery on Mr. Conley by performing the surgery. Finally, 

the jury found that Dr. Durrani fraudulently misrepresented to Mr. Conley the 

necessity or medical indication for surgery and that such fraudulent misrepresentation 

was a proximate cause of harm to him. The jury awarded Mr. Conley $420,331.82 in 

compensatory damages: $125,331.82 for past medical expenses, $25,000 for past pain 
OHIO FIRST DISTRICT COURT OF APPEALS

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and suffering, $200,000 for future pain and suffering, $20,000 for past loss of 

enjoyment of life, and $50,000 for future loss of enjoyment of life. Additionally, the 

jury found that Dr. Durrani acted with actual malice or aggravated or egregious fraud, 

due to, “Fraudulent misrepresentation of patient’s condition resulting in the conscious 

disregard for safety of the patient.” The jury consequently awarded Mr. Conley $1 in 

punitive damages and awarded Mr. Conley attorney fees. 

IV. Postjudgment Proceedings

{¶14} Defendants subsequently filed motions for judgment notwithstanding 

the verdict and/or a new trial in each case. In substantially identical motions, they 

argued that the cumulative effect of comments from counsel at trial regarding Dr. 

Durrani’s absence and the negative-inference instruction given to the jury regarding 

Dr. Durrani’s absence was prejudicial and warranted a new trial. In substantially 

identical judgment entries, the trial court denied the motions, finding that it did not 

err in allowing counsel to comment on Dr. Durrani’s absence or by giving a negativeinference jury instruction. 

{¶15} Plaintiffs each subsequently filed motions for prejudgment interest. In 

substantially identical motions, they argued they are entitled to an award of 

prejudgment interest under R.C. 1343.03(C) from the time of the original complaint 

to present as defendants failed to make a good-faith effort to settle the case. The 

motions asserted that Dr. Durrani’s maintained defense has been that the case was 

“defensible” as evidenced by their retained experts, but the consistent jury verdicts 

against them in other cases against Dr. Durrani (12 out of 14 in 2021) prove that juries 

consistently believe the plaintiffs. The motions further asserted that the defense 

acknowledged they had “little chance” of prevailing and that the verdict could exceed 

$1 million, yet they never offered to settle. The motion claimed that the only 
OHIO FIRST DISTRICT COURT OF APPEALS

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settlement the defendants were willing to consider was a “global settlement,” which 

was “ridiculously low.” Lastly, the motions asserted that the court was “quite familiar” 

with the growing number of verdicts that are exceeding “coverage limits covered by

the caps.”

{¶16} After holding a hearing on the motions, the trial court—in substantially 

identical judgment entries—granted the motions for prejudgment interest “for the 

reasons set forth by the plaintiff at the May 26th hearing.” The trial court ultimately 

awarded Ms. Jones $44,790.62 in prejudgment interest and Mr. Conley $67,207.02 in 

prejudgment interest. 

{¶17} After resolution of all postjudgment issues, the trial court entered a final 

judgment in each case on August 8, 2022. Defendants timely appealed from each final 

judgment.2 

V. Law and Analysis

{¶18} In their first assignment of error, defendants argue that the trial court

should have granted them a new trial in each case as (1) the trial court should not have 

conducted a multiplaintiff trial and (2) should not have issued a negative-inference 

jury instruction. 

A. The Joint Trial

{¶19} “If actions before the court involve common questions of law or fact, the 

court may * * * join for * * * trial any or all matters at issue in the actions.” Civ.R. 

42(A)(1)(a). 

2 This court consolidated the appeals after briefing as the briefing was identical in each case and 

both appeals arise from issues related to the joint trial in which all parties were involved and/or 

postjudgment issues that were raised in each case, which involved substantially identical briefing

and proceedings and substantially identical judgments.
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶20} The decision to consolidate or join cases under Civ.R. 42(A) is within 

the discretion of the trial court and the decision will not be reversed absent an abuse 

of discretion. Siuda v. Howard, 1st Dist. Hamilton Nos. C-000656 and C-000687, 

2002-Ohio-2292, ¶ 10.

{¶21} When making the decision whether to join the matters for trial, the 

court “must determine if there is sufficient commonality of issues and parties to 

warrant [joining] the cases.” Id., citing Jamestown Village Condominium Owners 

Assn. v. Market Media Research, Inc., 96 Ohio App.3d 678, 687, 645 N.E.2d 1265 (8th 

Dist.1994), and Waterman v. Kitrick, 60 Ohio App.3d 7, 14, 572 N.E.2d 250 (10th 

Dist.1990). 

{¶22} Defendants argue that joining the instant cases for trial was improper 

under Civ.R. 42 as the cases do not involve common questions of law or fact. On the 

other hand, plaintiffs argue that the joinder was proper as each case involved surgeries 

on the lumbar spine at L5-S1, and involved the same claims, issues, and experts. 

{¶23} A review of the record reveals that the underlying crux of each action 

was certain “impressions” or representations that Dr. Durrani made regarding surgery 

after reviewing each patient’s history and imaging. The representations and/or

impressions were set forth in respective letters drafted by Dr. Durrani after evaluating

each patient. For Ms. Jones, Dr. Durrani represented in her letter that the imaging 

showed “severe disk degeneration at the L5-S1 level. There are multiple levels of old 

compression fractures. There is spinal stenosis at the L3-L4 levels as well. Axial 

images show L5-S1 left foraminal stenosis, moderate category.” Additionally, he set 

forth eight specific impressions based on Ms. Jones’s history and imaging: (1) lumbar 

spinal stenosis, L5-S1, L3-L4; (2) prior lumbar fractures at L1 and subacute at T12; (3) 

back pain with radicular pain in the L5 distribution bilaterally; (4) symptoms of 
OHIO FIRST DISTRICT COURT OF APPEALS

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neurogenic claudication; (5) very significant functional impairment; (6) 

anterolisthesis of L5 on S1; (7) central stenosis, lateral recess stenosis at L3-L4 and 

L5-S1; and (8) failure of conservative treatment for over 40 years. From these 

findings, Dr. Durrani recommended an “L5-S1 TLIF” on the left side “with a posterior

spinal instrumentation and fusion.” He stated, “I told her that it will take care of some 

of her pain. She has other issues in the back that may still linger on to have some pain 

issues but where she is complaining of most of her pain is L5-S1.” 

{¶24} For Mr. Conley, Dr. Durrani represented in his letter that the imaging 

showed “grade 1 listhesis of L5 on S1, severe lumbar spinal stenosis, L5-S1 with large 

disk herniation. This is causing severe stenosis bilaterally in both the nerve roots 

which is causing the radiculopathy he has been suffering from.” Further, he set forth 

eight specific impressions from Mr. Conley’s history and imaging: (1) lumbar spinal 

stenosis, L5-S1, bilateral; (2) lumbar degenerative spondylolisthesis, L5-S1; (3) back 

pain with severe radicular pain in the L5 distribution bilaterally; (4) very significant 

functional impairment; (5) anterolisthesis of L5 on S1; (6) central stenosis; (7) 

bilateral advanced lateral recess stenosis; and (8) failure of conservative treatment for 

many, many months. From these findings, Dr. Durrani recommended a “lumbar 

anterior interbody fusion at L5-S1 with posterior spinal instrumentation and fusion, 

lumbar laminectomy and decompression, bilateral foraminotomy.” 

{¶25} A review of these largely-overlapping impressions by the jury—in large 

part—concerned the various forms of possible spinal stenosis and other similar 

conditions that may be present in the L5-S1 area generally and whether those 

conditions existed—and warranted surgery—for each plaintiff. The impressions of the

original radiologist who first reviewed each plaintiff’s imaging was also included as 

evidence and used as a comparison to Dr. Durrani’s findings. Further, each expert 
OHIO FIRST DISTRICT COURT OF APPEALS

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testified as to his or her own opinion on whether these conditions existed in each 

plaintiff based on the imaging. Consequently, the jury’s understanding of the specific 

conditions at issue in the L5-S1 area of the spine was pertinent and predominated in 

both cases. Hence, a large amount of the expert testimony went to explaining the spine 

and these conditions generally and what would need to be present in a patient’s 

imaging to warrant such representations. Accordingly, we fail to see how we could 

hold that there was no common question of fact between the two cases when the 

technicality of understanding these conditions was a predominate issue in each case. 

Additionally, each case presented the same claims against the same defendants based 

on the same theory of malpractice and/or fraud surrounding these conditions. See 

Suida, 1st Dist. Hamilton Nos. C-000656 and C-000687, 2002-Ohio-2292, at ¶ 12. 

{¶26} Civ.R. 42(A) does not require that all questions of law and fact be 

identical, see Clemente v. Gardner, 5th Dist. Licking No. 2002CA00120, 2004-Ohio2254, ¶ 18, and the trial court reminded the jury that each plaintiff’s case should be 

considered on its own merit. We presume the jury followed that instruction. See, e.g., 

Pang v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313 (1990), paragraph four of the 

syllabus (“A presumption always exists that the jury has followed the instructions 

given to it by the trial court.”). Further, the jury’s verdicts—in which some claims by 

each plaintiff prevailed and some did not—indicate that the jury was able to 

successfully parse through the evidence and reach independent conclusions as to both 

the common and unique questions of law and fact. 

{¶27} Accordingly, we hold that the trial court did not abuse its discretion 

under Civ.R. 42 when joining the instant cases for trial. Therefore, we overrule this 

portion of the first assignment of error. 
OHIO FIRST DISTRICT COURT OF APPEALS

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B. Absent-Defendant Jury Instruction

{¶28} Defendants next argue that the trial court erred in giving a negativeinference jury instruction regarding Dr. Durrani’s absence and that such error was 

prejudicial to the point that a new trial is warranted. 

{¶29} “We review a trial court’s decision granting or denying a proposed jury 

instruction for an abuse of discretion.” Hounchell v. Durrani, 1st Dist. Hamilton No. 

C-220021, 2023-Ohio-2501, ¶ 65, citing State v. Houston, 1st Dist. Hamilton No. C190598, 2020-Ohio-5421, ¶ 34. However, “[t]he question of whether a jury instruction 

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

Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 

921, ¶ 22. 

{¶30} The trial court instructed the jury as follow: 

The defendant, Dr. Durrani, did not attend these proceedings in 

person. He is represented here 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 failed to produce that relevant evidence or testimony, that 

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

unfavorable to that party. 

(Emphasis added.) 

{¶31} This court has recently held that the trial court erred when instructing 

a jury on Dr. Durrani’s absence from trial where the instruction given permitted the 
OHIO FIRST DISTRICT COURT OF APPEALS

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jury to draw any inference it wished to from Dr. Durrani’s absence, even impermissible 

or negative inferences such as consciousness of guilt or implicit biases. Hounchell at 

¶ 65-70. Here, the instruction at issue is more limited. It permits only the inference 

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

him. Nevertheless, a question arises as to whether this inference is a permissible 

inference.

{¶32} In giving this instruction, the trial court relied on the general rule that 

“if it appears from the evidence that a litigant knows of the existence of a witness and 

such witness is within the control of the litigant whose interest it would naturally be 

to produce him, and without satisfactory explanation he fails to do so, the jury may

draw an inference that the testimony of the witness would not have been favorable to 

him.” (Emphasis added.) Llewellyn v. Cincinnati St. Ry. Co., 66 Ohio App. 107, 32 

N.E.2d 33 (1st Dist.1940).

{¶33} In Silveous v. Rensch, 20 Ohio St.2d 82, 253 N.E.2d 758 (1969), the 

Ohio Supreme Court addressed whether a jury instruction stating this rule was proper. 

The court said, “This category of special 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.” 

(Emphasis added.) (Citation omitted.) Silveous at 84. The underlying litigation in the 

action was a personal-injury action, and the question presented was whether such an 

instruction was appropriate as to the failure of the treating physician to testify in the 

action. Id. at 82, 84. The court said:

Neither the controverted instruction given in the case at bar, nor 

any part of the court’s instructions, advised the jury regarding 

guidelines to be observed in determining the application of the word 
OHIO FIRST DISTRICT COURT OF APPEALS

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‘naturally’ as used in the instruction. Ordinarily, it could not be said 

that such a claimant would ‘naturally’ call a witness whose testimony 

would be merely cumulative or inferior to that offered by other 

witnesses. If there is adequate relevant evidence on a particular issue, 

any additional evidence on that issue complained of as being absent is 

only cumulative, and its character as plaintiff’s ‘natural’ evidence is 

palled. To allow an unfavorable inference to be drawn from the 

nonproductivity of such evidence would serve to emasculate the 

historical basis for allowing the instruction. 

Counsel, in argument and in their briefs, have focused on [the 

treating physician] as the object of the instruction because he was not 

produced at trial. In view of the introduction of evidence from the 

summary sheet of the hospital records that [the treating physician] 

diagnosed plaintiff’s condition as a sprain of the neck and lacerations, it 

is unfair to allow the jury, by instruction, an opportunity to infer that 

plaintiff would naturally call the doctor, and to also infer that his 

testimony would have been unfavorable to his patient. There is nothing 

in the record from which the court or jury could have found that [the 

treating physician]’s testimony would not be inferior, cumulative, or

evidence which plaintiff would naturally produce.

(Emphasis sic.) Id. at 84. 

{¶34} Here, the wording of the given instruction indicates that Dr. Durrani’s 

failure to produce relevant evidence or testimony “gives rise” to an inference that the 

relevant evidence is adverse. In other words, the instruction necessarily requires the 

inference to be made in such a circumstance, rather than simply permitting the 
OHIO FIRST DISTRICT COURT OF APPEALS

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inference to be made if the jury so chooses. Additionally, the instruction allowed the 

inference to be made based on the failure to be produce any relevant evidence in his 

possession and did not limit the instruction to only that evidence which Dr. Durrani 

would “naturally” produce, i.e., evidence that was not cumulative or inferior to other 

evidence already produced. Because the instruction was not permissive nor limited to 

evidence that would naturally be produced, we hold that the trial court erred in giving 

this instruction to the jury. 

{¶35} Nevertheless, an “affirmatively erroneous portion of a jury charge does 

not inevitably constitute reversible error.” Hounchell, 1st Dist. Hamilton No. C220021, 2023-Ohio-2501, at ¶ 72, quoting Cromer, 142 Ohio St.3d 257, 2015-Ohio229, 29 N.E.3d 921, at ¶ 35. “Rather, ‘[i]f there is no inherent prejudice in the inclusion 

of a particular jury instruction, prejudice must be affirmatively shown on the face of 

the record, and it cannot be presumed.’ ” Id., citing Cromer at ¶ 35. 

{¶36} “ ‘In examining errors in a jury instruction, a reviewing court must 

consider the jury charge as a whole and “must determine whether the jury charge 

probably misled the jury in a matter materially affecting the complaining party’s 

substantial rights.” ’ ” Cromer at ¶ 35, quoting Kokitka v. Ford Motor Co., 73 Ohio 

St.3d 89, 93, 652 N.E.2d 671 (1995). “If the complete set of instructions by the trial 

court otherwise fairly and correctly lays out the relevant law, and if it is apparent in 

the context of the complete instructions that an isolated error did not prejudice a 

party’s substantial rights, reversal on the error is not warranted.” Id., citing Centrello 

v. Basky, 164 Ohio St. 41, 128 N.E.2d 80 (1955), paragraph eight of the syllabus. “The 

general rule is that an erroneous instruction does not necessarily mislead a jury.” Id. 

at ¶ 36, citing Cleveland Elec. Illum. Co. v. Astorhurst Land Co., 18 Ohio St.3d 268, 

274-275, 480 N.E.2d 794 (1985). “The same rule applies in a medical-malpractice 
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case.” Id., citing Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 

238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 33. 

{¶37} Here, a review of the jury instructions as whole does not indicate that 

the jury was probably misled by the erroneous instruction. Of relevance, the trial court 

instructed the jury as follows on evidence and inferences: 

Evidence is all of the testimony received from the witnesses and 

the exhibits admitted during the trial and facts agreed upon by counsel 

and any fact which the Court requires you to accept as true. Evidence 

may be direct or circumstantial or both. Direct evidence is the 

testimony given by a witness who has seen or heard the facts to which 

he or she testifies. It includes exhibits admitted into evidence during 

the trial. Circumstantial evidence is the proof of facts or circumstances 

by direct evidence from which you may reasonably infer other related 

connected facts which naturally and logically follow according to the 

common experiences of humankind. 

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

conclusion of facts 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 on you. You may not build 

one inference upon another inference, but you may make more than one 

inference from the same facts or circumstances. You may consider both 

direct and circumstantial evidence. You must decide from all the direct 

and circumstantial evidence taken together whether a party who has the 

burden of proof has met that burden. 

(Emphasis added.) 
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{¶38} Thus, although the absent-defendant instruction erroneously said that 

Dr. Durrani’s absence “gives rise” to the inference in the instruction, the jury 

instructions as a whole make clear that an inference is permissive and not required to 

be made. The instructions also clearly set forth what evidence should be considered 

by the jury in rendering its decision.

{¶39} Additionally, a thorough review of the entire proceedings reveals that 

the jury was not misled. The jury found in favor of the defendants on two of each 

plaintiff’s claims. Further, the jury interrogatories show that the jury relied on actual 

evidence that was presented at trial when making its findings in favor of the plaintiffs. 

{¶40} Consequently, we see no indication on the face of the record that the 

erroneous instruction was so prejudicial as to require reversal. See Hayward, 139 

Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, at ¶ 25 (“To conclude that a party’s 

substantial rights were materially affected, an appellate court must find that the jury 

charge was so misleading and prejudicial as to result in an erroneous verdict.”). 

Therefore, this portion of the first assignment of error is overruled. 

C. Prejudgment Interest

{¶41} In their second assignment of error, defendants argue that the trial 

court should have entered judgment in their favor on the issue of prejudgment 

interest. In essence, they argue that there was insufficient evidence to support the trial 

court’s factual findings under R.C. 1343.03(C). 

{¶42} R.C. 1343.03(C) allows certain prejudgment interest if, upon motion, 

“the court determines at a hearing held subsequent to the verdict or decision in the 

action that the party required to pay the money failed to make a good faith effort to 

settle the case and that the party to whom the money is to be paid did not fail to make 

a good faith effort to settle the case.” “A party has not ‘failed to make a good faith effort 
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to settle’ under R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings, 

(2) rationally evaluated his risks and potential liability, (3) not attempted to 

unnecessarily delay any of the proceedings, and (4) made a good faith monetary 

settlement offer or responded in good faith to an offer from the other party.” Kalain 

v. Smith, 25 Ohio St.3d 157, 159, 495 N.E.2d 572 (1986). “If a party has a good faith, 

objectively reasonable belief that he has no liability, he need not make a monetary 

settlement offer.” Id. “The decision as to whether a party’s settlement efforts indicate 

good faith is generally within the sound discretion of the trial court.” (Citation 

omitted.) Id. The decision will not be overturned unless the trial court’s actions 

indicate an abuse of discretion. Id.

{¶43} The record reflects that, while the trial court did hold a hearing on this 

issue, no “evidence” was taken at the hearing nor was any evidence submitted with the 

motions for prejudgment interest. Unsworn allegations cannot constitute “evidence” 

for purposes of R.C. 1343.03(C). Cunning v. Windsor House, Inc., 2023-Ohio-352, 

208 N.E.3d 246, ¶ 125 (11th Dist.). Consequently, there is no “evidence” in the record 

to establish any facts regarding settlement efforts by the parties. See id. at ¶ 119-130. 

Therefore, we hold that the trial court abused its discretion in awarding prejudgment 

interest as there is no evidence in the record to support its factual findings under R.C. 

1343.03(C). The second assignment of error is accordingly sustained. 

VI. Conclusion

{¶44} For all the foregoing reasons, we overrule the first assignment of error 

and sustain the second assignment of error. The judgments of the trial court are 

reversed in part as to the awards of prejudgment interest but affirmed in all other 

respects. 

Judgments affirmed in part and reversed in part.
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CROUSE and KINSLEY, JJ., concur.

Please note: 

The court has recorded its own entry this date.